[House Report 113-539]
[From the U.S. Government Publishing Office]


113th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 2d Session                                                     113-539

======================================================================



 
     STATE, TRIBAL, AND LOCAL SPECIES TRANSPARENCY AND RECOVERY ACT

                                _______
                                

 July 17, 2014.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed

                                _______
                                

 Mr. Hastings of Washington, from the Committee on Natural Resources, 
                        submitted the following

                              R E P O R T

                             together with

                            DISSENTING VIEWS

                        [To accompany H.R. 4317]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Natural Resources, to whom was referred 
the bill (H.R. 4317) to amend the Endangered Species Act of 
1973 to require disclosure to States of the basis of 
determinations under such Act, to ensure use of information 
provided by State, tribal, and county governments in 
decisionmaking under such Act, and for other purposes, having 
considered the same, report favorably thereon without amendment 
and recommend that the bill do pass.

                          Purpose of the Bill

    The purpose of H.R. 4317 is to amend the Endangered Species 
Act of 1973 to require disclosure to States of the basis of 
determinations under such Act, and to ensure use of information 
provided by State, tribal, and county governments in 
decisionmaking under such Act.

                  Background and Need for Legislation

    H.R. 4317 is intended to ensure the federal government 
adheres to statutory responsibilities to: (1) cooperate with 
States under the Endangered Species Act (ESA), specifically 
regarding data used in listing proposals and regulations; and 
(2) ensure the best available scientific and commercial data 
used in ESA listing decisions includes data made available to 
the federal government from affected States, local county 
governments and tribal governments.
    The bill addresses two basic, but important goals. First, 
it would require the federal government to adhere to the clear 
language of section 6(a) of the ESA, which provides that: ``in 
carrying out the program authorized by the Act, the Secretary 
shall cooperate to the maximum extent practicable with the 
States'' (emphasis added).
    In testimony before the Committee on Natural Resources, 
States have expressed concerns that the federal agencies' 
handling of species listing petitions has not been conducive to 
State participation, that the federal agencies often duplicate 
analyses and conservation plans already generated by States, 
and that data provided by the States is sometimes ignored by 
the federal agencies in ESA activities.
    ESA listing and delisting decisions typically result in 
transferring the jurisdiction for management of a species 
between State and federal authority. States have argued that 
full State involvement is needed, since the States either were 
the species managers prior to a listing decision or will become 
the managers after a delisting decision. States also have 
extensive experience and expertise in science-based wildlife 
management principles and the application of public policy in 
managing wildlife as a public asset. States should be afforded 
every opportunity to provide input to laws, regulations and 
policies in implementing the ESA before they are final.
    In current potential listings evolving out of the 
Department of the Interior's 2011 multi-district litigation 
settlements with the Center for Biological Diversity and 
WildEarth Guardians, many States continue to face regulatory 
uncertainty, despite significant State investment and 
collaborative partnerships with private landowners and other 
entities to conserve species and prevent the need for a federal 
ESA listing.
    For example, the Bureau of Land Management (BLM), the U.S. 
Forest Service and the Fish and Wildlife Service (FWS) are in 
the midst of revising federal resource management plans 
affecting millions of acres of lands in western states in 
anticipation of a 2015 listing determination deadline for the 
Greater Sage Grouse imposed by the 2011 settlement. The 
Committee has received extensive testimony during multiple 
hearings about federal agencies' reliance on the National 
Technical Team (NTT) Report. Issued in 2011, the NTT Report has 
been criticized for imposing ``one-size-fits-all'' regulatory 
prescriptions, including invalid assumptions, mischaracterizing 
and misrepresenting sources, omitting existing programs 
benefitting sage grouse, and injecting personal opinion over 
science. The NTT Report has been used to justify four-mile 
buffers around areas identified as necessary for breeding sage 
grouse, known as ``leks.'' This standard could shut down access 
to large swaths of economic, energy and recreational activities 
in the western United States. States dispute the data and 
information in the report. Further, in 2012, the FWS issued a 
``Conservation Objectives Team'' Report which has also drawn 
criticism for omitting independent data/analyses on the causes 
of decline for the sage grouse, and for failing to use the most 
current state and local maps.
    In December 2010, the FWS proposed to list the Dunes 
Sagebrush Lizard as endangered under the ESA. Texas officials 
raised concerns that the FWS' listing proposal depended on 
scant, outdated data from the 1960s to determine the lizard's 
known distribution, and assumed that the lizard was ``locally 
extinct'' in certain areas where the State of Texas had 
verified it was present. After further research and data 
surveys conducted in cooperation with States, local governments 
and other affected stakeholders, the FWS reversed its earlier 
determination to list the Dunes Sagebrush Lizard as endangered 
in June 2012. As a result, the lizard continues to co-exist 
with State economic activities in an area that produces 14% of 
the nation's oil, and 47,000 jobs.
    Earlier this year, despite over $50 million spent for 
conservation, research and other activities, and more than 10 
million acres enrolled, and the FWS' ``endorsement'' of a five-
state plan in Texas, Oklahoma, Kansas, New Mexico and Colorado, 
the FWS finalized a federal listing of the Lesser Prairie 
Chicken under the ESA. These States, which clearly have proven 
their intent to make Lesser Prairie Chicken conservation a 
priority, should have a greater opportunity to demonstrate the 
success of their activities rather than be forced into a 
federal listing by an arbitrary, court-settlement deadline 
negotiated without their approval by the FWS.
    Second, H.R. 4317 would ensure that the best scientific and 
commercial data available to the Secretaries of the Interior or 
Commerce and used by them in ESA listing decisions includes 
data from those closest to the ground and most impacted by the 
listings: the States, local governments and tribes. The Natural 
Resources Committee, through State, local and tribal testimony, 
has received several examples of the federal agencies not 
including data or information in decisions where they are 
required to utilize the ``best scientific and commercial data 
available.''
    For example, in 2012, the FWS issued a revised recovery 
plan for the Utah Prairie Dog which required that prairie dogs 
located only on federal lands would be counted for purposes of 
recovery. Two Utah counties and private landowners have been 
unable to control an influx of prairie dogs that have destroyed 
private lands, and have requested the FWS to count prairie dogs 
on State, local, and private lands for recovery, which the FWS 
has refused or ignored. This FWS interpretation has created 
significant costs for rural electric cooperatives to maneuver 
transmission poles around federal lands that have been 
designated for Utah Prairie Dogs.
    In 2008, the National Oceanic and Atmospheric 
Administration's National Marine Fisheries Service (NMFS) 
concluded in ESA biological opinions that 28 listed salmon 
populations would be ``jeopardized'' by continued use of crop 
protection products long registered and labeled by the EPA. 
NMFS' requirements included nearly a quarter-mile buffer around 
water bodies affecting as much as 60 percent of agricultural 
lands in Washington state alone, which, according to an 
estimate by the U.S. Department of Agriculture, could result in 
lost revenues of over $580 million. State agriculture agencies 
expressed concerns that NMFS failed to utilize current state 
data and information and did not allow transparency and review 
to ensure use of best available scientific and commercial data.
    In 2012, Garfield County, Colorado's Board of Commissioners 
questioned the accuracy of a map developed by the FWS for 
Greater Sage Grouse habitat in Colorado after FWS refused the 
County's request to verify data used by the FWS in its NTT 
report. In more than one example, a court order has been 
required to enforce Freedom of Information Act requests to 
obtain the data from federal officials.
    Tribal governments also play a significant role in species 
conservation and recovery activities, and some tribes have 
testified about concerns that their own data and science are 
not being factored into ESA listing decisions. In the Columbia 
and Snake Rivers, where NMFS listed 13 sub-populations of 
salmon as threatened or endangered under ESA, tribal hatchery 
managers have successfully utilized hatchery supplementation to 
enhance salmon and steelhead recovery for several years. The 
Snake River fall chinook run has rebounded to record levels due 
in large part to the Nez Perce and Umatilla Tribe hatchery 
programs (expanding from 500 adult fish in 1975 to more than 
41,000 in 2010). NMFS has refused tribal requests that the 
agency factor its scientific data highlighting the positive 
benefits of hatchery fish in its listing determinations for 
recovering salmon in the Northwest.
    H.R. 4317 does not favor one science over another or 
require that multiple county or State's submission of 
conflicting data be deemed ``best available'' to the exclusion 
of another. The Secretaries of the Interior or Commerce would 
continue to have final discretion on what constitutes ``best 
available scientific and commercial data.'' However, H.R. 4317 
would ensure that they incorporate and provide proper respect 
for data provided to them by States, tribes and local 
governments.

                            Committee Action

    H.R. 4317 was introduced on March 27, 2014, by Congressman 
Randy Neugebauer (R-TX). The bill was referred to the Committee 
on Natural Resources. On April 8, 2014, the Committee held a 
hearing on the bill, and on April 30, 2014, the Committee met 
to consider the bill. Congressman Jared Huffman (D-CA) offered 
an amendment designated .001 to the bill; the amendment was not 
adopted by voice vote. No further amendments were offered, and 
the bill was then adopted and ordered favorably reported to the 
House of Representatives by a rollcall vote of 26 to 16, as 
follows:


            Committee Oversight Findings and Recommendations

    Regarding clause 2(b)(1) of rule X and clause 3(c)(1) of 
rule XIII of the Rules of the House of Representatives, the 
Committee on Natural Resources' oversight findings and 
recommendations are reflected in the body of this report.

                    Compliance With House Rule XIII

    1. Cost of Legislation. Clause 3(d)(1) of rule XIII of the 
Rules of the House of Representatives requires an estimate and 
a comparison by the Committee of the costs which would be 
incurred in carrying out this bill. However, clause 3(d)(2)(B) 
of that rule provides that this requirement does not apply when 
the Committee has included in its report a timely submitted 
cost estimate of the bill prepared by the Director of the 
Congressional Budget Office under section 402 of the 
Congressional Budget Act of 1974. Under clause 3(c)(3) of rule 
XIII of the Rules of the House of Representatives and section 
403 of the Congressional Budget Act of 1974, the Committee has 
received the following cost estimate for this bill from the 
Director of the Congressional Budget Office:

H.R. 4317--State, Tribal, and Local Species Transparency and Recovery 
        Act

    H.R. 4317 would require the Secretaries of the Interior and 
Commerce to make data used as the basis for each listing 
determination under the Endangered Species Act (ESA) available 
to states. Determinations under the ESA are made on the basis 
of the best scientific and commercial data available. H.R. 4317 
would clarify that such data includes data provided by state, 
local, and tribal governments. Based on information provided by 
the affected agencies, CBO estimates that implementing the 
legislation would have no significant effect on the federal 
budget. Enacting the bill would not affect direct spending or 
revenues; therefore, pay-as-you-go procedures do not apply.
    H.R. 4317 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act and 
would not affect the budgets of state, local, or tribal 
governments.
    The CBO staff contact for this estimate is Jeff LaFave. The 
estimate was approved by Theresa Gullo, Deputy Assistant 
Director for Budget Analysis.
    2. Section 308(a) of Congressional Budget Act. As required 
by clause 3(c)(2) of rule XIII of the Rules of the House of 
Representatives and section 308(a) of the Congressional Budget 
Act of 1974, this bill does not contain any new budget 
authority, spending authority, credit authority, or an increase 
or decrease in revenues or tax expenditures. Based on 
information provided by the affected agencies, CBO estimates 
that implementing the legislation would have no significant 
effect on the federal budget.
    3. General Performance Goals and Objectives. As required by 
clause 3(c)(4) of rule XIII, the general performance goal or 
objective of this bill is to amend the Endangered Species Act 
of 1973 to require disclosure to States of the basis of 
determinations under such Act, and to ensure use of information 
provided by State, tribal, and county governments in 
decisionmaking under such Act.

                           Earmark Statement

    This bill does not contain any Congressional earmarks, 
limited tax benefits, or limited tariff benefits as defined 
under clause 9(e), 9(f), and 9(g) of rule XXI of the Rules of 
the House of Representatives.

                    Compliance With Public Law 104-4

    This bill contains no unfunded mandates.

                       Compliance With H. Res. 5

    Directed Rule Making. The Chairman does not believe that 
this bill directs any executive branch official to conduct any 
specific rule-making proceedings.
    Duplication of Existing Programs. This bill does not 
establish or reauthorize a program of the federal government 
known to be duplicative of another program. Such program was 
not included in any report from the Government Accountability 
Office to Congress pursuant to section 21 of Public Law 111-139 
or identified in the most recent Catalog of Federal Domestic 
Assistance published pursuant to the Federal Program 
Information Act (Public Law 95-220, as amended by Public Law 
98-169) as relating to other programs.

                Preemption of State, Local or Tribal Law

    This bill is not intended to preempt any State, local or 
tribal law.

         Changes in Existing Law Made by the Bill, as Reported

  In compliance with clause 3(e) of rule XIII of the Rules of 
the House of Representatives, changes in existing law made by 
the bill, as reported, are shown as follows (existing law 
proposed to be omitted is enclosed in black brackets, new 
matter is printed in italic, existing law in which no change is 
proposed is shown in roman):

ENDANGERED SPECIES ACT OF 1973

           *       *       *       *       *       *       *


                              definitions

  Sec. 3. For the purposes of this Act--
  (1) * * *
  (2) The term ``best scientific and commercial data 
available'' includes all such data submitted by a State, 
tribal, or county government.
  [(2)] (3) The term ``commercial activity'' means all 
activities of industry and trade, including, but not limited 
to, the buying or selling of commodities and activities 
conducted for the purpose of facilitating such buying and 
selling: Provided, however, That it does not include 
exhibitions of commodities by museums or similar cultural or 
historical organizations.
  [(3)] (4) The terms ``conserve,'' ``conserving,'' and 
``conservation'' mean to use and the use of all methods and 
procedures which are necessary to bring any endangered species 
or threatened species to the point at which the measures 
provided pursuant to this Act are no longer necessary. Such 
methods and procedures include, but are not limited to, all 
activities associated with scientific resources management such 
as research, census, law enforcement, habitat acquisition and 
maintenance, propagation, live trapping, and transplantation, 
and, in the extraordinary case where population pressures 
within a given ecosystem cannot be otherwise relieved, may 
include regulated taking.
  [(4)] (5) The term ``Convention'' means the Convention on 
International Trade in Endangered Species of Wild Fauna and 
Flora, signed on March 3, 1973, and the appendices thereto.
  [(5)] (6)(A) * * *

           *       *       *       *       *       *       *

  [(6)] (7) The term ``endangered species'' means any species 
which is in danger of extinction throughout all or a 
significant portion of its range other than a species of the 
Class Insecta determined by the Secretary to constitute a pest 
whose protection under the provisions of this Act would present 
an overwhelming and overriding risk to man.
  [(7)] (8) The term ``Federal agency'' means any department, 
agency, or instrumentality of the United States.
  [(8)] (9) The term ``fish or wildlife'' means any member of 
the animal kingdom, including without limitation any mammal, 
fish, bird (including any migratory, nonmigratory, or 
endangered bird for which protection is also afforded by treaty 
or other international agreement), amphibian, reptile, mollusk, 
crustacean, arthropod or other invertebrate, and includes any 
part, product, egg, or offspring thereof, or the dead body or 
parts thereof.
  [(9)] (10) The term ``foreign commerce'' includes, among 
other things, any transaction--
          (A) * * *

           *       *       *       *       *       *       *

  [(10)] (11) The term ``import'' means to land on, bring into, 
or introduce into or attempt to land on, bring into, or 
introduce into, any place subject to the jurisdiction of the 
United States, whether or not such landing, bringing, or 
introduction constitutes an importation within the meaning of 
the customs laws of the United States.
  [(12)] (12) The term ``permit or license applicant'' means, 
when used with respect to an action of a Federal agency for 
which exemption is sought under section 7, any person whose 
application to such agency for a permit or license has been 
denied primarily because of the application of section 7(a) to 
such agency action.
  [(13)] (13) The term ``person'' means an individual, 
corporation, partnership, trust, association, or any other 
private entity; or any officer, employee, agent, department, or 
instrumentality of the Federal Government, of any State, 
municipality, or political subdivision of a State, or of any 
foreign government; any State, municipality, or political 
subdivision of a State; or any other entity subject to the 
jurisdiction of the United States.
  [(14)] (14) The term ``plant'' means any member of the plant 
kingdom, including seeds, roots and other parts thereof.
  [(15)] (15) The term ``Secretary'' means, except as otherwise 
herein provided, the Secretary of the Interior or the Secretary 
of Commerce as program responsibilities are vested pursuant to 
the provisions of Reorganization Plan Numbered 4 of 1970; 
except that with respect to the enforcement of the provisions 
of this Act and the Convention which pertain to the importation 
or exportation of terrestrial plants, the term also means the 
Secretary of Agriculture.
  [(16)] (16) The term ``species'' includes any subspecies of 
fish or wildlife or plants, and any distinct population segment 
of any species of vertebrate fish or wildlife which interbreeds 
when mature.
  [(17)] (17) The term ``State'' means any of the several 
States, the District of Columbia, the Commonwealth of Puerto 
Rico, American Samoa, the Virgin Islands, Guam, and the Trust 
Territory of the Pacific Islands.
  [(18)] (18) The term ``State agency'' means any State agency, 
department, board, commission, or other governmental entity 
which is responsible for the management and conservation of 
fish, plant, or wildlife resources within a State.
  [(19)] (19) The term ``take'' means to harass, harm, pursue, 
hunt, shoot, wound, kill, trap, capture, or collect, or to 
attempt to engage in any such conduct.
  [(20)] (20) The term ``threatened species'' means any species 
which is likely to become an endangered species within the 
foreseeable future throughout all or a significant portion of 
its range.
  [(21)] (21) The term ``United States,'' when used in a 
geographical context, includes all States.

           *       *       *       *       *       *       *


                      cooperation with the states

  Sec. 6. (a) General.--(1) In carrying out the program 
authorized by this Act, the Secretary shall cooperate to the 
maximum extent practicable with the States. [Such cooperation 
shall include]
  (2) Such cooperation shall include--
          (A) before making a determination under section 4(a), 
        providing to States affected by such determination all 
        data that is the basis of the determination; and
          (B) consultation with the States concerned before 
        acquiring any land or water, or interest therein, for 
        the purpose of conserving any endangered species or 
        threatened species.

           *       *       *       *       *       *       *


                        interagency cooperation

  Sec. 7. (a) * * *

           *       *       *       *       *       *       *

  (n) Judicial Review.--Any person, as defined by [section 
3(13)] section 3(14) of this Act, may obtain judicial review, 
under chapter 7 of title 5 of the United States Code, of any 
decision of the Endangered Species Committee under subsection 
(h) in the United States Court of Appeals for (1) any circuit 
wherein the agency action concerned will be, or is being, 
carried out, or (2) in any case in which the agency action will 
be, or is being, carried out outside of any circuit, the 
District of Columbia, by filing in such court within 90 days 
after the date of issuance of the decision, a written petition 
for review. A copy of such petition shall be transmitted by the 
clerk of the court to the Committee and the Committee shall 
file in the court the record in the proceeding, as provided in 
section 2112, of title 28, United States Code. Attorneys 
designated by the Endangered Species Committee may appear for, 
and represent the Committee in any action for review under this 
subsection.

           *       *       *       *       *       *       *


                            DISSENTING VIEWS

    H.R. 4317 decrees that all data submitted by states, tribes 
or local governments be considered the ``best scientific data 
available.'' The bill would also require that all data that is 
the basis of a listing determination under the Endangered 
Species Act be provided to any state affected by the listing 
prior to the final determination being made.
    These provisions are troubling on a number of levels. 
Forcing Federal agencies to accept as the best available 
science anything that states, localities or tribes submit is 
both preposterous and impractical. The lack of quality control 
would invite the submission of incomplete, shoddy, or falsified 
information in support of political positions, not scientific 
realities.
    Further, H.R. 4317 opens up a whole new avenue for 
litigation under the ESA, particularly in cases where states, 
localities, or tribes submit conflicting data. There is no 
scientific basis whatsoever for Congress to establish any 
particular source of data as being the ``best'' when in fact it 
may not be. Agency decision-makers must constantly evaluate 
data from all sources to ensure they are making decisions based 
on the best information available, and we should encourage them 
to continue doing so.
    At Committee markup, the Majority argued that the bill 
would only require Federal agencies to ``consider'' this data 
as the best available, not mandate it. Unfortunately, an honest 
reading of H.R. 4317 in the context of the ESA does not support 
such an argument. If we are to believe the Majority's stated 
intent, we find it strange that they rejected our amendment to 
explicitly require this data to be considered, rather than 
automatically deemed to be the best, sight unseen.
    By dictating what constitutes sound science based on its 
source rather than its merit, this bill creates more problems 
than it solves. The decision on whether or not any particular 
study or data set has scientific merit with respect to an 
individual species listing should be made in the context of on-
the-ground conservation work, not by politicians in Washington, 
DC. For these reasons, we oppose H.R. 4317 as reported.
                                   Peter DeFazio,
                                           Ranking Member, Committee on 
                                               Natural Resources.
                                   Raul M. Grijalva.
                                   Jared Huffman.
                                   Alan S. Lowenthal.
                                   Katherine M. Clark.
                                   Matt Cartwright.
                                   Rush Holt.
                                   Grace F. Napolitano.
                                   Gregorio Kilili Camacho Sablan.
                                   Eni F. H. Faleomavaega.
                                   Pedro R. Pierluisi.

                                  
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