[Congressional Record (Bound Edition), Volume 148 (2002), Part 4]
[House]
[Pages 4696-4700]
[From the U.S. Government Publishing Office, www.gpo.gov]




                         ENDANGERED SPECIES ACT

  The SPEAKER pro tempore (Mr. Johnson of Illinois). 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. Ninety-seven percent of this district is privately owned. 
Currently landowners are very concerned about property rights and they 
are especially concerned about the Endangered Species Act, because this 
Act can be tremendously invasive.
  Currently, I believe there is a crisis of confidence regarding the 
administration of the Endangered Species Act. I am going to mention 
just a few things here that have happened that have led to this crisis 
of confidence. First of all, the Klamath Basin situation that happened 
a year ago, the water, the irrigation water for 1,400 farmers was cut 
off abruptly.
  Of course, what this did was to cause a great deal of financial 
hardship. There were two types of suckers in Klamath Lake, and coho 
salmon in the river below that were supposedly to be protected. As a 
result, the farmers lost their crops, some lost their farms, land 
values declined from $2,500 an acre to $35 per acre in that particular 
area. Oregon State University estimates that the loss of water cost the 
economy $134 million in that particular area. And so this was a 
tremendously costly and a very invasive situation that occurred.
  Of course, to make matters worse, recently the National Academy of 
Science, in an independent peer review, ruled that there was 
insufficient data to justify the decision to shut off the irrigation 
water in the Klamath Basin. In other words, they have more or less said 
that this was something that should not have happened. Factors other 
than the lower levels in Klamath Lake were endangering the sucker fish 
and actually the larger releases of water, the irrigation water that 
normally went down the irrigation canals, was released down the Klamath 
River supposedly to help the coho salmon and actually because this 
water was warmer, the National Academy of Science indicated that these 
larger releases actually harmed the coho salmon. So it was the reverse 
of what they had tried to accomplish.
  Secondly, more recently, in a congressional hearing, we heard from 
people from Fish and Wildlife and the Forest Service and these 
officials were asked to testify, because seven employees of these 
agencies and a Washington State agency also falsely planted Canadian 
lynx hair in the forests of Washington and Oregon. You might ask, why 
in the world would somebody do this? Why would you go out and bother to 
take hair from a captive lynx and plant it in widespread areas? 
Apparently this would result in a wider declaration of critical habitat 
for the Canadian lynx and they must have felt in some way that this 
would have helped preserve the Canadian lynx.
  Obviously, it was a falsehood and, according to testimony, others 
within government agencies were aware of the planted lynx hair and did 
not report it. The interesting thing was that after all of this 
happened, the guilty parties were subjected to counseling as a 
punishment, and most of them received their year-end bonuses and 
raises. And so you would think, well, what kind of a message are we 
sending if somebody falsifies data and yet practically no consequences 
occur as a result of that falsification?
  Recently, the National Park Service also indicated some false and 
inflated numbers of visitors to national forests from an actual count 
of 209 million visitors to our national forests, and they reported 920 
million visitors which was roughly a 400 percent increase, an 
inflation, that was false. Again you might ask, why in the world would 
a responsible Federal agency do this? They certainly can count better 
than this. Certainly this could not be a mathematical error to miss by 
700 million visitors. Again I think, many assume that this had 
something to do with the fact that they wanted to point out 
overcrowding, and that maybe some more roads or some more areas of the 
parks needed to be restricted to visitors because of overcrowding.
  And so many of these different situations have led to somewhat of a 
crisis of confidence in terms of how our public officials are dealing 
with the Endangered Species Act and our wildlife in general. It would 
seem that sometimes there is not a real level playing field involved in 
this situation.
  Recently here in Washington, D.C., the Environmental Protection 
Agency gave the Corps of Engineers permission to dump thousands of tons 
of sludge into the Potomac River. Of course this was in direct 
violation, you would think, of the Endangered Species Act because the 
sturgeon, the short-nosed sturgeon, occupies the Potomac River and it 
is endangered. And so you would

[[Page 4697]]

say, why would they do this? How in the world could you get by with 
this when out in the West you cannot do these other things? And, of 
course, it also caused beavers and ducks and others to be mucked up to 
the point where they had a hard time surviving. It would appear that 
maybe one of the answers is that these tons of sludge, if they are not 
pumped into the Potomac River, would have to be put in dump trucks and 
would be trucked through the city of Washington, DC, which is not real 
politically popular in this area.
  So sometimes people in rural areas have the feeling that maybe there 
is a double standard and maybe people in some urban areas because of 
the size of the population and the economic impact do not pay quite the 
same price. And so that has been a concern.
  And then the issue that I want to spend most of my time tonight on 
has to do with the Central Platte River in the State of Nebraska. In 
1978, 56 miles of the Central Platte were declared critical habitat for 
the whooping crane. At that time in 1978 there were not very many 
cranes, whooping cranes, probably less than 50. And so they were listed 
as an endangered species and certainly rightly so. At the present time 
they are doing better. There are roughly 175 whooping cranes that fly 
generally through the State of Nebraska. And so as a result of that 
designation, we find that some things occurred.

                              {time}  2200

  As a result, in order to protect habitat, critical habitat, for the 
whooping crane, the Platte River Cooperative Agreement began to take 
shape. What they proposed in this agreement was in-stream flows. So 
what was required was 2,400 cubic feet per second of water down the 
Platte River in that area of critical habitat in the spring.
  The interesting thing here is that water generally is lost to 
irrigation, because you do not irrigate that early in the spring, and 
some of it is lost to power generation as well, and it was strictly put 
there to enhance the habitat for the whooping crane.
  It was interesting, because the original recommendation by many 
biologists was not 2,400 cubic feet per second, but rather they said 
1,300 cubic feet per second would be the ideal flow. By tweaking it one 
way or another, Fish and Wildlife almost doubled the flow and the 
amount of water that goes down the river. They wanted 1,200 cubic feet 
per second during the summer, and then they want pulse flows of 12,000 
to 16,000 cubic feet per second for 5 days in May and June of wet 
years.
  This is a huge amount of water in the Platte River, and it results in 
some flooding; and it results in some real difficult situations. Some 
people assume that actually the main issue here is that it deepens the 
channels in the river when you have these large pulse flows, and then 
the issue is what do you do to compensate for the loss of sediment in 
the river when you do this?
  Now, the problem with those pulse flows is as follows: the 12,000 to 
16,000 cubic feet per second as we mentioned will deepen the channel in 
the river and will remove sediment. So Nebraska is being, as part of 
their contribution to the cooperative agreement, is being asked to 
contribute 100,000 acre feet of water, stored in Lake McConahay; and 
this water is being used to flow down the Platte River when people feel 
the cranes might need it. Wyoming contributes 34,000 acre feet of water 
and Colorado 10,000 acre feet of water, so the total contribution is 
140,000 acre feet of water. So that is an interesting premise, and it 
is fairly expensive.
  Of course, the other issue is there are some other requirements, and 
that is that there are no new depletions in the Platte River. So we not 
only have these flows, but within 3 to 4 miles of either side of the 
Platte River, you cannot set down a new well within 3 to 4 miles of the 
river after 1997. So a community that is expanding, a farmer, whatever, 
is no longer able to do this.
  Then the sediment that is lost in the river from the large pulse 
flows has to be replaced. At one time what they were doing was talking 
about the fact that they would haul in 100 dump truckloads of sediment 
per day, and this would go on for years and years and years. You can 
imagine the cost of doing this. That is supposed to replace the 
sediment that these large pulse flows used to take sediment out of the 
river.
  Now they have revised that, and they are talking about taking 
bulldozers and pushing islands into the river and causing more 
sediment. So as you can see, this is a very invasive procession; it is 
a very expensive process; and it has been very difficult to administer.
  That is phase one. After 10 years, phase two kicks in. Phase two, 
listen to this, requires 417,000 acre feet of water. That is about 
triple what we are talking about here, 140,000 acre feet. So when you 
get up to 417,000 acre feet of water, you are talking about practically 
all of the irrigation water used in the Platte River system. So what 
farmers and ranchers are rightly concerned about is that at some point 
the Endangered Species Act could be used in a way that would cut off 
all irrigation up and down the Platte River, which is several hundred 
miles long, and would probably make the Klamath Basin situation pale by 
comparison.
  So far the estimated total cost of the project, that is just to the 
cooperative agreement, it is not the water loss or anything else, just 
to plan it is $160 million. That is just to create it, as we said. That 
is a small cost compared to the cost of the irrigation water, the power 
lost and the land and sediment dumping and so on.
  So I think most people would say the cooperative agreement has been 
time-consuming, has been expensive and has been burdensome to 
landowners. And, the most important thing, the thing I would really 
like to drive home tonight, is the idea that the whole thing, I 
believe, is based on a false premise; and the false premise is that 
that 56-mile stretch of the Platte River is critical for the existence 
of the whooping crane.
  So let us take a look at the map of Nebraska. The area here in red, 
from Lexington to Grand Island, is the critical habitat for the 
whooping crane, really not quite that far. So the idea of critical 
habitat is this is habitat that it is removed or in some way damaged or 
changed; it really does great damage to the endangered species. So you 
would assume that this would be an area that would really be critical 
to the migration of the whooping crane as they go north and south.
  So let us take a look at this issue and some of the data. The 
Watershed Program director, who worked for the Whooping Crane Trust, 
this was an environmental group, not a farm group, this was an 
environmental group, and he worked for that group for 17 years and 
wrote a document filed on March 22, 2000, that was sent to Fish and 
Wildlife, and the letter states as follows: ``From 1970 through 1998, 
that is a total of 29 years, 11 years there were no whooping cranes.''
  That is almost 40 percent of the time there were no whooping cranes 
that were sighted at any point in this stretch of river, which is 
supposedly critical habitat. You would think if that was critical 
habitat, that certainly you would not go 40 percent of the years 
without any observation of a whooping crane in that area.
  Then he goes on to say this: ``On average, less than 1 percent of the 
population of whooping cranes was ever confirmed in the Platte Valley 
during that same time frame.''
  So, again, if it is critical habitat, you would think that you would 
see 50, 60, and 80 percent, whatever. But you have had 1 percent or 
less cranes who have ever been seen in that region of the river over 29 
years.
  Probably the most convincing evidence that I have run across is that 
from 1981 to 1984, a period of 2\1/2\ to 3 years, there was a radio-
tracking study of whooping cranes where they had an electronic collar 
put on them so you knew absolutely where they were all the time. This 
went on for three southern migrations and two northern migrations. 
Eighteen cranes at that time represented somewhere between 15 and 20 
percent of the total whooping crane population.
  Here was what they found in that research: they found that none of 
those

[[Page 4698]]

18 whooping cranes over 2\1/2\ years, three southern and two northern 
migrations, none of them used the Platte River at any time during that 
migration.
  Now, surely if this is critical habitat for the whooping crane, you 
would think that at least seven or eight or nine of those cranes would 
have regularly used the river, but yet not one of them did over that 
period of time of 2\1/2\ years. It is not a case here where they can 
slip out of the area under the radar screen, because they are checked 
electronically and they know where they are. They were not in that area 
of the river.
  So the author goes on to say: ``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 would be hard-pressed to consider the Platte River, given our 
current state of knowledge.''
  Then he says: ``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 what he is saying is if this area of the Platte River for some 
reason went away, he does not know of any experts that would say that 
would harm the whooping crane. Yet that is the critical habitat, and 
that is the area that has caused all of the in-stream flows, the 
140,000 acre feet of water and the sediment being dumped into the 
Platte River to compensate for pulse flows, and all of the things that 
are going on up and down this river, which really have impacted farmers 
and ranchers.
  Also within three miles of either side of this river, you cannot 
drill a new well. Anytime you do, you have to close down another one. 
So all of the water here is restricted, primarily for this particular 
stretch of the Platte which is supposed to preserve the whooping crane. 
So again, I would have to say that this is a false premise.
  The thing we might also mention is that whooping cranes, normally 
when they do stop in February, and they do stop, and you will see a 
scattergram of where they stop, and there are some here, and there are 
some here and up here, so they are all through the State, but normally 
they only stay overnight.
  If this was critical habitat, they would probably stay here for 
several days, a week, maybe a month, and regroup, do some mating, 
whatever; but they do not. I think they simply fly along, and when they 
are tired and see some water, they drop in for the evening. It may be 
here, it may be here, it could be almost anywhere place. It might be on 
a lake, Sand Hill Lake or whatever.
  But the important thing to remember is this central part of the 
Platte is really critical habitat for one group of cranes, and that is 
the Sand Hill cranes. There are roughly 400,000 to 500,000 Sand Hill 
cranes that come into that area, and they spend 2 to 4 weeks every 
year. They come from Arizona, and they come from Texas and Oklahoma and 
Arkansas and Louisiana; and they funnel into this area, and they are 
heavily concentrated in this area; and then they go up to their nesting 
grounds up in Canada and North Dakota and so on.
  So what has happened I think is early on Fish and Wildlife and others 
made a mistake, and I think it was an honest mistake. I think they 
assumed that the whooping crane does the same thing as the Sand Hill 
crane, and that the whooping crane really needed this area to spend 
time to stage, to mate, to gain strength for the rest of their trip. 
But that is not the case. We very well have proven this at the present 
time.
  There is one whooping crane that got mixed up, and this whooping 
crane apparently was imprinted and identified with Sand Hill cranes. 
They have even named it. ``Oklahoma'' is the name of it. This 
particular crane comes with the Sand Hill cranes, and he sticks around 
for 3 or 4 weeks like the other Sand Hill cranes, because he thinks he 
is a Sand Hill crane, apparently. I would wonder how many of the 
sightings in this area have been Oklahoma, that one crane. He may have 
been sighted many times over. So, anyway, there is a difference between 
these two different species; and I think it is important that we 
understand that this is the case.
  Actually, Fish and Wildlife is doing everything they can to make the 
habitat fit the whooping crane. Twice a day they fly the river here 
looking for whooping cranes; and, of course, if you look hard enough, 
you may find something. But, still, you are only having 1 percent, 
maybe 2 percent of the total population, even with surveillance flights 
going back and forth on the river. Only 1 to 2 percent of the whooping 
cranes are spotted in that area as they come north or as they go south.
  So, again, we would say that probably most definitely there has been 
an improper designation of this area for the whooping crane, and nobody 
cares too much if it is an improper designation. The main issue is 
simply the fact that it is causing an awful lot of disruption up and 
down the Platte River Valley.
  Now, further, and I think this is important too, Fish and Wildlife is 
expected shortly to declare 450 miles of the Platte River and the Loop 
River right here and the Niabrara River as critical habitat for the 
piping plover and the least tern. Ninety-seven percent of these rivers 
flow through private land. Also these same two species, the piping 
plover and the least tern, will have critical habitat declared in South 
Dakota, North Dakota, Montana and Minnesota; and in those States almost 
100 percent of the area is public land. In Nebraska it is almost all 
private. The same issues that apply to the whooping crane apply to this 
particular designation of these species.
  So it is interesting. But let us stick with the middle section of the 
Platte River, because this is the area we know the most about, and this 
is the area where we have the most data. Again, refer to the document 
from the watershed director who wrote the letter. He said ``that the 
Central Platte does not offer any naturally occurring nesting habitat 
for these species, i.e., the piping plover and least tern, is 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 this stretch of river we have been talking about was studied over 
a 10-year period, and at that time they found no fledglings of chicks 
on the river, other than in sand pits which are off the river and then 
some man-made sandbars that were strictly designed for this fledgling 
capacity.

                              {time}  2215

  So the problem is that these birds nest near the water level. So any 
time there is a fluctuation, any time a river raises, it flushes out 
the nests. So they do pretty well on lakes, they do pretty well on sand 
pits, but they do not do very well on rivers, particularly rivers that 
fluctuate.
  So the letter from this particular individual who wrote to the Fish 
and Wildlife Service, the researcher said this. He said, ``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 what he is saying is this: that on that stretch of Platte River, 
any time you get elevated flows above 1,500 cubic feet per second, 
because the nests are built right at water level, you are going to 
flush them out. So what they are trying to do is that they are trying 
to regulate flows in the river from this lake right here, Lake 
McConaughy. The problem is that the lake is 100 miles from the start of 
the critical habitat, right there, and it is about 170 miles to the end 
of the critical habitat, which is right there.
  Now, the problem is that it takes, to go 100 miles, that water needs 
5 days to get to the start of the habitat, it needs 7 days to get to 
the bottom end of the habitat, so you are releasing water out of Lake 
McConaughy to control the flow to try to get 1,500 cubic feet per 
second or whatever. The problem is that in the next 5 days, we better 
not have a rain. Because if we have a rain down here or if we have a 
significant inflow from the South Platte River,

[[Page 4699]]

then, all of a sudden, that water comes up and that is what happened 
for 10 straight years. All of those rivers were flushed out. So here we 
have critical habitat, again, that is going to be very disruptive to 
ranchers and farmers that apparently is not working.
  For some reason, the sand pits and the lakes and the other areas 
where the piping plover and the least tern have been hatching and have 
been fledging have not been declared as critical habitat; only the 
rivers. So this is a little bit of a puzzle, at least to me; I do not 
quite understand exactly how this is working.
  So it would seem that attempting to create a river environment which, 
for most nesting by the piping plover and the least tern, may actually 
harm the species. This is the logic.
  Again, the letter from this particular researcher goes on. He says, 
``This begs the question as to whether it is in the best interests of 
the species' long term well-being to attract them to an area where they 
are likely to be flooded or eaten by predators.'' So what you do is you 
adjust the river and in the spring, because you are trying to hold down 
the flows, you get them to nest and then over that next 50 or 60 days, 
you are holding your breath and, most of the time, they are going to 
get flooded out. So you attract them into an area that probably is 
going to result in their destruction. They would be much better off if 
they went to a sand pit or some place where they are not going to be 
flooded out. So in some ways, all of the machinations and the different 
gyrations that we are going through here to save the piping plover and 
the least tern may actually contribute to their demise.
  So it is interesting to note that much of the regulation of critical 
habitat is designed to restore habitat to its original state. That is 
sort of the gold standard I think for many environmental groups, and 
particularly for Fish and Wildlife. So we read in the Journals of Lewis 
and Clark 1800, as they went up the Missouri River, we read about 
prairie dogs and we read about buffalo. So these folks are pointing to 
these journals and they are saying, well, this is where the prairie 
dogs once lived and this was before people disturbed it. Therefore, we 
must restore this situation, this habitat, and we must make sure these 
species are again existent in those areas.
  So there was a study done by EA Engineering in the late 1980s, and 
they indicated this. They said the Central Platte did not play a 
significant role in the maintenance of the least tern or the piping 
plover prior to the construction of Kingsley Dam in 1941. Here is the 
dam, and what they are saying is before that dam was in existence back 
in the 1800s, nobody saw the piping plover or least tern in any numbers 
at all along the Platte River.
  They said there were 3 reasons for this: Number one that ran the 
river ran unimpeded; the snow pack melted and the highest water would 
occur in June, which was about in the peak nesting time for the piping 
plover and least tern. Every year they got wiped out because that water 
went up and they could no longer survive and then, the Platte River is 
rather unique in that in August, it would dry up. Most years there 
would not be any water in the river, which meant essentially that there 
was no feed, there was no habitat for the young birds if they did 
manage to survive. So the river was not really what some people thought 
it was. Then lastly, there was no historical data of tern or plover 
sightings on the Central Platte at all during the early 1900s, the late 
1800s.
  So we would say, well, certainly, if settlers, trappers, people who 
went along the river, if they were there they would have seen them and 
they would have reported them, but they did not do so. So the 
assumption is that this is not critical habitat that is indigenous to 
the species. This is not something that has occurred over a long period 
of time, and if it has worked at all, it has been because of that dam. 
But even then, it has not been effective.
  So what we are saying here is that the critical habitat designations 
for the whooping crane and the piping plover would not seem to be 
accurate, at least the way I interpret the data. So I have requested 
the Secretary of the Interior provide an independent peer review 
through the National Academy of Science or some equivalent agency. I 
know that Secretary Norton is dedicated to making decisions based on 
accurate data. I have talked to her, and I know this is true. So we are 
assuming, we are hoping that we can avert another situation similar to 
the Klamath Basin by having an independent peer review. I think 
everyone is willing to live with it if the data indicates it. But most 
people that I know who study the river are really uncomfortable with 
making this critical habitat and all of the changes that occur in 
Nebraska, in Wyoming and in Colorado, for what appears to be 
nonexistent habitat. So we are hoping that we can get a study done.
  Mr. Speaker, I think it is important that those listening do not 
assume that I oppose endangered species. I am very much in tune with 
wildlife and I certainly do not want to see the whooping crane suffer, 
the piping plover, the least tern, the prairie dog, or whatever, but I 
think it is important to remember that sometimes the Endangered Species 
Act may actually harm the species. Of course I already mentioned that 
the coho salmon was harmed by the larger flows out of Klamath Lake 
because the water warmed up and when the water went down the river, the 
coho were damaged. So that is one example of the Endangered Species Act 
actually harming a species.
  We have also talked about the flows on the Central Platte luring the 
piping plover to nest and then having them wiped out by rain events. 
Then let us consider one other case, and that is the issue of prairie 
dogs, because the prairie dogs are now considered threatened. They are 
not listed. But I think the one thing that people need to understand is 
that ranchers and farmers right now can, in places, tolerate some 
prairie dogs, because they know they can control them. Now, a prairie 
dog can take over and eliminate a whole pasture, a whole ranch, a whole 
farm if they are left unchecked. But you can handle a prairie dog 
colony here, a prairie dog colony there, and you understand if they 
start spreading, you can do something to control the spread. But once 
the prairie dog is listed as endangered or threatened, then you cannot 
do anything to that prairie dog.
  So ranchers and farmers are concerned. So right now, some ranchers 
and farmers are saying, I cannot afford to have any prairie dogs on my 
property in case it is listed as an endangered species. So I think 
right now in some ways, the Endangered Species Act and the ability to 
list the prairie dog potentially may be working against the prairie dog 
more than any other issue at the present time.
  So we have had several examples, and there are others where the 
Endangered Species Act does not serve landowners and wildlife well. We 
talked about the Klamath Basin issue, the 2001 Canadian lynx, 
falsification of visitor data to national forests, the ignoring of the 
dumping of sludge into the Potomac and also the critical habitat 
designation on the Platte River. Let us be fair. I think it is only 
fair to say this too. I have been a little bit hard on fish and 
wildlife and the Forest Service. Certainly the great majority of 
Federal employees who work with endangered species are ethical, they 
are hard-working. I have met them, I know them and I have worked with 
them. It is like any profession: 5 or the 10 percent tend to paint with 
a very broad brush.
  However, I would have to say this, in all candor. I do believe that 
an end-justifies-the-means mentality has become more and more 
pervasive. In other words, there is the thought process that we need to 
save the species; therefore, we are going to make sure that we do 
whatever we have to do to have plenty of critical habitat, and we are 
going to protect the species and we are not going to be too worried 
about the financial consequences to ranchers and other people. So the 
absolute authority granted by the Endangered Species Act has given 
license, I believe, to rather serious abuses and we have chronicled 
some of those this evening. The person closest to the species is the 
landowner

[[Page 4700]]

and the person who often cares as much about the species as anybody is 
the landowner.
  So I have seen some cases where Fish and Wildlife people have worked 
in partnership and in a symbiotic relationship with the landowners. 
This has made a huge difference, because when you get the landowners on 
board, when they are with you and they understand what you are trying 
to do and they understand you are not out to get them, some great 
things can happen for the wildlife. So I have seen it that way.
  I have seen it on the other hand too. I have seen arbitrary behavior 
where the Endangered Species Act has been used as a club: my way or the 
highway. You guys do not have any rights, we are going to shove it down 
your throat. When that happens, you find that the landowner is forced 
to choose between a species and his livelihood, and the landowner 
usually is going to choose his livelihood. The Endangered Species Act, 
often unnecessarily, forces the landowner to make this choice, and when 
this happens, everyone loses.

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