[Congressional Record Volume 162, Number 79 (Wednesday, May 18, 2016)]
[Senate]
[Pages S2970-S2971]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
FEDERAL MANAGEMENT OF PUBLIC LANDS AND RESOURCES
Mr. BARRASSO. Mr. President, I wish to speak about a column written
by Ms. Karen Budd-Falen, a Wyoming attorney, entitled ``Major
Regulatory Expansion of ESA Listing and Critical Habitat Designation.''
The article was published in the Wyoming Livestock Roundup on March 19,
2016.
Through a variety of rules, regulations, and seemingly innocuous
proposals, agencies under this administration have gone outside their
congressionally given authorities and willfully ignored the intent of
the very statutes that authorize Federal management of public lands and
resources.
In the article, Karen raises a series of concerns, concerns I share,
about the United States Fish and Wildlife Service's calculated efforts
to change key parts of the Endangered Species Act. Through a series of
administrative revisions, the Service has substantially changed the way
critical habitat is designated for species listed for protection under
the act. Critical habitat, as Karen recognizes in her article, is ``. .
. generally habitat upon which the species depends for survival.
Importantly critical habitat can include both private and/or federal
land and water.'' Karen outlines that, through piecemeal revisions, the
Service has effectively removed all limitations of this definition.
No longer will the Service be limited to enact Federal policy on a
precise area where a species lives. Now a Federal agency may implement
any number of restrictions on a ``significant portion'' of the range a
species may or may not inhabit, for an undetermined period of time. The
Service has made it clear that even ``potential habitat'' can be
controlled, even if it is unclear whether the species will ever use
that area.
Karen also raises concerns about notification of private landowners,
consideration of economic impacts, and the undeniable link between
changes the Service has made and an increase in Federal permitting. The
link between these changes and the intent of this administration is
clear: any action taken on any land, no matter whether private or
public, can now be considered under Federal jurisdiction if the Service
so chooses. Not only is this arbitrary, but it is a clear case of
Federal overreach.
In Wyoming, we know that the most successful habitat conservation
efforts are conducted by people on the ground who have a vested
interest in the health of wildlife and the landscape they inhabit.
These people are local business owners, local landowners, ranchers, and
State experts. These people understand both the needs of the landscape
and the scope of appropriate conservation efforts, things that
Washington officials seemingly fail to grasp or willfully ignore.
Unfortunately, the alarm that Karen has sounded is one of many
currently deafening the American people. Karen has likened the
Service's critical habitat reforms to the Environmental Protection
Agency's controversial waters of the United States campaign. The
comparison is apt. This administration has perpetuated a culture of Big
Government by ignoring the biological, economic, and social realities
of its irresponsible policies.
Federal actions such as this dilute the effectiveness of successful
conservation efforts and create limitless uncertainty for private
landowners. I urge my colleagues to continue to stand with rural
Americans who must not bear the brunt of irresponsible Federal
overreach.
Mr. President, I ask unanimous consent to have printed in the Record
the article written by Karen Budd-Falen.
There being no objection, the material was ordered to be printed in
the Record, as follows:
[From the Wyoming Livestock Roundup; Mar. 19, 2016]
Major Regulatory Expansion of ESA Listing and Critical Habitat
Designation
(By Karen Budd-Falen)
While private property owners were vehemently protesting
the EPA's expansion of jurisdiction under the Clean Water
Act, the U.S. Fish and Wildlife Service and National Oceanic
and Atmospheric Administration Fisheries, collectively FWS,
were bit-by-bit expanding the federal government's overreach
on private property rights and federal grazing permits
through the Endangered Species Act (ESA). This expansion is
embodied in the release of four separate final rules and two
final policies that the FWS admits will result in listing
more species and expanding designated critical habitat.
To understand the expansiveness of the new policies and
regulations, a short discussion of the previous regulations
may help. Prior to the Obama changes, a species was listed as
threatened or endangered based upon the ``best scientific and
commercial data available.'' With regard to species that are
potentially threatened or endangered ``throughout a
significant portion of its range'' but not all of the
species'' range, only those species within that ``significant
portion of the range'' are listed not all species throughout
the entire range.
Once the listing is completed, FWS is mandated to designate
critical habitat. Critical habitat is generally habitat upon
which the species depends for survival. Importantly critical
habitat can include both private and/or federal land and
water. Critical habitat is
[[Page S2971]]
to be based upon the ``best scientific and commercial data
available'' and is to include the ``primary constituent
elements'' (PCEs) for the species. PCEs are the elements the
species needs for breeding, feeding and sheltering. Final
critical habitat designations are to be published with legal
descriptions so private landowners would know whether their
private property or water was within or outside designated
boundaries. Critical habitat designations are also made with
consideration of the economic impacts. Under the ESA,
although the FWS cannot consider the economic impacts of
listing a species, all other economic impacts are to be
considered when designating critical habitat, and if the
economic impacts in an area are too great, the area could be
excluded as critical habitat as long as the exclusion did not
cause extinction of the species.
With regard to the critical habitat designation itself,
critical habitat determinations are made in two stages.
First, the FWS considers the currently occupied habitat and
determines if that habitat (1) contains the PCEs for the
species and (2) is sufficient for protection of the species.
Second, the FWS looks at the unoccupied habitat for the
species and makes the same determinations, i.e., (1) whether
areas of unoccupied habitat contain the necessary PCEs and
(2) if including this additional land or water as critical
habitat was necessary for protection of the species. The FWS
then considers whether the economic costs of including some
of the areas are so high that the areas should be excluded
from the critical habitat designation. In simplest terms, FWS
would weigh or balance the benefits of designation of certain
areas of critical habitat against the regulatory burdens and
economic costs of designation and could exclude discreet
areas from a critical habitat designation so long as
exclusion did not cause species extinction. This was called
the ``exclusion analysis.''
Starting with a new 2012 rule and extending to the 2015
rules and policy, those considerations have all changed, and
in fact, FWS has admitted that the new rules will result in
more land and water being included in critical habitat
designations.
The first major change is the inclusion of ``the principals
of conservation biology'' as part of the ``best scientific
and commercial data available.'' Conservation biology was not
created until the 1980s and has been described by some
scientists as ``agenda-driven'' or ``goal-oriented'' biology.
Second, the new Obama policy has changed regarding a
listing species ``throughout a significant portion of its
range.'' Now, rather than listing species within the range
where the problem lies, all species throughout the entire
range will be listed as threatened or endangered.
Third, based upon the principals of conservation biology,
including indirect or circumstantial information, critical
habitat designations will be greatly expanded. Under the new
regulations, FWS will initially consider designation of both
occupied and unoccupied habitat, including habitat with
potential PCEs. In other words, not only is FWS considering
habitat that is or may be used by the species, FWS will
consider habitat that may develop PCBs sometime in the
future. There is no time limit on when such future
development of PCEs will occur, or what types of events have
to occur so that the habitat will develop PCEs. FWS will then
look outside occupied and unoccupied habitat to decide if the
habitat will develop PCEs in the future and should be
designated as critical habitat now. FWS has determined that
critical habitat can include temporary or periodic habitat,
ephemeral habitat, potential habitat and migratory habitat,
even if that habitat is currently unusable by the species.
Fourth, FWS has also determined that it will no longer
publish the text or legal descriptions or GIS coordinates for
critical habitat. Rather it will only publish maps of the
critical habitat designation. Given the small size of the
Federal Register, I do not think this will adequately notify
landowners whether their private property is included or
excluded from a critical habitat designation.
Fifth, FWS has significantly limited what economic impacts
are considered as part of the critical habitat designation.
According to a Tenth Circuit Court of Appeals decision,
although the economic impacts are not to be considered as
part of the listing process, once a species was listed, if
FWS could not determine whether the economic impact came from
listing or critical habitat, the cost should be included in
the economic analysis. In other words, only those costs that
were solely based on listing were excluded from the economic
analysis. In contrast, the Ninth Circuit Court took the
opposite view and determined that only economic costs that
were solely attributable to critical habitat designations
were to be included. Rather than requesting the U.S. Supreme
Court make a consistent ruling among the courts, FWS simply
recognized this circuit split for almost 15 years. However,
on Aug. 28, 2013, FWS issued a final rule that determined
that the Ninth Circuit Court was ``correct'' and regulatorily
determined that only economic costs attributable solely to
the critical habitat designation would be analyzed. This rule
substantially reduces the determination of the cost of
critical habitat designation because FWS can claim that
almost all costs are based on the listing of the species
because if not for the listing, there would be no need for
critical habitat.
Sixth, FWS has determined that while completing the
economic analysis is mandatory, the consideration of whether
habitat should be excluded based on economic considerations
is discretionary. In other words, under the new policy, FWS
is no longer required to consider whether areas should be
excluded from critical habitat designation based upon
economic costs and burdens.
The problem with these new rules is what it means if
private property or federal lands are designated as critical
habitat or the designated habitat only has the potential to
develop PCEs. Even if the species is not present in the
designated critical habitat, a ``take'' of a species can
occur through ``adverse modification of critical habitat.''
For private land, that may include stopping stream diversions
because the water is needed in downstream critical habitat
for a fish species or that haying practices, such as cutting
of invasive species to protect hay fields, are stopped
because it will prevent the area from developing PCEs in the
future that may support a species. It could include stopping
someone from putting on fertilizer or doing other crop
management on a farm field because of a concern with runoff
into downstream designated habitat. Designation of an area as
critical habitat--even if that area does not contain PCEs
now--will absolutely require more federal permitting, i.e.
Section 7 consultation, for things like crop plans or
conservation plans or anything else requiring a federal
permit. In fact, one of the new regulations issued by Obama
concludes that ``adverse modification of critical habitat''
can include ``alteration of the quantity or quality'' of
habitat that precludes or ``significantly delays'' the
capacity of the habitat to develop PCEs over time.
While the agriculture community raised a huge alarm over
the waters of the U.S., FWS was quietly implementing these
new rules, in a piecemeal manner, without a lot of fanfare.
Honestly, I think these new habitat rules will have as great
or greater impact on the private lands and federal land
permits as does the Ditch Rule, and I would hope that the
outcry from the agriculture community, private property
advocates, and our Congressional delegations would be as
great.
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