[Congressional Record Volume 148, Number 27 (Tuesday, March 12, 2002)]
[House]
[Pages H828-H831]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




   ENDANGERED SPECIES ACT CAUSING SEVERE NEGATIVE IMPACTS ON ECONOMY

  The SPEAKER pro tempore (Mr. Wilson of South Carolina). Under the 
Speaker's announced policy of January 3, 2001, the gentleman from 
Nebraska (Mr. Osborne) is recognized for 60 minutes.
  Mr. OSBORNE. Mr. Speaker, I represent a very large rural area in 
Nebraska. Actually, 97 percent of the district is privately owned. From 
about this area here on west is the third district, which I represent.
  Currently, landowners are very concerned about property rights; and 
they are especially concerned about the Endangered Species Act, because 
this can be very intrusive and very threatening to landowners. Among 
those I represent, three events have contributed to this loss of 
confidence, and I will mention each one individually.
  The first is the Klamath Basin situation that happened in Oregon this 
past year. As many people understand and realize, Fish and Wildlife 
shut off the irrigation water that served 1,400 farms in the Klamath 
Basin. They did so rather abruptly. The crops had already been planted, 
and this was done to protect the short-nosed sucker which lived in 
Klamath Lake and which is listed as endangered and also to help the 
coho salmon population in the river below in Klamath River. So the 
farmers lost their crops; some lost their farms. Land values declined 
from $2,500 per acre to $35 per acre, and Oregon State University 
estimates the loss of water cost the economy roughly $134 million in 
that area.
  So naturally, landowners across the country, landowners in Nebraska 
were aware of this; and they are concerned about how far-reaching and 
how invasive the Endangered Species Act can become.
  Recently, the National Academy of Science performed an independent 
review of the Klamath River Basin situation. Listen to what they found: 
they ruled that there was insufficient data to justify the decision to 
shut off the irrigation water. They said that cutting off water was not 
necessary to save the short-nosed sucker in Klamath Lake. Factors other 
than low water levels were endangering the sucker, so it was not the 
low water level at all. Also, actually, they found that larger releases 
in the Klamath River did not help the coho salmon but actually may 
have, in some ways, endangered them further.
  So the whole situation in Klamath River has been called into serious 
question, and it would appear that all of the economic and financial 
damage that was done was all for naught; and in most cases, it would 
appear that it was something that should not have happened at all.
  Secondly, there was a congressional hearing last week that I 
participated in in the Committee on Resources, and they had members of 
the Fish and Wildlife Service and the Forest Service; and these 
officials were asked to testify because seven employees of these 
agencies and also employees of a Washington State agency falsely 
planted Canadian lynx hair in Washington and Oregon.

                              {time}  2045

  This was an obvious effort to falsify data and to show that the 
Canadian lynx had an expanded and much larger range than what was 
believed. This would also have enhanced and enlarged their critical 
habitat for the Canadian lynx.
  According to testimony, others within the government agencies were 
aware of the planted lynx hair and did not report it. This was a rather 
bizarre and unusual thing, because we would think that these employees 
would be in significant difficulty for having falsified the data. In 
many cases, we would have thought they would have been terminated. But 
actually, what they received as punishment was a verbal reprimand, 
verbal counseling, I guess is the way they put it, and most of these 
employees received their year-end bonuses, so it did not seem that the 
agency took any significant action. I guess that leaves many of us who 
are concerned about the Endangered Species Act to have some pause about 
what has been going on here.
  The third instance that I would like to discuss, that I think is 
particularly important and more relevant to the State of Nebraska, 
where I live, is that in 1978, 56 miles of the Central Platte River was 
declared critical habitat for the whooping crane. This area is 
designated by the red line here that goes from Lexington, Nebraska, 
down to Grand Island. That is 56 miles. It was assumed that that 
stretch of river is critical for the survival of the whooping crane.
  At one time, there were less than 50 whooping cranes in existence, so 
it was certainly endangered, no one questions that. Currently, the 
population of whooping cranes is at 175, but they are still definitely 
endangered.
  In 1994, Fish and Wildlife proposed end-stream flows in the Platte 
River to preserve the whooping crane. They wanted to manage the amount 
of water going down the river, which would supposedly enable the 
whooping crane to have a better chance to survive.
  They proposed that 2,400 cubic feet per second for 6 weeks during the 
spring would go down the river. This is a lot of water to go down the 
river, and that is water that could be stored here in Lake McConaughy 
later on for irrigation, but it is water that was used or is proposed 
to be used strictly for the whooping crane and for their habitat.
  The flows in the river are recommended to be 1,200 cubic feet per 
second in the summer, and then they would, like on wet weather years, 
occasionally they want ``pulse'' flows of 12,000 to 16,000 cubic feet 
per second, and those flows would have to persist for at least 5 days 
in duration during the months of May and June.
  When you have 12,000 or 16,000 cubic feet per second, you are talking 
about flood or near-flood stages. We have some lowland flooding along 
the Platte, some crop ground that is certainly damaged; and the big 
problem is that if we have a rain or extra water coming in here in the 
South Platte, we have an all-out catastrophe, or at least the potential 
for it.
  So this is where the controversy begins, because obviously the 2,400 
cubic feet per second down the river, and that being lost to crops and 
to uses that municipalities and farmers can use along the river, has 
not gone down real well. Of course, the ``pulse'' flows have caused 
even greater consternation.
  One of the things about the ``pulse'' flows is that they also scour 
the river bed. They remove sediment and deepen the channel. As far as 
the cranes are concerned, this is not something that is desirable.
  So in order to accomplish these end-stream flows, there was a 
cooperative agreement that was formed between Colorado and Wyoming and 
Nebraska, those three States, and, of course, Colorado is here, Wyoming 
is here, and Nebraska is here, to serve that 56 miles of river.

  Now, Nebraska's contribution to the cooperative agreement is 100,000 
acre-feet of water stored in Lake McConaughy, this lake right here, and 
that is roughly one-ninth to one-tenth of the whole capacity of the 
lake. That lake is to be stored for an environmental account, to be 
released at any time that it is assumed that the whooping cranes might 
need that water.
  Also, there are no new depletions in this area of the Platte Valley 
after 1997. What that means is that if you had an irrigation well and 
you drilled that well in 1998, you had to shut down another well so 
there was no net depletion of water. Or if you were a municipality and 
you needed more water from the Platte River, then you had in some

[[Page H829]]

way to mitigate that and to shut down or reduce water use in another 
area. So since 1997, supposedly there are no new depletions in the 
river area.
  In addition, there were 10,000 acres of critical habitat that was 
designated and set aside for the whooping crane.
  Then this is probably the most bizarre issue of all. In order to 
replace the sediment that was taken out of the Platte by the ``pulse'' 
flows, it was recommended that there be 100 dump trucks of sediment 
hauled in and dumped in the Platte River every day for as long as 
possibly 100 years. That was so ludicrous that eventually Fish and 
Wildlife has backed off of that. Now all they are talking about is 
bulldozing or moving islands that are located in or near the river into 
the river, so this idea of replacing sediment has been a major issue.
  Wyoming's contribution to the cooperative agreement is 34,000 acre-
feet of water from Pathfinder Dam. Colorado's contribution is 10,000 
acre-feet of water through the Tamarack plan. So, in total, phase one, 
the first 10 years, the amount dedicated to providing habitat for the 
whooping crane is 140,000 acre-feet of water per year. That is a lot of 
water going down the Platte River that could be used for a lot of 
different other issues that would certainly have a tremendous impact on 
the economy. Also, 10,000 acres, as we mentioned, has been set aside 
for the environmental aspects, and then the sediment replacement that 
we talked about.
  Now, that is just phase 1. Eventually what the plan is, is to have 
29,000 acres of habitat set aside and 417,000 acre-feet of water 
annually going down the river for environmental purposes. Now, that is 
increasing the 140,000 by roughly threefold, and no one knows quite 
where we can come up with that amount of water. That is an astronomical 
amount in the West, which generally tends to be rather dry.
  The cost of the cooperative agreement, to date, is $5.5 million. That 
is just to begin to formulate the plan. The estimated total cost of the 
cooperative agreement is $160 million. That does not say anything about 
what it costs to move sediment into the river. That does not say 
anything about what it costs to have the no new depletions allotment, 
or what the costs to irrigators, farmers, and ranchers along the river 
would be in terms of lost water. The $160 million would be just a 
fraction of the total cost.
  So the cooperative agreement has been time-consuming, it has been 
expensive, it has been burdensome to landowners, and most importantly, 
and this is the critical issue, the whole cooperative agreement idea 
seems to be based on a false premise. That premise is that the 56-mile 
stretch of the Middle Platte is critical for the existence of the 
whooping crane. In other words, this stretch of river right here is 
necessary and it has to be managed in the way that the cooperative 
agreement has specified in order for the whooping crane to survive.
  There was a watershed program director who worked for the Whooping 
Crane Trust, which is an environmental group, it is not a group of 
farmers or ranchers or anyone who is against wildlife. This person 
worked for the Whooping Crane Trust. He worked for them for 17 years. 
He wrote a document filed on March 22 of the year 2000. This letter was 
sent to Fish and Wildlife.
  It reads as follows: ``From 1970 through 1998,'' that is 28 years, 
``38 percent of the years exhibited no confirmed whooping crane 
sightings along the Platte River. On average, less than 1 percent of 
the population of whooping cranes was confirmed in the Platte Valley 
during that same time frame.'' This is not just in the river, but in 
the whole valley.
  What he was saying was that 11 out of 29 years, there were no 
sightings of whooping cranes on the Platte River, and yet we are 
assuming that this stretch of river right here is critical for their 
survival. There was an average of between one and two sightings per 
year over that 29-year period.
  Now, obviously, if you have 175 whooping cranes and that is critical 
habitat, we are going to see more than one or two in a year, and we are 
not going to go 11 or 12 years without seeing any.
  He goes on to say this: ``During the 1981-1984 radio tracking study 
of whooping cranes,'' and in other words, they put an electronic collar 
on the cranes, ``18 whoopers were tracked on three southbound and two 
northbound migrations.'' So this took place over a 2\1/2\-year time 
frame.
  He said, ``Of those 18 whoopers, none of them used the Platte 
River.'' None of those that were tracked electronically were even in 
the Platte River or in that region. So the author of the report goes on 
to say this: ``I wonder if the Platte River would even be considered if 
the Fish and Wildlife Service was charged with designating critical 
habitat today. Whooping crane experts that I have visited with would be 
hard-pressed to consider the Platte River, given our current state of 
knowledge, certainly, none would be willing to state on a witness stand 
that the continued existence of the species would be in jeopardy if the 
Platte River were to disappear.''
  So this was his conclusion, and this was the result of years of 
study. Yet, we have this very elaborate plan that has been concocted in 
order to preserve that piece of river when apparently it really does 
not serve the whooping crane to any great degree at all.
  Further, and this is important as well, this week Fish and Wildlife 
is expected to declare 450 miles of the Platte and Loup and Niobrara 
rivers as critical habitat for the piping plover, so we are switching 
now from the whooping crane to the piping plover. Now, this is the 
Niobrara River here, and almost all of that river in its entirety is 
expected to be declared critical habitat. This is the north Loup, the 
middle Loup, and the south Loup. Again, that is going to be designated 
as critical habitat.
  Now, the stretch of the Platte River extends from Cozad, right here, 
80 miles to Chapman, right here. So it is approximately the same range 
as the whooping crane designation, but just a little bit further. So 97 
percent of these river designations flow through Nebraska private 
lands. In other States where the piping plover is going to have 
critical habitat, such as Minnesota, North Dakota, South Dakota, 
Montana, roughly 97 to, in some cases, 100 percent of the habitat is 
strictly on public lands, so Nebraska is really hard hit as far as 
private lands.
  Let us stick with the Middle Platte, because this is the area that 
has been studied the most. This is the area that we have the most data 
on. Again, let us refer to the document presented by the watershed 
program director. This is what he said about critical habitat for the 
piping plover.
  ``The Central Platte River does not offer any naturally occurring 
nesting habitat for these species, as amply demonstrated by the fact 
that no tern or plover chicks were known to fledge on any natural river 
sandbar during the entire decade of the 1990s.'' So what he is saying 
is that he and his colleagues studied this stretch of river right here, 
and during the 1990s, they found no reproduction of the piping plover 
or the least tern, which is also endangered, on that whole stretch of 
river. Yet, that is going to be designated as critical habitat for 
those birds.
  The problem with this situation is that these birds nest near the 
water level, so if you have water at this level, the nest is going to 
be just a few inches above the water. Of course, the letter goes on to 
say this: ``A 50-to-60-day window of flows less than about 1,500 cubic 
feet per second during late May through mid-July is necessary to allow 
for nesting and subsequent fledging. This did not happen in the 1990s. 
Nests and/or young were flooded out.''
  So during that period of time, 50 to 60 days, the better part of 2 
months, in June and July, the water level must stay constant. It must 
stay very low, because once the birds build their nests, any surge of 
water is going to wipe out the nest. So during the decade of the 1990s, 
that is what happened every year. Every time there was any nest that 
was built, they were wiped out. Yet, this is where the critical habitat 
is going to be designated.
  So flows are regulated from releases from Lake McConaughy. This is 
the major problem here, too. Here is Lake McConaughy. This is what 
controls 100,000 acre-feet of water that can be sent down the river at 
key times.
  Now, the problem is that it is 100 miles from Lake McConaughy to 
Cozad or Lexington. It takes 5 days for the water from Lake McConaughy 
to reach this area. So if we think we have the

[[Page H830]]

flow controlled, and then all of a sudden you have an inch or 2-inch 
rain or half-inch, or have a rain in Colorado which comes down the 
South Platte River, which is not regulated by the dam, all of a sudden 
you have a surge in the water flow, and for 10 years there was no way 
to assure that there would be 1,500-acre cubic feet per second or less 
in the river, and hence, we lost the fledging that was supposed to 
occur.

                              {time}  2100

  So it is ironic that Fish and Wildlife chose to designate critical 
habitat in rivers which obviously has not worked and has ignored sand 
pits and lake shores which do work. Now all along the Platte River 
there are sand pits and small lakes and the only fledging, the only 
nesting that has been successful for the piping plover and the lease 
tern over the past 10 years or even 15 years has been on these sand 
pits, and yet none of these sand pits were designated as critical 
habitat by Fish and Wildlife, which is really hard to understand.
  Sand pits or dredge islands are the only places where young have 
fledged in recent years, and so it would seem that attempting to create 
a river environment which promotes nesting by the piping plover and 
lease tern may actually harm the species. Again, we refer to the report 
and the author says this: ``This begs the question as to whether it is 
in the best interests of this species' long-term well-being to attract 
them to an area where they are likely to be flooded or eaten by 
predators.''
  So what he is saying, in some cases, they have taken bulldozers, they 
have knocked down trees, they have tried to create artificial sand bars 
which would attract the piping plover and the lease tern to nest in the 
river; and when they have done that, invariably those nests have been 
wiped out by high water that comes surging down the river.
  So in a sense, it has worked against the species to attract them to 
nest in an area where nesting is not going to be successful. It would 
be much better off if they were nesting in sand pits, small lakes where 
that is not going to happen to them.
  It would seem that the critical habitat designation for the whooping 
crane in the first instance and the piping plover are inaccurate 
designations. The data simply does not support the designation. 
Therefore, I have requested the Secretary of the Interior provide an 
independent peer review through the National Academy of Sciences or 
some equivalent agency to review the listing of this habitat on the 
Platte River. I talked to Secretary Norton. I know that she is 
dedicated to making decisions based on accurate data, and we are very 
hopeful that her agency will see to it that there is a further 
independent peer review.
  This did happen on the Klamath Basin. Unfortunately, it happened too 
late for the farmers. It was done after the fact. In this case we want 
to have it done before the fact, before the list, before things get out 
of hand; and we think that is very important.
  Mr. Speaker, it is important to those listening that they do not 
assume that I am against endangered species. Quite often people from 
agriculture areas are assumed to be automatically against wildlife, 
against endangered species; and that is absolutely not the case. 
However, I do oppose the Endangered Species Act as it is now 
interpreted and administered.
  Sometimes the Endangered Species Act may actually harm the species. 
We have already given an example or two. For instance, the National 
Academy of Sciences study indicates that higher flows from Klamath Lake 
actually in some cases harm the coho salmon. My colleagues say how does 
that occur, and what happened was Klamath Lake is relatively shallow; 
and so when they kept water in Klamath Lake, instead of running some of 
that water down irrigation canals, they sent it all down the river. The 
water was warmer in Klamath River than it was normally because there 
are springs in the bottom of the river, and so as a result they warmed 
up the water in Klamath River, which was actually endangering and 
harming to the coho salmon. So sometimes there are unintended 
consequences, and sometimes the Endangered Species Act does not work in 
ways that it was designed to work.
  Actually, we have also mentioned that alterations in the Central 
Platte often entice the nesting of plovers and terns, and we have 
talked about that, dragging them into sand bars where they get washed 
out.
  Then lastly, let us consider one other instance where the Endangered 
Species Act probably is not serving a species very well, and that would 
be the area of prairie dogs.
  Fish and Wildlife and others have viewed as a baseline the journals 
of Lewis and Clark back around 1800 to determine where the natural 
habitat for prairie dogs was. As many people know, Lewis and Clark went 
up the Missouri River, went on up into South Dakota, on over here into 
Montana, and so they journaled and they mentioned wildlife. They 
mentioned prairie dogs; but as most anyone can see, in the State of 
Nebraska very little of Nebraska except along the Missouri River was 
ever covered by Lewis and Clark. So how can we say what the natural 
range of prairie dogs was when we go back to a document that is more 
than 200 years old?
  Anyway, we are certainly in the middle of a controversy in Nebraska, 
in Montana and South Dakota, North Dakota, Wyoming, other Western 
States regarding the prairie dog. The prairie dog right now is 
considered to be threatened, but it is not listed. What that means 
essentially is that apparently Fish and Wildlife feels that it is 
endangered, but they have not gotten around to listing it; and many of 
us are hoping that they will reconsider before they do list it.
  The thing to remember is that landowners will often tolerate prairie 
dogs as long as they can be managed. So if someone has got a ranch of 
12,000 acres and they know they have got a prairie dog town down in one 
corner of their ranch and maybe another one up in this corner and they 
are certainly not out of control and they are not damaging a whole lot 
of pasture land, they are probably going to live and let live with 
those prairie dogs. But if on the other hand they realize that Fish and 
Wildlife is about to list the prairie dog as an endangered species and 
they can no longer touch those prairie dogs and they know very well 
that if they start moving and if they expand they can absolutely ruin a 
pasture, they could ruin half their land, they could ruin it all, and 
so what are they going to do? Are they going to let those prairie dog 
colonies survive, or are they going to make sure there are no 
endangered species on their property when the listing actually occurs?
  I would say right now that that is happening to some degree with the 
prairie dogs. So the Endangered Species Act at this point is probably 
not serving the prairie dog to any great degree. Matter of fact, it may 
be harming it.
  I think it is important that we understand that landowners are not 
people who are out to get the species. We have seen three examples of 
areas where the Endangered Species Act has not served landowners or 
wildlife well, the Klamath Basin crisis, the Canadian lynx falsified 
data, and then the critical habitat designation for the whooping crane, 
the piping plover and the Central Platte of Nebraska.
  Generally speaking, the person that is closest to the species is the 
landowner, and I think that is something that people need to realize. 
There are a lot of environmental groups around the country, and they 
are very interested in species; and they care a lot about wildlife, but 
they are not right there with them every day like the landowner is.
  Most landowners that I have known like wildlife. They certainly do 
not want to harm an endangered species, and so I have seen cases where 
Fish and Wildlife representatives have worked very well with 
landowners. I saw one in the central part of Nebraska where this person 
incorporated 15 or 20 farmers, and together they were able to create 
wetlands and habitat that was really outstanding for water fowl. So 
there is a cooperative effort, and usually landowners will respond to 
that type of approach.
  On the other hand, I have seen Fish and Wildlife become rather 
arbitrary. They have used the Endangered Species Act as a club; and as 
a result, when forced to choose between a species and one's livelihood, 
the landowner usually is going to choose his livelihood. So I

[[Page H831]]

think it is important that we understand that the Endangered Species 
Act in some ways can be an effective tool, but it has got to be used 
differently. It is not being used very effectively at the present time. 
I think it needs to be modified. The Endangered Species Act often 
unnecessarily forces the landowner to make this choice; and when this 
happens, everyone loses.

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