[Congressional Record (Bound Edition), Volume 145 (1999), Part 10]
[Extensions of Remarks]
[Pages 13594-13596]
[From the U.S. Government Publishing Office, www.gpo.gov]



               LISTING MOUNTAIN PLOVER AS ``THREATENED''

                                 ______
                                 

                           HON. BOB SCHAFFER

                              of colorado

                    in the house of representatives

                         Friday, June 18, 1999

  Mr. SCHAFFER. Mr. Speaker, Colorado's farmers, ranchers, and water 
and property owners are under assault by the federal government. They 
face devastatingly low commodities prices, high equipment costs, 
onerous federal regulations and endangered species policy driven by 
Boulder-based, special-interest environmental lawsuits. My response to 
the proposed listing of the mountain plover as ``threatened'' under the 
federal Endangered Species Act of 1973 is as follows.
  After reviewing the U.S. Fish and Wildlife Service's (FWS) proposal 
to list the mountain plover as threatened, I adamantly oppose this 
listing because it is scientifically flawed, would devastate the 
eastern plains economy, fails to adequately consider reasonable 
alternatives, and contradicts other federal programs benefitting the 
plains environment.
  First, the science used to support the listing is highly suspect and 
lacks the degree of certainty necessary to proceed with a 
comprehensive, intrusive and restrictive regulatory regime. The 
inadequacy of the cited population data is unacceptable. Throughout the 
listing, extrapolated estimates are relied upon for population numbers, 
which lays an insufficient scientific foundation. Even if the estimates 
referenced had a statistical basis, we are told, ``The estimates of 
abundance provided for each state or area are usually from different 
researchers, from different times, and using different techniques. 
Therefore, the estimates should not be considered comparable to one 
another or necessarily additive.'' (64 FR 7591) Because the FWS 
population research methods were not compatible, the FWS relied upon 
dissimilar estimates. Federal regulations, especially those as 
pervasive as the ESA's, should never be based on approximations.
  Furthermore, almost no population data from private lands is 
referenced. Since most of the land in the identified plover habitat 
range for Colorado is privately owned, and approximately 75 percent of 
all wildlife is found on private property, the total number of mountain 
plovers is certain to be significantly higher. The absence of private 
land surveys is also concerning because plovers prefer to nest on 
prairie dog colonies, at least 90 percent of which currently exist on 
private lands. It is beyond doubt a large number of additional plovers 
would be found if private land surveys were conducted. Clearly, the FWS 
does not have definitive evidence of the bird's actual numbers within 
Colorado, in other states, or as an aggregate across its range.
  The FWS was involved in a similar situation with the swift fox. A 
federal ESA listing was proposed before comprehensive population 
surveys were completed, an effort abandoned after thorough surveys were 
conducted. The same situation could occur with the plover. The FWS must 
not proceed with this listing until an accurate, scientifically-based 
survey is conducted on both public and private lands through voluntary 
and confidential participation.

[[Page 13595]]

  While the population questions are significant, there are other 
issues undermining the scientific basis of the listing. According to 
FWS biologists, drought threatens the plover. However, wet years also 
endanger the bird due to higher rates of grass growth. In fact, FWS 
biologists admit, ``The long-term effect of such naturally occurring 
catastrophes on mountain plover viability is not known.'' (64 FR 7596) 
In addition, the Service admits to no correlation between increasing 
numbers of coyotes and foxes, predators of the plover, and declining 
bird numbers. While predators are discussed, the only conclusion 
offered is, ``A high rate of nest predation by swift fox . . . is not 
believed to be a factor in the long-term decline of the mountain plover 
population.'' (64 FR 7595) Yet, no hard evidence is given to support 
this claim.
  Moreover, the effects of pesticides, especially in California, are 
not completely known. And, no significant data exists from wintering 
areas in Mexico or nesting regions in Canada. The only conclusion 
possible is that neither the current scientific and field research, nor 
the information presented in this listing, supports federal ESA 
protection of the bird.
  Second, very little thought is given to the impacts of this listing 
on farmers, ranchers and private property owners. Significant hardship 
will be borne by landowners, and I have seen almost no attempt to 
address the devastating results a plover listing would inflict on 
traditional agricultural and non-agricultural practices on the eastern 
Colorado plains. The U.S. Department of Agriculture's (USDA) Natural 
Resource Conservation Service (NRCS) wrote that the plover listing 
``may adversely impact a number of common agricultural practices in the 
short-grass prairie region of the United States.'' [Letter attached for 
the record.]
  For example, the inability of farmers to plant their crops in early 
summer would be devastating. Most planting on the eastern plains of 
Colorado occurs in late April through mid-May, which coincides with the 
plover's nesting. According to the FWS, normal farming practices on 
cultivated lands would not result in an ESA section 9 violation if they 
took place between August 10 and April 1. (64 FR 7599) Obviously, 
producers must be allowed to plant during this time, or the eastern 
plains economy, already weakened by a national agriculture crisis, 
would collapse due to devalued land, unemployment, and relocation.
  In addition, the listing states the decline of the bird is due, in 
part, to the tilling of fields between April and June, even though 
``the long-term effect of tilling on mountain plover productivity and 
abundance is not known.'' (64 FR 7593) The land is worked during this 
time for a number of reasons, including weed and erosion control. While 
``no-till'' and ``minimum-till'' methods are being used more often, 
turning the ground is usually the only option for a producer. Chemical 
options also exist, but they are prohibitively expensive and could 
impair the plover and its habitat. Consequently, this petition would 
reduce the value of private lands by banning land management tilling, 
and/or encourage an increased use of pesticides.
  The FWS claims to be working on developing land use recommendations 
to benefit both plovers and landowners. Since I have yet to see any 
such suggestions, I must ask how planting during this critical time 
could possibly be changed, except to stop all planting and tilling? 
Also, how would these changes be beneficial to farmers and ranchers?
  Further evidence of the listing's flawed logic is evident in the 
following statement: ``Grassland conversion may be considered a threat 
to mountain plover conservation whether or not the grasslands are 
presently suitable breeding habitat.'' (64 FR 7593) This contradictory 
conclusion is advanced because the conversion of grasslands to 
productive agricultural lands creates locally acceptable plover 
habitat. (64 FR 7593) In other words, if an area where the plover 
doesn't exist is developed by a farmer, and the bird subsequently nests 
on the newly cultivated land, then the FWS will impose regulations on 
the farmer and his land to protect this habitat, which was not plover 
habitat in the first place. So, the farmer's initiative to create new, 
productive farmland from non-plover grassland is rewarded by 
regulation, limitation and ultimately, ruination. Consequently, this 
listing will likely result in two unfavorable outcomes: (1) Farmers 
will choose not to convert grassland into productive farmland, thus 
limiting the bird's habitat and the farmer's prosperity, reducing food 
production, and hurting Colorado's economy; (2) Farmers will attempt to 
farm, but stop due to onerous mitigation measures, thereby causing the 
land to revert to non-plover habitat, limiting the farmer's prosperity, 
reducing food production, and hurting Colorado's economy. In other 
words, this listing, whether intended or not, would suppress the 
development of new farmland, stifle current agricultural activity, and 
actually reduce potential plover habitat.

  Further, oil and gas development would suffer if the plover is listed 
as threatened. Leasing and extraction of these natural resources exists 
over its entire breeding range. However, since the ``development of oil 
and gas resources could adversely affect mountain plover habitat or 
cause the death of individuals,'' such activities would be heavily 
regulated. (64 FR 7595)
  In the end, all landowners on Colorado's eastern plains stand to lose 
if the plover is listed. Their land will lose value due to ESA 
regulations prohibiting the ``taking'' of endangered species, which 
would restrict and/or modify how the land could be used. In fact, they 
will be forced to sustain plover habitat, which will substantially 
interfere with farming, ranching, building and/or developing natural 
resources.
  Eastern Coloradans have successfully used, enhanced and protected the 
eastern Colorado plains by providing millions of dollars in agriculture 
products and improving water quality, soil erosion and wildlife 
habitat. Priority has to be given to coordination with landowners on 
reasonable conservation measures. Farmers and ranchers are the best 
stewards of the land and a friend to the plover; they should be 
trusted, included in the process, given incentive to collaborate, and 
flexibility to mitigate.
  Third, states, local governments and communities have successfully 
demonstrated the viability of collaborative on-the-ground solutions in 
place of command-and-control dictates from Washington. There are a 
number of partnerships to preserve species, including the High Plains 
Partnership for Species at Risk, the Western Governor's Association 
Enlibra doctrine for Environmental Management, and the Upper Colorado 
River Endangered Fish Recovery Program, to name a few. The FWS would 
get better cooperation and results from states and localities if it 
pursued non-regulatory solutions, and I strongly advise the FWS to 
pursue this option if the plover is indeed threatened.
  Another example of a cooperative partnership is the Memorandum of 
Agreement, Concerning Programs to Manage Colorado's Declining Native 
Species, between the state of Colorado and the U.S. Department of the 
Interior, which was signed on November 29, 1995. This agreement, also 
known as the Colorado Conservation Agreement, attempts to facilitate 
collaboration in conserving fish and wildlife species and habitat 
within Colorado, including the mountain plover. Even though the FWS 
listing mentions this ground-breaking partnership, there are no facts 
given to support either its continuation or elimination. (64 FR 7599)
  Many efforts are underway to benefit this species in Colorado and 
throughout its range. Such endeavors ought to be allowed to produce 
results before they are bypassed because they could preempt the need 
for significant federal intervention. Therefore, I strongly disagree 
with the FWS conclusion that the only way to protect the plover is an 
ESA listing.
  Fourth, a number of federal agencies and programs will have to be 
drastically altered to accommodate the listing. Such counter-
productive, conflicting interagency relationships indicate systemic 
flaws in the proposal and waste the American taxpayer's hard-earned 
money.
  The listing would impact the USDA Natural Resources Conservation 
Service (NRCS) assistance to producers in eastern Colorado. Affected 
programs could include the Environmental Quality Incentives Program 
(EQIP), Wildlife Habitat Incentives (WHIP), and/or the Conservation 
Reserve Program (CRP). These conservation programs would have to be 
reviewed in consultation with the FWS under section 7 of the ESA. 
Thousands of producers in eastern Colorado receive technical assistance 
from NRCS programs. A significant amount of time, money and manpower 
would be required to review each case for ESA compliance, which would 
delay the implementation of conservation practices and hurt the species 
and habitats currently prospering under these programs.
  The USDA Conservation Reserve Program (CRP), widely considered to 
benefit both agriculture and the environment, encourages tall grasses 
for wildlife habitat and ecosystem health. The FWS asserts the plover 
requires habitat with little grass and/or bare ground. Should the bird 
be listed, it could thwart conservation efforts designed to help other 
species and the environment. Is one species to be saved at the expense 
of another? Moreover, to what extent are these and other conflicting 
policies contributing to the decline of the plover? The FWS should 
proactively address these programs, in conjunction with farmers, 
ranchers and other landowners, before a listing is finalized. Has, or 
will, the FWS take such a common-sense, initial step before

[[Page 13596]]

listing the plover? Voluntary, collaborative arrangements would net 
much better results then coercive, punitive regulations.
  I urge the FWS to suspend any further listing action until a 
comprehensive, scientifically rigorous, locally inclusive research 
project can be completed on the status of the mountain plover 
population and ecosystem. Further, the FWS must be cautious during this 
listing process unless the good accomplished by the people of eastern 
Colorado is undone and their lives irreparably harmed. Additionally, 
the state of Colorado and local communities ought to be given the lead 
role in conserving the species. Other federal agencies must also be 
consulted prior to listing the mountain plover to clarify contradictory 
land use policies. Finally, the FWS must ensure all available 
information is reviewed by an objective scientific panel per the July 
1, 1994 FWS Notice of Policy for ESA Peer Review and the Colorado 
Conservation Agreement before a determination is made.
  Given these factors, the FWS must thoroughly consider whether the 
proposal ``presents substantial scientific and commercial information 
to demonstrate the petitioned action may be warranted.'' (16 USC 1531) 
Nothing in this listing supports the conclusion that the plover is 
threatened by extinction in the near future. As a result, the only 
decision the FWS can reach is to decline listing the mountain plover as 
threatened under the federal ESA. I therefore restate my opposition to 
this listing.

                          ____________________