[Congressional Record (Bound Edition), Volume 162 (2016), Part 5]
[Senate]
[Pages 6520-6521]
[From the U.S. 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 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

[[Page 6521]]

     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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