[House Hearing, 108 Congress]
[From the U.S. Government Publishing Office]
H.R. 2933, A BILL TO AMEND THE ENDANGERED SPECIES ACT OF 1973 TO
REFORM THE PROCESS FOR DESIGNATING CRITICAL HABITAT UNDER THAT ACT.
=======================================================================
LEGISLATIVE HEARING
before the
COMMITTEE ON RESOURCES
U.S. HOUSE OF REPRESENTATIVES
ONE HUNDRED EIGHTH CONGRESS
SECOND SESSION
__________
Wednesday, April 28, 2004
__________
Serial No. 108-91
__________
Printed for the use of the Committee on Resources
Available via the World Wide Web: http://www.access.gpo.gov/congress/
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______
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COMMITTEE ON RESOURCES
RICHARD W. POMBO, California, Chairman
NICK J. RAHALL II, West Virginia, Ranking Democrat Member
Don Young, Alaska Dale E. Kildee, Michigan
W.J. ``Billy'' Tauzin, Louisiana Eni F.H. Faleomavaega, American
Jim Saxton, New Jersey Samoa
Elton Gallegly, California Neil Abercrombie, Hawaii
John J. Duncan, Jr., Tennessee Solomon P. Ortiz, Texas
Wayne T. Gilchrest, Maryland Frank Pallone, Jr., New Jersey
Ken Calvert, California Calvin M. Dooley, California
Scott McInnis, Colorado Donna M. Christensen, Virgin
Barbara Cubin, Wyoming Islands
George Radanovich, California Ron Kind, Wisconsin
Walter B. Jones, Jr., North Jay Inslee, Washington
Carolina Grace F. Napolitano, California
Chris Cannon, Utah Tom Udall, New Mexico
John E. Peterson, Pennsylvania Mark Udall, Colorado
Jim Gibbons, Nevada, Anibal Acevedo-Vila, Puerto Rico
Vice Chairman Brad Carson, Oklahoma
Mark E. Souder, Indiana Raul M. Grijalva, Arizona
Greg Walden, Oregon Dennis A. Cardoza, California
Thomas G. Tancredo, Colorado Madeleine Z. Bordallo, Guam
J.D. Hayworth, Arizona George Miller, California
Tom Osborne, Nebraska Edward J. Markey, Massachusetts
Jeff Flake, Arizona Ruben Hinojosa, Texas
Dennis R. Rehberg, Montana Ciro D. Rodriguez, Texas
Rick Renzi, Arizona Joe Baca, California
Tom Cole, Oklahoma Betty McCollum, Minnesota
Stevan Pearce, New Mexico
Rob Bishop, Utah
Devin Nunes, California
Randy Neugebauer, Texas
Steven J. Ding, Chief of Staff
Lisa Pittman, Chief Counsel
James H. Zoia, Democrat Staff Director
Jeffrey P. Petrich, Democrat Chief Counsel
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C O N T E N T S
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Page
Hearing held on Wednesday, April 28, 2004........................ 1
Statement of Members:
Bordallo, Hon. Madeleine Z., a Delegate in Congress from Guam 25
Prepared statement of.................................... 26
Cardoza, Hon. Dennis A., a Representative in Congress from
the State of California.................................... 16
Prepared statement of.................................... 17
Gilchrest, Hon. Wayne T., a Representative in Congress from
the State of Maryland...................................... 19
Prepared statement of.................................... 21
Grijalva, Hon. Raul M., a Representative in Congress from the
State of Arizona, Prepared statement of.................... 171
Pombo, Hon. Richard W., a Representative in Congress from the
State of California........................................ 1
Rahall, Hon. Nick J., II, a Representative in Congress from
the State of West Virginia................................. 3
Prepared statement of.................................... 4
Statement of Witnesses:
Clark, Jamie Rappaport, Executive Vice President, Defenders
of Wildlife................................................ 71
Prepared statement of.................................... 73
Response to questions submitted for the record........... 76
Crookham, Kathleen M., District 2 Supervisor, Merced County
Board of Supervisors, Merced, California................... 115
Prepared statement of.................................... 117
Response to questions submitted for the record........... 119
Doebley, Michael, Deputy Director for Government Affairs,
Recreational Fishing Alliance.............................. 143
Prepared statement of.................................... 144
Gray, Joni L., 4th District Supervisor, Santa Barbara County
Board of Supervisors, Santa Barbara, California............ 150
Prepared statement of.................................... 152
Response to questions submitted for the record........... 155
Kelley, Paul L., 4th District Supervisor, Sonoma County Board
of Supervisors, Sonoma, California......................... 119
Prepared statement of.................................... 121
Response to questions submitted for the record........... 123
Liebesman, Lawrence R., Esq., Holland & Knight, LLP.......... 50
Prepared statement of.................................... 53
Response to questions submitted for the record........... 59
Manson, Hon. Craig, Assistant Secretary for Fish, Wildlife
and Parks, U.S. Department of the Interior................. 5
Prepared statement of.................................... 7
Response to questions submitted for the record........... 10
Martini, Michael F., Council Member, City of Santa Rosa,
California................................................. 145
Prepared statement of.................................... 147
Response to questions submitted for the record........... 149
McKeel, Steven L., Executive Director, Martin Marietta
Materials, Inc., on behalf of the National Stone, Sand &
Gravel Association......................................... 105
Prepared statement of.................................... 107
Response to questions submitted for the record........... 112
Ramey, Rob Roy, II, Ph.D., Department of Zoology Chair and
Curator of Vertebrate Zoology, Denver Museum of Nature and
Science.................................................... 63
Prepared statement of.................................... 65
Response to questions submitted for the record........... 70
Sheldon, Joseph K., Ph.D., Professor of Biology and
Environmental Studies, Messiah College, Grantham,
Pennsylvania............................................... 156
Prepared statement of.................................... 158
Response to questions submitted for the record........... 164
Sunding, David L., Professor, University of California at
Berkeley................................................... 44
Prepared statement of.................................... 46
Response to questions submitted for the record........... 49
Walters, Donald B., Jr., President, Primary Systems Services
Group, LLC., on behalf of the National Association of Home
Builders................................................... 124
Prepared statement of.................................... 125
Response to questions submitted for the record........... 130
Webster, Steven E., Executive Director, Florida Marine
Contractors Association.................................... 91
Prepared statement of.................................... 93
Response to questions submitted for the record........... 104
Additional materials supplied:
Society for Conservation Biology, North American Section,
Statement submitted for the record......................... 173
LEGISLATIVE HEARING ON H.R. 2933, TO AMEND THE ENDANGERED SPECIES ACT
OF 1973 TO REFORM THE PROCESS FOR DESIGNATING CRITICAL HABITAT UNDER
THAT ACT.
----------
Wednesday, April 28, 2004
U.S. House of Representatives
Committee on Resources
Washington, DC
----------
The Committee met, pursuant to notice, at 10:05 a.m. in
Room 1324, Longworth House Office Building, Hon. Richard W.
Pombo, [Chairman of the Committee] presiding.
Present: Representatives Pombo, Gilchrest, Calvert, Cubin,
Radanovich, Jones, Gibbons, Walden, Tancredo, Osborne, Flake,
Rehberg, Renzi, Cole, Pearce, Bishop, Rahall, Kildee, Inslee,
Tom Udall, Grijalva, Cardoza, Bordallo, Baca, and McCollum.
STATEMENT OF THE HON. RICHARD W. POMBO, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF CALIFORNIA
The Chairman. Good morning. I would like to call this
hearing on H.R. 2933 to order. I look forward to listening and
gaining greater insight from the witnesses today and from my
congressional colleagues on how the Endangered Species Act is
being implemented by Federal agencies and interpreted by the
courts specific to critical habitat.
The Endangered Species Act has given wildlife very little
to cheer about as it barrels out of control through its 30th
anniversary year. Since its inception, more than 1,300 species
have been listed as threatened or endangered, yet only seven
domestic species listed under the ESA have ever been recovered
in those 30 years. Not one of these species was recovered as a
result of the ESA alone; their removal from the ESA is to be
linked to other vital conservation measures and human
intervention.
Sadly, that is the history of the Endangered Species Act.
Born of the best intentions, it has failed to live up to its
promise and species are more threatened today because of its
serious limitations. Thirty years of the same prescription have
failed. Moreover, despite the evidence, some maintain that we
can only use one treatment, the one prescribed 30 years ago.
But for the last 30 years the ESA has remained a law that
checks species in, but never checks them out. It has been a
failing form of managed care.
Specifically, the diagnosis and treatment aspects of the
law are fatally flawed. They are ambiguous, open to arbitrary
personal judgment, and do not rely on sound science or peer-
reviewed research.
Known as listing and critical habitat respectively, these
key elements of the Act are responsible for the misdiagnosis of
species as endangered or threatened and the application of a
one-size-fits-all solution. When a species is listed for
protection, treatment comes in the form of critical habitat
designations which forbid the use of lands by or for anything
but the species. Critical habitat is one of the most perverse
shortcomings of the Act. It has been interpreted to mean that
if an animal is determined to be in trouble, there is only one
viable option--to designate critical habitat and let nature
take its course.
For over a decade Congress has worked to reauthorize the
Endangered Species Act so that it both conserves species and
the rights and needs of Americans. During the same time,
designation of critical habitat under the ESA has evolved into
a source of controversy. Due to the rigorous mandates required,
specifically critical habitat designations, many think the
program is unworkable.
Rampant environmental litigation has undermined the already
broken system at the expense of species recovery. In fact,
there have been so many lawsuits that the Federal critical
habitat program went bankrupt last year. Litigation has left
the United States Fish and Wildlife Service with a limited
ability to prioritize its species recovery programs and little
or no scientific discretion to focus on those species in
greatest need of conservation.
The Administration acknowledges that court orders and
mandates often result in leaving the Fish and Wildlife Service
with almost no ability to confirm scientific data in its
administrative record before making decisions on listing of
critical habitat proposals. In the wake of this decade-long
trend, the current Administration, supported by the previous
Clinton Administration, recognizes that critical habitat
designations provide the majority of listed species and
proposed-to-be-listed species little, if any, additional
protection.
Since the last authorization of the Endangered Species Act
expired in 1993, there has been great optimism and hope that we
would be able to amend the Act and implement a process based on
sound science and common-sense approaches to species
conservation and recovery, goals similar to those that the 1973
Congress envisioned when they originally adopted the law.
Congress intended for this law to be used to recover species
and to increase the number of those in need before triggering
Federal regulation.
To merely prevent the extinction of the species is not a
long-term measurable success. Congress never dreamed that it
would turn into a tool used by vocal and well-funded special
interest groups seeking to impose court-ordered Federal land
and water controls on the majority of Americans.
Celebrating these failures, as many are doing on this 30th
anniversary year of the Act, is not how we should mark this
occasion. Instead, we must begin to improve it for the
immediate and long-term health of America's wildlife. As we are
doing here today by closely examining H.R. 2933, Congress must
focus on legislative reforms that foster the science,
technology, and innovation that have made America successful in
other endeavors.
I realize amendment and reauthorization of the Endangered
Species Act has dragged on since it expired in 1993. This is
not for lack of trying and Congress has come close to reaching
agreement a number of times. But unfortunately, some groups
would rather play politics and benefit from the current state
of dislocation under the Act than to agree on what is best for
the species. It is this selfish attitude that has resulted in
the uncertainty that wildlife is facing nationwide with
critical habitat and absentee recovery goals.
So now that the candles are blown out on the 30th
anniversary celebrations, it is time for the House Committee on
Resources to start its work on meaningful reauthorization of
the Act. Today we begin the process and, as Chairman, I wish
for all Committee members to take note that we will finish this
this time.
I would like at this time to recognize the Ranking Member,
Mr. Rahall.
STATEMENT OF THE HON. NICK J. RAHALL, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF WEST VIRGINIA
Mr. Rahall. Thank you, Mr. Chairman.
Mr. Chairman, when you became Chairman of this committee
there were some, and I think it is no secret, who felt deeply
that you would take a meat ax to the Endangered Species Act,
that you intended to gut the ESA, but I have to tell you when I
heard such things I simply could not believe it. Amidst the
hand-wringing I told anyone who asked, ``Sure, it would be far
better if I were chairman of the committee.'' But in the
alternative, I do think Chairman Pombo intends to take a much
more deliberative approach to the ESA than the past rhetoric
would lead one to believe. And so far to date, my assessment
has been correct.
While supporters of H.R. 2933 and myself have fundamental
differences on how we view the Endangered Species Act, this
bill represents a piecemeal effort to address what some view as
problems with the statute and I have said for many years that I
do not believe the ESA needs to be amended. Problems do exist
with the Act's implementation. This is not a function of the
statute itself but rather, a lack of adequate funding and the
failure of the Fish and Wildlife Service to issue instructions
to its managers outlining how the critical habitat management
program should be run. And I would note that the GAO twice
recommended this.
And I think some people confuse the situation. Because of
real or perceived problems with certain aspects of the Act's
implementation due to a lack of funding, they may confuse the
issue and believe that the Act itself is in need of reform.
The Bush Administration's Fiscal Year 2005 budget would cut
ESA recovery programs by $10 million below current year levels.
It would also slash about $2 million from the ESA's
consultation and habitat conservation planning program. These
shortcomings are going to affect real people in the real world,
including private property owners, developers, Federal
agencies, and local units of government.
Take, for instance, Snowshoe Ski Resort in the
congressional district I have the honor of representing. It is
owned by a major corporation, Intrawest. It is an 11,000-acre
facility. They are engaged in a habitat conservation plan and
lo and behold, things are proceeding too slowly. Yet Intrawest
is not joining the chorus that the ESA is broken and must be
amended. You know what their main complaint is? The Elkins,
West Virginia Fish and Wildlife Service field office is
overworked and underfunded, and they are right.
The bottom line is that without critical habitat, species
will go extinct and who are we to determine which species shall
perish? As people of faith, and I know that we all are, we
should acknowledge these words from Ecclesiastes: ``Man's fate
is like that of animals. The same fate awaits them both. As one
dies, so dies the other. All have the same breath.''
I will conclude by noting how pleased I am that we have a
witness today who will bring the Christian perspective to this
debate, Dr. Joseph Sheldon from Messiah College in
Pennsylvania. And while I note he has been placed last on the
witness list, the word of the faithful will refuse to be heard
last in our deliberations on this issue. Thank you, Mr.
Chairman.
[The prepared statement of Mr. Rahall follows:]
Statement of The Honorable Nick J. Rahall, II, a Representative in
Congress from the State of West Virginia
Mr. Chairman, when you became chairman of this committee there were
some, and I think it is no secret, who felt deeply that you would take
a meat axe to the Endangered Species Act. That you intended to ``gut''
the ESA.
I will tell you, I could not believe it when I heard such things.
Amidst the hand-wringing I told anyone who asked, sure, it would be far
better to have a Democrat as chairman, but in the alternative, I think
Chairman Pombo intends to take a much more deliberative approach to the
ESA than past rhetoric may lead one to believe.
To date, my assessment has been correct. While supporters of H.R.
2933 and myself have fundamental differences on how we view the
Endangered Species Act, this bill represents a piecemeal effort to
address what some view as problems with the statute.
I have said for many years that I do not believe the ESA needs to
be amended. Problems do exist with the Act's implementation. That is
not a function of the statute itself, but rather, lack of adequate
funding, and the failure of the Fish and Wildlife Service to issue
instructions to its managers outlining how the critical habitat
management program should be run. I would note that the GAO twice
recommended this.
And I think some people confuse the situation. Because of real or
perceived problems with certain aspects of the Act's implementation due
to a lack of funding, they may confuse the issue and believe that the
Act itself is in need of reform.
The Bush Administration's Fiscal Year 2005 budget would cut ESA
recovery programs by $10 million below current year levels. It would
also slash about $2 million from the ESA consultation and habitat
conservation planning program.
These shortcomings are going to affect real people in the real
world, including private property owners, developers, Federal agencies
and local units of government.
Take for instance Snowshoe Ski Resort in my Congressional District.
Owned by a major corporation, Intrawest, the resort is an 11,000 acre
facility. They are engaged in a Habitat Conservation Plan. And Lo and
Behold, things are proceeding too slowly. Yet, Intrawest is not joining
the chorus that the ESA is broken and must be amended. You know what
their complaint is? The Elkins, West Virginia, Fish & Wildlife Service
Field Office is overworked and underfunded. And they are right.
The bottom line is that without critical habitat species will go
extinct. And who are we to determine which species shall perish. As
people of faith, as I am sure we all are, we should acknowledge these
words from Ecclesiastes: ``Man's fate is like that of the animals; the
same fate awaits them both: As one dies, so dies the other. All have
the same breath.''
I will conclude by noting just how pleased I am to have a witness
today who will bring the Christian perspective to this debate, Dr.
Joseph Sheldon from Messiah College in Pennsylvania. And while he has
been placed last on the witness list, the word of the faithful will
refuse to be heard last in our deliberations on these matters.
______
The Chairman. Thank you.
I would now like to call up our first panel, which is made
up of The Honorable Judge Craig Manson, Assistant Secretary for
Fish, Wildlife and Parks.
Thank you, Judge Manson. It is nice to have you back before
the Committee. I think it is appropriate to begin the
deliberations on this legislation that was introduced by my
colleague, Mr. Cardoza, with comments from those that are
charged with overseeing the Act. So Judge Manson, when you are
ready you can begin.
STATEMENT OF THE HONORABLE CRAIG MANSON, ASSISTANT SECRETARY
FOR FISH, WILDLIFE AND PARKS, U.S. DEPARTMENT OF THE INTERIOR
Mr. Manson. Thank you, Mr. Chairman. I appreciate the
opportunity to appear once again before this committee,
particularly today on H.R. 2933, the Critical Habitat Reform
Act of 2003.
Let me begin by saying that we in this Administration are
absolutely committed to achieving the primary purpose of the
Endangered Species Act, which is the recovery of threatened and
endangered species, and to improve the efficiency and
effectiveness of the Act.
We believe that the conservation of habitat is vitally
important to successful recovery and delisting of species, but
critical habitat is another matter altogether. As you have
indicated in your remarks, the Fish and Wildlife Service's
efforts to carry out the ESA requirement of designating
critical habitat have been a source of controversy for many
years. As the Clinton Administration noted several years ago,
in more than 30 years of implementing the Act, the Service has
found that designation of official critical habitat provides
little additional protection to most listed species while
consuming significant amounts of scarce conservation resources.
The Department of the Interior, the Service, the Congress
and interested parties must work together to determine how to
get the most value for species conservation out of available
Federal resources. In that regard, we believe that H.R. 2933 is
a step in the right direction and we would like to continue to
work with the author and the Committee on any proposed
amendments concerning the designation of critical habitat.
As you pointed out, for more than a decade the Service has
been embroiled in a relentless cycle of litigation over the
implementation of the critical habitat and listing provisions
of the Act and the Service now faces a program in chaos, due
not to agency inertia or neglect but due to a lack of
scientific or management discretion to focus available
resources on the actions that provide the greatest benefit to
those species in greatest need of conservation, and the
keystone of that situation is critical habitat.
The Service has for a number of years characterized the
designation of critical habitat as required under the Act as
the most costly and least effective class of regulatory actions
undertaken by the Service. It is often counterproductive and
can result in negative public sentiment toward the designation
and toward the Act.
For these reasons and others, for many years the Service
often found the designation of critical habitat to be not
prudent and did not designate it for most listed species, and
this approach was formalized under the previous Administration.
However, the legislative history is clear that Congress
intended the findings of not prudent to be limited to
exceptional circumstances and as a result, we faced the flood
of lawsuits that you alluded to earlier.
Extensive litigation has shown that the courts cannot be
expected to provide either relief or an answer because they are
equally constrained by the strict language of the Act. The
Department of Justice has defended these suits and sought to
secure relief from the courts to allow the Service to regain
the ability to prioritize the listing program according to
biological need and almost universally the courts have failed
to grant that relief.
Now with respect to the issue of funding, the
Administration's budget request for 2005 provides funding to
meet our resource protection goals and address the growing
listing program's litigation-driven workload. The requested
increase includes a total of $13.7 million for critical habitat
for already listed species. That is an increase of $4.8 million
over the Fiscal Year 2004 funding level. The increased funding
will allow the Service to meet its current and anticipated
court orders for the designation of critical habitat. In this
regard I would note that as of April 26 there were 76 lawsuits
pending or threatened related to critical habitat or other
Section 4 actions.
With respect to H.R. 2933, it directs that the timing of
critical habitat be concurrent with the approval of recovery
plans, a concept which has been supported over the prior
Administration, and we recognize that this is one of a number
of limited potential solutions to address the problems that we
are talking about here today.
The bill also specifies factors for consideration when
conducting an economic impact analysis, including the direct,
indirect and cumulative impacts associated with the
designation. It further modifies the content of required
notices for proposed designation to include any municipality
having administrative jurisdiction over the area in which the
species is believed to occur.
We believe that these steps are in the right direction to
address several of our concerns about the current designation
process. We are also pleased that the bill codifies some of the
reforms that the Administration has carried out over the past 3
years. As I said earlier, we are dedicated to working with the
Congress to find the solutions to the problems associated with
critical habitat.
I would note that I have directed the Fish and Wildlife
Service to strictly construe the provisions of the Endangered
Species Act with respect to the timing of critical habitat
designations and that is a measure that we have taken in order
to staunch the bleeding, if you will, and stem the tide of
litigation to the extent that we can.
I have also issued an endangered species guidance letter on
critical habitat to the Fish and Wildlife Service outlining
several important points concerning designation of critical
habitat. Later this week this draft critical habitat guidance
will be finalized and the Service will begin applying it.
So although we believe that the current system of
designating critical habitat is broken, the combination of
administrative measures and legislative action will work to
solve that issue and we are prepared again to work with the
Committee to identify ways to provide relief and ensure that
the legislation clearly and efficiently accomplishes its goals.
Mr. Chairman, that concludes my prepared testimony. I would
be pleased to respond to any questions that you or other
members of the Committee may have.
[The prepared statement of Mr. Manson follows:]
Statement of Craig Manson, Assistant Secretary for Fish and Wildlife
and Parks, U.S. Department of the Interior
Mr. Chairman, I appreciate this opportunity to testify today on
H.R. 2933, the ``Critical Habitat Reform Act of 2003.''
Let me begin by saying that we are committed to achieving the
primary purpose of the Endangered Species Act (ESA or Act)--the
recovery of threatened and endangered species--and to improving the
efficiency and effectiveness of the Act. We believe that conservation
of habitat is vitally important to successful recovery and delisting of
species.
As discussed in more detail below, the U.S. Fish and Wildlife
Service's (Service) efforts to carry out the ESA's requirement of
designating critical habitat have been a source of controversy and
challenge for many years. As the Clinton Administration noted several
years ago, in more than 30 years of implementing the Act, the Service
had found that designation of official critical habitat provided little
additional protection to most listed species, while consuming
significant amounts of scarce conservation resources. The Department of
the Interior (Department), Congress, and interested parties must work
together to determine how to get the most value for species
conservation out of available federal resources. With this in mind, we
appreciate the opportunity to comment on H.R. 2933. We believe that the
legislation is a step in the right direction, and would like to
continue to work with the Committee on any proposed amendments to the
ESA concerning the designation of critical habitat.
Background
For well over a decade, the Service has been embroiled in a
relentless cycle of litigation over its implementation of the listing
and critical habitat provisions of the Act. The Service now faces a
Section 4 program in chaos due not to agency inertia or neglect, but to
a lack of scientific or management discretion to focus available
resources on the listing actions that provide the greatest benefit to
those species in greatest need of conservation. The keystone of this
situation is critical habitat.
The Service has characterized the designation of critical habitat
as required under the Act as the most costly and least effective class
of regulatory actions undertaken by the Service. It is often
counterproductive and can result in negative public sentiment to the
designation. This negative public sentiment is fueled by inaccuracies
in the initial area designated when we must act with inadequate
information to meet deadlines and because there is often a
misconception among the public that, if an area is outside of the
designated critical habitat, it is of no value to the species. On the
other hand, the designation of critical habitat imposes often
burdensome requirements on federal agencies and landowners, or is
perceived by them as doing so, and the designation process can create
significant economic and social turmoil.
For these reasons, for many years the Service often found
designation of critical habitat to be ``not prudent,'' and did not
designate it for most listed species; this approach was formalized
during the previous Administration. However, the legislative history is
clear that Congress intended such findings to be limited to exceptional
circumstances. In the late 1990s, some critics began challenging these
``not prudent'' findings in court; those successes led to a flood of
additional suits which continue to this day. These lawsuits have
subjected the Service to an ever-increasing series of court orders and
court-approved settlement agreements, compliance with which now
consumes nearly the entire listing program budget. This leaves the
Service with little ability to prioritize its activities to direct
resources to listing program actions that would provide the greatest
conservation benefit to those species in need of attention. The
previous Administration recognized this when it said that lawsuits
which force the Service to designate critical habitat necessitate the
diversion of scarce Federal resources from imperiled,. but unlisted,
species which do not yet benefit from the protections of the ESA.
The accelerated schedules of court-ordered designations have left
the Service with limited ability to take additional time for review of
comments and information to ensure the rule has addressed all the
pertinent issues before making decisions on listing and critical
habitat proposals, due to the risks associated with noncompliance with
judicially imposed deadlines. This, in turn, fosters a second round of
litigation in which those who will suffer adverse impacts from these
decisions challenge them. This cycle of litigation appears endless, is
very expensive, and, in the final analysis, provides relatively little
additional protection to listed species.
Extensive litigation has shown that the courts cannot be expected
to provide either relief or an answer, because they are equally
constrained by the strict language of the Act. The Department of
Justice has defended these lawsuits and sought to secure relief from
the courts to allow the Service to regain the ability to prioritize the
listing program according to biological need. Almost universally, the
courts have declined to grant that relief.
In 2001, a federal district judge, in Center for Biological
Diversity v. Norton, No. CIV 01-0258 PK/RLP (ACE), observed that ``the
Secretary is caught in a quandary'' in trying to ``fulfill the myriad
of mandatory [ESA] duties.'' The judge opined that ``[m]ore lawsuits
will inevitably follow'' unless, among other things, the Service
regains its discretion to prioritize its workload. The judge suggested
that a legislative solution is necessary; otherwise ``tax dollars will
be spent not on protecting species, but on fighting losing battle after
losing battle in court.''
Other courts have agreed with this assessment. Simply put, the
listing and critical habitat program is now operated in a ``first to
the courthouse'' mode, with each new court order or settlement taking
its place at the end of an ever-lengthening line. We are no longer
operating under a rational system that allows us to prioritize
resources to address the most significant biological needs. I should
note that it is as a direct result of this litigation that we have had
to request a critical habitat listing subcap in our appropriations
request the last several fiscal years in order to protect the funding
for other ESA programs. At this point, compliance with existing court
orders and court-approved settlement agreements will likely require
funding into Fiscal Year 2007.
In short, litigation over critical habitat has hijacked the
program. Former Secretary Bruce Babbitt wrote in an op-ed piece in the
April 2001 N.Y. Times that, in its struggle to keep up with court
orders, the Service has diverted its best scientists and much of its
budget for the ESA away from more important tasks like evaluating
candidates for listing and providing other protections for species on
the brink of extinction. We also believe that available resources could
be better spent focusing on those actions that benefit species by
providing the protection of the Act to those species that need it, and
then pursuing effective conservation of these species through improving
the consultation process, the development and implementation of
recovery plans, and voluntary partnerships with states and private
landowners.
For example, other more significant, and more efficacious, elements
of a modern conservation strategy than critical habitat designations
might include habitat conservation plans, conservation banking,
voluntary agreements with landowners such as through the Service's
Partners for Fish and Wildlife Program, incentive-based actions such as
those carried out under the Service's Landowner Incentive Program,
partnerships with states, tribes, and nongovernmental organizations,
and private stewardship efforts by individuals and businesses. These
programs, which consist of combined private and governmental action,
improve the health of our lands, forests, rivers, and other ecosystems.
Their implementation provides far greater conservation benefits than
the designation of critical habitat while avoiding the regulatory,
economic, and social disadvantages of critical habitat designations.
Congress added the strict deadlines to the Act to ensure that
listing actions are completed in a timely manner. However, absent some
measure to allow for a rational prioritization of the workload based on
a consideration of the resources available, those strict deadlines will
only worsen the current untenable situation. It cannot be overstated
that managing the endangered species program through litigation is
ineffective in accomplishing the purposes of the Act.
The Administration's budget request for FY 2005 provides funding to
meet resource protection goals and address the growing listing program
litigation-driven workload. The requested increase includes a total of
$13.7 million for critical habitat for already listed species. This is
an increase of $4.8 million over the FY 2004 funding level. The
increased funding will allow the Service to meet its current and
anticipated court orders for the designation of critical habitat for
already listed species. In this regard, I would note that as of April
26, 2004, there were 76 lawsuits pending or expressly threatened
related to critical habitat or other section 4 actions.
Within the Department and the Service, we are taking those limited
administrative steps available to us to address these issues. For
example, I have directed the Fish and Wildlife Service henceforth to
comply strictly with the statutory provisions for designation of
critical habitat. This measure, reversing prior practices, will staunch
the bleeding off of resources in ``deadline'' litigation. It is,
however, an incomplete and less than sufficient step. That is because
it may indeed spark a different form of litigation. These drawbacks
remain to be seen and at least in the meantime, the Service will regain
some degree of control over its program. Nonetheless, this highlights
the need for a specific legislative solution.
We have made other modest changes to cut costs in the critical
habitat designation process.
H.R. 2933 Provisions
H.R. 2933 directs that the timing of designation of critical
habitat be concurrent with approval of recovery plans, a concept which
the previous Administration supported. We recognize that this is one of
a number of potential solutions by which Congress could address this
difficult problem. The bill makes additional changes to the ESA to
facilitate the process of designating critical habitat and potentially
provide relief from the current litigation cycle that we have been
facing.
It amends section 4(a)(3) of the Act by requiring that designation
be practicable, economically feasible, and determinable. In addition,
the measure prohibits the designation of an area that is subject to a
habitat conservation plan or state or federal land conservation if the
Secretary determines that these protections are substantially
equivalent to the protection provided by critical habitat designation.
H.R. 2933 also specifies the factors for consideration when
conducting an economic impact analysis of critical habitat designation,
including the direct, indirect, and cumulative impacts associated with
such designation. Additional factors in the economic impact analysis
would also include consideration of lost revenues to landowners and
Local/State/Federal governments, as well as the costs associated with
reports, surveys, and analyses required to be undertaken, as a
consequence of a proposed designation, by landowners seeking permits
and approvals.
The proposed measure further modifies the content of the required
notice for proposed designation to include any municipality having
administrative jurisdiction over the area in which the species is
believed to occur. In addition, the bill requires the Secretary to
maintain, on a publicly accessible Internet page of the Department of
the Interior, a Geographical Information System map of the proposed
designation, including coordinates of the area. Each required notice of
the proposed designation shall also include reference to this Internet
page.
We believe that these provisions are steps in the right direction
to address several of the Department's concerns about the current
designation process. We are also pleased that the bill codifies some of
the reforms that the Administration has carried out over the past few
years. As I have stated before, the Department is committed to working
with the Congress to find a solution to the problems associated with
critical habitat and other related issues. I want to reiterate that
offer here today.
Summary
In sum, the present system for designating critical habitat is
broken. The designation process provides little real conservation
benefit, consumes enormous agency resources, and imposes social and
economic costs. Rational public policy demands serious attention to
this issue in order to allow our focus to return to true conservation
efforts. We are optimistic that this bill will encourage a meaningful,
bipartisan discussion on reforming the designation of critical habitat,
and we are prepared to work with the Committee to identify ways to
provide necessary legislative relief and ensure that any legislation
clearly and efficiently accomplishes its goals.
Mr. Chairman, this concludes my prepared testimony. I would be
pleased to respond to any questions you and other members of the
Committee might have.
______
[Mr. Manson's response to questions submitted for the
record follows:]
Response to questions submitted for the record by The Honorable Craig
Manson,, Assistant Secretary for Fish, Wildlife and Parks, U.S.
Department of the Interior
Questions from Chairman Richard Pombo
Question 1: At the Imperial Sand Dunes Recreation Area, located in
southern California, the BLM has been working for the last decade to
develop a Recreation Area Management Plan (RAMP) to manage the Dunes,
and is very close as you know to signing a final ROD that would
implement that RAMP. The absence of a Management Plan for the dunes has
affected tens of thousands whose access has been restricted by
temporary closures put in place as part of a settlement agreement to a
lawsuit brought under section 7 of ESA for the endangered Pierson's
milkvetch, a plant native to the Imperial Sand Dunes. As we stand
today, the final Record Of Decision for the RAMP cannot be signed by
the BLM until the U.S. FWS issues a no-jeopardy Biological Opinion (BO)
for the 15-year RAMP. Although the FWS has in their possession a study
that was funded by the off road recreation industry, and conducted by a
well respected independent scientist, Dr. Arthur Phillips, FWS has
mandated their own redundant and expensive study that has only delayed
the finalization of the RAMP. Mind you, BLM has endorsed the findings
of the Phillips study and uses his findings as part of their baseline
data in their own biological opinion. So my question is this, with
proposed monitoring provisions called for in the RAMP, and
recommendations backed by current data made by BLM that FWS issue a no-
jeopardy opinion, why is it necessary that FWS conduct their own
independent study? And further, with proposed monitoring contained in
the RAMP, and current data that backs up the finding of a no jeopardy
opinion for the RAMP, can we get your personal commitment to encourage
the FWS to evaluate the BLM recommendations and if appropriate, forego
a FWS study for its own sake?
Response: The Fish and Wildlife Service (Service) is close to
completing its review of the existing April 3, 2003 Biological Opinion
for the Bureau of Land Management's (BLM) Recreation Area Management
Plan, and the Service expects to respond to the BLM's request for
clarification in the near future. In evaluating the Recreation Area
Management Plan, the Service is not developing an independent study.
The rigorous monitoring and research plan, designed cooperatively by
the BLM and the Service, and approved by the Service in the April, 2003
Biological Opinion, is designed to support the plan's proposal to
optimize various multiple use opportunities, including off-highway
vehicle use and listed species conservation.
Question 2: The BLM's new Northern & Eastern Colorado Management
Plan lists 22 unlisted species that are being treated as if they are
listed. They call this list ``sensitive species'', and again these are
not listed as endangered or threatened on any federal or state species
list. As you might imagine, this management practice is having a
drastic negative impact on access to public lands by the public, and it
creates pseudo-ESA list of species that have the same land use and
economic impacts as listed species. What are your plans to stop the FWS
practice of treating non-listed species as though they are listed?
Response: Only those species listed as endangered or threatened
receive statutory protection under the Endangered Species Act (ESA). We
do encourage voluntary, proactive, and collaborative approaches with
our partners, such as BLM's program, to keep species from declining to
the point that they warrant listing under the ESA.
Specifically, through the Candidate Conservation program, the
Service works to identify species that face threats that make listing a
possibility, provide information, planning assistance, and resources to
encourage voluntary partnerships for conservation of such species, and
prioritize non-listed species, so that those species most needing
protection or additional study are addressed first. In our experience,
this collaborative, voluntary approach is an essential tool for
proactively addressing species at risk. The public also benefits
because land use options can be more flexible than would occur if a
species were listed, critical habitat does not have to be designated,
permits authorizing ``take'' do not have to be obtained, recovery plans
do not have to be prepared and implemented, and section 7 consultations
are not required.
Question 3: H.R. 2933 would establish a recovery plan concurrent
with the designation of critical habitat; A linkage, so-to-speak. I
support what the author is getting at. It is only right to establish
recovery plans and goals first. Then from that put on the table what
components can be used to successfully meet the recovery goal. If
critical habitat is scientifically shown to have a roll in this
recovery plan, then the science will back that up. However, if it is
not then it should be able to be taken off the table. This way we get
away from 30 years of the cookie cutter approach and one-size fits-all
actions that has led us to be here today.
However, in some of the testimony today there is concern
with the drafting of that provision. Can you comment on this and
discuss how we may be able to edit that language to accomplish the
author's goal of linking the two while ensuring that recovery is
primary and the Act does not continue to lock up lands that are not
scientifically proven to provide any benefit to the species in
question?
Response: Given the controversy that has surrounded the issue of
designation of critical habitat for more than a decade, I believe that
H.R. 2933 is a step in the right direction toward solving many of the
current issues involved in this process.
For example, the Administration believes that designating critical
habitat concurrent with a recovery plan, as H.R. 2933 proposes, is one
alternative to designating critical habitat at the time of listing.
Often at the time of listing, insufficient information is available to
determine what may be required to conserve a federally listed species.
Currently, the Service is statutorily required to designate those areas
known to be critical habitat, using the best information available, at
the time of listing. This process can result in designations of
critical habitat that may, after sufficient information is available to
determine what is necessary to conserve a species, prove to be
incomplete or erroneous. While we do not have any specific changes to
offer at this time, we are reviewing the provisions and are committed
to working with the Committee to develop the best possible legislation.
Question 4: FWS has indicated that it will follow the 10th
Circuit's decision in New Mexico Cattle Growers.
What steps have been taken to ensure compliance?
How has FWS considered the costs of both listing and C.H.
to come up with total cost?
Response: Pursuant to section 4(b)(2) of the ESA, the Service is
required to take into consideration the economic impact of specifying a
particular area as critical habitat. The court's decision in N.M.
Cattle Growers Ass'n v. USFWS, 248 F.3d 1277 (10th Cir. 2001) required
the Service to look at all of the costs of critical habitat, whether or
not they are coextensive with the costs of listing or with other
factors. As a result, we conduct economic analyses to estimate all of
the potential economic impacts of designating critical habitat. These
analyses include other economic impacts of species listing and
conservation to the extent that those impacts are co-extensive with the
designation. The analyses quantify these impacts, to the extent
determinable, given the nature of the data available.
This information is intended to assist the Secretary in determining
whether the benefits of excluding particular areas from the designation
outweigh the benefits of including those areas in the designation (see
section 4(b)(2)). In addition, this information allows the Service to
address the requirements of Executive Orders 12866 and 13211, and the
Regulatory Flexibility Act (RFA), as amended by the Small Business
Regulatory Enforcement Fairness Act (SBREFA).
Specifically, the economic analyses that we now carry out consider
both the economic efficiency and distributional effects that may result
from designation of critical habitat. Economic efficiency effects
generally reflect ``opportunity costs'' associated with designation of
critical habitat. For example, if activities that can take place on a
parcel of private land are limited as a result of the designation, and
thus the market value of the land is reduced, this reduction in value
represents one measure of opportunity cost or change in economic
efficiency. Similarly, the costs incurred by a Federal action agency to
consult with the Service under section 7 represent opportunity costs of
designation.
The economic analyses also address how the impacts of a critical
habitat designation are distributed, including an assessment of any
local or regional impacts and the potential effects of designation on
small entities, the energy industry, or governments. This information
can be used by decision-makers to assess whether the effects of a
designation might unduly burden a particular group or economic sector.
The economic analyses also consider indirect effects associated
with a designation, including the economic impact associated with
project delays due to a reinitiation of a section 7 consultation or due
to compliance with other regulations. Consideration is also given to
costs associated with regulatory uncertainty (e.g., the cost to retain
outside experts of legal counsel to better understand a party's
responsibilities with regard to critical habitat) and changes to
private property values associated with public attitudes about the
limits and costs of critical habitat, which are termed as ``stigma''
impacts.
Question 5: What is the current position of the FWS in response to
the 5th Circuit's Sierra Club decision in which it held that Congress
intended a lower threshold for triggering the duty to assess adverse
modifications of C.H. than for determining jeopardy to species? When
will FWS initiate a rule-making to revise the two definitions?
Response: The Service is still evaluating options and consulting
with NOAA Fisheries in response to the 5th Circuit's decision so that
we may make a joint revision to the regulatory definition of
``destruction or adverse modification of critical habitat'' in
consideration of the Court's opinion.
Question 6: How does FWS justify designating ``unoccupied'' habitat
as ``critical''?
Response: Section 3(5)(A)(ii) of the ESA provides that the
Secretary may designate critical habitat for a federally listed species
outside the geographical area occupied by the species ``upon a
determination by the Secretary that such areas are essential for the
conservation of the species.''
The Service's implementing regulation further provides: ``The
Secretary shall designate as critical habitat areas outside the
geographic area presently occupied by the species only when a
designation limited to its present range would be inadequate to ensure
the conservation of the species'' (50 CFR 424.12(e)). Consequently,
critical habitat is only designated in unoccupied habitat for a species
when it is determined to be prudent, determinable, and essential to the
conservation of the subject species, and that the species could not be
conserved absent the inclusion of the specific unoccupied habitat into
critical habitat.
Question 7: On what basis does FWS justify designating large areas
of land as ``critical'' despite having no knowledge of whether or not
the species or ``primary constituent elements'' are actually present?
Response: Pursuant to section 4 of the ESA, the Service is required
to designate critical habitat in occupied areas only where features
essential to the conservation are found. In defining critical habitat
boundaries, the Service makes an effort to exclude all developed areas,
such as housing developments, open areas, and urban and other lands
unlikely to contain the primary constituent elements essential for the
conservation of the particular species for critical habitat is being
designated. However, due to mapping scale, quality of data available,
and in cases where courts have established deadlines, time and resource
limitations, it is difficult to exclude by mapping out all of the areas
that do not contain features essential to the species. The Service
excludes by text those areas that do not contain primary constituent
elements, such as roads and buildings, parking lots, rail lines and
other paved areas. In other words, although included on some maps, such
features are not critical habitat.
Question 8: Does FWS feel it is more appropriate to delay C.H.
designation until recovery plans have been adopted? To what extent does
FWS use adopted recovery plans in designating C.H.?
Response: As mentioned in the response to question 3, The
Administration believes that designating critical habitat concurrent
with a recovery plan, as H.R. 2933 proposes, is one alternative to
designating critical habitat at the time of listing. Often at the time
of listing, insufficient information is available to determine what may
be required to conserve a federally listed species. Currently, the
Service is statutorily required to designate those areas known to be
critical habitat, using the best information available, at the time of
listing. This process can result in designations of critical habitat
that may, after sufficient information is available to determine what
is necessary to conserve a species, prove to be incomplete or
erroneous.
It is often during the recovery planning process that the
information concerning specific features and areas essential to the
conservation of a species becomes available. In those cases where
current recovery plans or strategies have been in place prior to the
development of a critical habitat designation, the recovery plan or
strategy has been the foundation from which the critical habitat
designation is built and justified. In these instances, the resulting
designation has generally been more precise. Furthermore, in those
cases where there has been an outdated recovery plan or strategy, there
has often been an attempt, with time and resources permitting, to
update those plans prior to initiating the development of a critical
habitat designation.
Question 9: Is FWS revising any older or outdated recovery plans?
How many?
Response: As of September 30, 2003, 1,248 domestic species for
which the Service has the lead are listed under the ESA. Of these
listed species, 1,016 have final recovery plans. Recovery plans are
revised or amended as necessary when new information becomes available
that makes the existing plan outdated, such as a change in the species'
status, threats, or recovery needs, or a significant number of recovery
actions identified in the implementation schedule have been completed
or are no longer considered appropriate. The Service is currently
revising and updating recovery plans for 83 species.
Question 10: How does the FWS prioritize recovery efforts and what
mechanisms do they have to implement recovery plans?
Response: As directed in the 1982 Amendments to the ESA and
described in the Service's Recovery Priority Guidelines (48 FR 43098-
43105, September 21, 1983 and 48 FR 51985, November 15, 1983), all
listed species are accorded a recovery priority number between 1 and
18C, based on the degree of threats, the potential for recovery;
taxonomic distinctness; and whether or not they are, or may be, in
conflict with construction, development projects, or other economic
activity. The Service applies this priority system to making recovery
decisions among listed species. Furthermore, individual recovery
actions are identified in recovery plan implementation schedules based
on a priority system of 1 to 3. Priority 1 actions are those actions
that must be taken to prevent extinction or to prevent the species from
declining irreversibly; priority 2 actions are those that must be taken
to prevent a significant decline in species population/habitat quality
or in some other significant negative impact short of extinction; and
priority 3 actions are all other actions necessary to provide for full
recovery on the species.
Implementation of these actions is dependent upon the availability
of resources and partners. For example, while the Service works with
the responsible partner to implement a priority 1 action, an
opportunity may arise to complete a different priority 2 action first.
If taking advantage of this opportunity would not delay the
implementation of the priority 1 action, the Service and its partners
would likely implement the priority 2 action first. The Service uses a
variety of mechanisms in cooperation with other federal, state, and
local governments, non-governmental organizations, and private
landowners to implement all of the actions necessary to recover
threatened and endangered species including, but not limited to:
appropriated funds, grants, in-kind cost matching, memorandums of
agreements and understandings, safe harbor agreements, on-the-ground
management actions such as habitat restoration or population
enhancement, and protective regulations.
Question 11: Would it be beneficial for the FWS to incorporate
delisting criteria in recovery plans? If not, how does an affected
entity determine compliance with recovery standards?
Response: The ESA requires each recovery plan, to the maximum
extent practicable, to provide (i) a description of site specific
management actions as may be necessary to achieve the plan's goal for
conservation and survival of the species; (ii) objective, measurable
criteria which, when met, would result in a determination that the
species be removed from the list; and, (iii) estimates of the time
required and the cost to carry out those measures needed to achieve the
plan's goal and to achieve intermediate steps toward that goal. Service
strives to incorporate delisting criteria in recovery plans whenever
possible. The Service believes delisting, or recovery, criteria are not
only essential to determining whether and when a species may be
eligible to be removed from the endangered species list, but they also
help identify what recovery strategies and actions are necessary to
achieve recovery. However, the ESA also recognizes (in section
4(f)(1)), that it is not always practicable to identify definitive
recovery criteria when first developing recovery plans for listed
species. To the extent that recovery criteria can be approximated, such
criteria is developed. For other species, recovery plans may include
only downlisting or interim criteria. In all cases, as new information
becomes available and it becomes possible to develop, revise, or refine
recovery criteria, the Service revises or updates the species recovery
plan, subject to availability of resources.
Questions submitted by Representative Barbara Cubin
Judge Manson, as you know, the State of Wyoming and the Department
of Interior have been embroiled in a dispute over how and when wolves
can be de-listed in the three state area of Wyoming, Idaho and Montana.
In January of this year, when the Department of Interior rejected
Wyoming's wolf management plan, it is my understanding it did so based
on political considerations, for fear of lawsuits by environmental
organizations and speculation regarding future actions by Montana and
Idaho to adopt plans similar to the one adopted by Wyoming.
It is also my understanding that this rejection directly
contradicts the Endangered Species Act, which requires the Secretary of
the Interior and the Fish and Wildlife Service (FWS) Director to base
de-listing decisions ``solely upon'' the best science available. In
fact, 10 of the 11 scientists on the FWS's peer review panel indicated
that Wyoming's plan was scientifically sound.
Question 1: Would you please comment on the Department of
Interior's stance on this issue and whether the decision was in fact
based solely on science as the Endangered Species Act requires, or upon
political considerations?
It has been my impression all throughout the process of attempting
to de-list the wolf that the FWS have continually moved the goal line
for the State of Wyoming. It takes two parties to compromise, but over
and over again it has seemed to me that it was the State of Wyoming
that had to make all the compromises.
Response: Because the Department's evaluation of the State of
Wyoming's management plan for the gray wolf is the subject of pending
litigation, we are constrained in discussing specific details related
to the management of plan. However, I am enclosing letters from the
Service's Director to Terry Cleveland, Director of Wyoming Fish and
Game Department, and Michael R. Baker, Chairman of the Wyoming State
House Committee on Travel, Recreation, Wildlife and Cultural Resources,
which explain the Service's position on wolf issues.
Question 2: Could you comment on what the FWS has specifically done
in the way of compromise with the State of Wyoming in the wolf
delisting effort?
Response: I am enclosing letters from the Service's Director to
Terry Cleveland, Director of Wyoming Fish and Game Department, and
Michael R. Baker, Chairman of the Wyoming State House Committee on
Travel, Recreation, Wildlife and Cultural Resources, which detail the
exchange of information between the Service and the State, and explain
the Service's position on the issue. I believe these letters contain
much of the information you requested.
Questions Submitted by Representative Tom Udall
Question: In your remarks before the Committee you referred to
guidance on critical habitat designation that will soon be finalized.
Given that this is an extremely significant issue, is it your intention
to provide public notice of this draft guidance and seek public
comment? If not, why not?
Response: The current document is designed for staff use as non-
binding guidance on an interim basis. Once the full guidance is
completed it will be made available for public review and comment.
Question: Can you please provide the Committee with the details of
how this guidance was developed, including:
1) the exact time period over which it was formulated;
Response: The policy guidance has been worked on at various times
since the fall of 2002. We do not have a specific date at which the
first elements may have been drafted.
2) any involvement of the Fish and Wildlife Service including the
names of individuals who worked on the guidance;
3) the names of individuals involved at the Departmental level;
4) the names of any individuals outside the Department of the
Interior that may have been involved; and
Response: Numerous individuals on my staff, within the Service,
elsewhere within the Department, at the Department of Commerce, and
elsewhere within the Administration have either drafted, reviewed or
commented on all or portions of various drafts of the guidance. We did
not attempt to maintain a list of those involved. Inasmuch as all
drafting, review and comment was predecisional, I see no value in
either attempting to collect or in releasing the names of these
persons.
5) any other circumstances related to the development of this
guidance.
Response: It is not clear what information is being sought here. I
would be pleased to respond to a more specific question.
______
The Chairman. Well, thank you, Mr. Manson. To begin, I will
just start by asking you a fairly simple question. Do you
believe that protecting habitat is necessary for the recovery
of endangered species in order to recover those that ultimately
have ended up on the list?
Mr. Manson. I do believe that the protection of habitat is
essential to the conservation and recovery of species. I happen
to believe that critical habitat, as the Act outlines it
presently, is not the best way to do that. I think that
frequently there are far superior methods to do that, including
voluntary actions on the part of landowners, in partnership
with the Service. In that regard, I have announced today
revised regulations that will encourage private landowners to
undertake these voluntary conservation measures to benefit
species that are listed and that are at risk. And this results
in the creation of real habitat that one can touch and see and
feel and it is done all without a legal and administrative
process that is burdensome and imposes great costs.
The Chairman. Previous Administrations, like you, have been
critical of what the critical habitat designation process has
become. I have noticed in researching for this hearing that
you, this current Administration and previous Administrations,
never said protecting habitat was not important, and yet the
process that designation of critical habitat has become has
become a very real problem for the Fish and Wildlife Service
and you have been fairly outspoken about that, as well as the
previous Administration was very outspoken about that. And what
we are searching for here today and what I believe that
Congressman Cardoza was attempting to do with the introduction
of this bill was to change that legal process under the
Endangered Species Act for the designation of critical habitat
so that it was something that would work for the administrative
process of implementing the Endangered Species Act.
Mr. Manson. I think you are exactly right, Mr. Chairman,
that this is not about the issue of--there is no debate about
the role that habitat plays in conservation biology. There is
simply no debate about that and I have never disputed that. No
one else in our Administration has ever disputed that.
The issue is, as you put it, a process which is
counterproductive and takes resources away from other far
superior processes that provide a greater conservation benefit.
So that process needs to be fixed.
The Chairman. I know you are attempting to change
administratively how this process works and there are some
things you can do; there are other things that will take
Congress to take action. But the question that I get repeatedly
is that if an area is designated as critical habitat, how does
that change the use of that land?
Mr. Manson. Well, you have to take into account that the
designation of critical habitat is part of the listing process
as the current law has it set up, and under the listing process
a listed species is subject to Section 9 of the Act, which
prohibits the take of that species, which is defined
specifically in the law and in the regulations.
The designation of critical habitat would still allow the
issuance of incidental take permits under that law but it
becomes a particular issue when Section 7 of the Act is
applied, which requires consultation over actions that may
affect a listed species, particularly focused on the adverse
modification of habitat. And Section 7 is often said to refer
only to those actions which require a Federal nexus but it is
very difficult to find actions these days in the ordinary
course of business or even life that does not have some Federal
nexus, so many things, many activities are tied to the
consultation provisions of Section 7 of the Act.
Finally, in your understanding, your reading of Mr.
Cardoza's bill, is there anything in there that would lessen
the amount of protection that there is for endangered species
under the Act? Would people be allowed to go out and destroy
habitat or take endangered species under the definition of the
Act?
Mr. Manson. I saw nothing in the bill that would weaken the
protections of the Act. I saw this bill as reforming a process
that in itself is often counterproductive and the process in
and of itself is a weakness in the Act as far as I am
concerned. But there is nothing in this bill that lessens the
protections afforded to listed species.
The Chairman. Thank you very much.
I would like at this time to recognize the author of the
legislation on which we are holding this hearing, Mr. Cardoza.
Mr. Cardoza. Thank you, Mr. Chairman. Is this the
appropriate time for my opening statement?
The Chairman. Go ahead.
STATEMENT OF THE HON. DENNIS CARDOZA, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF CALIFORNIA
Mr. Cardoza. I would like to thank the Chairman, Ranking
Member Rahall, and all the members of the Committee. I
appreciate the opportunity to have this hearing today on the
legislation, H.R. 2933, the Critical Habitat Reform Act. I look
forward to a lively and productive debate on some of the
problems involving the critical habitat issues under the
Endangered Species Act.
When ESA was adopted in 1973, it was celebrated as ground-
breaking environmental legislation. The ultimate goal of ESA
was to focus sufficient attention on listed species so that in
time, they could be returned to a healthy state and removed
from the list. I fully support this goal and believe that
recovery and ultimately delisting of species should be the Fish
and Wildlife Service's top priority.
Unfortunately, we have been driven off course from a system
that should have been directed by biology to a system driven by
litigation. The efforts by the Service to recover species have
been hampered by litigation, court orders, and unrealistic time
lines which are preventing the exercise of discretion and
frustrate the original purposes of the Act.
The critical habitat program is a poster child of a broken
policy. I know this from personal experience and my folks back
home know this from personal experience. A case in point is the
Service's recent designation of critical habitat for vernal
pool species. The original proposal would have designated over
1.7 million acres in California and Oregon as critical habitat.
Over 330,000 acres in Merced County, California located in my
congressional district would have been designated as critical
habitat. That is over one third of the entire acreage of the
county. Another more recent example is the Service's proposal
to designate over 4.1 million acres in California as critical
habitat for the red-legged frog.
These designations defy logic. If the species can be found
all over 1.7 million acres, either the species cannot by
definition be considered endangered or the entire zone of
habitat cannot by definition be considered essential to the
conservation of the species. It simply makes no sense.
My experience with these designations has convinced me that
we can do a better job of achieving the original goal of ESA to
recover the species if we do a few simple things. First of all,
we need a system that encourages the gathering of better
information to enable the Service to make more informed
decisions on critical habitat. Before designating critical
habitat, it is important that the Service have a plan for
recovery of the species. We are putting the cart before the
horse in many instances, designating millions of acres of land
as critical habitat when we do not have the information as to
what truly is needed to recover the species.
The Service should involve local governments and landowners
in critical habitat designations. They should consider local
resource data, including maps, when considering areas for
possible designation, and they should provide GIS maps when
providing public notice of the proposed designations so that
folks know if their land is actually affected. The Service
should consider all economic impacts to a proposed designation,
including direct, indirect, and cumulative impacts.
Second, areas that are already protected under Federal or
state or local conservation plans, such as habitat conservation
plans, should be excluded from critical habitat designations.
And finally and perhaps most importantly, the Fish and
Wildlife Service needs to be put back in the driver's seat. We
need to let them do their job of prioritizing listings,
recovery and critical habitat designations. Biology and sound
science, not litigation, should drive the Service's critical
habitat program.
Again I wish to reinforce my commitment to ESA and getting
us back on track to achieving our goal of recovery of the
species and let me state for the record that I have no
intention of gutting, dismantling, or eliminating this
important legislation. But the system is broken. My
constituents are being affected and I was sent here to do
something about it.
I understand that there are concerns from both sides of the
aisle on some of the provisions I have included within my bill.
I look forward to discussions today in the hearing and pledge
to work with all those parties who are seriously interested in
moving forward on moderate, common-sense changes to the
critical habitat designation process.
Again I want to thank you, Mr. Chairman. You have been very
helpful in this process and I want to thank Ranking Member
Rahall and the members of the Committee.
[The prepared statement of Mr. Cardoza follows:]
Statement of The Honorable Dennis A. Cardoza, a Representative in
Congress from the State of California
Thank you Mr. Chairman, Ranking Member Rahall and other members of
the committee in attendance this morning. I appreciate the opportunity
to have this hearing today on my legislation H.R. 2933, ``The Critical
Habitat Reform Act.'' I look forward to a lively and productive debate
to the problems facing the implementation of the Endangered Species
Act.
When the Endangered Species Act, or ESA, was adopted by Congress in
1973, it was heralded as a landmark environmental legislation for the
protection and conservation of threatened and endangered species. The
ultimate goal of the ESA was to focus sufficient federal attention on
listed species so that, in time, they could be returned to a healthy
state and removed from the list.
I fully support the goal of species protection and conservation,
and believe that recovery, and ultimately delisting of species should
be the U.S. Fish & Wildlife Service's top priority in the context of
the ESA.
Unfortunately, over the past 30 years since its passage I believe
that we have driven off course from a system that should be directed by
biology to a system that is driven by litigation, thereby causing us to
lose sight of the ESA's original purpose. The efforts by the Service to
recover species have been hampered by litigation, court orders and
unrealistic time lines which in total prevent the exercise of
discretion and frustrate the purpose of the Act.
The critical habitat program is the poster child of broken policy.
Once a species is listed as threatened or endangered the ESA
directs that habitat which is ``essential to the conservation of the
species'' is to be designated by the Service. Failure to do so, even
when the Service has determined that a designation would not be prudent
and limited resources would be better spent on other recovery
priorities, almost always results in the filing of a petition by a
third party, thereby beginning the cycle of litigation. Currently,
compliance with court actions and settlement agreements now consumes
nearly the entire listing budget and leaves the Service with little
ability to prioritize its actions to protect the most vulnerable
species.
The Service has been on record for sometime now raising similar
concerns that the critical habitat system is broken:
In a February 2002 public information memorandum, the
Service stated that ``...critical habitat designation usually affords
little extra protection to most species, and in some cases it can
result in harm to the species. This harm may be due to negative public
sentiment to the designation, to inaccuracies in the initial area
designated, and to the fact that there is often a misconception among
other Federal agencies that if an area is outside of the designated
critical habitat area, then it is of no value to the species.''
In an August 29, 2003, report, a GAO concluded that
``[t]he Service's critical habitat program faces a serious crisis
because of extensive litigation that is consuming significant program
resources.''
A case in point is the Service's recent designation of critical
habitat for 15 wetland animals and plants listed as threatened and
endangered. The original proposal would have designated over 1.7
million acres as critical habitat in California and Oregon. Almost one-
third of the entire acreage in one of the California counties I
represent, Merced County, would have been designated as critical
habitat. Another more recent example is the Service's announcement just
2 weeks ago in which it proposed to designate over 4.1 million acres as
critical habitat for the red-legged frog. These designations defy
logic--if the species can be found in this broad of a range, either the
species cannot, by definition, be considered ``endangered,'' or the
entire zone of habitat cannot, by definition, be considered ``essential
to the conservation of the species.''
My experience with these designations has convinced me that we can
do a better job of achieving our original goal of protection, recovery
and delisting of species if we do a few simple things provided for in
legislation which I have sponsored:
First of all, we need a system that encourages the gathering of
information that will help the Service to make better, more informed
decisions about critical habitat for threatened and endangered species:
Before designating critical habitat, it is important the
Service have a plan for the recovery of the species. We are putting the
cart before the horse in many instances--designating millions of acres
of land as critical habitat, when we do not have the information as to
what is truly needed for the recovery of the species. Critical habitat
designation is not a one-size-fits-all program, some species require
very specific and sometimes unique conservation tools that must be
fully vetted and scientifically tested before a designation is
proposed. Recovery plans, and therefore recovery of the species, should
be tantamount in the critical habitat process.
The Service should be required to consider local resource
data, including maps, when considering areas for possible designation.
Information from these agencies in many instances is more accurate and
can provide crucial information regarding land conservation measures
and land use planning.
The Service should also be required to consider all
economic impacts to a proposed designation, including direct, indirect
and cumulative impacts. While the Service is directed to consider some
economic costs an expansion of this information would provide the
Service with a more accurate picture of the costs associated with their
proposed designations. Additionally, this information will provide the
Secretary with greater tools in a determination as to whether the
proposed designation is economically feasible, as provided in the
legislation.
The Service should be required to provide GIS maps when
providing public notice of the proposed designation in order to provide
more meaningful information to the public. Often landowners have
difficulty deciphering what parts and parcels of their land are
included within the proposed designation. Having accurate land use maps
would help clear confusion on the ground and allow for informed
participation in the recovery.
Secondly, areas that are already protected under other federal,
state or local conservation plans such as Habitat Conservation Plans
should be excluded from critical habitat designation. HCP's and other
similar programs often take years of intense collaborative effort to
create and implement. All sectors of the affected community, including
agriculture, the business and environmental communities, as well as
federal regulators, participate in crafting a conservation plan that is
consistent with recovery objectives for listed species. Fostering a
continued sense of community involvement and participation is an
important and often overlooked component of species protection.
Finally, the Fish and Wildlife Service needs to be put back in the
driver's seat. The Service needs to be able to do its job of
prioritizing listing, recovery and critical habitat programs. Biology
and sound science, not litigation, should drive the Service's
determination of areas that are ``essential to the conservation of the
species.''
Again, I wish to reinforce my commitment to the Endangered Species
Act and getting us back on track to achieving our goals of recovery of
the species. And let me state for the record that I have no intention
of gutting, dismantling, or eliminating this important legislation.
I understand that there are concerns from both sides of the aisle
on some of the provisions included within my bill. I pledge to work
with all of those parties who are seriously interested in moving
forward on moderate, commonsense changes to the critical habitat
designation process the hope of reaching a compromise we can all be
proud of. Again, thank you Mr. Chairman and Ranking Member Rahall for
the opportunity to speak today.
______
The Chairman. Thank you.
Mr. Gilchrest?
STATEMENT OF THE HON. WAYNE T. GILCHREST, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF MARYLAND
Mr. Gilchrest. Thank you, Mr. Chairman. Thank you for
calling this hearing.
Secretary Manson, welcome. The Secretary, Mr. Chairman, has
been in my district many times. We do have some refuges,
Federal refuges in Maryland. These are beautiful places and the
Secretary has helped us enormously with a number of our
situations and problems out there and I hope that the
Secretary, as a result of a stringent hiking incident sometime
ago, is a little bit under the weather but we look forward to
your full recovery and then maybe climbing some of those
beautiful mountains around the vast arenas of this country.
Thirty years ago we passed ESA and there is no doubt that
we know a lot more about the ecological systems than we did 30
years ago, so it would be only prudent, I think, for us to take
a close look at the Act to see where we can improve those
provisions in the Act to enhance the wildlife that we are
trying to protect, enhance their habitat, improve recovery
plans, have a better understanding of what habitat is and a
better understanding of what critical habitat is and have a
better understanding of how to do that with some management
flexibility for the Fish and Wildlife to reduce the problem and
the cost, the time of litigation.
I think as we move through this, though, very often when we
discuss the Endangered Species Act or when we discuss the Clean
Water Act or we discuss wetlands or we discuss a whole range of
statutes in various Acts, we do it in isolation. And just a
quick comment before a question, Mr. Secretary, about a couple
of things.
One, if we can improve this Act by improving communication
between the various Federal agencies, especially when they come
into conflict with Section 7 and Section 9 and most often both
of those sections of the Act, in advance of designating
critical habitat or some type of habitat because you are right,
Mr. Secretary; habitat loss means species loss. There is no
question about it. But improve within the confines of the Act
the ability and the flow of information between different
Federal agencies and certainly the ability of local communities
to have input into this conversation because we need to go
broader than just saving a particular type of species in
California or Oklahoma or Maryland because when you preserve
forests, you preserve nature's ability, free of charge, to
clean the water and clean the air. Above the forest there is
less carbon dioxide and there is more oxygen. When you have
forested wetlands, when you have forests, you have a retention
of water, you have a cleansing of that water, and you do not
have to develop a very expensive prosthesis to do that. It does
it by itself and, by the same token, it also preserves the
species. When you look at wetlands, it controls floods, it
cleans water, it provides habitat for wildlife.
So as we go through these things, whether or not to
designate this area or that area for habitat, there is a whole
broader question about preserving nature's infrastructure upon
which our infrastructure depends. Whether it is a road, a
highway, a school, or whatever it is, a sewage treatment plant,
we depend on nature to process our activity to make it clean so
that future generations can live here.
I think the question I have is not--and I look forward to
looking at this legislation and working with the gentleman from
California to pursue a better process for this particular
legislation, to preserve habitat, to do it in a way that
everybody has a stake in it.
I think at some point in the near future we are probably
going to come to a place where we will have to plan that this
area is going to be habitat for wildlife, this area will be for
our industry, this area is going to be for commercial activity,
this area is going to be for residential activity, and this
area is going to be for agriculture. That plan will help
preserve nature's infrastructure, habitat for species, and
allow human beings to be able to sustain their dynamic economy
and the quality of their life.
The Chairman of this committee, and I will close with this
statement because I think I am probably over my time--I keep
looking for the lights and I have a yellow yet--the Chairman,
Mr. Pombo, helped develop a pilot project on the Delmarva
Peninsula as a statute within the Farm Bill for a conservation
corridor program and we have been working on that for the past
year and it helps preserve an agricultural corridor, which is
fundamentally our economy and it has been that way for 3009
years, along with the fishing economy and tourism, a corridor
for agriculture, a corridor of forested wetlands and wetlands
that preserve the hydrology and species habitat, and a corridor
where people live.
So we are working on this pilot project to try to
understand how we as humans can perpetuate our economy, improve
the quality of our life, protect the air and water and habitat
for species.
So I look forward to working with the author of this bill
and certainly, Mr. Secretary, I look forward to continuing to
work with you.
And thank you, Mr. Chairman, for the time.
[The prepared statement of Mr. Gilchrest follows:]
Statement of The Honorable Wayne T. Gilchrest, a Representative in
Congress from the State of Maryland
Since Congress passed the Endangered Species Act thirty years ago
we have experienced increasing land use changes, development, and loss
of ecosystem components and habitat connectivity. We have also
experienced a multitude of challenges in the listing of species and
their recovery under the Endangered Species Act.
Thirty years ago, we collectively acted to boldly stem the
extinction of species in the U.S. through this landmark conservation
law. Because we knew the pressures on land would increase as the
nation's economy and population grew, we put the protection of listed
species before many other national priorities. We did this because, as
we say, extinction is forever. Although we can restore habitats in many
cases, we cannot restore genetic diversity among populations of species
when it is lost. It is lost when the number of individuals reaches a
point where all progeny are too closely related to give a species
competitive advantage in the wild or to protect it against disease or
congenital defects. The finality of extinction and that inevitable
outcome when the number and distribution of a species becomes so
limited should drive us to do all we can to prevent it.
Species become endangered in part because their needs are finely
tuned to particular habitat resources. For instance, the Florida snail
kite requires a certain species of snail in order to survive. Many
listed bird species in Hawaii are uniquely adapted to extract
particular kinds of food sources. When the habitat, including food,
shelter, water and space, is altered, these species cannot adapt.
Habitat changes not only remove critical sources of food and shelter,
but also can provide opportunity for native or nonnative invasive
species, with more generalist habitat requirements, to outcompete
listed species. General preventative conservation measures are often
not sufficient to protect such species from listing, making the
Endangered Species Act and the recovery of listed species an important
piece of the nation's overall fish and wildlife conservation policy.
In 1976, Congress recognized the powerful connection between
habitat protection and the recovery of listed species in the House
Committee on Merchant Marine and Fisheries Report for the
reauthorization of appropriations for the act:
It is the Committee's view that classifying a species as endangered
or threatened is only the first step in insuring its survival. Of equal
or more importance is the determination of habitat necessary for the
species continued existence. Once a habitat is so designated, the act
requires that proposed federal actions not adversely affect the
habitat. If the protection of endangered and threatened species depends
in large measure on the preservation of the species habitat, then the
ultimate effectiveness of the endangered species act will depend on the
designation of critical habitat.
That being said, I share many of the Chairman's and my colleague's
concerns about the process used to protect habitat for listed species
through the Endangered Species Act and commend Representative Cardoza
for starting the Congressional effort to improve this process. The goal
of Endangered Species Act improvement will be, I hope, full and
priority protection for listed species and effective recovery, in
partnership between federal and state fish and wildlife agencies and
private landowners with improved regulatory and flexible programmatic
tools.
However, the goal cannot be an end to the struggle to better
understand and meet the needs of listed species while fairly burdening
public and private landowners with recovery efforts. This struggle will
continue and we should not be hesitant to engage in it--while we use
our experience during the past 30 years to improve the Endangered
Species Act now, this continued struggle will ensure the refinement of
habitat protection for listed species over the next 30 years.
______
The Chairman. Mr. Inslee.
Mr. Inslee. Many of us believe that this is not the time to
weaken the Endangered Species Act, that this was a fundamental
decision made decades ago by America that we should hue to and
strengthen, if not anything, rather than weaken it. And many of
us are very concerned that by attacking the fundamental
character of critical habitat, that is exactly what will be
happening here.
Now I must express, Judge, I think you have a difficult job
this morning because you carry a lot of baggage that may not be
yours personally but it is due to your Administration. You come
to us with some ideas, you have made some suggestions about
this issue, but the baggage you carry is working with an
Administration that many people believe has the worst
environmental record of any American President in American
history. The attempts to weaken the clean air laws, the
reduction in mercury toxic levels, the roadless area, gutting
of the roadless area bill, the extension of resource
development in critical habitat areas--not critical habitat
areas but in our interior West--a whole slew of things that
have simply gone backwards on protecting clean air and clean
water. So I think you have kind of a difficult row to hoe not
due to your personal difficulties but the Administration's. I
just want to make sure you are aware of a concern that we have
generally.
But I want to ask you because I understand that you know
that this may be the sixth period of global extinction ever in
world history, that what we are seeing right now where we have
in the United States 985 endangered species, and that is just
the United States, and many scientists think that we are in a
global occurrence of extinction that really has only happened
many five times before in global history. Before, it has
happened because of asteroids, climate change. Now it is due to
some things that we are responsible for. So many of us think we
should not be weakening America's fundamental tool used to
fulfill this American value of keeping species around for our
grandchildren.
Now I understand you are sort of a point person in the
Administration for this process and I want to ask you about
your beliefs because I have read some things that cause me some
concern. I read in a Grist Magazine article where you had said,
``I don't think we know enough about how the world works to say
that,'' referring to extinction of a species. And another place
you said that ``Critical habitat adds very little additional
benefit to the conservation of a listed species.''
I want to tell you, that causes me concern because as the
person responsible for our government responsible for
protecting endangered species who has publicly said that you do
not think we know enough to know whether that is vital or not,
when it is the policy of America for 30 years and when you are
the person responsible for dealing with critical habitat
designation and you have said you do not think it adds much
value apparently, I just want to give you a chance to explain
that, to tell me where you think the sunny side is of
extinction.
Mr. Manson. Well, first of all, I have never said that
there was a rosy side to extinction. My point was that we do
not know enough about how the world works to know A, all the
causes of extinction and B, whether or not in every case that
is necessarily something that nature does not have as part of
some greater dynamic plan. That was the point there.
As for critical habitat, my view is the same as the Fish
and Wildlife Service has held for 25 years, that there is
little additional benefit added by critical habitat
designations. And again the point here is not that habitat is
not essential. Habitat is essential. The question is do we have
a process that gets us what we need in terms of conservation
benefit? And that is where for many years various
Administrations have felt that we do not have such a process.
Mr. Inslee. I just want to tell you, with all due respect,
that those answers really do not wash, and I will tell you why.
It is sort of like saying the fellow in charge of protecting
Fort Knox saying well, gold is not everything in life. It is
when you are in charge of critical habitat designation, which I
understand to be your responsibility, and it is when you are in
charge of implementing the Endangered Species Act. And I read
quotations that you think it has some lesser value and with all
due respect, I would think a person would be aware of the
science that human activity is causing--our activity, all of us
in this room in some sense--is causing massive extinction. And
to sort of palm it off as this minimalist issue is very
distressing, particularly when you then come and suggest in
some form that we weaken the Endangered Species Act by
reducing--and we will talk about this in length, but this
clearly reduces the level of protection that will be provided
species, particularly in giving them corridors for travel, and
the like.
So I just want to tell you it is very distressing and if
you want to make any comment on that, go ahead.
Mr. Manson. Well again, I do not see this as a weakening of
the Act. There still would be critical habitat designated under
this particular bill, there still will be all of the other
protections of the Act, and most importantly from my point of
view, we have an opportunity to put resources into other
programs which have demonstrated a greater ability to protect
actual habitat on the ground that you can touch and you can
feel and that critters can actually live on, and those programs
are proving successful.
Some of those programs are voluntary programs in
partnerships with landowners, some of them are habitat
conservation plans, some of them involve conservation banking,
all of which I believe are superior ways to protect habitat for
species which are not only endangered but may be not listed but
at risk of becoming endangered.
The Chairman. Mr. Calvert?
Mr. Calvert. Thank you, Mr. Chairman. I want to thank you
for having this hearing. I want to thank the author of this
legislation, Mr. Cardoza, for bringing this up and certainly
thank you, Judge Manson, for coming here, Mr. Manson, for
having the time to come here.
I have the privilege to represent a district that has the
distinction of having one of the most impacted areas by the
Endangered Species Act of anywhere in the United States,
Riverside, California, and certainly Mr. Baca's district, San
Bernardino County, shares that distinction. We certainly live
every day with critical habitat and the distinction of having
to deal around that.
In Riverside County we have been somewhat proactive. We are
attempting to create a multi-species habitat conservation plan,
one of the largest in the United States. Hopefully we are very
close to putting this together, which proactively deals with
the Endangered Species Act in a way that has not been done
before. But we have found through experience that critical
habitat, you are absolutely correct, Mr. Manson, in saying that
that does not help the situation; it hinders the situation. The
complexities of dealing with critical habitat is well known.
And by the way, the concept of saying science, in fact,
weakens or law or using science is absolutely, I find, amazing.
We have been attempting to make sure that science is part of
the law as we deal with the Endangered Species Act. We have one
species that in Mr. Baca's district called the Delhi flower-
loving sandfly, which is somewhat famous. We cannot find the
fly but we have been told it is there. They can hear it. They
cannot see it. But the community that Mr. Baca represents,
Fontana, is being, in effect, held hostage to this species,
which we cannot deal with rationally.
We have the new Santa Ana suckerfish, again an area where
this species--we have designated critical habitat where the
species does not exist and that is a question I want to ask
you, Mr. Manson. How do we deal with or how do we justify
designating unoccupied habitat as critical?
Mr. Manson. Well, the statute itself has a provision for
the designation of unoccupied habitat. The statute says that
unoccupied habitat may be designated as critical habitat but as
I read that provision of the statute, that should be done only
where the occupied habitat is not sufficient to provide a
conservation benefit to the species.
Mr. Calvert. Now in your experience have you found that
people designated unoccupied habitat based on objective,
scientific information or in many cases based upon subjective
information between various parties?
Mr. Manson. Well, that is one of the reasons why we are
putting out this guidance, so that the public can be confident
that the folks in the field who are doing the work are guided
by principles that comport with not only the statute but with
good sense and good science, as well.
Mr. Calvert. I would hope so. In our area, again in the
Inland Empire of California, one of the apparent reasons why
this critical habitat was put together was not done because of
any particular study. As we understand it, it was based upon
two personal communications with biologists who stated in e-
mails to the Service that designating that area was important.
Now we have a similar situation upriver where the Federal
government spent several hundred million dollars putting a dam
in based upon scientific information at the time that, for
instance, the San Bernardino kangaroo rat habitat would not be
harmed and now we are getting reports that the Service may
require us to go ahead and just open the floodgates and not
allow for the flood protection that this dam provides.
And it seems inconsistent to us in government who are in
charge of trying to use taxpayers' money logically, to make
sure that what we are attempting to do is not incompatible with
species protection and I think science is an important part of
that.
Again I want to thank Mr. Cardoza for bringing this
legislation forward, for having this conversation, for having
this hearing, and I hope that your legislation is successful
and anything I can certainly do to assist you, I will do.
Thank you, Mr. Chairman.
The Chairman. Thank you.
Miss Bordallo, did you have questions?
STATEMENT OF THE HON. MADELEINE Z. BORDALLO, A DELEGATE IN
CONGRESS FROM THE TERRITORY OF GUAM
Ms. Bordallo. Thank you very much, Mr. Chairman.
Members of the Committee and Mr. Cardoza, I am very pleased
that you have brought this bill up before us and I represent a
territory that has impacted by this. I would like to take a few
minutes to explain to Assistant Secretary Manson why I at this
stage will be supporting the Cardoza bill, or at least support
rectifying many of the concerns which it seeks to address.
The Fish and Wildlife Service has been demonstrating
everything that is wrong with the current system of critical
habitat designation through its management of the Ritidian
Point Wildlife Refuge in Guam and its proposed critical habitat
overlay for substantial land on the rest of the island.
Mr. Chairman, in 1993 the Fish and Wildlife Service took
property that was slated to be returned to the people of Guam
after it was declared excess by the Air Force, thereby
effectively cutting off those residents who live at the
northern end of the island from having visitors to their
property at Jinapsan Beach.
For the last decade, the Fish and Wildlife Service has been
opposing the right of access through the refuge for these
landowners to their property. Efforts to resolve this matter
have been ongoing but the Fish and Wildlife Service continues
to either point a finger at the Air Force or hide behind their
lawyers at the Justice Department, rather than having an open
discussion on how to achieve land use management that meets the
needs of the local population and the endangered species.
Meanwhile, two endangered species in Guam have recently
been declared extinct--the Mariana Mallard and the Guam
broadbill. The Fish and Wildlife Service has not adequate
managed to control the invasive brown tree snake, which is the
prime threat to endangered species on the island, not the lack
of habitat. And it seems pretty clear to me that the Fish and
Wildlife Service is not demonstrating effective land use
management at Ritidian and critical habitat designation would
not meet the needs of our community.
So I support the notion in this legislation of tying
critical habitat designation to having a recovery plan in place
and to considering local concerns, such as access to private
property. An alternative beyond the constraints of critical
habitat designation is sorely needed and this bill offers the
prospect of alternative land management that respects the
concerns I have raised and until the Fish and Wildlife Service
comes to its senses regarding access to Jinapsan Beach, I must
support the bill.
[The prepared statement of Ms. Bordallo follows:]
Statement of The Honorable Madeleine Z. Bordallo, a Delegate in
Congress from the Territory of Guam
Mr. Chairman, I would like to take a few minutes to explain to
Assistant Secretary Manson, why I at this stage will be supporting the
Cardoza bill, or at least support rectifying many of the concerns which
it seeks to address. The Fish and Wildlife Service has been
demonstrating everything that is wrong with the current system of
critical habitat designation, through its management of the Ritidian
Point Wildlife Refuge in Guam and its proposed critical habitat overlay
for substantial land on the rest of the island. In 1993, the Fish and
Wildlife Service took property that was slated to be returned to the
people of Guam after it was declared excess by the Air Force, thereby
effectively cutting off those residents who live at the northern end of
the island from having visitors to their property at Jinapsan Beach.
For the last decade the Fish and Wildlife Service has been opposing
the right of access through the refuge for these landowners to their
property. Efforts to resolve this matter have been ongoing, but the
Fish and Wildlife Service continues to either point the finger at the
Air Force or hide behind their lawyers at the Justice Department,
rather than having an open discussion on how to achieve land use
management that meets the needs of the local population and the
endangered species. Meanwhile, two endangered species in Guam have
recently been declared extinct, the Mariana Mallard and the Guam
Broadbill. The Fish and Wildlife Service has not adequately managed to
control the invasive Brown Tree snake, which is the prime threat to
engendered species on the island, not the lack of habitat. It seems
pretty clear to me that the Fish and Wildlife Service is not
demonstrating effective land use management at Ritidian and critical
habitat designation would not meet the needs of our community. So, I
support the notion in this legislation of tying critical habitat
designation to having a recovery plan in place and to considering local
concerns such as access to private property.
An alternative beyond the constraints of critical habitat
designation is sorely needed. This bill offers the prospect of
alternative land management that respects the concerns I have raised,
and until the Fish and Wildlife Service comes to its senses regarding
access to Jinapsan Beach, I must support the bill. Assistant Secretary
Manson, I would welcome your comments on this problem and hope you will
convey my message today to those within your organization responsible
for dragging this land access issue out for over a decade, so it can be
finally resolved.
______
Ms. Bordallo. Assistant Secretary Manson, I would welcome
your comments on this problem and I hope you will convey my
message today to those within your organization responsible for
dragging this land access issue out for over a decade, so it
can finally be resolved.
Mr. Manson. Well, thank you, Congresswoman. You may know
that I went to Guam a few months ago and I visited the refuge.
I had conversations with the Governor and all of the government
of Guam who are in the natural resources arena. I also convened
a meeting with the Air Force, the Navy, the Fish and Wildlife
Service and the government of Guam and began working through
this issue.
The matter is in litigation so I'm constrained as to what
all I may say about this but I will tell you that about 2 weeks
ago we received from the government of Guam a proposal that the
Fish and Wildlife Service has found adequate to meet the needs
that we discussed in the meetings back several months ago. That
plan of the government of Guam is now out for public review and
comment and I am hopeful that that is a pathway forward for all
the difficult issues on Guam.
Ms. Bordallo. I am aware of the plan.
Mr. Secretary, just how long is the litigation going to
continue?
Mr. Manson. Well, the court has a schedule and if the plan
that is out for public notice and comment passes muster with
all of the parties, then there is a good chance that that
litigation can be over with this summer.
Ms. Bordallo. Thank you very much.
Thank you, Mr. Chairman.
The Chairman. Mr. Gibbons?
Mr. Gibbons. Thank you very much.
Judge, welcome to the Committee. We are happy to have you
and your testimony certainly has been helpful to us.
I, like my colleagues, am very supportive of this idea
about amending the Endangered Species Act and I think it is
important to know that we are in the 31st year of the
implementation of the Endangered Species Act. I think it is
important also to know that some people believe that simply by
listing a species in the Endangered Species Act will result in
its preservation well into the future. I think they would also
be surprised to hear that 1,304 and rising species are on that
list but only 12, less than one one-hundredth of a percent,
have been recovered and 9 percent are in the recovering phase,
or stable.
I think one of the issues that we have is science. One of
the problems we have is science versus emotion. There is no
doubt that the emotion of a species becoming extinct yields
unintended consequences on both sides of the aisle--the debate,
I should say--on this issue.
I am a firm believer that before a species is listed it
should have, or within a period of time after it is listed, say
60 to 90 days, it should have a recovery plan, and that
recovery plan should indicate how we plan to go forward with
the recovery and preservation of that species because as I look
at it today, with 1,304 species and only 12 recovered, the plan
for the Endangered Species Act has been a failure to preserve
and protect those species which were listed.
So I would ask what your thoughts are on implementing and
requiring a recovery plan as part of the listing of a species
and what you think should be included in that recovery plan.
Mr. Manson. Well, I think it is very important to have a
plan or a strategy to recover endangered species. I do not know
if at the time of listing we frequently know enough about a
species to do it on that short a timeframe, but I do strongly
believe that the goal of the Act is recovery, that it is not
simply sufficient to put a species on the list. That would be
like saying the analogy would be in our health care system that
we put people in the hospital and never let them out of the
hospital. That would be a failure of a health care system if we
were to do that.
Mr. Gibbons. And you do nothing while they are in the
hospital but just let them lie there.
Mr. Manson. Right. That would be a failure of the health
care system. It is likewise a failure of the Endangered Species
Act if we do not recover species, because that is the goal, not
just to list them.
Mr. Gibbons. How many of the 1,304 species currently on the
Endangered Species Act have a recovery plan?
Mr. Manson. Only a very small percentage. It could be as
many as 25 percent. I can get you that figure.
Mr. Gibbons. Let me ask a question about science because I
too often hear the mantra of people saying we are weakening the
Endangered Species Act by requiring science or we are weakening
it by requiring a habitat to be protected or listed for the
preservation and recovery of the species.
Let me give you an example that occurred in the district I
have the great fortune to represent with the bull trout. The
bull trout was listed at the request of a Trout Unlimited
group, fishing group, at the request to the Fish and Wildlife
Service. Yet at the same time, the state of Nevada biologist
had for the preceding three decades studied the bull trout in
the very location where the issuance of the Endangered Species
Act limitation was to take place.
As a result, the state of Nevada provided the Fish and
Wildlife Service with the information in their biologic data,
which was summarily disregarded. The species was listed as
endangered despite what the biologist of the state of Nevada
had said, that it was not an endangered species, yet today we
are engaged in a very long and expensive process, much of which
has gone through litigation, over the status of the bull trout
in this area.
I am concerned that we too often let emotion rather than
science drive the indication of whether a species should be
listed. It is often listed for purposes other than recovery. In
other words, oftentimes a species is listed to block, stall or
delay any kind of use or development of land in its adjacent
areas.
What are your thoughts on science as a criteria for listing
an endangered species?
Mr. Manson. Well, the law makes that a very firm criteria.
In the guidance that we are issuing this week, we address the
quality of information that is used to find the best available
science and the guidance that we issued this week makes clear
that there are different qualities of information and that we
want to use the highest quality of information that we have on
any particular species.
So I think that the issue that you raise is one that we are
addressing now.
Mr. Gibbons. Well, thank you, Judge. I look forward to
working with you on this issue. I thank Mr. Cardoza for
introducing this bill. I thank the Chairman for giving me the
extra time because the light is red, and I look forward to
making common sense work in this very important piece of
legislation. Thank you.
The Chairman. Mr. Grijalva?
Mr. Grijalva. Thank you, Mr. Chairman. Not any questions
for the witness but a couple of comments, if I may.
In my community, the area I represent, Pima County, we had
the pygmy owl that was listed as an endangered species. What
has resulted from that listing is a multi-government--state,
Federal, local--effort and a multi-species habitat recovery
plan for the species. And in the process of doing that, all the
essential players in that decisionmaking process--development
interests, environmental interests--have come together to work
on a plan that now has broad-based support and broad-based
support from the voters in terms of passing bond elections for
land acquisition and habitat protection.
I mention that because I believe to this day that if that
listing had not occurred, there would not have been the impetus
to bring all those people together at the table to begin to
discuss protection and recovery but also how to balance
economic development needs with the needs to protect the
environment.
I think the bill that we have before us today will render
ESA's critical habitat provision toothless and no longer able
to provide help to species, as it was intended to do 34 years
ago. I cannot support this legislation because it will do
nothing to further the goals of ESA and will instead, make it
more difficult and less likely that we will be able to recover
species.
The proposed legislation will limit habitat designations to
areas where species currently live. This will preserve the
smallest possible area. It will make it impossible to recover
species to a point where they no longer need listing.
This bill would also prioritize economic impacts over
environmental impacts in the designation process, thus robbing
us of an opportunity to create balance in those decisionmaking
processes.
And I think this bill takes us backwards in our goal of
recovery of endangered species. It will result in less
protection for species and a reduced likelihood that species
will recover.
As the bill stands today, I cannot support it and I believe
this bill takes us back to a time that 34 years ago this
country in its wisdom and this Congress in its wisdom set aside
as the time to begin to protect our critical habitats and in
doing that, protect the species.
So with that, Mr. Chairman, I don't have any further
comments.
Mr. Inslee. Mr. Grijalva, would you yield a moment?
Mr. Grijalva. Absolutely.
Mr. Inslee. Thank you. I appreciate it.
I wanted to ask the judge about an issue of guidance on
designation of critical habitat. We have already had a little
bit of discussion about that.
It is my understanding that one of the concerns is the lack
of definition of critical habitat and apparently the definition
of ``destruction or adverse modification of critical habitat,''
which I believe is the language out of the statute. The old
regulations were thrown out in 2001 by a court. The court ruled
that the Federal government was not abiding by the statute.
Now it is 2004. I am told that your agency still has not
issued guidance or regulations for that definition, despite the
passage of 3 years. Is that correct?
Mr. Manson. You are talking about the issue of the
definition of ``adverse modification of habitat'' in Section 7
of the Act?
Mr. Inslee. Correct.
Mr. Manson. And yes, for the last 3 years the Fish and
Wildlife Service and NOAA Fisheries have worked on such a
definition. We are coming closer to closure on that but we are
not quite there yet. That is true.
Mr. Inslee. You know, this is just extraordinary. Here we
are talking about weakening the fundamental American protection
for endangered species but the agency charged with the
responsibility both to recover species and to be fair with
property owners so property owners will know what the rules of
the game are, has spent 3 years--we fought World War II in 4
years--to come up with some guidance to Americans about what
the rules were.
Now it is no wonder that people are griping about the
Endangered Species Act when the agency responsible for telling
Americans how to play the game has not told us what the rules
are. I find that totally unacceptable. The only possible
explanation for that is that you do not have the budget to get
a rule adopted, but that is not much of an excuse, either, when
your Administration wants to cut the budget by $10 million to
deal with recovery of species.
So can you give me some explanation of what you are going
to do to solve this problem without gutting the Endangered
Species Act?
Mr. Manson. Well, as I said, first of all, we are dealing
not with the issue of guidance on critical habitat but with a
definition that the court found in its view did not comport
with the statute. We have taken a very deliberate approach to
creating such a rule. It is not a simple process.
Mr. Inslee. You have been deliberative like a glacier is
deliberative. Thank you.
The Chairman. Mr. Renzi?
Mr. Renzi. Thank you, Mr. Chairman.
Judge, I appreciate your coming today. I want to take
advantage of your legal mind here.
I have great respect for the congressman from Southern
Arizona; I consider him a friend. There is a lot of debate over
the pygmy owl. One of the issues that has come up in Southern
Arizona has to do with geographical area. The pygmy owl in its
northern migration pattern comes up into what is Southern
Arizona. It is said to be a flourishing species in Mexico.
So as you look at geographical area and in particular in
the language of this legislation, which I do support, will
there be an understanding as to migratory patterns,
particularly from foreign soil into those areas like border
states?
Mr. Manson. I am not entirely sure I get the gist of your
question.
Mr. Renzi. When we look at geographical area we look at
habitat. When we look at the idea of critical habitat and of a
species and we have a situation where that species may be rare
in Southern Arizona or in Southern California, but it is
plentiful in Mexico.
Will there be an ability to weight or will there be an
ability to take into consideration the species' primary habitat
in foreign soil?
Mr. Manson. Well, the question that you ask is really one
of listing. The critical habitat provisions as they currently
exist do not allow us to designate critical habitat outside the
United States. So when we look at what is essential for the
conservation of the species, we are constrained to look at that
which is in the United States itself, as opposed to what may--
Mr. Renzi. Thank you. Here is where I am going with this.
As we see data that shows a species may be moving north and has
not entered the United States or is just entering the United
States and we are looking at the possibility of critical
habitat being further north, the idea that oh, we may have
heard the bird fly over this area or we may feel that as the
bird continues its northern migration it may inhabit this area,
under the language here, ``occupied and used,'' we would not be
in a situation where the speculation would occur as to species
that would be moving north, would we?
In other words, geographical area is really defined as
occupied or used, not so much may occupy or may be projected to
use as a species moves north.
Mr. Manson. Right, that is the definition.
Mr. Renzi. So this language would actually bring a
definition as to that speculation that is occurring in our
backyard in Arizona.
Mr. Manson. It definitely puts sideboards on the issue of
which habitat ought to be designated as critical habitat.
Mr. Renzi. I appreciate that.
When we look at the issue of economic impact and the
balancing and the weighting of that in comparison to the
designation, in Arizona we have the Tonto Forest, which used to
support 50,000 head of cattle. We have a willow flycatcher bird
that we are able to see exactly where the nesting sites are but
we have also designated now five miles within that area, even
close to that area, because the cowbird may go in and lay its
eggs, so we are kicking cattlemen off the ranch. We have gone
from 50,000 head of cattle down to less than 1,500 head of
cattle in an area where John Wayne used to own his own ranch.
So the Arizona beef industry is essentially almost
decimated in the Tonto National Forest, which has millions of
acres.
When you look at economic impact, how do you see it
balancing and how do you see it being weighted in consideration
of the species itself?
Mr. Manson. Well, there is a provision of the statute know
as 4(b)(2), which allows us to weigh the economic impact of
designating critical habitat, as we are not allowed to do with
respect to listing. In fact, that provision says we can weigh
economic impact or any other relevant impact and the limit is
the extinction of the species.
Mr. Renzi. So it is an equal weighting, an equal balancing,
in comparison to the species itself, economic impact, or is it
a three-legged stool or is it equally weighted?
Mr. Manson. We balance the benefit of including an area in
critical habitat versus the benefits of excluding it and that
provision has been used only sparingly until this
Administration and we have made more robust use of that
provision.
For example, in Mr. Cardoza's district and throughout
California with respect to vernal pool species, we used that.
We looked at the economics of the situations in various
counties and based upon the greater economic impact versus the
limited conservation benefit, we excluded a number of counties
from that designation.
Mr. Renzi. Thank you.
The Chairman. Mr. Baca.
Mr. Baca. Thank you very much, Mr. Chairman.
First I would like to thank Mr. Cardoza for introducing
this legislation, which I believe is very much needed and I am
a cosponsor of it, so I am on the opposite side of some of our
members out here. And the reason why, as Mr. Calvert also
mentioned, the problems that we have had in the Inland Empire,
especially as it pertains to the Endangered Species Act and the
Delhi Sands Flower-loving fly and, of course, the Kangaroo Rat
that have impacted both of our areas.
Before making additional statements I would like to thank
the judge for working with us in trying to solve a particular
problem that we had in Fontana and the immediate area. But what
has been very controversial in the Inland Empire is the
Endangered Species Act and the definitions, especially of the
Delhi Sands Flower-loving fly. It has only been in existence
for sometime. We do not even know if it even currently exists
right now. It may be extinct. We have Santa Ana winds that are
blowing. We do not know when the Santa Ana winds are blowing,
where it is at, and if it is still there, yet it has cost
millions and millions of dollars, especially for the City of
Fontana and some of the surrounding areas like Colton with this
particular fly in revenue and default bonds that have stalled
even commercial development and preserved pockets of lands in
connecting the corridor for this fly.
It is hard to imagine a fly. I mean if all of us saw a fly
right now we would slap it. I mean if it came right now and I
had a fly swatter, I would swat it and I would not know if it
had a little yellow on it and if it is distinct and when it
even comes up, but yet we have this as part of the Endangered
Species Act, in the definition. We do not even know if it is
still alive but yet the blight, the surrounding areas, so many
things that can be done that has cost millions of dollars.
And because of this designation of both the fly and also
the kangaroo rat, we have designated between San Bernardino and
Riverside Counties, 33,000 acres of critical habitat just for
the kangaroo rat alone and the economic impact--people have to
understand the costs. It has cost us up to $130 million over 10
years. That is a heck of a lot of money that you have for a fly
that we do not know if it exists, a fly that most of us would
slap, a kangaroo rat that exists that is part of Endangered
Species Act; it is there. I believe the Congress also has the
responsibility not to burden, beyond the financial
responsibility, to protect not only our communities but also as
we look at this fly and this rat.
That is why one of the questions that I have and I would
like to ask as we begin to work in our area, Judge, as you
know, there is a difference between habitat conservation plan
and critical habitat designation. As the Endangered Species Act
stands now, the Fish and Wildlife Service can exclude HCPs from
critical habitat. In dealing with the endangered Delhi
sandflower-loving fly in my district, an HCP was created but no
critical habitat designated, which is most likely a good thing.
This was not allowed under the law.
Is there any current law that would prevent HCP from being
turned into a critical habitat in the future? Question one. And
question two is would H.R. 2933 be effective in making sure
that habitat conservation plans are prohibited from becoming a
critical habitat?
Mr. Manson. Well, as to your first question, any party can
petition to have critical habitat revised under the current
statute. So it is possible that someone could petition to have
the HCP areas included in critical habitat under the existing
statute.
That is not going to happen during our Administration
because the guidance that we have issued, HCPs which conserve
the species are to be excluded from critical habitat. That is
in our guidance which is coming out. But at some other point
someone might well be able to do that.
Mr. Baca. That is why it is important to have the law and
the definition be explicit, correct?
Mr. Manson. Well, that is right. And our guidance is based
upon our analysis of the current law and our belief in the
strength of HCPs as a superior way to conserve habitat, as
compared with critical habitat designations because critical
habitat designations are more of a legal exercise, although
they have consequences, where as habitat conservation plans
provide real conservation benefit to species.
Under this bill in the definition of critical habitat, this
bill would revise the definition of critical habitat to
explicitly provide that habit conservation plan areas are not
part of critical habitat definitionally.
Mr. Baca. Good. Thank you.
Thank you, Mr. Chairman.
The Chairman. Mr. Cole?
Mr. Cole. Thank you very much, Mr. Chairman. And I, too,
want to thank Mr. Cardoza for introducing this legislation. It
is frankly very important legislation. I appreciate it. I sat
in the hearing on it, as well.
Secretary Manson, if I could I want to ask you a series of
questions. I am particularly interested by the amount of
litigation that the Endangered Species Act seems to generate.
Am I correct in my opinion that it seems to be an inordinate
amount of litigation particularly for a piece of legislation
that is now over 30 years old and ought to be pretty well
understood?
Mr. Manson. Well, lawyers are always finding new aspects of
the statute and new areas in which to litigate and it may be
that that is part of the process of a statute maturing. I do
not know. I do know, though, that the current tide of
litigation which is about eight or 9 years old has really
hampered the Fish and Wildlife Service's ability to carry out
discretionary actions. When you have biologists writing
declarations and spending more time with their lawyers than
with the critters, then that is not the way to run a
conservation agency.
Mr. Cole. Again that would suggest if we are having that
degree of litigation that either there is something defective
in the law or the Fish and Wildlife Service is not doing their
job. I mean one of the two would be the logical surmise. Do you
have an opinion on that as to which it is.
Mr. Manson. Well, the current amount of litigation is
generated in the listing and the critical habitat program and
it is my belief that the critical habitat process, the
provisions designating critical habitat, are defective and need
to be fixed.
Mr. Cole. Last year we had testimony before this committee
and before the Armed Services Committee about the application
of the Endangered Species Act on military reservations and
training reservations and during the course of that, in both
committees there was testimony that actually the military had
done a pretty good job in its military reservations of
enforcing the Endangered Species Act but was constantly running
into litigation and a very slow process in terms of getting
critical decisions done that it needed. We took action, as I
recall, in the DOD bill, with the concurrence of this
committee, to try and deal with that problem.
Are you telling us, in effect, that we have this problem
across the board, that we really are having a hard time
administering the law because we are involved in so much
litigation about the law?
Mr. Manson. Well, I think there are two things. I gave some
of that testimony on the DOD bill.
The process itself is defective when it comes to
designating critical habitat and one of the defects is the
strict time lines which necessarily create a hook for
litigation. And the second problem then is the ligation itself
because it has caused a diversion of resources from core
missions and it has resulted in court orders that stretch out
through the year 2007 or so in order to be complied with. That
means that other things which might be a higher priority in the
view of the biologists do not get done because they do not have
discretion to do those things without running afoul of the
court orders.
Mr. Cole. I just want to thank you and thank again Mr.
Cardoza. I do not think we have a debate, certainly not in this
committee, about protecting endangered species. I think we
would find agreement. The real question is a process whereby we
can achieve that goal that is efficient and that is
expeditious, which I think both the species themselves, not to
mention the rest of us that are dealing with this could benefit
from.
So I appreciate very much your efforts in that regard and
again thank my friend Mr. Cardoza for his efforts in focusing
on this critical problem.
Thank you, Mr. Chairman.
The Chairman. Mr. Udall.
Mr. Udall. Thank you, Mr. Chairman, and thank you, Judge,
for being here today with us.
Clearly, Judge, we must find a better way to implement the
Endangered Species Act and I think that is the thrust of many
of the questions you are hearing today about implementation,
about the failure of your agency to really move forward in an
aggressive way and issue regulations and implement where you
could resolve some of these issues in terms of litigation.
But let me just start with the proposition that we have a
piece of legislation that my colleague Mr. Cardoza has
introduced back, I believe, in July of 2003 and you are the
political appointee that is over this Fish and Wildlife
Service, this whole agency, and we are approaching--if it were
this July it would be a year since this legislation is pending
and is the Administration taking a position on this piece of
legislation? Are you supporting it? Are you opposing it? Are
you suggesting changes? What are you doing as far as this piece
of legislation that we are hearing today?
Mr. Manson. We are prepared to work with Mr. Cardoza and
the rest of the Committee on the legislation. We think that it
solves many of the issues that we have been talking about over
the last year in terms of critical habitat designation.
Mr. Udall. Is this an unqualified support, then, of this
piece of legislation?
Mr. Manson. I am not authorized to state an Administration
position.
Mr. Udall. So you do not have a position, then, on this
piece of legislation?
Mr. Manson. In the terms that we talk about positions, that
is correct.
Mr. Udall. Judge, could you explain to me the period of
time we have gone through here where this legislation has been
pending? You folks have the scientists to look at this kind of
legislation. I mean occasionally on a congressional staff we
will have the ability to hire a Ph.D. scientist or have a
fellow come in but you have under you, in the Fish and Wildlife
Service, all the professionals that understand this and have
been working with it for years and yet I do not see any effort
on your part to come forward and enlighten us on these kinds of
provisions. And now you tell me today that you are not taking a
position on this, that the Administration is not taking a
position on this piece of legislation. I personally do not
understand it.
Could it be that you do not want to take a position on such
a controversial piece of legislation in an election year? Is
that part of what is going on here?
Mr. Manson. I think I said last year I am not in charge of
developing positions on legislation. I can tell you what I
think of the bill, which I have, which is that it addresses
most of the issues.
Mr. Udall. Are you supporting the legislation? You are not
taking a position, right, on the legislation?
Mr. Manson. That is right.
Mr. Udall. OK. More than a year ago, Judge, you made a
statement to the Senate, and this is a quote: ``The present
system for designating critical habitat is broken.'' I would
like to know what have you done to improve the situation? Have
you proposed legislation? Is there any legislation that your
scientists and your people--I mean we all want to get the
science right here. The career people that are working on this
issue in your department, have they suggested changes based on
science? Have you come forward with some legislation in this
critical habitat area?
Mr. Manson. We have not proposed any legislation. We have
taken administrative steps that are within our ability to take
to improve the administration of the critical habitat
provisions. Those steps have been somewhat on an ad hoc basis
over the last year but this week they are now compiled in a
single guidance document that the Fish and Wildlife Service
will begin applying.
Mr. Udall. Now is that the one that it has taken 5 years to
get out, that we are talking since 1999? We are talking 5 years
to get some guidance out?
Let me ask you; in August of 2003 the GAO issued a report
called ``The endangered species Fish and Wildlife Service uses
best available science to make listing decisions but additional
guidance needed for critical habitat designations.'' It says in
the footnote on page 15, ``The Service is currently drafting
interim peer review guidance that will provide objectives and
procedures for implementing the 1994 peer review policy.''
When will this guidance be issued on peer review?
Mr. Manson. We have a peer review policy. In the interim,
OMB has developed peer review guidelines to be applied
throughout the government, so we are not actively looking
presently at peer review. We are concentrating right now on the
critical habitat guidance, which is going to be started to be
applied this week.
The Chairman. The gentleman's time has expired.
Mr. Udall. Thank you, Judge. I will be back on the next
round.
Thank you very much, Mr. Chairman.
The Chairman. Mr. Osborne.
Mr. Osborne. The very much, Mr. Chairman. And thank you,
Judge, for being here. I would like to thank Mr. Cardoza. You
have been thanked profusely today.
I represent a district that is almost entirely rural, 85
percent of Nebraska. The Endangered Species Act has been a real
problem to landowners in this area, so I appreciate the judge's
comments on involving landowners and state groups in this
designation more thoroughly.
At the present time I think the feeling that I pick up from
so many of my constituents is that there has been an inordinate
amount of power accorded sometimes to a relatively few number
of biologists in making designations of species and also
habitat.
Also, a major concern has been the almost total lack of
consideration of economic impact. For example, one process that
is now under way would involve taking 150,000 acre-feet of
Platt River water each year and designating that as water that
should be used in ways that would preserve the whooping crane
in the Central Platt and there is also some indication that
that might go to 400,000 acre-feet, which comprises almost all
of the irrigation water used in the Platt River on an annual
basis.
Now if that happened, then we would have an awful lot of
farmers completely put out of business. So we think that
certainly some consideration of economic impact needs to be
done.
And, of course, the last issue and I think it has been
addressed by Mr. Cole and you, also, Judge, is just the
litigation issue, which I would hope that everyone here could
agree on, that so many of the funds that you need to implement
the Endangered Species Act in terms of preserving species is
now being tied up in court.
With that, let me just ask one question that may be
somewhat peripheral to what Mr. Cole asked earlier but can you
tell me what best practices exist in other agencies for
managing the impact of litigation on programs and work
priorities? In addition, what additional administrative or
managerial actions could Fish and Wildlife take more
effectively to manage the impact of litigation on programs and
work priorities? Can you amplify or discuss that particular
question?
Mr. Manson. I cannot really say much about the first part
of the question because I am just not familiar enough with
that. What we have done this year is a couple of things with
respect to critical habitat litigation. One is we did increase
the budget for critical habitat designations. Second, I have
directed the Fish and Wildlife Service to comply with the
provision of the law that requires critical habitat designation
to be done at the time of listing and the idea there is to
prevent further lawsuits over deadlines. And third, we have new
guidance out this week that Fish and Wildlife Service will
apply in designating critical habitat. It addresses the various
definitions that are in the law. It addresses the issue of
economic impact, although there will be further guidance on
that issue. And it also addresses the matter of information
quality. And all of those things taken as a whole should serve
to reduce the amount of litigation that will result in the
future.
Mr. Osborne. Thank you, Judge. I am glad to hear that you
have taken those steps. It seems to make sense to me and
hopefully it will bear some fruit.
With that, Mr. Chairman, I yield back.
The Chairman. Mr. Cardoza.
Mr. Cardoza. Thank you, Mr. Chairman.
I would like to start by thanking Judge Manson for coming
today. While I cannot attest to things that happened--Mr. Udall
raised the issue of a 5-year period of time it has taken to get
some of these clarifications--I cannot attest to that whole
period because it predates my service but I can attest to the
fact that I have been assisted a great deal by Judge Manson's
input on this bill and I appreciate information that I have
gotten from him and his Service.
My question goes to a report. In October 2003 a report on
critical habitat was issued by the Center for Biological
Diversity. I have it here in my hand. The center states that
the populations of endangered species with critical habitat
designations are more than twice as likely to improve as
species without critical habitat designations. I have reviewed
this report and do not see how the center arrived at this
conclusion. The center states that it relied upon the data
provided by Fish and Wildlife Service.
Sir, could you please comment upon the report and its
findings and conclusions and whether you agree with them or
not?
Mr. Manson. Yes. Well, I do not agree with it and my
disagreement is based on having asked the career scientists in
the Fish and Wildlife Service about the methodology of that
particular study. First of all, there was no data provided by
the Fish and Wildlife Service for the purposes of that study.
My understanding is that what the center did was they took a
look at other reports, other data prepared for other purposes,
and somehow extrapolated this conclusion out of those other
reports and used the Fish and Wildlife Service data and those
other reports for a purpose that it was not intended to be used
for. The career scientists in the Fish and Wildlife Service
that I asked about this said that that methodology was flawed
and that they do not believe the conclusion is correct.
Mr. Cardoza. Thank you, sir.
Some have stated that the problem that we are dealing with
is one of implementation and that regulatory and legislative
changes are not necessary. I understand, however, that the
courts have actually stated that a legislative solution is
necessary and can you provide us with any information as to
court rulings on the need for a legislative fix?
Mr. Manson. Several Federal judges have commented in the
course of litigation that they believe, as one judge put it,
that the Service is in a quandary trying to comply with the
existing provisions on critical habitat designation and they
have suggested that a legislative fix is the proper way to go
in addressing the issues that create this box that is bounded
by strict deadlines on the one hand and the lack of available
information at the outset of the listing process on the other
hand.
Mr. Cardoza. I concur. Looking at what has happened in
Merced County, we have had wide swaths that were designated
that you then went back and corrected in the process. I recall
in one case there was a parking lot that had been paved over.
In the information that the Fish and Wildlife Service had on
its maps it indicated that there was an endangered species
there when, in fact, we were parking cars on it.
So certainly it is difficult. We need accurate information
and you need that information in order to be able to make the
best call possible. Is that not correct?
Mr. Manson. That is right.
Mr. Cardoza. Thank you for your help, sir.
The Chairman. Mr. Pearce.
Mr. Pearce. Thank you, Mr. Chairman. And I thank Mr.
Cardoza for bringing this bill.
We have some questions about it but mostly we will work
through those. I am appreciative that we are talking about the
common sense of the legislation because sometimes that appears
to be lost. As soon as I was elected I visited all 18 counties
in a vast rural, sprawling district that every county said one
of the most difficult things for them to deal with are the
losses of property rights and private property rights,
community property rights caused by the Endangered Species Act.
One example is that along the Rio Grande River that cuts
right down through the middle of the big square state of New
Mexico the silvery minnow is declared endangered and in times
of drought we were not able to sustain the flow of water
through the river that normally it had and in order to keep the
minnow alive, we dumped 50 years worth of storage of water in
upstream reservoirs to sustain a flow that nature will not
sustain now that we have emptied that.
So my question, Mr. Manson, is why do we not breed that
minnow in captivity? Why do we not have hatcheries? You used
the word, that we have a failure if we do not recover the
species and why do we not use fish hatcheries to do that?
Mr. Manson. Well, with respect to silvery minnows, there is
a program that is going down that road.
There is a lot of controversy about the use of captive
breeding and hatchery-produced creatures to count with respect
to endangered species. It has been the subject of litigation.
There is biological disagreement about it. And those are some
of the reasons why it is not a widespread--
Mr. Pearce. Basically what you are saying is that there is
objection to doing that?
Mr. Manson. There is in some quarters, yes.
Mr. Pearce. Mr. Manson, also in my district the agency
follows the practice of not breeding in captivity minnow pairs
but it does follow in my district--the same district, the same
economic impact--it follows a practice of breeding wolves in
pairs in captivity and then releasing them. Why do we have one
standard for one species and another standard for another
species?
Mr. Manson. Well, the difference has to do with the biology
of the species.
Mr. Pearce. I see. So the wolf is more needed and it is
better to breed them in captivity but the minnow is not. That
is the common sense that I am talking about, Mr. Manson. We
just seem to have lost that.
We have in my district, also, the lesser prairie chicken
and we shut down--we are dying for jobs in this country, we are
dying for affordable energy, and we shut down drilling rigs so
that the lesser prairie chicken can procreate. Is that not
true?
Mr. Manson. I am not aware of--
Mr. Pearce. Just be aware that there is a moratorium on
drilling and activities that create noise in order that the
lesser prairie chicken might breed. I wonder if maybe we should
not be piping in Bolero or maybe some Vivaldi to help these
poor chickens--now keep in mind that the day after the
moratorium lapsed, and it lapses at the same time every day,
that people on these rigs were watching the thumping and the
grinding and the booming of the breeding pairs, still with the
noises going on and I suspect that the people in the agency who
write up the rules either have not watched breeding pairs of
many species, including homo sapiens, that possibly noise does
not always interrupt.
That is the lack of common sense that would take away jobs
and would take away economic activity, especially the
endangered species of the silvery minnow along our Rio Grande
River. We have 400 years of cultures. The Hispanics moved in,
the Native Americans were there and 400 years of culture on
that river that cannot get access to the water because it is
being left in the river. They cannot irrigate their small 10-
and 12- and 15-acre plots and we have economic destruction
occurring in a very poor state. New Mexico ranks about 47th and
if you want to put us back to even further, then we will
continue to eliminate common sense from this whole idea.
But just the three examples I a citing here--we cannot
breed minnows in captivity but we can breed wolves. We cannot
have noises because the chickens might not mate. Where is the
common sense? Where is the economic reality? When do we get to
the realization that nature in drought years--and we have had
2,000 years of recorded moisture history--2,000 years and
sometimes the Rio Grande was dry for 10 years at a stretch and
the silvery minnow somehow made it through and I suspect that
in those years when the river had no flow of water that it did
not reach the CFS, cubic feet per second, that your agency is
prescribing now.
The common sense is absolutely gone. I would hope that we
can get some common sense. None of us would watch any species
go extinct but one of my farmers on the Rio Grande said,
``Please put in the Rio Grande farmers as an extinct species or
endangered species.''
So if you would kindly list them in your agency and maybe
get some treatment for the endangered farmers of America, I
would appreciate it. Thank you very much.
The Chairman. Mr. Inslee.
Mr. Inslee. Thank you.
I want to thank Mr. Pearce for working on our ratings here,
too.
The question we have here is whether the Act is broken or
whether the actors or in this case nonactors are broken,
meaning the agencies. You have just told us that your agency
has failed now for somewhere between three and 5 years to adopt
a needed guidance that your agency recognized in 1989 was
needed for a definition of critical habitat.
But there is another one I am concerned about. Twenty Nobel
laureates wrote some time ago to the President expressing a
concern about a repeated failure to level with the American
public and give scientific information. In fact, they pointed
out repeated circumstances where the Administration had
suppressed information from the American public. I want to ask
you about one of those.
Recently Fish and Wildlife released an economic impact
analysis of designating critical habitat for the bull trout and
suppressed from the final government report issued by your
Administration were 55 pages that detailed $215 million in
economic benefits primarily from the reestablishment of a sport
fishery stemming from critical habitat designation.
The press reported, saying ``The removal was a policy
decision made at the Washington level, did not come out of
Denver or Portland.''
Now it seems to me in working with the Endangered Species
Act, leveling with the American public and sharing information
should be a value rather than its suppression. Could you tell
us why the department removed this analysis of economic
benefits of designating critical habitat and the economic
contribution of sports fishing?
Mr. Manson. You know, the first I heard about that was when
I read it in the newspaper. And subsequently I found out that
those 55 pages or so were removed by the Fish and Wildlife
Service at a midlevel, a midcareer level. The chief of the
branch in Arlington of the Fish and Wildlife Service that does
this said that she removed those pages because they did not
comply with OMB guidelines for economic analysis.
I signed that critical habitat rule and I signed the notice
putting out the economic analysis for public comment but she
had not told me that 55 pages had been removed from the
economic analysis.
So I do not think this is a case of suppression. I think it
is a case of a public servant who looked at something, said
this does not comport with the guidelines put out by OMB for
economic analysis, so she took the action that she thought she
needed to take.
Mr. Inslee. So did she call the local agency then and say
this does not comply with the rules; we need a legitimate
analysis of the economic benefits of bull trout sports fishery;
let us redo it so that Americans can make sure they know about
the benefits of recovering this species? Or did she just put it
in the trash can? Which did she do?
Mr. Manson. I do not know what she did.
Mr. Inslee. Well, she put it in the trash can, did she not?
She did not go back to the agency and say look, you did not
comply with the OMB rules, you need to redo this, because I do
not want to keep the American public in the dark about the
economic benefits of species recovery; that would not be the
right thing to do. She put it in the trash can, did she not?
Mr. Manson. I have no idea what she did with us. I can tell
you this, though. I have looked at those pages subsequently,
after I heard about this in the press, and I have looked at the
OMB guidelines and she was correct. There are methodologies in
those pages, which were done by the contractor, which do not
comport with OMB guidelines.
Mr. Inslee. So do I understand that it is your policy--you
think it is good leadership in your agency to encourage people
to keep Americans in the dark about the benefits of recovering
species when you get economic benefits of a sports fishery? You
think that is good public policy to not go back and do an
honest appraisal of that benefit and then tell Americans about
it? Is that your testimony?
Mr. Manson. No, my testimony is that it is good work on the
part of a public servant who sees something that is not correct
and takes action to correct it.
Mr. Inslee. Well, my point is I want to make sure you
understand the nature of my question. If she saw that this was
not done according to OMB analysis, she had a choice, did she
not? And she had a choice under your leadership to do what she
should have done if that was the case, which is to go back and
ask them to do it right, to come up with the right number of
the economic benefit.
But the economic benefit that you want Americans believe in
the recovery of endangered species is zero because that is the
economic benefit that your agency told the American public
would get from the recovery of bull trout and that is wrong, is
it not? There is an economic benefit of the recovery, is there
not?
Mr. Manson. I can honestly tell you that as I sit here
today, I do not know. That analysis has not been done.
Mr. Inslee. You do not know that the recovery of having a
sports fishery is a major economic benefit to the western and
eastern United States? You have not seen the development of
these rural communities coming back from the development of
recreational industries? You do not know that?
Mr. Manson. The question is whether there was an economic
benefit from the designation of critical habitat, not from the
recovery of the fishery.
The Chairman. Mr. Walden.
Mr. Walden. Thank you, Mr. Chairman.
So Judge, what you are saying is that the analysis that was
done did not meet the legal guidelines that your agency was
supposed to follow.
Mr. Manson. That is right.
Mr. Walden. And a career public servant followed the law.
Mr. Manson. That is correct.
Mr. Walden. And that the issue here is not about whether
you have an economic benefit by the species being recovered to
a point where it could be harvested, then. What that analysis
was was whether declaring this habitat had an economic benefit.
Is that right?
Mr. Manson. Whether the designation of critical habitat had
an economic benefit or not; that is the question.
Mr. Walden. Not the recovery of the species to the point
where it could be harvested and eaten.
Mr. Manson. Right.
Mr. Walden. Mr. Chairman, it seems to me in 30 years the
Endangered Species Act has been on the books we have really had
few recoveries. I think something on the order of 12 of 1,304
species have been recovered, according to Fish and Wildlife
Service's own data.
Judge, does that sound right?
Mr. Manson. That sounds about right.
Mr. Walden. So the percentage is pretty small, a hundredth
of a percent that we are getting. If this were any other law
would we not say that there is a problem that in 30 years we
are not getting results?
Mr. Manson. Well, I have said that the results have been
good for a handful of species and not so good for many of the
rest.
Mr. Walden. And I guess I want to make sure the actions
this government is taking are based on sound science and peer-
reviewed science. It is what we demand out of medical journals
and Clean Water Act and elsewhere, that we rely on really peer-
reviewed science. Is there that requirement in the law today
for the work your agency does, that everything you do has to be
peer-reviewed?
Mr. Manson. There is not an explicit requirement in the
statute itself for peer review. There are policies in place for
peer review.
Mr. Walden. But they change Administration to
Administration. They are subject to change.
Mr. Manson. They are.
Mr. Walden. And there is no requirement that your agency do
outside independent peer review with, say, the National Academy
of Sciences.
Mr. Manson. No such requirement in the statute, no.
Mr. Walden. And it seems to me, as I have looked through
this information brought forward as a result of Mr. Cardoza's
legislation, that your agency is really driven by whatever
species happens to have an attorney that wants to file a suit
to protect it, regardless of how threatened that species is
with extinction.
Mr. Manson. Well, that is one of the problems that we have
pointed out, that the biologists lack the discretion to make
those determinations anymore because they have to follow the
orders prescribed by the courts.
Mr. Walden. Well, given the emphasis in this legislation by
this committee on legitimate science-based and supported
evaluations for determinations of species habitat, we are
obviously watching the Central California tiger salamander
decision with great interest.
How is the Fish and Wildlife Service utilizing and
incorporating the scientific information provided to you and
your staff in the fall of 2003 demonstrating the stability of
the CTS's range and population in the Central Valley, the
existence of suitable CTS habitat, and importantly, the
aggressive application of mitigation and habitat replacement
activities where human activity impacts CTS habitat?
Mr. Manson. Well, that species is currently the subject of
a rulemaking that will be complete in several weeks, so I would
be reluctant to comment specifically about that. I can tell you
this, however, that I expect the Fish and Wildlife Service to
utilize all of the best available science, as the statute
requires, and when it comes to critical habitat, the
information quality guidelines that are included in our new
guidance that is out this week. So I have every confidence that
the Service will apply that in whatever rulemaking they are
currently engaged in.
Mr. Walden. A few years ago--I think it was May of 1999--
your predecessor from the Clinton Administration, Jamie
Rappaport Clark, said, and I quote, before a hearing in the
Senate. ``In 25 years of implementing the ESA we found that
designation of official critical habitat provides little
additional protection to most listed species while it consumes
significant amounts of scarce conservation resources. We
believe the critical habitat designation process needs to be
recast as the determination of habitat necessary for the
recovery of listed species.''
Further, in 2001 Jamie said, ``Critical habitat has turned
our priorities upside down. Species that are in need of
predication are having to be ignored. This is a biological
disaster.''
Mr. Manson. That is the same situation that exists today.
Mr. Walden. And what needs to be done to fix that?
Mr. Manson. Well, we have taken the limited administrative
steps that are available to us but ultimately it is a
legislative fix that needs to happen.
Mr. Walden. Thank you, Mr. Chairman.
The Chairman. Mr. Bishop.
Mr. Bishop. In view of the time and the vote that is going
on, let me just submit any questions by writing and you can
move on.
The Chairman. Mrs. Cubin, did you have questions?
Mrs. Cubin. Thank you, Mr. Chairman. I do have some
questions about the wolf delisting or not in Wyoming, Idaho and
Montana. I will submit those in writing.
But could you just briefly sum up for me what is happening
with Idaho and Montana? Obviously Wyoming has filed suit and
they are different but what is the status of the other two?
Mr. Manson. In Idaho and Montana--we have to delist the
wolf as a complete population, so we cannot delist Idaho and
Montana separately under the law.
Mrs. Cubin. Will conditions or requirements, restrictions
be different in Montana and Idaho than they are in Wyoming?
Mr. Manson. Yes, we have proposed a rule that would apply
in Idaho and Montana that gives those two states more
flexibility in terms of managing the wolf populations than
those states--
Mrs. Cubin. Why is that? Why should they be managed
differently in Wyoming? We are talking about one population.
Mr. Manson. Right. The issue is whether or not--ultimately
when delisting occurs the states will have management authority
over those species, so the issue is how can we give them some
flexibility at this point, although we cannot completely
delist?
Mrs. Cubin. That does not answer my question. My question
is why should the restrictions or the treatment of the wolves
be different in Wyoming than in the other two states? Why?
Mr. Manson. The difference is the management schemes that
those states have proposed, as opposed to the management plan
that Wyoming has proposed.
Mrs. Cubin. But that does not answer the question. We are
talking about preserving the species and we are talking about
one population of wolves, so why would the management be
different in those states? It is not because there is a state
plan. Is it not because we are being punitive toward Wyoming?
Mr. Manson. No, not at all. It has to do with the fact that
the law in Wyoming is different than the law--
Mrs. Cubin. But the ESA is a Federal law.
Mr. Manson. Well, except in terms of--the issue is how much
flexibility do the states get under the rules we have proposed
or under a scheme of delisting.
Mrs. Cubin. But how they are treated, how the states are
treated differently, it makes no sense.
I do not want to take any more time but we will be
submitting questions and I hope you will answer that question
more directly than you have today when we submit it in writing.
Thank you.
The Chairman. Thank you.
I know that Mr. Udall had additional questions and because
we have been called to a vote--there are two votes and we are
going to recess just very shortly and allow the members to go
vote and come back. But I would ask Mr. Udall if he would
submit those questions in writing.
Mr. Udall. I would be happy to, Mr. Chairman.
The Chairman. Thank you.
I know there were several members of the Committee that had
additional questions. We would submit those to you in writing,
Judge. If you could answer those in a timely fashion so that
they could be included in the hearing record?
Mr. Manson. We would be pleased to do that.
The Chairman. Thank you very much. Thank you for your
perseverance with all the questions. I am going to release you
at this time. When the Committee returns from recess from the
votes we will seat the second panel.
Mr. Manson. Thank you, Mr. Chairman.
The Chairman. We stand in recess.
[Recess.]
The Chairman. I call the Committee back to order.
I would like to call up our second panel. David L. Sunding,
Lawrence R. Liebesman, Rob Roy Ramey, II, Ph.D., and Jamie
Rappaport Clark.
I am going to begin with Mr. Sunding. Before you start I
just wanted to, in advance, apologize to the panel for the
delay. I know that the first panel, Judge Manson, was a long
time and I appreciate all of you sticking with us here and Mr.
Sunding, if you are ready you can begin.
STATEMENT OF DAVID L. SUNDING, PROFESSOR,
UNIVERSITY OF CALIFORNIA AT BERKELEY
Mr. Sunding. Thank you, Mr. Chairman.
My name is David Sunding. I am a Professor of Environmental
and Natural Resource Economics at Berkeley, where I am also the
Director of the University's Center for Sustainable Resource
Development.
As a threshold comment, I would like to point out that I am
not here to represent any particular group but simply to
represent the results of research that my colleagues and I,
working with our fantastic graduate students, have conducted at
Berkeley.
I would like to refer in particular to two types of
studies, first some studies that deal specifically with the
question of the economic impacts of critical habitat
designation. These studies include the red-legged frog, vernal
pools, and the gnatcatcher. I would also like to refer to the
results of some more general studies on the impact of
environmental regulation on regional housing markets. In the
interest of time I would like to limit my remarks here today to
the impacts of designation on housing for a couple of reasons,
first recognizing the fact that an enormous amount of the
wealth in the United States is held in the form of real estate,
upwards of 70 percent, and also realizing that critical habitat
designation does have the ability to profoundly impact the
development and completion of housing projects.
Having said that, I would also like to point out that
critical habitat designation has the potential to touch a
variety of economic activities, ranging from agriculture to
mining, transportation to utility industries, especially in the
provision of water. I would also like to note and I am sure we
will hear from the witnesses later today, given their
affiliations, that critical habitat designation can also impact
the activities of state and especially local governments.
Now with respect to the research, I would like to begin at
the project level where critical habitat designation can have
three general types of impacts on housing projects. First,
critical habitat designation increases the cost of development.
It can cause the developer to redesign the project, can create
a need to hire outside experts to get through the permitting
process, these experts including attorneys and biologists.
Critical habitat designation also imposes a requirement in many
cases to perform needed mitigation at some expense.
Taken in total, the increase in development costs can
easily be in the thousands of dollars per housing unit and can
in some cases exceed $10,000.
The second type of impact critical habitat designation has
on housing projects is to reduce the output of the project.
This is caused by the necessity to avoid onsite impacts, and I
will speak in a second about the market or regional
implications of a reduction in housing availability.
Third, critical habitat designation delays completion of
projects. This is what I tell my students is a very good
example of the hidden costs of regulation. It is often
overlooked but it is of great practical importance. Delay
imposes costs on consumers, developers and landowners alike and
these costs can in some cases account for some, if not the
majority, of total impacts of designation.
Now having spoken a little bit about the project-level
impacts of critical habitat designation, the main role of
economic analysis, moving beyond just description, is to take
these project-level impacts and convert them into market
impacts and in particular, the incidence of impacts to
different groups in society. At the market level, critical
habitat designation can decrease housing availability in a
region and thereby increase its price. This implies a large
wealth transfer and it is something that is worth discussing at
some point today.
Second, marginal consumers, those with the lowest ability
or willingness to pay for housing at a particular location, can
find themselves pushed to a suboptimal location or, in some
cases, out of the housing market altogether. In fact, I think
it is fair to argue that most impacts of critical habitat
designation are borne by consumers of housing, since developers
have some capacity, which varies from project to project, to
pass along costs to consumers.
In closing and again in the intersect of time, I would
simply like to note that where we come to with respect to the
economic analysis is that the costs of critical habitat
designation can easily run to the millions of dollars per acre
actually conserved as a result of the designation process.
Whether or not that is a good policy decision is a larger
question. What I am trying to do here today is simply point out
the magnitude of the wealth transfer that can result from
designation of critical habitat. Thank you.
[The prepared statement of Mr. Sunding follows:]
Statement of David L. Sunding, Professor,
University of California at Berkeley
Mr. Chairman and Members of the Committee, it is a pleasure to
provide you with information on the economic costs of critical habitat
designation. In these remarks, I will focus on the housing industry
since it is the sector of the economy most impacted by designation of
critical habitat. It should be borne in mind, however, that critical
habitat designation affects other industries including commercial
development, transportation, mining, agriculture and utilities, as well
as the activities of state and local governments.
Section 4 of the Endangered Species Act authorizes the Secretary of
the Interior to take economic impacts into account when designating
critical habitat. I have authored a series of studies describing how
the economic impacts of critical habitat designation should be measured
and identifying the groups who are most likely to be impacted. I will
summarize my findings to date in this written statement.
Regulatory Baseline
A crucial step in any present calculation of the impacts of CHD is
a definition of the regulatory baseline. When defining the regulatory
baseline, it one must confront the admonition of the Tenth Circuit in
its widely cited New Mexico Cattlegrowers decision. 1
Plaintiffs in the case challenged the Fish & Wildlife Service's
designation of critical habitat for the southwestern willow flycatcher
arguing, inter alia, that the Service's ``baseline'' approach to
measuring the economic impacts of critical habitat designation was an
erroneous construction of the ESA. Under this approach, the Service
would consider the initial listing of the species to be part of the
baseline and thus would not analyze the economic impacts of listing,
but only the economic impacts attributable directly to the critical
habitat designation. Applying this baseline approach to the critical
habitat designation for the flycatcher, the Service relied on its
Section 7 regulations to conclude that no economic impacts would have
occurred ``but for'' the critical habitat designation, and that the
impacts of critical habitat designation and listing of the flycatcher
were co-extensive.
---------------------------------------------------------------------------
\1\ New Mexico Cattlegrowers Assn. v. U.S. Fish and Wildlife
Service, 248 F.3d 1277 (10th Cir. 2001).
---------------------------------------------------------------------------
The Tenth Circuit rejected this ``baseline'' approach, holding that
the Service is required to analyze all impacts of critical habitat
designation, regardless of whether those impacts are co-extensive with
those of listing. The court acknowledged that the ESA ``clearly bars
economic considerations when the listing determination is being made.''
However, the court stated, the ESA also plainly requires ``some kind of
consideration of economic impact'' at the critical habitat designation
phase. The Service's regulatory ``definition of the jeopardy standard
as fully encompassing the adverse modification standard renders any
purported economic analysis done utilizing the baseline approach
virtually meaningless.'' Thus, the court concluded, the baseline
approach failed to give effect to the congressional directive that
economic impacts be considered at the time of critical habitat
designation and was not in accord with the language or intent of the
ESA. Accordingly, the costs of CHD are properly defined as all of the
costs that flow from the listing of the gnatcatcher as threatened.
Project-Level Impacts of CHD
In the context of housing, the most obvious effects of CHD are to
increase the cost of development and to reduce the size of individual
projects as a result of land set-asides. However, there are other, more
subtle economic effects of CHD. The process of land development is
complex and conditioned by numerous factors. If land is set aside or if
the scale of projects is reduced by CHD, there may well be market and
regional effects from this designation. Other land cannot always be
brought into production to make up for losses due to designation, and
even if it can, it may be in a suboptimal location. CHD also delays the
development process, which imposes additional costs on developers,
consumers and others in the affected region.
This process of site selection is often exhaustive since a large
number of factors are relevant to the site selection process. In fact,
the National Association of Home Builders has developed a list of over
1,000 factors that should be considered before acquiring land for
development. Among the factors that make a site suitable for
development are the following:
Location and neighborhood
Size and shape
Accessibility and visibility
Environmental conditions
Legal constraints
Utilities
Zoning and regulation
The cumulative effect of these factors is that while an area may
appear to have a large amount of vacant land available for development,
in reality there can be little land actually or realistically available
for development. Imposing additional regulation through CHD may
effectively reduce the amount of land available for development in a
region, reduce the regional stock of housing and create unintended
consequences on other resources (such as agriculture) and local
planning processes.
Other factors constrain the development process. Local governments
often impose density restrictions that work to limit the number of
housing units that can be constructed in a particular location.
``Leapfrog'' development is increasingly problematic since local
governments often seek to confine development within defined
boundaries. Further, nonsequential development requires utilities,
roads and other infrastructure to be extended longer distances, thereby
increasing project costs. Thus, land away from the urban boundary may
be at best an imperfect substitute for land on the boundary that is set
aside for habitat protection.
It is also important to note that CHD can significantly delay
completion of a project, imposing potentially large costs on the
developer, consumers and others affected by project completion. Delay
reduces the supply of housing by reducing the present value of the
developer's return on investment. In extreme cases, delay can lead to
bankruptcy if the developer is highly leveraged. Delay also imposes
costs on consumers who must live in a suboptimal location for some
period of time.
Market Implications
The economic impacts of CHD depend as well on the nature of the
regional housing market. There are two basic theories of housing market
equilibrium. The most common approach is to assume that the price of
housing reflects the marginal cost of construction and development.
Accordingly, in this approach, housing is expensive because, say, land
(an input to housing) is expensive. In this view, commonly called the
neoclassical approach to housing market equilibrium and taught to every
graduate student in urban economics, density will adjust to equate the
price of land with its marginal value to consumers. This view also
holds that developers do not earn excess profits from their activities.
An alternative approach stresses the importance of regulation such
a zoning and density controls that limit the supply of housing. In this
approach, the marginal cost of construction and development can be far
below the market price of a house since houses are rationed among a
number of consumers and their price is bid up accordingly. Thus, in the
regulation-focused approach, housing prices reflect scarcity more than
costs of production. In this view, the value of land with a house on it
can be far above the willingness of consumers to pay for an additional
unit of lot size.
This distinction between the neoclassical and regulation-focused
explanations of the price of housing is important to the impact of CHD
on the housing industry. As discussed earlier, CHD perturbs the housing
market in three basic ways: it increases the cost of development, it
reduces the output of the project, and it delays completion and
delivery of the housing units. In markets where housing prices reflect
marginal costs, the impact of CHD on costs of construction and
development and on completion time will be of most importance; the
marginal welfare costs of output restrictions are negligible since
marginal cost equals marginal utility in the pre-regulation
equilibrium.
When housing supply is limited and houses are rationed as a result,
the supply-reducing effect of environmental regulation takes on major
significance. By further restricting supply, environmental regulation
imposes costs on consumers and results in losses to landowners and
developers undertaking projects on conserved land.
Recently, UC Berkeley graduate student Aaron Swoboda and I
implemented a statistical test to identify regulation-constrained
housing markets. The approach exploits the fact that in regulation-
constrained markets the price of housing is above the costs of
construction and development. In such situations, the value of land
with a house on it (called the ``extensive margin'' value) will exceed
the marginal willingness of consumers to pay for an additional unit of
land (the ``intensive margin'' value). This line of reasoning suggests
a statistical test of price formation: if the intensive and extensive
margin values of land are equal, then the neoclassical model best
describes the housing market. If, however, the extensive margin value
exceeds the intensive margin value, then the market is constrained by
prior regulation and these distortions must be accounted for when
calculating the cost of additional regulations.
The main difficulty in executing the test to categorize housing
markets is how to measure consumers' willingness to pay for land. Mr.
Swoboda and I collected information on over 18,000 new home sales in
the ``Inland Empire'' region of Southern California, one of the
nation's fastest-growing areas. The study area was divided into 14
subregions along lines used by the regional metropolitan planning
agencies. Controlling for other factors, they estimated the
contribution of a unit of lot size to the sales price of a home
separately for each subregion. In 11 of the 14 areas considered, the
extensive margin value of land was above the intensive margin value at
a high level of statistical significance. The neoclassical model held
only in the most remote, least politically organized areas. Thus, in
the study area, housing is rationed by prior regulation and imposition
of further regulation can cause large increases in the price of
housing.
Nationwide, the work of other economists suggests that housing is
rationed by regulation in a number of regions. In a less formal study
than my work with Mr. Swoboda, researchers at Harvard University and
the University of Pennsylvania have found that around 20 percent of the
nation's housing is sold in markets where supply is artificially
limited by regulation and other non-market factors. It is in these
markets (largely on the West and East Coasts) where setting aside land
for habitat is likely to have the largest economic impact
Who Bears the Costs of CHD?
In previous work, I have developed simulation models to measure the
total economic effects of CHD, as well as its impact on particular
groups. A typical simulation scenario envisions a 1,000-unit housing
project that is reduced to 800 units as a result of CHD. The demand for
the project's units has an implied elasticity of minus-1.67 evaluated
at the initial price and quantity. The pre-regulation cost of
development and construction is $200,000 per unit, and CHD adds $10,000
to the price of each unit. The rate of interest is 10 percent, and CHD
is assumed to delay completion of the project by 1 year.
Before designation of critical habitat, the equilibrium price of
each house in the development is $250,000 and 1,000 units are sold. CHD
increases the price of a house to $280,000, and decreases output by 200
units. The increase in price and the reduction in the number of homes
built cause a loss to consumers with a present value of $27 million.
The effects on producers are subtler. While producers lose from the
reduction in quantity and the increase in development and construction
costs, they also gain from the increase in selling price.
This surplus loss is a present-value loss from a permanent
reduction in consumption and production. The effects of delay are
temporary. While social surplus loss stems largely from a reduction in
output, delay cost stems from postponing construction of the units that
do get built plus regional and indirect costs. Thus, delay costs are
equal to post-construction consumer and producer surplus plus external
costs multiplied by the interest rate for each period of delay.
Taking short- and long-run effects together, the total economic
impact of CHD is $33 million for this hypothetical project. As a group,
consumers lose the most from CHD in this scenario. This finding is
quite robust to permutations of market conditions.
An important lesson from the simulation analysis is that permitting
costs and land price decreases are a poor guide to the total impacts of
CHD. These indicators underestimate true costs and give a biased
impression with respect to the incidence of CHD costs. In cases where
land is scarce and where housing is rationed by prior regulation, it is
important to consider the market effects; in all cases it is important
to recognize the costs of delay.
______
[Mr. Sunding's response to questions submitted for the
record follows:]
Response to questions submitted for the record by David L. Sunding,
Professor, University of California at Berkeley
Questions from the Majority Members:
Question: The current ESA allows for an economic analysis to
coincide with a critical habitat designation. Sometimes this hasn't
been done or has been done belatedly. Communities deserve a ``right to
know'' how critical habitat will affect them. This bill requires the
agency to do a comprehensive economic impact statement.
How do you react to those who say that the bill's
economic impact provisions undermine the ESA?
Answer: The economic analysis provisions do not undermine the ESA.
Economic analysis can help to shape critical habitat by identifying the
areas where designation would cause the greatest economic losses while
providing little additional benefit to the species. In this way,
economic analysis can help to minimize unnecessary conflicts between
species and human activities, and can help to make the ESA less
controversial.
Questions from the Minority Members:
Question: Are there any economic benefits, such as enhanced
probability of recovery for a species, to critical habitat designation?
In some of the economic impact analyses the FWS has prepared prior to
critical habitat designation, benefits are discussed. Yet, you do not
address this. How come?
Answer: My understanding is that economic analysis plays only a
limited role in the designation of critical habitat. Economic analysis
can be used to shape the region of critical habitat, but cannot
preclude the designation of any critical habitat. Ideally, economic
analysis should be used, together with biological analysis, to identify
land that is of minimal benefit to the species in question, but of
great benefit to the economy. By excluding such land from critical
habitat, there would be only a small change in the species' recovery
possibilities (perhaps none that are measurable at all), but a great
savings to landowners and others.
I see some danger in expanding the benefits analysis beyond
biology. The ESA should not be used as a mechanism to second-guess the
land use choices of state and local governments. I would be very
circumspect about conducting a benefits analysis that looked at factors
such as aesthetics, amenity values, recreation possibilities for local
residents, or other factors that could have been considered by state
and local governments. Again, I see CHD benefits estimation as mainly a
biological question, and thus not one that I am qualified to answer.
Additional Questions from Rep. Udall:
Question 1: In the sections of your testimony dealing with Project-
Level Impacts of CHD and Market implications, where is the empirical
data that demonstrate that CHD, and only CHD, perturbs the housing
market in three basic ways: 1) increases in the cost of development; 2)
reduced output of housing; and 3) delays in housing completion and
delivery. We want information that these impacts are based on real
data.
Answer: My characterization of how CHD impacts housing projects is
widely accepted. In fact, it is accepted by the FWS's own economists
and now used in their analyses of economic impacts of CHD.
With respect to the magnitude of cost changes, output reductions
and other effects, it is hard to give an acontextual answer to this
question. Recent work, however, suggests that the parameters I use in
the hypotheticals are conservative. In their recent economic study on
the gnatcatcher CHD, FWS economists reviewed biological opinion from
Southern California and concluded that land set-asides were well over
50 percent of the total project area, and that the cost of off-site
mitigation was often over $75,000 per acre impacted. The Service's
economists also concluded that the Section 7 consultations triggered by
CHD will delay completion of projects by an average of 6 months.
Question 2: How did you separate out the impacts of the CHD from
other regulatory impacts?
Answer: Other regulations are treated as part of the baseline, or
status quo. For example, local land use controls such as minimum lot
size restrictions, zoning or growth controls can constrain new housing
supply and create the wedge between the price of housing and the
marginal cost of construction and development to which I refer in my
testimony. My analysis focused on the incremental impacts of CHD on
landowners, developers and consumers, keeping all other regulations
constant.
In reality, other regulations may change once CH is designated. The
effect of this endogeneity can cut both ways. For example, if a city
relaxes density restrictions in response to CHD effectively removing
some land from development, then my model overestimates impacts. If,
however, CHD triggers additional regulation by state and local
governments (as FWS acknowledges is the case), then my model actually
underestimates impacts.
Question 3: On the section of ``Who Bears the Costs of CHD,'' you
use a simulation model to measure total economic effects of CHD and on
its impact on particular groups. This is a hypothetical project, in
your own words. What were the assumptions and data used in the
simulation model? We already know that this model was rejected by the
FWS's own economists in your comments on the Draft Economic Impact
Analysis for the Vernal Pool CHD.
Answer: Actually, my approach was not rejected by FWS's economists.
To the contrary, in their final report released after they had read my
study, they accepted all of my major criticisms, and modified their
analysis along the lines I suggested.
Interestingly, the modifications changed the FWS's final
calculations of economic impacts just as I had predicted. In my report
I made rough calculations suggesting that if housing market and
consumer impacts were considered, then FWS's estimate of economic
impacts would underestimate true costs by a factor of anywhere from 7
to 14 times. In their final report, the FWS concluded that their
earlier calculations underestimated actual impacts by 11 times.
______
The Chairman. Thank you.
Mr. Liebesman.
STATEMENT OF LAWRENCE R. LIEBESMAN, ESQ.,
HOLLAND & KNIGHT, LLP
Mr. Liebesman. Good afternoon, Chairman Pombo and members
of the Committee. My name is Lawrence Liebesman. I am a partner
in the Washington, D.C. office of Holland & Knight. I am here
and it is a privilege to be here to testify in support of House
bill 2933.
By way of background, I have been practicing environmental
law for over 30 years, including 13 years from the Federal
government, with the Department of Justice, where I was a
senior trial attorney handling many different cases under
various environmental statutes. Over the last 15 years I have
been very involved in the Endangered Species Act through
litigation and policy matters, particularly critical habitat.
Recently I co-authored the Endangered Species Desk Book
published by the Environmental Law Institute with Rafe Peterson
from our firm, and I am also planning co-chair for the American
Bar Association's ESA course next year.
H.R. 2933 will address many of the very serious problems we
have heard about today in critical habitat. It will provide
clear direction by more precisely defining how critical habitat
is designated, by setting forth clear criteria for considering
and balancing economic impacts. Most significantly, the bill
will especially advance the basic goal of the Act, and that is
to get species delisted through sound science and a fair
process.
When you look at the various provisions of the bill, I
think they help achieve that result. Section 2 of the bill,
designation of critical habitat, will mesh the timing of
critical habitat designation with the development of recovery
plans. Recovery has got to be fundamental to getting species
off the list and unfortunately we have seen a terrible
disconnect between critical habitat designation and the
approval and development of recovery plans.
As a matter of fact, the Alameda whipsnake case in
California is a prime example where the Service's designation
of over 400,000 acres in four California Central Valley
counties for critical habitat was struck down, where that
occurred 2 years before the adoption of a recovery plan for the
snake. It was overturned on several grounds and particularly
the court stated, and I quote, ``If the Service has not
determined at what point the protections of the ESA will no
longer be necessary, how can it possibly determine and identify
the features of habitat that are indispensable in getting the
species off the list?'' The bill's linkage will help alleviate
that kind of disconnect and problem.
It is also consistent with sound science and I point the
Committee to the 1995 National Academy of Sciences report on
science and the ESA that specifically recommended the critical
habitat designation be meshed procedurally with the approval of
recovery plans.
The bill will also recognize what I think is a very
important commonsense objective, and that is if there is an
existing plan that achieves substantially the same results as
critical habitat, that the Service does not need to go through
the designation process; that is, if there is a habitat
conservation plan or some other kind of plan in place. And what
this does, in my judgment, is that it elevates--what we have
now is form over substance, as opposed to focusing on what
protections are being provided by a management plan and the
flexibility in place is really essential.
We have seen problems in litigation with this that has not
been recognized. The Mexican spotted owl case, for example, is
a prime example where the judge said you still have to
designate critical habitat despite extensive and very well
defined management plans for both public and private land in
Arizona.
The clarification, Section 5, the clarification of the
definition of critical habitat will also go a long way toward
promoting sound science and fair gathering of data and
information. What we have seen unfortunately is that unoccupied
areas are often swept into the critical habitat definition, the
idea of a blurring of a distinction between ordinary habitat
and critical habitat, and it is important that we get it right,
that science be sound and carefully defined because critical
habitat should not encompass all possible habitat. It is only
the habitat that is essential to bring the species to the point
of recovery.
In that regard, I think the language of the bill, while it
is good, needs to be thought through because the language
defining essential as absolutely necessary and indispensable
may be subject to some confusion and potentially some abuse by
regulators, albeit well meaning, in the field. So I would
recommend looking more precisely toward kind of biological
criteria that would allow that kind of sound science approach
to be applied to that definition.
Now the basis for the determination, Section 3, again some
very important points I think in this bill that the Committee
should seriously consider. Getting information from local
governments is essential. Oftentimes local agencies are the
best repository of information on habitat. But I would go a
step further. You need to look at state agencies. I do a lot of
work in Maryland. Very good Department of Natural Resources,
great repository of information. That can help ease the
information-gathering and provide a sounder scientific basis to
gather information.
Economics, and we have heard a lot of talk about economics.
The New Mexico Cattle Growers case is a very, very significant
case and what it says is you have to consider the full range of
economic effects. Unfortunately, the Service for years has not
done that and with all due respect, I think they are trying to
do it right now but they still have not gotten it right in that
they have to look at the total effects of both listing and
critical habitat because for years they said there is no
distinction, so essentially the increment above listing is nil
and therefore there is no adverse economic consequences.
Court after court has rejected that principle. The Service
has taken remands on that regard. So I think looking at both
direct and indirect effects is very important. Working with
clients and landowners--by putting critical habitat essentially
in many ways use redline property; you affect property values,
as Professor Sunding pointed out. You cannot look at economics
strictly on the number of Section 7 consultations that may
occur. So the bill's broader approach is very important in the
whole balancing process of making sound judgments.
But that has got to be also coupled, in my view, with the
Service revising the definition of adverse modification and
jeopardy out of the Sierra Club opinion that Congressman Inslee
mentioned and asked in a question to Judge Manson. It is very
important to recognize, in my view, that there is a lower
threshold for critical habitat. It will trigger more of an
impact and the Service has got to go back, in my view, and go
through a rulemaking to recognize that and formalize that. And
I think hopefully the bill will encourage that.
Final point. Information to the public. Section 4 is very
important in providing clear guidance, requiring designations
to be posted on the Internet. The public right now is confused.
I work with landowners. A lot of them have no real commonsense
understanding of what is critical habitat and what is not so
people can make rational decisions.
Property owners are not out there to kill species. They
want to manage species in many ways, deal with government
agencies in a fair and sound approach, and they cannot do that
right now. It is very, very frustrating.
So in conclusion, I would say that H.R. 2933 provides an
excellent vehicle to address this most contentious issue today
and get to the fundamental purpose of the Endangered Species
Act. Let us get these species delisted through sound science,
fairness to the public, to everybody out there, and let us
follow through in a concerted effort and a bipartisan effort to
make this happen.
I will be very happy to take questions from the Committee.
Thank you.
[The prepared statement of Mr. Liebesman follows:]
Statement of Lawrence R. Liebesman, Esq.,
Partner, Holland & Knight, LLP, Washington, D.C.
INTRODUCTION
Good morning--my name is Lawrence R. Liebesman, and I am a partner
in the Washington, D.C., office of Holland & Knight LLP, a national law
firm with offices in 24 cities, and 7 foreign countries. It is a
pleasure to be here today to testify in support of H.R. 2933, the
``Critical Habitat Reform Act of 2003.'' I have practiced environmental
law for over 30 years including 13 years with the Federal Government at
EPA and the Justice Department's Environment Division. I was also
detailed to the President's Council on Environmental Quality in the
Carter Administration, helping to develop CEQ's NEPA regulations. Over
the past 15 years, I have been heavily involved in issues under the
Federal Endangered Species Act, including Critical Habitat Designation.
I recently co-authored the ``Endangered Species Deskbook'' with Rafe
Petersen of our firm, published by the Environmental Law Institute.
(See The Endangered Species Deskbook, written by Lawrence R. Liebesman,
Rafe Petersen and other Holland & Knight attorneys, and published by
the Environmental Law Institute, Washington, D.C. (2003)) I am also a
planning co-chair for the first ALI-ABA Course of Study on the ESA,
scheduled for April 2005.
The thirty-year history of the Endangered Species Act (ESA) is
mottled with a give-and-take between the United States Fish & Wildlife
Service (FWS), the National Marine Fisheries Service (NMFS), and the
federal courts. Disagreements over the substance of the ESA's
requirements traditionally has focused on the listing of threatened and
endangered species. Unfortunately, increased contention over the
species listing process occurred to the detriment of the ESA's critical
habitat (CH) designation requirements. Disregard for Critical Habitat
designation reached its apex in the mid-1990's, when the Clinton
Administration determined that most potential CH designations were
``not prudent'' and thus exempt from the ESA's designation requirement.
1 Consequently, the FWS had designated Critical Habitat only
about one-third of the 1200 listed domestic species. 2
---------------------------------------------------------------------------
\1\ United States Fish & Wildlife Service, Critical Habitat--
Questions and Answers 1 (May 2003).
\2\ Id. See also CRS Issue Brief for Congress ``Endangered Species:
Difficult Choices,'' September 1, 2003, at CRS-13.
---------------------------------------------------------------------------
In the past few years, however, litigants and courts alike have
recognized the past neglect over Critical Habitat designation and the
issue has come center stage in the world of environmental litigation.
This recognition has produced a steady stream of litigation in which
parties bring claims against the FWS alleging its failure to designate
Critical Habitat violates the Act, the agency scrambles to throw
together a general designation before the statutory deadline expires,
and then subsequent claims are brought by other parties because the
hastily-created designations fail to satisfy the ESA's CH requirements.
Indeed, last year Assistant Secretary of the Interior, Craig Manson,
testified in Senate Committee hearings that ``the listing and Critical
Habitat program is now operated in a 'first to the courthouse' mode
and, as a result, [CH] budgets into Fiscal Year 2008 are being
dedicated to compliance with existing court orders and court-approved
settlement agreements.'' 3
---------------------------------------------------------------------------
\3\ The Designation of Critical Habitat Under the Endangered
Species Act: Hearing Before the Subcommittee on Fisheries, Wildlife and
Water of the Senate Committee On Environment and Public Works, 108th
Cong. (Apr. 10, 2003) (testimony of Craig Manson, Assistant Secretary
of Fish and Wildlife and Parks, Department of Interior).
---------------------------------------------------------------------------
H.R. 2933, ``The Critical Habitat Reform Act of 2003'' will address
many of the problems arising over Critical Habitat. While it may not
stop the recent ``flood'' of litigation, it will provide clear
direction by more precisely defining how Critical Habitat is designated
and by setting forth clearer criteria for considering and balancing
economic impacts. Most significantly, the bill would especially advance
the basic goal of the ESA--the conservation and eventual delisting of
imperiled species--by linking the designation of Critical Habitat to
the approval of recovery plans.
SUMMARY OF COMMENTS ON H.R. 2933
Section 2--(Designation of Critical Habitat Concurrent with Approval of
Recovery Plan Standard)
This section would amend ESA Section 4(a) to require the
establishment of critical habitat concurrent with the approval of
recovery plans under Section 4(f). Present law, has often resulted in
hastily prepared CH maps without adequately considering overall
economic impacts as courts have recognized. Under H.R. 2933, CH
designation will fit into its logical place in the Act--at the time
that the Services approve a recovery plan to eventually remove a
species from the list. There is little evidence that CH designations
have aided in species recovery efforts. The only way to reverse this
trend is to ensure that CH is integral to the development of a plan
which provides ``concise and measurable recovery criteria.'' Further,
the bill would provide more discretion to designate critical habitat
``to the maximum extent practicable, economically feasible and
determinable'' as compared to the current law (``maximum extent prudent
or determinable''). H.R. 2933 would allow consideration of factors such
as whether it is practicable or feasible to even designate critical
habitat as part of the overall recovery planning effort. Section
2(a)(3)(B) also grants discretion not to designate CH if the Secretary
determines that either a ``substantially equivalent'' Habitat
Conservation Plan under section 10(a)(2) or a State or federal land
conservation program is in place. This recognizes a commonsense
principle--it is the substance of the management protections in place,
not the formality of a CH designation, that should control a decision
whether to designate CH.
Section 5--Clarification of Definition of Critical Habitat
This Section would define key terms in the CH definition
(``geographic area occupied by the species'' as meaning ``the specific
area currently used by the species for essential behavioral patterns''
and ``essential to the conservation of the species'' as ``areas
absolutely necessary and indispensable to conservation.'') This
language will help cure one of the problems in the CH process--despite
the ESA's direction that CH should not encompass all actual or
potential habitat for a species unless the Secretary specifically finds
that such designation of unoccupied habitat is essential to the
conservation of the species, the Services often appears to ``sweep in''
unoccupied habitat on the theory that species may have frequented the
area at some point in the past and may do so in the future. Often such
a conclusion is based on questionable or incomplete data. However, H.R.
2933's use of ``absolutely necessary and indispensable to
conservation'' language in defining ``essential'' could be problematic.
In the absence of biological criteria, officials at the Services could
easily apply value judgments and sweep in larger areas than justified
by objective field data--even including unoccupied areas that might
some day acquire the Primary Constituent Elements (PCEs) for creation
of suitable habitat. While the language directs agency officials to
restrict CH only to very limited ``essential'' areas, any legislation
should provide objective criteria for both the decisionmakers and the
public.
Section 3--Bases For Determination
This section would provide the Secretary with more complete and
accurate information for determining under section 4(b) if the benefits
of exclusion of an area would outweigh the benefits of designation. It
would require consideration of information from local governments as
well as direct and indirect economic impacts and costs. This language
will greatly advance the goal of ensuring that CH decisions are based
on the most accurate and up-to-date technical and economic information.
The duty to ``seek and consider, if available, information from local
governments in the vicinity of the area, including local resource data
and maps'' should help since there is no consistent approach to seeking
and utilizing local information in CH decisions. Many state natural
resource agencies have excellent habitat inventory data that could
greatly assist in CH decisions and help fill the data gaps. The bill's
articulation of the range of scope of economic and cost data that
should be considered in CH decisions highlights perhaps the most
contentious CH issue and will be consistent with the Supreme Court's
interpretation of the ESA in Bennett v. Spear that economic
considerations are ``mandatory'' in the CH process. In my judgment, the
bill will lead to a more accurate assessment of the true economic
impact of CH designations by looking beyond the mere costs of section 7
consultations and assessing all direct, indirect and cumulative costs
including those costs associated with reports, surveys and analyses.
However, in my view, the economic factors in the bill must also be
accompanied by FWS addressing the holding of the Fifth Circuit in
Sierra Club v. Norton--namely, that the ``adverse modification''
standard under section 7 creates a much lower threshold of potential
impacts than the section 7 ``jeopardy'' standard given that Critical
Habitat is defined as areas ``essential to the conservation of a listed
species'' whereas the focus of the jeopardy standard is the
``survival'' of the species.
Section 4--Contents of Notices Of Proposed Designation of Critical
Habitat
This section would provide a key tool for the public to access CH
areas maps and data through requiring GIS maps and coordinates to be
posted on the Department's Internet page. Internet data is often the
primary source for the public to obtain information from the federal
government. Under the current system, the public often cannot easily
access CH data. Further, this change will also help facilitate
meaningful public comment on proposed CH designation by providing the
specific Internet page with the proposed designation. In this manner,
landowners, local governments and the public will not only be able to
better participate in the CH process but will also be able to make
better land use decisions based on accurate and easily accessible GIS
maps of the CH area.
DETAILED COMMENTS ON H.R. 2933
Section 2--(Designation of Critical Habitat Concurrent with Approval of
Recovery Plan Standard)
This section would amend section 4(a) to require the establishment
of Critical Habitat concurrent with the approval of recovery plans
under section 4 (f). Present law, requires Critical Habitat designation
``concurrent with the listing of a species as endangered or
threatened'' to the maximum extent prudent or determinable.'' The
Services' failure to designate Critical Habitat concurrent with the
listing decisions has triggered numerous lawsuits imposing court-
ordered schedules for Critical Habitat actions. This has often resulted
in hastily prepared and poorly drawn CH maps without adequately
considering overall economic impacts, as the New Mexico Cattle Growers
4 and other courts have recognized.
---------------------------------------------------------------------------
\4\ New Mexico Cattle Growers Assn. v. USFWS, Civ. No. 02-0461 LH/
RHS, slip op. (D.N.M. 2003)
---------------------------------------------------------------------------
Under H.R. 2933, the CH designation will fit into its logical place
in the Act--at the time that the Services approve a recovery plan to
eventually remove a species from the list. Indeed, the ESA has not
worked to recover very many species. A recent GAO report indicates
that, as of March 2003, ``The Service had delisted 25 threatened and
endangered domestic species of the more than 1,200 listed and only 7
delistings resulted from recovery efforts.'' 5 However,
Critical Habitat has been designated for approximately one-third of
listed domestic species. 6 Clearly, there is a disconnect
between Critical Habitat designation and recovery of imperiled species.
The only way to reverse this trend is to ensure that CH is integral to
the development of recovery plans. In fact, as the GAO Report notes,
``the Service and others, including the National Research Council, have
recommended delaying designations until recovery plans are developed.''
7
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\5\ U.S. General Accounting Office. (Aug. 2003). Endangered
Species: Fish and Wildlife Service Uses Best Available Science to Make
Listing Decision, but Additional Guidance Needed for Critical Habitat
Designation (Pub. No. GAO-03-803) at 25.
\6\ CRS Issue Brief for Congress,''Endangered Species : Difficult
choices,'' Sept. 12, 2003 at CRS--13
\7\ GAO Report at p. 28 and National Research Council' Science and
the Endangered Species Act, Washington DC National Academy Press, 1995
at 71-73
---------------------------------------------------------------------------
Of course, it could be argued that, given the slow pace and
extensive resources involved in recovery plans, such delay would leave
important habitat unprotected for a much longer period than present law
allows. Yet, it could also be argued that poor CH designations to meet
court-imposed deadlines and that are later struck down actually do more
harm than good for recovery because they often are done without the
benefit of the detailed biological analysis and clear goals of an up-
to-date plan, as seen in the court's decision in Home Builders Assn. of
Northern California v. FWS (HBANC), overturning the critical habitat
designation for the Whipsnake in Central California 8 where
the draft recovery plan was released in November 2002 9 more
than two years after the final CH designation on October 3, 2000.
10 There, the court faulted the FWS for designating large
areas of Alameda, San Joaquin, Santa Clara and Contra Costa Counties in
central California as CH for the snake on several grounds including (1)
failure to identify specific areas within the geographic area occupied
by the snake with physical or biological features essential to species
conservation; (2) failure to articulate a reasonable basis for
including disputed areas despite information indicating that some of
those lands were not, in fact, occupied by the snake; (3) including
areas where available biological information indicated that essential
physical or biological features did not exist; (4) failure to examine
the economic effects of CH designation that were co-extensive with
those of the listing of the snake as threatened; and, (5) failure to
make a finding prior to designation that the area in question might
require special management considerations and protections at some time
in the future. In particular, the court held that ``if the Service has
not determined at what point the protections of the ESA will no longer
be necessary for the whipsnake, it cannot possibly identify the
physical and biological features that are an indispensable part of
bringing the snake to that point.'' 11
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\8\ Home Builders Assn. of Northern California v. U.S. Fish &
Wildlife Service, 268 F.Supp.2d. 1197 (E.D.Cal. 2003).
\9\ Draft Recovery Plan for Chaparral and Scrub Community Specific
East of San Francisco Bay, California (Reg. 1, USFWS, Portland, Ore.)
(Nov. 2002)
\10\ Vol. 65 Fed. Reg. 58933 (Oct. 3, 2000)
\11\ 268 F. Supp 2d. at 1212.
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H.R. 2033 will help prevent the kind of ``disconnect'' cited by the
HBANC court. Assuming sufficient funding in the budget, the linkage in
H.R. 2933 will create incentives for more rapid development and
revisions of recovery plans. The bill should also help facilitate more
meaningful public comment by providing clear context for channeling
public comment to address how critical habitat will advance specific
recovery goals.
Further, the bill would provide more discretion to the Services to
designate critical habitat ``to the maximum extent practicable,
economically feasible and determinable'' as compared to the current law
(``maximum extent prudent or determinable''). Under current law, courts
have largely rejected FWS ``prudent or determinable'' arguments and
imposed unworkable deadlines for designation. H.R. 2933 would allow the
Secretary to consider a host of factors such as whether it is
practicable or feasible to even designate critical habitat as part of
the overall recovery planning effort. For example, in certain cases,
the recovery goals could be achieved through other methods such as seen
on coastal Long Island (Westhampton, NY) which has seen record piping
plover numbers in due largely to local property owner stewardship.
12 In other cases, insufficient biological data may not even
be available for such designation. H.R. 2933 would defer to the
informed expertise of the Secretary in making these judgments.
---------------------------------------------------------------------------
\12\ U.S. Fish & Wildlife Service, Piping Plover: Charadrius
Melodus, available at http://endangered.fws.gov/i/B69.html (site
visited on April 13, 2004). Following 1992 storms, a beach nourishment
project was constructed with the approval of the FWS requiring the
Village to implement predator control and other measures. The plover
population then flourished to a level of 26 pairs along just two miles
of the beach. In 1997, these plovers made up 14.4% of the breeding
pairs located in the State of New York. See American Coastal Coalition
``Beach Nourishment and the Coastal Environment''.
---------------------------------------------------------------------------
Section 2(a)(3)(B) would also grant discretion not to designate CH
if the Secretary determines that either a ``substantially equivalent''
Habitat Conservation Plan under section 10(a)(2) or a State or federal
land conservation program is in place. This language recognizes a
commonsense principle--it is the substance of the protections in place,
not the formality of a CH designation, that should control a decision
whether to designate CH. The recent Mexican Spotted Owl decision is an
example of one court elevating form over substance in mandating CH for
large land areas in Arizona despite the existence of a comprehensive
management plan. 13 Congress has also recognized this
principle under section 4(a)(3) of the Defense Authorizations Act of
2004 prohibiting the inclusion of military lands within CH if there is
an Integrated Natural Resources Management Plan in place that provides
substantial benefits to the species. Just as Congress included certain
criteria for such a plan to be ``substantially equivalent'' so too
should Congress consider similar criteria here for sanctioning a
decision not to designate. 14
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\13\ Center for Biological Diversity v. Norton, 240 F.Supp 2d. 1090
(D.Az. 2003)
\14\ National Defense Authorization Act for Fiscal Year 2004, H.R.
1588' 108th Cong. Sec. 318 (P.L. 108-136) (2003).
---------------------------------------------------------------------------
Section 5--Clarification of Definition of Critical Habitat
This section would define certain key terms in the critical habitat
definition (``geographic area occupied by the species'' as meaning
``the specific area currently used by the species for essential
behavioral patterns'' and ``essential to the conservation of the
species'' as ``areas absolutely necessary and indispensable to
conservation.'') This language will help cure one of the real problems
in the CH process--despite the ESA's direction that CH should not
encompass all actual or potential habitat for a species unless the
Secretary specifically finds that such designation of unoccupied
habitat is essential to the conservation of the species. The Services
often appear to ``sweep in'' unoccupied habitat on the theory that
species may have frequented the area at some point in the past and may
do so in the future. Often such a conclusion is based on questionable
data. 15 This ``blurs'' the distinction between ordinary and
critical habitat and diverts resources away from protecting those areas
that are truly necessary for species recovery. Indeed, courts have held
that the ESA envisions a narrow application of CH, reasoning that
``even though more extensive habitat may be essential to maintain the
species over the long term, critical habitat only includes the minimum
amount of habitat needed to avoid short-term jeopardy or habitat in
need of immediate intervention.'' Northern Spotted Owl v. Lujon.
16 H.R. 2933 would force the Services to ensure that FWS has
the most accurate and current data for CH designation because it must
demonstrate that an area is ``currently used'' for ``essential
behavioral patterns.'' It would also force the Secretary to better
justify including unoccupied habitat by requiring her to provide a
detailed and specific biologically-based rationale for why inclusion is
necessary for species recovery--all tied to the development of recovery
plans.
---------------------------------------------------------------------------
\15\ See court's analysis in the Whipsnake case, Home builders
Association of Northern California v. FWS' 268 F. Supp. 2d. 1197 ( E.D.
Cal. 2003)
\16\ 758 F. Supp. 621, 623 (W.D. Wash. 1991).
---------------------------------------------------------------------------
However, H.R. 2933's use of ``absolutely necessary and
indispensable to conservation'' language in defining ``essential''
could be problematic. Those terms are vague. 17 In the
absence of biological criteria, officials at the Services could very
easily apply their own value judgments and sweep in larger areas than
might be justified by objective field data--even including unoccupied
areas that might some day acquire characteristics for creation of
suitable habitat (known as Primary Constituent Elements (PCEs)). While
the language certainly directs agency officials to focus on limited
areas, it should be further modified to provide objective criteria for
both the decision-makers and the public.
---------------------------------------------------------------------------
\17\ For example, ``indispensable'' is defined as ``that cannot be
dispensed with or neglected.'' (Webster's New World Dictionary).
---------------------------------------------------------------------------
Section 3--Bases For Determination
This section would provide the Secretary with more complete and
accurate information for determining under section 4(b) if the benefits
of exclusion of an area would outweigh the benefits of designation. It
would do so by requiring consideration of information from local
governments as well as direct and indirect economic impacts and costs
as a consequence of the designation. This language will greatly advance
the goal of ensuring that the CH decisions are based on the most
accurate and up to date technical and economic information.
The duty to ``seek and consider'' if available, information from
local governments in the vicinity of the area, including local resource
data and maps should help cure a significant problem because currently
there is no consistent approach to seeking and utilizing local
information in CH decisions. As the recent GAO report on ESA listing
and CH decisions stated, ``Experts and others we spoke to explained
that the amount of scientific information available on a species
habitat needs often may be limited, affecting the Service's ability to
adequately define the habitat area required.'' 18 Local land
use agencies often assemble good area-wide and site-specific natural
resource data that could be of great use to the Services in defining
habitat limits. Such data often is included in the development of
County area-wide plans. Without question, use of such data will advance
the scientific accuracy of CH designations, given the expert opinion
reflected in the GAO Report about the general scarcity of habitat data.
Moreover, the agencies should also seek out relevant state data as
well. Many state natural resource agencies have excellent habitat
inventory data that could greatly assist in CH decisions and help fill
the data gaps that exist at the federal level.
---------------------------------------------------------------------------
\18\ U.S. General Accounting Office. (Aug. 2003). Endangered
Species: Fish and Wildlife Service Uses Best Available Science to Make
Listing Decisions, but Additional Guidance Needed for Critical Habitat
Designation (Pub. No. GAO-03-803) at 27.
---------------------------------------------------------------------------
The bill's articulation of the scope of economic and cost data that
should be considered in CH decisions highlights perhaps the most
contentious CH issue--a question that has been heavily litigated over
the past few years. The Supreme Court in the Bennett v. Spear decision
recognized that, in adopting the ESA, Congress not only declared an
overall goal of species conservation, but also a mandate to pursue that
goal without creating unnecessary economic impacts. As the Court
stated, ``we think it readily apparent that another objective (if not,
indeed, the primary one) is to avoid needless economic dislocation
produced by agency officials zealously but unintelligently pursuing
their environmental objectives.'' 19 The Bennett court also
stressed that under the ESA there is a ``categorical requirement'' to
``take into consideration the economic impact and any other relevant
impact'' in designating CH. 20 Yet, historically the Service
has essentially ignored this mandate by relying on the ``incremental
baseline'' theory to minimize the economic impact of CH designation
over listings. This approach has been strongly rejected by New Mexico
Cattle Growers 21 (NMCG) and other courts. The Service has
attempted to comply with that decision in taking voluntary remands in
several cases but has not issued any regulations or guidance addressing
the true economic costs of CH designations. Indeed, a recent study of
economic analyses since NMCG by Prof. Amy Sinden of Temple Law School
22 found ``in the vast majority of the thirty five or so
critical habitat designations completed since the Cattle Growers
opinion was issued, FWS has answered this question (that the costs of
inclusion outweigh the benefits for any particular area of critical
habitat) in the negative. In most instances, the basis for this
conclusion has been FWS's finding that the 'critical habitat impacts'--
or the cost figure derived form the original baseline--are 'not
significant'.'' She further states that ``in the final analysis, FWS's
economic analysis continues to turn on the same critical habitat
baseline that the Tenth Circuit held invalid in Cattle Growers.''
23 These findings give greater force to the GAO report's
conclusion that, ``it is imperative that (the FWS) clarify the role of
Critical Habitat and develop guidance for how and when it should be
designated and seek regulatory and/or legislative changes that may be
necessary.'' 24
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\19\ 520 U.S. 154, 176-177 (1997)
\20\ Id.
\21\ New Mexico Cattle Growers Assn. v. FWS' 248 F.3d 1277' 1280
(10th Cir. 2001).
\22\ Amy Sinden, The Economics of Endangered Species: Why Less is
More In the Economic Analysis of Critical Habitat Designations, 28
Harv. Envtl. L. Rev. 129 (2004).
\23\ Id. at 163.
\24\ U.S. General Accounting Office. (Aug. 2003). Endangered
Species: Fish and Wildlife Service Uses Best Available Science to Make
Listing Decisions, but Additional Guidance Needed for Critical Habitat
Designation (Pub. No. GAO-03-803) at 36.
---------------------------------------------------------------------------
In my judgment, the factors identified in the bill will lead to a
more accurate assessment of the costs and economic impact of CH
designations by looking beyond the mere costs of section 7
consultations and assessing all direct, indirect and cumulative costs
including those costs associated with reports, surveys and analyses
required to be undertaken as a consequence of the designation. As the
recent study by Prof. David Sunding entitled ``The Economic Impacts of
Critical Habitat Designation'' states ``The economic effects of CHD go
well beyond these costs (of development by making it more difficult to
obtain necessary permits and to reduce the size of individual
projects)''.If land is set aside or if the scale of projects is reduced
by the CHD there may well be market and regional effects from this
designation.'' 25 Significantly, he notes that the Service
``emphasizes only the most obvious costs, namely the direct out-of-
pocket expenditures needed to complete the section 7 process, and
ignores the potential for regional market impacts''. Thus, the Service
seriously underestimates the impacts of critical habitat designation
(in some cases by more than 90 percent) and also mischaracterizes their
incidence.'' 26
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\25\ David Sunding, The Economic Impacts of Critical Habitat
Designation, Univ. of Cal. Giannini Foundation of Agricultural
Economics, vol. 6 n. 6 at 7 (2003).
\26\ Id. at 10.
---------------------------------------------------------------------------
However, in my view, the economic factors in the bill must also be
accompanied by FWS addressing the holding of the Fifth Circuit in
Sierra Club v. Norton--namely, that the ``adverse modification''
standard under section 7 creates a much lower threshold of potential
impacts than the Section 7 ``jeopardy'' standard since critical habitat
is defined as areas ``essential to the conservation of a listed
species'' whereas the jeopardy standard focuses on the ``survival'' of
the species. As the Sierra Club court stated, ``Conservation is a much
broader concept than mere survival.'' 27 Indeed, as Prof.
Sinden suggests, ``FWS should revise its definitions so as to give
independent meaning to the concept of adverse modification.'' She notes
that such a change would reflect the ``real world'' consequences of CH
designations--that the direct and indirect costs for ``adverse
modification'' exceeds the costs of avoiding ``jeopardy.'' She even
cites the example of where, after the court vacated the 731,000 acre CH
designation for the endangered ferruginous pygmy-owl in the Tucson area
but kept the listing in place, the ``Corps and the EPA promptly
responded by terminating Section 7 consultations with FWS on several
major development projects within the former critical habitat area....
Thus in this instance, critical habitat designation seems to have made
a significant difference for the pygmy-owl, imposing added restrictions
on development and, therefore, economic costs over and above those
imposed by the listing.'' 28 This is but one example of the
greater direct economic impacts flowing from CH designations, not to
mention the indirect impacts.
---------------------------------------------------------------------------
\27\ Sierra Club v. U.S. Fish & Wildlife Service, 245 F.3d 434, 441
(5th Cir. 2001).
\28\ Amy Sinden, The Economics of Endangered Species: Why Less is
More In the Economic Analysis of Critical Habitat Designation, 28 Harv.
Envtl. L. Rev. 129, 164 (2004).
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Section 4--Contents of Notices Of Proposed Designation of Critical
Habitat
This section will provide a key tool for the public to access CH
areas maps and data through requiring GIS maps and coordinates to be
posted on the Department's Internet page. Internet data is often the
primary source for the public to obtain information from the federal
government. Under the current system, the public often cannot easily
access CH data. Under this amendment, it will be easier to access
specific CH mapping data by simply accessing the Department's world
wide web home page. Further, this change will also help facilitate
meaningful public comment on proposed CH designation by providing the
specific Internet page with the proposed designation. In this manner,
landowners, local governments and the public will not only be able to
better participate in the CH process but will also be able to make
better land use decisions based on accurate and easily accessible GIS
maps of the CH area.
CONCLUSION
H.R. 2933 provides an excellent vehicle to address perhaps the most
contentious issue under the ESA today. The Critical Habitat debate has
spurned extensive litigation and technical and policy scrutiny without
any clear guidance from the executive branch. In my judgment,
Congressional action is absolutely necessary to clarify the role of
critical habitat in achieving the ultimate goal of the Act--the
conservation and eventual recovery of imperiled species.
NOTE: An attachment (Exhibit A) to Mr. Liebesman's statement has
been retained in the Committee's official files.
______
[Mr. Liebesman's response to questions submitted for the
record follows:]
Response to questions submitted for the record by Lawrence R.
Liebesman, Esq., Holland & Knight, LLP
Questions from Chairman Pombo
I am writing to respond to the follow-up questions for the hearing
on H.R. 2933. Due to other pressing deadlines, I am first responding to
the Chairman's questions and will follow up with responses to the
minority's questions next week.
1. Most everyone can agree that there are too many ambiguities and
gray areas in the ESA. That is why we have all these lawsuits that suck
money away from species protection. In fact, the last two
Administrations, including one of our witnesses here today talked about
the impacts of these lawsuits during her tenure as Director of FWS. The
Cardoza legislation seeks to reduce these lawsuits and tighten up vague
definitions.
Question: Do you believe that linking a recovery plan to critical
habitat will improve scientific gathering?
Response: Yes. The current disconnect between critical habitat (CH)
designations and recovery plans often results in CH designations that
lack a strong scientific foundation. Often, CH designations are made
under the pressure of court imposed deadlines without the benefit of
the rigorous scientific analysis from recovery plans as recognized by
the court in the Alameda Whipsnake case, Home Builders Ass'n of
Northern California v. FWS ( HBANC), where the court held, in part,
that ``if the Service has not determined at what point the protections
of the ESA will no longer be necessary for the whipsnake, it cannot
possibly identify the physical and biological features that are an
indispensable part of bringing the snake to that point.'' 240 F. Supp
2d. 1090, 1098-99 (D. Ariz. 2003). Indeed, because recovery plans must
(1) Describe any site specific management actions to conserve species;
(2) identify objective and measurable criteria necessary to result in
delisting of the species; and (3) set time and cost estimates for
carrying out the plan, 16 U.S.C.1533(f) (1)(B)(i)- (iii), any critical
habitat designation would, of necessity, have to be justified on the
basis of whether it furthered then de-listing criteria. This will
promote the gathering of rigorous objective data and avoid the chance
that CH will be based on subjective opinion. Further, the linkage
concept in H.R. 2399 must recognize that recovery planning is not a
static effort. According to the recent GAO Report, ``the Service has a
goal of developing recovery plans within 1 year and having approves
plans within 2 and 1/2 years of species listing'' and ``the Service
periodically reviews approved recovery plans to determine of updates or
revisions are needed. As of June 2003, the Service has approved
recovery plans for 1000 species'' (GAO Report at page 45). However,
while some of these plans have been revised within the past decade
(e.g., Breeding population of Wood Stork, Jan 27, 1997) others are
older ( e.g., Delmarva Fox Squirrel Plan last revised in 1993). Thus,
in order for the linkage concept in H.R. 2399 to be meaningful,
Congress should consider language that directs the Service to determine
if current plans need revisions and to revise plans, where appropriate,
by specified dates unless not practicable and to provide FWS with
sufficient budget to do so.
Question: If this linkage allows better science, will this improved
science help insulate the Service from some of the more frivolous
lawsuits?
Response: Yes. Court decisions overturning CH designations have
particularly focused on lack of factual scientific support in the
administrative record on such issues as identifying Primary Constituent
Elements for CH, including unoccupied areas and failure to identify
specific management measures. See Home Builders Ass'n of Northern
California (Whipsnake); Middle Rio Grande Conservancy District v.
Babbitt (Silvery Minnow) 206 F.Supp 2d. 1156 (D.N.M. 2000). Even the
Supreme Court in Bennett v. Spear held that one of the objectives of
the ESA `` is to avoid needless economic dislocation produced by agency
officials zealously but unintelligently pursuing their environmental
objectives.''520 U.S.154, 176- 177( 1997) Under H.R. 2399 linkage, the
FWS CH record support will presumably be based on sound peer reviewed
science since recovery plans are issued after the submission of
comments from state and federal agencies, experts and the public.
Potential plaintiffs would then have to ``think twice'' about
challenging such decisions knowing that courts would likely defer to
the sound expert judgment of the Service.
2. Many scientists have complained that the broad definitions under
the ESA lead to open interpretations. Some have equated ESA science to
skewed polls: You ask the question and you get the answer you want. The
Cardoza bill tries to improve the underlying ESA science. It tightens
the critical habitat criteria and better defines critical habitat.
However, some have said that the Cardoza bill creates more vague
definitions.
Question: Do you think the Cardoza bill brings better and tighter
science and less discretion to the process?
Response: The bill does bring better and tighter science, provided
that certain terms in the critical habitat definition are clarified,
either through this bill or by regulation. Certainly, by requiring data
on ``current use by species `` for the specific area, the Services will
have to rely on the most up to date sampling data and cannot simply
assume presence based on past historic data. Further, the requirement
to consider information from local governments will also advance the
quality of the data. This mandate should also extend to consideration
of state and regional agency data since many state wildlife agencies
have excellent data bases. Further, H.R. 2933's use of ``absolutely
necessary and indispensable'' to define ``essential'' should require a
more rigorous, objective data gathering exercise and further the
original intent of congress under the ESA that ``even though more
extensive habitat may be essential to maintain the species over the
long term, critical habitat only includes the minimum amount of habitat
needed to avoid short term jeopardy or habitat in need of immediate
intervention.'' Northern Spotted Owl v. Lujon, 758 F. Supp. 621, 623 (
W.D. Wash. 1991). Service biologists will be forced to carefully
evaluate data to separate ordinary habitat from habitat that meets such
a rigorous test. However, this terminology could also be subject to
abuse if biologists subjectively assume that no habitat can be
eliminated. Therefore, the Services should be directed to conduct a
rulemaking on the kinds of scientific criteria and the importance of
peer review needed to make these judgments in evaluating often
extensive and conflicting data.
Question: Will this improved science lead to better recovery
chances?
Response: Subject to the suggestions outlined above, the improved
science from this ``linkage'' approach will most certainly lead to
better recovery chances. The designation of CH is a basic cornerstone
in the recovery process. Therefore, the stronger the scientific basis
for the designation as linked to the recovery plan, the better the
agencies can evaluate whether a plan's ``objective and measurable''
criteria can be met.
3. Congress expressly directed (in the Committee report for the
bill that created the current critical habitat process, H. Rept. 95-
1625, page 18) that the Secretary should be ``exceeding circumspect''
in designation of unoccupied habitat as critical habitat.
Question: How could unoccupied habitat provide significant benefits
if it was not intended to be extensively designated?
Response: Unoccupied habitat should only be designated as
``critical'' in exceptional circumstances where the Service has made
very scientifically rigorous, peer reviewed findings that such an area
is so essential that must be included. See Northern Spotted Owl v.
Lujon. Linking CH designation to recovery plans, should facilitate such
a scientific determination. Otherwise, the distinction between CH and
ordinary habitat becomes blurred and subject to abuse by field
biologists who are unwilling to make the necessary scientific judgments
required to truly further recovery.
4. One of the ways to make the ESA work is to provide landowners
with incentives to protecting the species. HCP's can provide incentives
through some amount of certainty. Yet, current law allows bureaucratic
discretion to overlap HCP's with more critical habitat designations.
Question: Does this overlapping reduce the HCP incentives for
landowners? Will this bill fix this problem?
Response: Yes. The Service has been pursuing a policy of
encouraging HCP's for the past ten years. The concept is that such a
private party conservation agreement negotiated with the Service will
allow a landowner a certain ``take `` of the species in return for
private party commitment to implement the HCP. The landowner when
receives ``no surprises'' protection against any future land use
restrictions. Indeed, the FWS has noted that the benefits of including
HCP lands within Critical Habitat are normally small.'' As the Service
stated in its final CH designation for the wintering population of
piping plover:
The principal benefit of any designated critical habitat is
that Federal activities in such habitat that may affect it
require consultation under section 7 of the Act. Such
consultation would ensure that adequate protection is provided
to avoid adverse modification of critical habitat. Where HCPs
are in place, our experience indicates that this benefit is
small or non-existent. Currently approved and permitted HCPs
are already designed to ensure the long-term survival of
covered species within the plan area. Where we have an approved
HCP, lands that we ordinarily would define as critical habitat
for the covered species will normally be protected in reserves
and other conservation lands by the terms of the HCP and its
implementation agreements. The HCP and implementation
agreements include management measures and protections for
conservation lands that are crafted to protect, restore, and
enhance their value as habitat for covered species.
(Fed. Reg. 36081, Vol. 66, 7/10/2001)
However, despite this analysis, the courts have not necessarily
agreed with FWS interpretation, as especially noted in Judge Bury's
ruling regarding the Mexican Spotted Owl case. See Center for
Biological Diversity v. Norton 240 F. Supp 2d. 1090 (D. Az. 2003). H.R.
2399 should help fix this problem and avoid the disincentive by
allowing an HCP or State plan to substitute for CH if the Secretary
finds that it provides protection for habitat that is ``substantially
equivalent'' to protection provided by the designation.'' However,
defining ``substantial equivalence'' could be problematic since, under
the bill, CH must further specific conservation goals in a recovery
plan. While this distinction may seem semantic, property owners may
object to FWS demands that HCPs must go far beyond merely sanctioning a
limited ``take'' of species and also impose an affirmative duty to
further the conservation goals of the Act which include meeting
recovery plan goals--duties which are now only imposed on Federal
Agencies under section 7 (a) (1) of the ESA. Thus, Congress should
consider directing the Secretary through rulemaking to reconcile these
concerns in defining ``substantial equivalence.''
Questions from Minority Members
I am writing to respond to the follow-up questions from minority
members on H.R. 2933. These responses supplement those I provided on
May 18 to Chairman Pombo's questions.
Question 1: Do you agree with what the GAO said in August 2003 that
courts have overturned few of the Service's critical habitat decisions
because they were not supported by the best available science? Instead,
most of the challenges have dealt with non science issues, such as the
Service's failure to designate habitat for a listed species. [Page 4,
GAO report August 2003]
Response: While I agree that the vast majority of court decisions
overturning critical habitat (CH) designations have been based on
procedural missteps (e.g., refusal to designate based on a ``not
prudent'' finding) as opposed to faulty science, a number of recent
significant court decisions have focused on the science behind the
Service's decisions. For example, in 2002 the 10th Circuit upheld the
lower court's decision to set aside the designation of 163 miles of the
Rio Grande River as CH for the Silvery Minnow in part, on scientific
grounds, including failure to specifically define the Primary
Constituent Elements (PCEs) for the species and to identify where they
actually were found along the River. Middle Rio Grande Conservancy
Dist. v. Norton, 294 F.3d 1220 (10th Cir. 2002). In turn, the
designation of CH for the Alameda Whipsnake was set aside after an in
depth probing of the scientific support for the designation. See Home
Builders Ass'n of Northern California v. USFWS, 268 F.Supp.2d 1197
(E.D. Calif. 2003). The court cited such improprieties as failure to
identify PCEs and improper inclusion of areas where available
biological information indicated that the essential physical or
biological features did not exist. In particular, the HBANC court noted
the agency's failure to complete the Whipsnake recovery plan prior to
the CH designation as a major scientific failing.
Question 2: In your statement you express support for the change
that would direct the Secretary of the Interior to designate critical
habitat as practicable, economically feasible and determinable. How
would the Secretary define practicable? Couldn't it mean that if the
Fish and Wildlife did not have the budget, it would not be practicable
to designate critical habitat?
Response: Unlike other environmental regulatory regimes, the ESA
does not define ``practicable.'' Currently, section 4 requires CH
designation only to the extent that it is ``prudent and determinable''
but does not define those terms. Thus, the Services are already working
with somewhat broad terms that are undefined. The concept of
``practicability'' does appear in the section 10 Incidental Take
permitting provisions. Section 10 requires that before the Service may
issue an incidental take permit, it must find that the applicant will
minimize the impacts of the ``take'' of the species ``to the maximum
extent practicable.'' Recently the DC Circuit found that the Service
improperly deferred to the applicant's definition of ``practicable''
and faulted the Service for not conducting its own independent
analysis. Gerber v. Norton, 294 F. 3d 173, 184-86 (D.C. Cir. 2002).
Thus, this term is not completely foreign to the ESA. In addition,
current CH designations are based on a ``prudence'' analysis that, in
many ways, is no more clear.
I believe that the Committee may take comfort in the fact that
there are other similar environmental statutes that are also based on
an underlying ``practicability'' analysis. For example, the Clean Water
Act section 404 permitting program (known by practitioners as the
Environmental Protection Agency's section 404(b)(1) guidelines) creates
a presumption against impacting wetlands and other ``Waters of the
United States'' if the project is not ``water dependent'' unless the
applicant can clearly demonstrate that there are no practicable
alternatives to such impacts. The guidelines define practicability as
an alternative that is ``available'' and ``capable of being done after
taking into consideration cost, existing technology and logistics in
light of overall project purposes.'' 40 C.F.R. Sec. 230.10(a)(3). The
goal of this provision is to avoid unnecessary destruction of wetlands
and other aquatic resources while nonetheless preserving the
applicant's overall project purpose.
Thus, the approach to ``practicability'' in the above examples
focuses on balancing an over-riding statutory or regulatory goal--e.g.,
minimizing the ``take'' of listed species (in section 10 permitting and
minimizing wetlands impacts 404 program)--with the reality that meeting
such goal is not always possible and that the Service must be given
some level of flexibility when the science or other factors do not
favor designation. Indeed, most of the litigation concerning CH
designations could probably have been avoided if the Service was not
forced to designate simply for the sake of meeting an inflexible
mandate.
I do not believe that this bill would allow the Service to avoid
designating CH if it lacked the budget for the necessary work. The
existing cases to deal with this issue have made clear that the Service
may not raise such a defense. See e.g., Forest Guardians v. Babbitt,
164 F.3d 1261 (10th Cir 1998) (ordering U.S. Fish and Wildlife Service
to designate critical habitat for species under Endangered Species Act
despite claims that Congress had not appropriated sufficient funds for
such action). Ensuring that Congress appropriates sufficient funding
for CH designations will remain essential in light of the current
fiscal climate. However, given that the central goal of H.R. 2399 is to
ensure that CH designations are linked to recovery plans (so that the
best available science is used towards de-listing), I do not believe
that, absent strong compelling evidence that CH designation would
prevent FWS from carrying out other vital ESA priorities such as
failing to take action on pending listing petitions that are overdue
under ESA time frames, budget priorities could be used to avoid
designation. However, my understanding of this bill is that it would
still allow the Secretary to determine, based in part on economic
factors, that CH should not be designated under the criteria in section
4(b)(2) based on a finding that the benefits of denial outweigh the
benefits of designation. This language would clarify that if the
designation would have a significant economic impact within the area to
be designated, then the Secretary should exercise her discretion not to
designate such an area.
Question 3: Also, what does economically feasible mean? Here again,
does it mean that if Fish and Wildlife Service is not well funded it
will not be economically feasible for the Secretary to designate
critical habitat? Or does it mean it is not economically feasible for
the State or some other entity to have land designated as critical
habitat?
Response: The term ``economically feasible'' is a rather vague term
and should be clarified so that it cannot be used to avoid CH
designation based on a range of economic factors even where CH may
otherwise be justified. I do not believe that the Secretary should be
able to invoke FWS funding constraints in finding that CH designation
is not ``economically feasible.'' Given the Service's historic
antipathy towards CH designations, such an interpretation should not be
allowed to provide a convenient excuse for the Secretary to not
designate even where scientifically justified. Rather, the focus of
``economic feasibility'' should be the direct and indirect costs on
both land owner, the affected local government and the public as a
whole. Professor Sunding's study, finding that CH designation's impacts
go far beyond the immediate land owner, provides a good model for FWS
to apply in considering economic feasibility. FWS should be able to
weigh and balance those kinds of economic impacts with the benefits CH
will provide in furthering recovery goals in making an ``economic
feasibility'' determinations.
Question 4: Many FWS announcements on critical habitat say ``In
most cases, protection of a species from critical habitat designation
duplicates the protection provided by Section 7 of the ESA.'' Yet court
cases have begun to disagree with this thinking. In the Endangered
Species Deskbook which you authored you state that ``...the FWS has
begun to recognize that its prior policy is not correct and that
critical habitat designation could have an incremental effect above
that of the ``baseline'' of listing. Can you explain what benefits
critical habitat provides above and beyond the jeopardy prohibition?
Response: As noted in my testimony, the Fifth Circuit's Sierra Club
v. USFWS, 245 F.3d 434 (5th Cir. 2001),decision provides an excellent
analysis of why Congress intended the section 7 ``adverse
modification'' standard for CH to create a lower threshold of potential
impacts than the section 7 jeopardy standard. This is because CH was
intended to focus on protecting areas ``essential to the conservation
of a listed species'' whereas the jeopardy standard focuses on the
``survival'' of the species. That is, once CH is designated, any
activity with a federal nexus would arguably impact the conservation of
the species (i.e., adversely modify habitat) whereas in the absence of
CH it would be necessary to demonstrate that the proposed federally-
authorized activity would ``take'' the species to such an extent as to
lead to its potential extinction. Mere habitat modification would not
be sufficient to make that showing. Arizona Cattle Grower's Ass'n v.
USFWS, 273 F.3d 1229, 1244 (9th Cir. 2001). H.R. 2399's linkage between
CH designation and recovery plan approval would be consistent with this
distinction and the greater protections for the species within the CH
area. However, it would do so using better science than is now used in
the CH process because recovery plan goals would become the ``driving
scientific force'' in the process.
I appreciate the opportunity to work with the Committee on these
important issues. Please feel free to contact me with any questions on
my responses.
______
The Chairman. Thank you.
Dr. Ramey?
STATEMENT OF ROB ROY RAMEY, II, PH.D., DEPARTMENT OF ZOOLOGY
CHAIR AND CURATOR OF VERTEBRATE ZOOLOGY, DENVER MUSEUM OF
NATURE AND SCIENCE
Dr. Ramey. I am Rob Roy Ramey from the Denver Museum of
Nature and Science and the Chair of Zoology and Curator of
Vertebrate Zoology. I am not speaking on behalf of any group
but I have 23 years of experience in endangered species
research and management. That includes research and management
on Peninsula Ranges bighorn sheep, Sierra Nevada bighorn sheep,
California condors, peregrine falcons, African elephants, and
argali sheep in Mongolia.
We need to update the Endangered Species Act to meet
today's scientific standards and to make use of today's
technologies. Genetic analyses, computer-aided modeling,
statistical analyses have provided us with powerful analytical
and predictive tools. These are some of the same technologies
that have aided advancements in medicine, criminal justice,
space exploration, and national defense. But more importantly,
we need to update the standards for what constitutes best
available science used in day-to-day ESA decisions. It appears
there is a substantial disconnect between accepted scientific
standards in mainstream science and how science is used in
decisions regarding endangered species.
The Preble's meadow jumping mouse and bighorn sheep in the
Peninsula Ranges, both projects I have worked on, provide
examples of fundamental ESA science issues--listings made
without adequate questioning of evidence, hypothetical threats
treated as if they are real threats. Anecdotes and
unsubstantiated opinion are created with equal seriousness to
conclusions that are reached through empirical data and
hypothesis-testing. Objective and independent peer review are
often lacking. We would never approve new drugs or go to the
moon or cure cancer and AIDS on the kind of evidence which can
pass for scientific evidence in the administration of ESA.
Endangered species management can produce passionate
empathy or disdain for some listed species. When passion and
the lack of critical thinking are coupled with the
decisionmaking power under the ESA, decisions can easily
deviate from having a sound scientific basis. The consequences
of this can be far-reaching.
What can we do about this problem? The solution is to raise
the bar on scientific standards used in support of ESA
decisions and more clearly defined disputable terms. I urge the
Committee to support bills like H.R. 2933. This bill raises the
bar on the definition of critical habitat and therefore
represents a significant step along the path of ESA reform. It
also allows us to calculate the real cost of critical habitat
designations or the benefits.
By delaying the designation of critical habitat until there
is a recovery plan, H.R. 2933 provides the Fish and Wildlife
Service with more time to gather evidence on species
occurrence, and also it provides time for communities to
develop alternative strategies for habitat conservation,
including those with incentives.
In addition to the proposed changes in H.R. 2933, I urge
the Committee to consider requirements for scientifically
defensible tests of genetic uniqueness for candidate species on
this and other ESA bills. This question should be asked before
listing petitions are considered or critical habitat is
designated.
Furthermore, protection of species should deal with real
observable threats and not hypothetical threats. Recovery goals
should be realistic and achievable. Empirical evidence and
predictive models should be utilized to define critical
habitat. Objective and independent peer review should be sought
for listings, recovery plans, critical habitat, biological
opinions and delistings.
And finally, it is presently difficult for the Service to
admit and revise some errors on critical ESA decisions. In the
field of science, however, all hypotheses are potentially
falsifiable with new evidence or new analyses. A good scientist
is a good skeptic, especially their own hypothesis. As an
example, I provide for the record correspondence and manuscript
review that I solicited from Dr. Phillip Krutzsch, the
scientist who originally described the Preble's meadow jumping
mouse as a new subspecies in 1954. I did a research project
where we tested that utilizing genetic data and morphologic
data. Krutzsch is 84 years old, underwent open heart surgery in
January, and is still an active scientist. Regarding the
taxonomic reevaluation of this subspecies he wrote, ``The study
clearly invalidates Z.h. preblei and demonstrates its
relationship to Z.h. campestris. Perhaps most significant is
the model you provide to unequivocally establish the uniqueness
of an organism and its relationships before declaring it in
danger of extinction. Such an analytical approach would prevent
the implementation of a process to support an agenda or a point
of view. I can think of other listed species that could have
benefited from a prior, detailed, scientific appraisal.''
In conclusion, Congress and the people expect much from
science in protecting and preserving existing species. Many of
the choices contained in the ESA use vague and broad words to
convey a desire but not a path to achieve that desire.
Litigation has been the chosen method to describe that path and
has led to the misallocation of resources and unnecessary
limitation on many benign activities. Congress needs to define
the path more precisely, place better and more limited
definitions on disputable terms, and ensure that decisions are
based on scientific evidence. Thank you.
[The prepared statement of Dr. Ramey follows:]
Statement of Rob Roy Ramey II, Ph.D., Department of Zoology Chair and
Curator of Vertebrate Zoology, Denver Museum of Nature & Science
My current position is Chair of Zoology and Curator of Vertebrate
Zoology at the Denver Museum of Nature & Science. I earned a master's
degree from Yale University in Wildlife Ecology and a Ph.D. from
Cornell University in Ecology and Evolutionary Biology. As a field
biologist and conservation geneticist, I have 23 year of experience in
conservation, research and management of threatened and endangered
wildlife. I have worked on peregrine falcons, California condors,
bighorn sheep in the Peninsular Ranges of California, Sierra Nevada
bighorn sheep, African elephants in Zimbabwe, and argali sheep in
Mongolia. It was my doctoral dissertation research (Ramey 1993, 1995)
and subsequent research (Wehausen and Ramey 1993, 2000) that refuted
much of the old taxonomy on mountain sheep (Cowan 1940) and prevented
the U.S. Fish and Wildlife Service (USFWS) from listing bighorn sheep
from the Peninsular Ranges as an invalid subspecies. My most recent
project has been to test the taxonomic validity of the Preble's meadow
jumping mouse, a currently listed threatened subspecies in Colorado and
Wyoming. These experiences have given me a unique perspective on the
Endangered Species Act (ESA), and led to my concern with the standards
of evidence and strength of scientific inference that are often used in
management decisions for threatened and endangered species.
Why the Endangered Species Act is outside the scientific mainstream
When the ESA was drafted thirty years ago, many of the scientific
tools and concepts that are now basic to the field of conservation
biology did not exist. We need to update the ESA to meet today's
scientific standards and to make use of today's technologies. For
example, genetic analyses are now routine, and can be easily used to
test hypotheses about the genetic uniqueness of populations and
subspecies. Also, the Internet now provides unprecedented opportunities
for public access to information that was not available thirty years
ago.
While the ESA is in need of updating to keep pace with the tools of
science, I see a more fundamental problem with the application of the
ESA, one that has become a major source of controversy and litigation.
That is the wide latitude for interpretation of what constitutes best
available science in making ESA decisions. There can be a substantial
disconnect between accepted scientific standards and how science is
used in decisions regarding endangered species management.
The scientific method requires that when there are clear-cut
criteria laid out in advance of data collection, and as a result there
is less room for bias through the selective interpretation of the
information. In other words, the more precisely we draw the line of
demarcation for testing a hypothesis, the more objective the decision.
This is the basic scientific method (Platt 1964).
Yet, when it comes to ESA decisions, opinions, interpretations of
limited anecdotal observations, and hypothetical threats are sometimes
given equal or greater weight than conclusions reached through
hypothesis testing. Much discretion is left in the hands of the USFWS
biologist(s) making the decisions. These biologists are given the
difficult task of assimilating large amounts of information from
disparate sources in a limited amount of time. Although there are many
competent and dedicated biologists at the USFWS, their effectiveness
may be compromised by being overworked and unfamiliar with the
specialized fields from which they are evaluating evidence (General
Accounting Office 2001).
In my experience, when USFWS biologists issue decisions on listings
or biological opinions, they rarely have the benefit of a truly
independent peer review. In fact, until the Office of Management and
Budget recently proposed federal standards for peer review (Office of
Management and Budget 2003), this process itself was undefined and open
to interpretation. In the mainstream of scientific investigation,
independent peer review is the standard by which the quality of science
is evaluated. This process involves evaluating claims on the basis of
their falsifiability, logic, comprehensiveness, honesty, repeatability,
and sufficiency (Lett 1990, Lipps 1999).
Independent peer reviewers are technically competent and have no
real or perceived conflict of interest. The comments and questions they
generate are used by an equally independent editor, who acts in the
role of a judge, to request the author to make changes suggested by the
peer reviewers, and then ultimately decides whether to accept or reject
the paper. In the current ESA decisionmaking process, this task of
editor can also fall on the shoulders of the USFWS biologists. It has
been my experience with the USFWS peer review process that a document
may carry the claim of being peer reviewed but the peer reviews were
less than ideal. In one case, the peer reviewer comments were ignored
and in another case, the peer reviewers did not appear to be
independent. As a result, critical ESA decisions do not always benefit
from a truly objective and independent review.
The reasons outlined above could help explain why many ESA
decisions end up being challenged in the courts. These may also be some
of the same reasons that critics of the ESA perceive that recovery
plans and goals are not realistic or achievable. If science is not
guiding the direction of conservation efforts under the ESA, then what
is? In a recent paper by Restani and Marzuluff (2002), the authors show
that lawsuits or the threat of lawsuits drive the allocation of
resources to listing and recovery effort.
The progress that H.R. 2933 represents for the ESA
What does the above scientific discourse have to do with H.R. 2933?
This bill is a solid step in the right direction towards meaningful ESA
reform. Public support for the ESA, and long term effectiveness of
species recovery under the ESA can be strengthened if we raise the bar
on scientific standards used in support of decisions. More rigorous
scientific standards must be applied at each level of the endangered
species recovery process, including: listings, critical habitat
designations, recovery plans, biological opinions, habitat conservation
plans, and delistings. We can save billions of dollars and needless
lawsuits by being more specific about the scientific criteria used in
the ESA. Our goal should be to prevent decisions from going to the
courts in the first place.
H.R. 2933 proposes specific changes that would more precisely
define critical habitat, and therefore can do more for species
preservation by focusing effort where it will make the greatest
difference. This is an important departure from the wide latitude
currently found in the ESA for declaring critical habitat.
H.R. 2933 delays the designation of critical habitat until there is
a recovery plan, and therefore provides the USFWS with more time to
gather evidence on species occurrence. This time can allow the USFWS to
make critical habitat designations that will provide long term benefit
to species and be scientifically defensible.
H.R. 2933 excludes areas with Habitat Conservation Plans (HCPs) or
alternative conservation plans from critical habitat designations,
therefore providing an incentive for communities to be proactive in
habitat conservation efforts. The potential for new, innovative habitat
conservation strategies to be developed under this provision is one of
the most positive aspects to this bill. One such strategy could be
incentive-based habitat conservation programs at a state or county
level.
H.R. 2933 proposes important changes to the process of designating
critical habitat and involving the public in this process.
While I agree with the proposed changes, I offer the following as
examples of some fundamental ESA science issues that need to be
addressed for H.R. 2933 to have a full measure of effectiveness.
Test for genetic uniqueness before listing
What happens to critical habitat if new information comes along
that suggests part of the original listing was in error? In the case of
the Preble's meadow jumping mouse, our scientific team determined that
the mouse was not genetically distinct for the DNA sequences examined,
or morphologically unique relative to a nearby subspecies. In simple
words, the threatened subspecies was not really a valid subspecies and
when combined with the populations of the genetically and
morphologically indistinguishable nearby subspecies, the Preble's
meadow jumping mouse is not a threatened subspecies (Ramey et al.
2004). This discovery came about six years after Preble's meadow
jumping mouse was listed as threatened (U.S. Fish and Wildlife Service
1998), and one year after critical habitat was declared. Therefore,
H.R. 2933 does not address the larger issue of: ``Is this population of
organisms genetically unique in the first place?'' This question should
be asked before listing petitions are considered.
There is good reason to view as suspect the taxonomic work on
species and subspecies prior to the late-twentieth century. Species and
subspecies descriptions relied on small sample sizes, had little or no
quantitative basis, and were based largely on opinion. Essentially, a
species or subspecies was what a good taxonomist said it was. For
example, the only quantitative measures to support the designation of
Preble's meadow jumping mouse as a new subspecies in 1954 were skull
measurements from three adult specimens (Krutzsch 1954). No statistical
tests were done to compare it to a nearby subspecies. In contrast, our
study utilized substantially larger sample sizes for skulls and DNA
sequences. Both data sets were subject to multivariate statistical
analyses and these results were used to test the hypothesis of genetic
uniqueness.
A great deal of conservation effort and resources can be put to
better use if species, subspecies and distinct population segments are
tested for genetic uniqueness prior to listing. Similar proof should be
provided in consideration of delisting petitions. We now have the
conceptual and analytical tools to more cleanly distinguish species,
subspecies, and distinct population segments (DPS). I hope future
drafts of this or other bills will require scientifically defensible
tests of genetic uniqueness.
Why the designation of critical habitat should be based on quantitative
evidence
I agree with H.R. 2933's clarification of Critical Habitat and I
hope that this definition can be made even more specific. In some
cases, critical habitat has been based on unverifiable opinion and not
quantitative evidence, such as physical evidence or documented
observations of species presence. Critical habitat designations that
are not based on quantitative evidence can potentially result in
misdirected conservation effort. For example, the recovery plan for
bighorn sheep in the Peninsular Ranges (listed as a Distinct Population
Segment) specifically called for a quantitative habitat analysis, and
an extensive database of 21,055 observations was compiled. However,
critical habitat was based upon the opinions of recovery team members
(U.S. Fish and Wildlife Service 2000) and not on a quantitative
analysis of the available data. There was no incentive or requirement
that critical habitat should be based on anything more substantial. I
know this situation well because I was a peer reviewer on the recovery
plan, and I am a co-author on a soon to be published paper that used
that USFWS database to develop a quantitative model of bighorn habitat
use (Turner et al., in press). In that paper, we describe how
approximately 66% of the critical habitat in the North Santa Rosa
Mountains has a near zero probability of bighorn sheep occupancy.
Much of the area with a near zero probability of bighorn sheep use
is subject to extensive recreational trail use restrictions. This begs
the question: Should we be denying public access to public lands, or
subject private landowners to restrictions on the basis of unverifiable
opinion and a remote possibility that an endangered species may pass
through an area? This example illustrates the impact that an erroneous
critical habitat designation can have on the public. It also
demonstrates how a quantitative analysis of available data can increase
the probability of protecting the highest value habitat to an
endangered population while reducing the scale of unneeded restrictions
on nearby public and private land.
Why Habitat Conservation Plans (HCPs) do not always result in the
reduction of threats to listed species
I agree with H.R. 2933 in excluding areas covered by HCPs from
critical habitat. This change to the ESA could be a powerful incentive
for communities to be proactive in conservation planning and to involve
the public in this process. However, HCPs do not automatically
guarantee that demonstrated causes of species decline will be addressed
or that decisions will be made based upon the best available scientific
information. Thus, communities may view HCP's with suspicion unless the
HCPs prioritize the mitigation of threats, with the highest priority
going to those based on verifiable scientific evidence.
For example, the current draft of the Coachella Valley Multiple
Species Habitat Conservation Plan in Southern California substantially
overlaps the critical habitat for bighorn sheep from the Peninsular
Ranges. This HCP includes an interagency plan that imposes restrictions
on backcountry trail use by hikers and horseback riders, based on the
hypothetical threat of human disturbance. This presumed obstacle to
bighorn sheep recovery is supported by nothing more than speculation in
the literature. Like some other purported threats to endangered
species, it lacks a plausible cause and effect mechanism. Some areas
cited for closure or restrictions have no credible evidence of bighorn
sheep use at all.
Demographic data collected on the bighorn sheep population show
that it has increased well in recent years with the trail use that is
now proposed to be curtailed.
In contrast, the primary demonstrated causes of bighorn sheep
decline in this DPS, that are supported by empirical evidence, disease
(DeForge et al. 1982, Turner and Payson 1982a, b, Elliot et al 1994)
and predation by mountain lions (Hayes et al. 2000), were not given the
same priority in the Recovery Plan or the HCP. For example, not a
single mountain lion had been removed from this area since the listing
and three potential sources of exotic respiratory disease have not been
double fenced.
This is an example of the lack of action on known causes of
mortality and a focus of effort on hypothetical causes, such as human
disturbance. It illustrates the extent to which opinion, and selective
citation and interpretation of the literature can influence HCP actions
and potentially violate the public's confidence in the ability of the
ESA to assure recovery of a species.
Endangered species management can produce passionate empathy for
some listed species. When passion and a lack of critical thinking are
coupled with decision making power under the ESA, decisions easily
deviate from having a sound scientific basis. Firmly held beliefs about
the hypothetical threats to or genetic uniqueness of listed species are
similar to those found in believers of paranormal phenomena. While
additional evidence is always called for, critical tests that could
potentially falsify the belief are typically lacking. Like-minded
authorities are called in and their opinions are used in support of
those beliefs. Time and money are wasted, because courses of action are
followed on the basis of belief instead of science. This lack of
critical thinking jeopardizes the recovery of endangered species and
undermines public support for the ESA.
Conclusions
The solution to each one of the examples above is to raise the bar
on the scientific standards used in support of ESA decisions.
H.R. 2933 raises the bar on the definition of critical habitat.
This more precise definition allows science to better inform the policy
choices which the ESA requires.
I offer the following specific suggestions that could further
improve the science used in support ESA decisions:
Require that candidate species, subspecies, and distinct population
segments be tested for genetic uniqueness before listing. In some cases
that will not mean gathering new data but analyzing existing data in
order to test the hypothesis of uniqueness.
Require that critical habitat, specifically the ``geographical area
occupied by the species'' and ``essential to the conservation of the
species,'' be based on a quantitative analysis of reliable data, and
the data used for such determination be publicly available.
Protection of species should deal with real, observable threats and
not hypothetical threats. In recovery plans and HCPs, the presumed
threats to endangered species need to be cast in terms of questions and
the questions ranked in order of importance. Each question should then
receive a problem analysis and be broken down into component parts that
can be treated as testable hypotheses. In this manner, hypothetical
threats can be properly prioritized and investigated as testable
hypotheses.
Require that recovery goals be realistic and achievable.
Require objective and independent peer review of proposed listings,
recovery plans, critical habitat, biological opinions, and delistings.
Require reviewers to disclose potential conflicts of interest. These
same requirements should be applied to key evidence used in support of
these proposed ESA decisions.
Congress and the people expect much from science in protecting and
preserving existing species. Many of the choices contained in the ESA
use vague and broad words to convey a desire but not a path to achieve
that desire. Litigation has been the chosen method to describe that
path and has led to misallocation of resources and unnecessary
limitation on many benign activities. Congress needs to define the path
more precisely, place better and more limited definitions on disputable
terms, and insure that decisions are based on scientific evidence.
Thank you very much.
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Ramey, R.R., H.P. Liu, and L. Carpenter. 2004. Testing the taxonomic
validity of the Preble's meadow jumping mouse (Zapus hudsonious
preblei). Report to the Governor of Wyoming and the U.S. Fish &
Wildlife Service (Revised). Denver Museum of Nature & Science.
27pp.
Turner, J. C., and J. B. Payson. 1982a. The occurrence of selected
infectious diseases in the desert bighorn sheep, Ovis
canadensis cremnobates, of the Santa Rosa Mountains,
California. California Fish and Game 68:235-243.
Turner, J. C. and J. Payson. 1982b. Antibody prevalence against
selected infectious disease agents in desert bighorn sheep,
Ovis canadensis cremnobates, herds of the Santa Rosa Mountains,
California. Journal of Wildlife Diseases 18:243-245.
Turner, J.C., C.L. Douglas, C.R. Hallum, P.R. Krausman, and R.R. Ramey
(in press, Wildlife Society Bulletin). Determination of
critical habitat for the endangered Nelson's bighorn sheep in
southern California.
U.S. Fish & Wildlife Service. 1996. Policy regarding the recognition of
Distinct Vertebrate Population Segments under the Endangered
Species Act. The Federal Register 61:4722.
U.S. Fish & Wildlife Service. 1998. Final Rule to list the Preble's
meadow jumping mouse as a Threatened Species. The Federal
Register 53(92):26517-26530.
U.S. Fish & Wildlife Service. 2000. Recovery Plan for bighorn sheep in
the Peninsular Ranges, California. U.S. Fish and Wildlife
Service, Portland, OR. xv+251pp.
Wehausen, J.D. and R.R. Ramey. 1993. A morphometric reevaluation of the
Peninsular bighorn subspecies. Desert Bighorn Council
Transactions 37:1-10.
Wehausen, J.D. and R.R. Ramey. 2000. Cranial morphometric and
evolutionary relationships in the northern range of Ovis
canadensis. Mammalogy 81(1):145-161.
______
[Dr. Ramey's response to questions submitted for the record
follows:]
Response to questions submitted for the record by Rob Roy Ramey II,
Ph.D., Department of Zoology Chair and Curator of Vertebrate Zoology,
Denver Museum of Nature & Science
Questions from Chairman Richard Pombo
(1) Dr. Ramey, you mentioned that you hope future drafts of this
bill will address the need for scientifically defensible tests of
genetic uniqueness.
Can you explain why this is so important?
Do you have any specific examples?
RESPONSE:
Look Before You Leap -- Genetic Testing and Objective Peer Review
The Application of ``Best Available Science'' to Determine
Uniqueness of Species, Subspecies or Distinct Population Segment as a
Prerequisite to Listing as a ``Threatened'' or ``Endangered'' Species.
The Problem:
The public has a finite amount of resources for protection of
species that are threatened with extinction. Listings under the ESA
currently occur without a critical review of genetic uniqueness of the
species, subspecies or distinct population segment prior to being
listed. This can lead to a misallocation of recovery effort, unneeded
economic costs, and erosion of public confidence in the administration
of the ESA if, at a later date, a listed species is discovered not to
be genetically unique.
Potential Solutions:
(1) Genetic Testing--A Prerequisite of Listing
Require outside petitioners and internal listing proposals to
provide reliable evidence that the proposed entity to be listed is
genetically unique. In some cases that will not mean gathering new data
but analyzing existing data in order to test the hypothesis of
uniqueness. Evidence would have to meet modern scientific standards in
the fields of evolutionary genetics and systematics. This is especially
needed where original taxonomic inference was weak and based primarily
on opinion rather than reliable data. This requirement would winnow out
substandard science and opinion in the initial phase of listing a
species.
(2) Independent Peer Review to Assure Objectivity and Scientific
Integrity
In considering a proposed listing, the USFWS should either (a) be
required to organize an independent peer review of the information by
qualified scientists who conduct research in appropriate fields, or (b)
convene a permanent panel of appropriate scientists that reviews all
proposed listings relative to evidence of genetic uniqueness. This
latter panel might be made up entirely of qualified scientists from
various governmental agencies, or a mixture of government and academic
scientists. Where appropriate, this panel might solicit input from
outside experts. A mandated written review of the evidence for each
proposed listing would force serious scrutiny. This could be similar to
a Supreme Court decision. In some ways it carries similar weight in
that the future of a potentially unique population of organisms lies in
the balance. That written review might serve importantly in some cases
as impetus for the development of further data.
Examples of Listings Based on Weak Evidence of Genetic Uniqueness:
(1) The Preble's meadow jumping mouse (Zapus hudsonius preblei) was
described by Krutzsch (1954) as a new subspecies that he split from
Z.h. campestris to the north. The weakness of the original subspecies
description included: limited numbers of specimens used to describe the
subspecies (3 adult skulls measured, 4 adult skins examined),
qualitative descriptions that would not meet modern standards, and
overlap in physical appearance to other Zapus species and subspecies.
That subspecies was petitioned for listing in 1994, listed in 1998,
and critical habitat was designated in 2003. Although various genetic
and morphometric studies were conducted, none rigorously tested the
uniqueness of the Preble's meadow jumping mouse until the Denver Museum
of Nature & Science did so beginning in 2002. The results strongly
refuted the genetic and morphological uniqueness of the Preble's meadow
jumping mouse and were released in December 2003. Delisting petitions
that cite this and other new information were filed and a decision by
the USFWS about this is now pending.
The most fundamental failure in this process was the lack of a
critical independent review that would have revealed the weakness of
the original subspecies description on which the listing was based.
Such an independent review would have requested a more rigorous test of
the genetic uniqueness prior to listing.
(2) Bighorn sheep in the Peninsular Ranges were proposed to be
listed as a subspecies (O. c. cremnobates) in 1991, but mitochondrial
DNA and morphological testing revealed that they were not a unique
(Wehausen and Ramey 1993, Ramey 1995) and this subspecies was
synonymized with (Ovis canadensis nelsoni). A subsequent paper (Boyce
et al. 1997) using data from two different nuclear DNA markers produced
apparently conflicting results for one set of genetic markers and that
equivocal result and interpretation became the support for the genetic
distinctiveness cited in the listing as a distinct population segment
in 1999. I know that data set well because I was a coauthor on the
paper.
I detailed my concerns about the lack of specific genetic tests for
the presumed distinctiveness of this population in the listing in a
letter dated 19 January 1999 and hand delivered to Secretary Babbitt. I
never received a reply to that letter. In 2000, a recovery plan was
completed for bighorn sheep in the Peninsular Ranges, as was critical
habitat designation. Lawsuits, subsequent settlement agreements, a
General Accounting Office investigation, and a draft multispecies
habitat conservation plan are all actions that have occurred consequent
to that listing.
The failure in this case was that selective citation of the
literature was used as the basis of listing, whereas apparently
conflicting data sets would have caught the attention of independent
peer reviewers. The unsupported notion that this population is
genetically distinct from others in the desert is a firmly-held belief
that limits affects future conservation options.
(3) Other Recent Examples:
Other, more recent examples of new genetic data sets refuting
genetic uniqueness of listed subspecies or distinct population segments
can be found with the California gnatcatcher and Western snowy plover.
An example of genetic and morphological data confirming the genetic
uniqueness of an subspecies prior to listing can be found with Sierra
Nevada bighorn sheep.
______
The Chairman. Thank you.
Ms. Clark?
STATEMENT OF JAMIE RAPPAPORT CLARK,
EXECUTIVE VICE PRESIDENT, DEFENDERS OF WILDLIFE
Ms. Clark. Mr. Chairman and members of the Resource
Committee, thank you for the opportunity to testify today on
H.R. 2933, the Critical Habitat Reform Act of 2003. I am Jamie
Rappaport Clark, Executive Vice President of Defenders of
Wildlife, a 501(c)(3) nonprofit organization with more than
475,000 members and supporters. Our mission is the protection
of all fish, wildlife and plants and the habitat that sustains
them.
Today loss of habitat is widely considered by scientists to
be the primary cause of species extinction and endangerment.
And while the Act has successfully prevented hundreds of
species from going extinct, loss of habitat continues to
threaten scores of plants and animals, including many species
that are already protected under it.
Despite its billing as a critical habitat reform act, there
is, in reality nothing reforming about H.R. 2933. It would
effectively eliminate one of the Endangered Species Act's
central tenets--the designation and protection of critical
habitat, and replace it with absolutely nothing. H.R. 2933
would fundamentally weaken the protection of habitat by
effectively making the designation of habitat discretionary, by
requiring critical habitat only ``to the maximum extent
practicable, economically feasible, and determinable.'' This
would have the practical effect of making the designation of
critical habitat the exception, rather than the rule.
H.R. 2933 would also move the designation of critical
habitat from the time of listing to the time a recovery plan is
approved by the Secretary, a shift that Defenders does not
oppose. But by requiring the designation of critical habitat
concurrently with the approval of the recovery plan without
imposing a deadline for such plans, H.R. 2933 would not only
greatly diminish if not eliminate meaningful enforcement of the
provision; it would further delay development of any blueprint
for species recovery.
And finally, H.R. 2933 also fails in that it neglects to
address at all the grave problems regarding this
Administration's implementation of the act's critical habitat
provisions, problems that are severely undermining and
exacerbating the challenges associated with the conservation of
endangered and threatened species habitat.
But let us take a step back for a minute and look at the
broader issue. What we are ultimately talking about today is
the kind of world we will be leaving to our children.
Unfortunately, our nation has not always succeeded in
protecting a conservation legacy as rich and diverse as the one
we inherited. Often we sacrifice tomorrow's bounty for today's
gains. Some of these failings are reversible but others are not
and the most permanent of them is extinction.
In 1973 our nation's government passed the Endangered
Species Act with wide bipartisan support. Our leaders realized
then what the years since have only confirmed--that we owe it
to future generations to be good stewards of the environment
and that good stewardship includes the prevention of species
extinction.
Congress also realized how vital habitat was to species
recovery, so much so that they highlighted in the original
construction of the Endangered Species Act the protection of
habitat as one of its key purposes. Since then, the ideals
behind the Endangered Species Act and the Act itself have
continued to enjoy broad bipartisan support.
A recent poll done by a coalition of conservation groups,
including Defenders, revealed some astonishing numbers. Ninety
percent of voters subscribe to the view that they owe it to
their children and grandchildren both to be good stewards in
the environment and to avoid causing species to go extinct. The
Endangered Species Act itself enjoys the support of 86 percent
of voters and a full 95 percent agree and understand that one
of the most effective ways to protect species is to protect the
places in which they live.
Clearly any suggestion that there is a groundswell of
support for weakening the Endangered Species Act is unfounded.
Voters are strongly supportive of species protection in general
and the Act specifically, especially with regard to protecting
habitat essential to species recovery.
In summary, the Endangered Species Act with its central
tenet of habitat protection continues to stand as one of our
nation's most important and effective instruments for
preserving and restoring the conservation legacy we pass on to
our children. We must never forget the central purpose of the
Act and the extraordinary foresight of the act's original
authors, who saw the wisdom in both species conservation and
habitat protection. After all, it hard matters what you do for
a species on the brink of extinction if you do not protect
their habitat. It is clear that if we are to recover species on
the brink and prevent additional species from suffering a
similar fate, we simply must do a better job of protecting the
habitat they depend on.
I challenge all of us as we discuss any proposed changes to
the Endangered Species Act or its implementation to answer the
question: Will it improve and ensure the conservation of
habitat? It is only when affirmed with a positive answer that
we have meaningful reform that will guarantee a rich legacy for
future generations. Thank you.
[The prepared statement of Ms. Clark follows:]
Statement of Jamie Rappaport Clark, Executive Vice President,
Defenders of Wildlife
Mr. Chairman, Mr. Ranking Member and members of the Resources
Committee, thank you for the opportunity to testify today on H.R. 2933,
the ``Critical Habitat Reform Act of 2003.'' I am Jamie Rappaport
Clark, Executive Vice President of Defenders of Wildlife. Defenders of
Wildlife is a 501(c)(3) nonprofit organization with more than 475,000
members and supporters; our mission is the protection of all native
wildlife, fish and plants and the habitat that sustains them.
Before I address the specifics of H.R. 2933, I would like to say
two things.
First, as a rule, Defenders of Wildlife generally does not support
piecemeal reauthorization of the Endangered Species Act.
Reauthorization is best considered in the context of the Act's entire
framework in order to ensure all aspects of threatened and endangered
species conservation are adequately addressed.
Second, let's take a step back and put the issue at hand today in
context. What we are really talking about today is the kind of world
that we will be leaving to our children. The greatest gift one
generation leaves another is a better world. And it is the hope of all
parents that the world they leave their children is as rich and diverse
as the one they inhabit today. This is the lasting legacy that bonds
one generation to the next. And in America, that legacy has always
included a deep and abiding appreciation for the natural world.
Whether one is a hiker or a hunter, a fisherman or
environmentalist, liberal or conservative, we have all benefitted from
our nation's rich and abundant environment and the conservation legacy
passed on to us by those who came before. And we bear a
responsibility--a duty--to ensure that some measure of what we have
received is there to be enjoyed by tomorrow's children.
Unfortunately, we have not always succeeded in protecting that
legacy. Often we have sacrificed tomorrow's bounty for today's gains.
Some of these failings are reversible, others are not. The most
permanent of them is extinction.
In 1973, our nation's government embraced this truth and passed the
Endangered Species Act. The bill sailed through both the House and
Senate by wide bipartisan majorities. And it was a Republican
President, Richard Nixon, whose signature made the Act law.
Our leaders then realized what the years since have only confirmed:
that we owe it to future generations to be good stewards of the
environment--and that good stewardship entails the prevention of
species extinction. This is a weighty responsibility--once species are
gone, we cannot bring them back.
The Endangered Species Act is the safety net for wildlife, plants,
and fish on the brink of extinction. In so many ways, Congress was
prescient in the original construction of the Endangered Species Act
when it included the protection of habitat as one of its key
components. After all, the very best way to protect species is to
conserve their habitat. Indeed, today, loss of habitat is widely
considered by scientists to be the primary cause of species extinction
and endangerment.
More than 30 years ago Congress recognized the impact habitat loss
was having on wildlife and plants when it enacted the Endangered
Species Act with the express purpose of ``provid[ing] a means whereby
the ecosystems upon which endangered species and threatened species
depend may be conserved.'' And while the Act has successfully prevented
hundreds of species from going extinct, the fact is that loss of
habitat continues to threaten scores of plants and animals, including
many that are already protected under it. It is clear that if we are to
recover currently listed species and prevent additional species from
becoming endangered or threatened, we simply must do a more effective
job of conserving the ecosystems (i.e., habitats) wildlife and plants
depend on for their survival.
Any proposed changes to the Endangered Species Act or its
implementation, whether legislative or administrative, must ultimately
be judged against that standard: Will it improve and ensure the
conservation of habitat? When measured against this standard, H.R.
2933, the ``Critical Habitat Reform Act of 2003,'' fails miserably.
Despite its title, there is in reality nothing reforming about H.R.
2933 and certainly not if one considers meaningful reform of the
Endangered Species Act to be that which further improves the
conservation of endangered and threatened species and provides a sure
pathway to species recovery. Rather, H.R. 2933 would effectively
eliminate one of the Act's central habitat protections--the designation
and protection of ``critical habitat''--and replace it with absolutely
nothing. In other words, H.R. 2933 not only fails to improve the
conservation of habitat under the Endangered Species Act, it actually
would make the situation worse by effectively eliminating any
protection for much if not most of the habitat endangered and
threatened species need to recover.
As currently required under the Endangered Species Act, the
designation of critical habitat could provide several potential
benefits for endangered and threatened species. I emphasize ``could''
and say ``potential'' because for most currently listed species,
critical habitat has never even been designated, much less protected,
and because, as discussed in greater detail below, the current
Administration is now perversely using critical habitat as a tool to
undermine, rather than advance, species conservation.
But let us start by examining some basic truths about critical
habitat designation as envisioned in the Endangered Species Act.
First, defined as that habitat which is ``essential to
the conservation'' of endangered and threatened species, the
designation of critical habitat should be important because it
identifies, both geographically and in terms of physical and ecological
features, that habitat an endangered or threatened species needs to
recover. Thus, critical habitat should serve as an important recovery
planning tool.
Second, the designation of critical habitat is the only
provision under the Endangered Species Act that expressly requires the
protection of unoccupied habitat, which is particularly important for
migratory species. Since the single greatest cause of species
endangerment is loss of habitat, most listed species will not recover
to the point where the Act's protections are no longer necessary unless
the loss of habitat is not only stopped, but is actually reversed and
sufficient areas are conserved to enable the species' current
population to expand.
Third, by encompassing unoccupied habitat, critical
habitat also benefits species by often ensuring that federal actions
with the potential to impact listed species habitat are reviewed by the
U.S. Fish and Wildlife Service and/or National Marine Fisheries Service
pursuant to the Act's section 7 consultation provision. The section 7
consultation requirement is absolutely essential to ensuring that
federal agencies do not undermine the conservation of listed species
and, instead, actively utilize their existing authorities to promote
species' recovery and survival.
Finally, the designation of critical habitat is important
because it triggers a substantive regulatory protection for species'
habitat--the prohibition on federal actions which are likely to result
in the ``destruction or adverse modification'' of critical habitat.
Defenders of Wildlife opposes H.R. 2933 as much for what it does
not do as for what it does. H.R. 2933 would fundamentally and
significantly weaken the protection of habitat under the Endangered
Species Act by effectively making the designation and protection of
habitat discretionary. With only two exceptions, current law requires
the designation of critical habitat at the time an endangered or
threatened species is listed. More importantly, the designation of
critical habitat can be excused entirely only in the rare situation
where it would actually harm the species. H.R. 2933, on the other hand,
by requiring critical habitat only ``to the maximum extent practicable,
economically feasible, and determinable,'' would effectively make the
designation of critical habitat the exception, rather than the rule,
and turn what is now a mandatory requirement into one that is almost
entirely discretionary with the Secretary. Because it is the current
Administration's position that the designation of critical habitat is
never ``practicable'' or ``economically feasible,'' H.R. 2933 would
effectively write the designation and protection of critical habitat
out of the Act, thereby condemning species already in a precarious
state to further decline and possible extinction.
H.R. 2933 would also move the designation of critical habitat from
the time of listing to the time a recovery plan is approved by the
Secretary and eliminate any enforceable deadline regarding critical
habitat. Making the designation of ``recovery'' habitat part of or at
least concurrent with the development of a recovery plan makes sense
and is something Defenders supports, but only if the Endangered Species
Act is amended to provide for an enforceable recovery planning
deadline. Currently, the Act does not impose a deadline for the
development of recovery plans. Accordingly, by requiring the
designation of critical habitat ``concurrently with the approval of a
recovery plan'' but without imposing a deadline for such plans, H.R.
2933 would not only greatly diminish if not eliminate meaningful
enforcement of this provision, it would further delay development of
any ``blueprint'' for species recovery.
H.R. 2933 also fails in that it neglects to address at all the
grave problems regarding this Administration's implementation of the
Endangered Species Act's critical habitat provisions which are severely
undermining the conservation of endangered and threatened species
habitat. Congress plainly intended the designation of critical habitat
to be a central tool in achieving the Endangered Species Act's goal of
conserving endangered and threatened species. At the same time,
Congress also provided that the Secretary take ``into consideration the
economic impact, and any other relevant impact'' of designating
critical habitat. This Administration, however, has turned the critical
habitat provision entirely on its head; instead of a tool for
conserving endangered and threatened species, the designation of
critical habitat has become a mechanism for actually eliminating any
meaningful protection for habitat deemed essential to species
conservation.
We have seen, for example, areas determined by Fish and Wildlife
Service biologists to be essential to a species conservation excluded
from or eliminated as officially designated critical habitat, only to
then have other federal agencies, including the U.S. Army Corps
Engineers, refuse to even consult with the Fish and Wildlife Service
under section 7 of the Endangered Species Act regarding actions that
will destroy and fragment such habitat. In a case involving the
endangered cactus ferruginous pygmy-owl, this Administration has taken
the extreme position that a federal agency has no obligation to even
consult with the Service under section 7 of the Act unless its actions
will directly impact habitat that is either occupied by an endangered
species or formally designated as critical habitat, even though the
agency's action will result in the destruction of habitat determined by
the Fish and Wildlife Service to be important to the species' survival
and recovery.
This pattern is becoming increasingly worrisome as this
Administration continues to exclude vast areas of essential habitat
using flawed, one-sided economic analyses and other arbitrary reasons.
For example, this Administration has steadfastly refused to consider
the economic benefits associated with the designation of critical
habitat, and even has gone so far as to delete from its published
analysis a section on the economic benefits of designating bull trout
critical habitat included in the original analysis by the Fish and
Wildlife Service's own economic consultant. This is not only bad
economics, but it highlights in stark terms this Administration's real
agenda regarding critical habitat and species conservation under the
Endangered Species Act.
Under this Administration, the designation of critical habitat is
no longer about protecting species and guiding species recovery, but
instead has become simply a political opportunity to assault the
Endangered Species Act, to make a mockery of the importance of habitat
to species recovery and to make baseless assertions that ``the
Endangered Species Act is broken.'' For example, despite continually
complaining in press releases that its priorities are being dictated by
court-ordered critical habitat designations rather than science, in
reality, this Administration has failed to develop its own priorities
at all regarding the backlog of overdue critical habitat designations.
As the General Accounting Office recently found, ``[t]he Service
has been aware of problems with its critical habitat program for a
number of years,'' and has previously ``announced its intention to
streamline the process for designating critical habitat to be more
cost-effective,'' and to develop a much less labor-intensive process
for describing the areas proposed for designation as critical
habitat.'' GAO, Endangered Species: Fish and Wildlife Service Uses Best
Available Science to Make Listing Decisions, but Additional Guidance
Needed for Critical Habitat Designations 35, 36 (August 2003). Yet,
according to GAO, ``no additional guidance or revisions were issued,
and the Service continues to follow the same unworkable system'' for
designating critical habitat. Id. (emphasis added). Thus, this
Administration's repeated claim that critical habitat is broken is
spurious given that it has done absolutely nothing to administratively
address the critical habitat backlog or reform the process. Plainly,
this Administration seems much more interested in publicly criticizing
the ESA and fomenting controversy than it is in meaningful reform.
This Administration's implementation of critical habitat
designation and H.R. 2933 have moved the focus of the debate from where
it rightfully belongs, and it is time to take the discussion to a
different level: how can we move forward to keep the conservation of
endangered and threatened species and their habitats the central focus
of the Endangered Species Act so we can meet our responsibility to
leave a rich and abundant natural legacy to future generations?
In keeping with this view, any meaningful reauthorization of the
Endangered Species Act's critical habitat provision should encompass
the following elements.
1. First and foremost, critical habitat's original intent and
purpose of identifying and protecting habitat needed for species'
conservation (i.e., recovery) must be maintained. There must be a
transparent and scientifically rigorous process for identifying, both
geographically and ecologically, a species' recovery habitat. For
example, the current distinction between occupied and unoccupied
habitat makes no sense from a scientific or species conservation
standpoint and should be eliminated. In addition, once identified,
there must be regulatory protection for such habitat. The Act's current
prohibition on federal actions that are likely to result in the
``destruction or adverse modification'' of critical habitat, is, on its
face, a reasonable standard, but one that must be defined to reflect
the ultimate goal of recovery.
2. The designation of critical habitat should become part of, or
at least occur concurrent with, the development of a recovery plan,
provided that the recovery planning process becomes subject to an
enforceable deadline.
3. Species recovery must be the primary focus and goal of
identifying and protecting critical habitat. The current
Administration's fixation on speculative analyses of the potential
economic costs of designating critical habitat as a means to
effectively eliminate protections for habitat species need to recover
is incompatible with this goal. Economic considerations should play a
role in determining how best to protect habitat and achieve species
recovery, rather than as a means to effectively foreclose even the
chance of recovery, as is the case now.
4. Incentives must be provided to encourage private landowners to
conserve habitat determined to be important to species' recovery.
5. Finally, a scientifically based and rational system or set of
criteria for addressing the current backlog of species without critical
habitat or any other meaningful habitat protections, together with
adequate funding to administer the program, must be developed.
In closing, let me say that the Endangered Species Act, with its
central tenet of habitat protection, continues to stand as one of our
nation's most important and effective instruments for preserving and
restoring the conservation legacy we pass on to our children. We must
never forget the central purpose of the Act and the extraordinary
foresight of the Act's original authors, foresight that saw the wisdom
in both species conservation AND habitat protection. Thank you.
______
[Ms. Clark's response to questions submitted for the record
follows:]
Response to questions submitted for the record by Jamie Rappaport
Clark, Executive Vice President, Defenders of Wildlife
Questions from Chairman Richard Pombo
1) Congress expressly directed (in the committee report for the
bill that created the current critical habitat process, H. Rept. 95-
1625, page 18) that the Secretary should be ``exceeding circumspect''
in designation of unoccupied habitat as critical habitat.
How could unoccupied habitat provide significant benefits
if it was not intended to be extensively designated?
So-called ``unoccupied'' habitat provides essential benefits for
many species and is, in fact, from a biological and ecological
standpoint, indistinguishable from ``occupied'' habitat. This fact is
perhaps most evident with respect to migratory species which may only
utilize a specific habitat to meet an essential life function (e.g.,
breeding) for a short period of time each year. The fact that such
habitat is unoccupied for much if not most of the year, nonetheless, in
no way diminishes its critical importance to the species'
sustainability. Moreover, because loss of habitat is the single
greatest cause of imperilment for most threatened and endangered
species, for these species to ever recover, which of course is the
fundamental goal of the Endangered Species Act (ESA), sufficient
habitat must be protected to enable their existing populations to
expand and to ensure their long-term viability in the wild. On the
other hand, simply protecting habitat where individual members of these
endangered and threatened species are currently found will only condemn
a species to the status quo at best and potential extinction at worst,
in direct violation of the spirit and intent of the ESA.
It should come as no surprise, therefore, that Congress explicitly
affirmed the central importance of protecting ``unoccupied'' habitat in
meeting the ESA's central goal of recovering threatened and endangered
species when it drafted the critical habitat provisions. Thus, the
plain language of the ESA provides that ``unoccupied'' habitat is
``critical habitat'' if it is ``essential to the conservation [i.e.,
recovery] of the species,'' which is the same standard that governs the
designation of ``occupied'' habitat. Accordingly, when considered in
light of the ESA's unambiguous language that critical habitat is that
habitat, whether occupied or unoccupied, which is ``essential to the
conservation of the species,'' the language in the legislative history
referenced above stating that the Secretary should be ``exceedingly
circumspect'' in the designation of unoccupied habitat, at most means
that the Secretary should generally not designate more habitat than is
essential to the species' recovery.
As Chief Justice Rehnquist has said, ``reference to legislative
history is inappropriate when the text of the statute is unambiguous.''
Dept. of Housing and Urban Development v. Rucker, 535 U.S. 125, 132
(2002).
2) In your testimony you allege that Congress plainly intended for
the designation of critical habitat in achieving the ESA's goals?
If this is what Congress intended, why did you not
designate it while you were Director?
Why did you find it ``not prudent'' in almost all cases?
When I became Director of the U.S. Fish and Wildlife Service in
1997, the agency was still trying to emerge from the impossible
situation in which it had been placed when a year-long moratorium was
placed on new listings and designation of critical habitat. In April
1995, Senator Kay Bailey Hutchison (R-TX) added the moratorium to P.L.
104-6, the Emergency Supplemental Appropriations and Rescissions Act.
That moratorium remained in place through the budget battles of the FY
1996 appropriations process, extended by the numerous continuing budget
resolutions necessary until the final FY 1996 Omnibus appropriations
bill was enacted as P.L. 104-134. While the FY 1996 Omnibus
appropriations bill retained the moratorium, final negotiations on the
bill had resulted in the inclusion of provisions giving President
Clinton the authority to suspend through waivers some of the most
egregious anti-environmental riders in the bill, including the
moratorium. The President exercised this authority and waived the
moratorium when he signed the final bill into law in April 1996.
During the year that the moratorium was in place, the listing
program was effectively shut down, Fish and Wildlife employees were
reassigned to other program work and more than 500 species slid closer
to extinction, denied the legitimate protections of the Endangered
Species Act. Final listing determinations for more than 250 species
formally proposed for listing by the Fish and Wildlife Service were
precluded. An additional 270 species that had been determined by the
Fish and Wildlife Service to possibly warrant protection could not be
proposed for listing under the moratorium. The situation for many
species in significant decline was truly desperate. An internal agency
memo at the time stated, ``Elimination of the listing program will mean
that species which would have been listed as threatened will continue
to decline, and may become endangered and are more likely to become
extinct. Species which would have been listed as endangered will
continue to decline and many will likely disappear altogether.''
Once the moratorium was finally lifted, the agency was therefore in
a true ``emergency room'' situation get these species under the Act's
protection before their status deteriorated even further. As the Fish
and Wildlife Service realigned employees back into the listing program
and we completed an evaluation of the situation, we decided it was of
greater importance and more beneficial biologically to address the
biological status of as many species as possible with the meager
funding at our disposal--giving them at least the bare bones protection
of the Act--rather than list fewer species so that we could designate
critical habitat for those few. If the agency had had more funding at
its disposal we could have done both. But it would have been
irresponsible to ignore the serious backlog that existed as a result of
the moratorium under the circumstances.
The ripple effects of the moratorium are still being felt today. I
believe the moratorium put the agency into a hole from which it is
still trying to emerge, with a serious backlog of candidate species
that still await consideration of Endangered Species Act protections. I
hope Members of Congress will look to the impacts of the moratorium and
consider its consequences when contemplating any such ill-advised anti-
environmental riders in the future.
______
The Chairman. Thank you. I want to thank the entire panel
for your testimony.
Miss Clark, in your testimony you talked about the results
of a poll and where 80 plus percent of the American people are
in terms of the Endangered Species Act and protecting habitat.
And in listening to the questions, I have not seen the poll but
in listening to the questions the way that you testified, I
would have been personally with the 80 percent plus if those
questions were asked of me in the way that you presented them
to the Committee.
One of the problems that we have in trying to reform the
Act and make changes is that is not what we are talking about.
I do not think that Mr. Cardoza is trying to introduce a bill
or is trying to amend the Endangered Species Act in a way that
would remove protecting habitat.
Now we may have a difference of opinion in terms of how do
we do that, how do we have a system that works better than what
we currently do, and you have testified before this committee
many times, I have always had a great working relationship with
you and I have always felt that in your time of service as part
of the previous Administration, even though we may have
disagreed, I always felt that you were doing what you felt was
right and within the boundaries of the law, regardless of what
the issue was. I always appreciated that and I think that is
why we always got along when we were trying to work together on
this.
But what Mr. Cardoza is attempting to do is, I think, in
line with what you said when you were the Director of Fish and
Wildlife Service and that is to make the system work better
than what it currently does, and there are ways to do that. And
I would make an open invitation to you to work with you. If
there are specific parts of this bill that you think go too far
or are wrong in the way that they try to approach it, I would
be more than happy to work with you to try to find that. But I
do believe that this is the right direction to go in terms of
trying to reform the critical habitat provisions that are in
the bill.
Ms. Clark. Well, we would welcome working with the
Committee to assure that any reforms, including critical
habitat but since we are discussing critical habitat today,
that it meet that test of sustainability of habitat protections
for the long haul. I do not think anybody would disagree with
that.
The Chairman. I do not believe they do and I think that is
what brought us to where we are today. I do not think it is
helpful to the debate or the discussion. I have read some of
the stuff in the paper over the last few days saying that this
bill guts the Act and all this other stuff, which is blatantly
untrue and everybody knows that it is untrue, but that is the
level of debate that we have devolved into when it comes to the
Endangered Species Act.
I believe this is an honest attempt to try to make the Act
work within the boundaries that we all have. You, as the former
Director of Fish and Wildlife, repeatedly pointed out the
shortcomings in the critical habitat process and that we needed
to change that and reform that. Quotes from you have been put
out there and we can spend all day doing that but at least
point I do not think it is helpful. I just am trying to move
forward in a bipartisan way of trying to come up with a way to
fix this better and I appreciate you being here today and your
testimony.
I did want to ask Mr. Sunding a couple of questions in
terms of his testimony and this is something that I think there
is a lack of education or a lack of understanding when it comes
to the Endangered Species Act and what some of the impacts are.
I am assuming that you live near the university in what is
probably one of the most expensive housing markets in the
country, if not in the world.
Mr. Sunding. Yes, that is right.
The Chairman. And my district, which is very close to the
university, I have cities in my district where the average
house is $650,000 plus. And most of the people that are your
typical middle class working family could not afford to buy the
house that they are living in because of those costs and the
result of that.
As a result, we are getting more and more people that are
moving out into the Central Valley and into my home town of
Tracy. We have just exploded in terms of population in my home
town and now our average housing price is $350,000 plus and we
are pricing people out of that market.
In the context of all of that, the Endangered Species Act
has played a major role in that and I would like to ask you if
you could share with the Committee what role the Endangered
Species Act has played in terms of those housing costs and the
impact on your average middle class family that happens to live
in that area.
Mr. Sunding. Yes, I would be happy to talk about that. Let
me say first I had the very good fortune to attend a conference
here last week sponsored by the Department of Housing and Urban
Development on regulatory barriers to housing affordability and
one of the main areas of focus of that gathering was the role
of environmental regulations in decreasing housing
affordability for some particularly vulnerable groups.
So I will just say to begin, in general, that this is an
area where researchers are beginning to connect the dots. There
does appear to be a very strong connection. Having said that, I
will also say that the connection is going to vary a lot from
place to place. In particular, the role of environmental
regulation in driving up housing prices and, by inference, the
role of the ESA in driving up housing prices is going to vary a
lot from place to place. The Bay Area, the Inland Empire area
of Southern California, coastal areas of Southern California,
those are three cases where I think you can make a very strong
general argument that environmental regulations are both
driving up housing prices and also, as you point out, pushing
consumers to more and more distant locations, forcing them to
commute longer and longer distances to their jobs, which causes
all kinds of other regional economic and environmental
problems.
So I think the connection is quite strong even if, in
fairness, it is just beginning to be understood by people at
the university.
The Chairman. Thank you. I appreciate your testimony and I
would like the opportunity to continue to discuss that with
you.
Mr. Inslee.
Mr. Inslee. Thank you.
There was a suggestion earlier during our discussion that
because only a relatively small number of species have actually
been recovered--I think someone used the number 12; I do not
know if that is accurate or not--that somehow the Act is a
failure; it has not provided Americans with substantial
benefits. But it would appear to me that, at a minimum, it had
given an opportunity for many, many species that probably or at
least a significant chance would have been extinct by now had
this Act not been in place.
And just to give people a flavor of what we are talking
about, if you look at the Act now, the woodland caribou, gone;
the Columbian whitetail deer, gone; the jaguar, gone; the
mountain beaver, the Point Arena Mountain beaver, gone; the
ocelot, gone; the Sonoran pronghorn, gone; pygmy rabbit, gone;
Hawaiian monk seal, gone; the bighorn sheep, gone; the Hawaiian
duck, gone; the northern Apple Meadow falcon, gone. That is
just the beginning of the list.
It appears to me that the Act has had, at a minimum, a
benefit of assisting the preservation of these species while we
work on their recovery and at least has given a significantly
better chance of at least keeping the genetic stock available
while we work on these recovery plans.
Would the panel pretty much agree with that? Would you all
agree with that assessment? If anyone disagrees with that, feel
free to--I am seeing mostly yesses and one quizzical look. So
if you think of some other idea, let me know.
I wanted to ask about this new guideline. I am told today
after three plus years without guidance, after a court struck
down what the Administration or the agency was doing, that the
agency finally got around to doing something here and that is
really troublesome to me because we really are trying to figure
out whether the Act is broken or the actors are broken; namely,
the agencies that implement the law.
There was a GAO report--I do not know if you folks have
seen it; it was requested by Mr. Pombo and others. It came out
last year on the Endangered Species Act and what its conclusion
was, I will just cite the title because it kind of says it in a
nutshell. ``Fish and Wildlife Service uses best available
science to make listing decisions but additional guidance
needed for critical habitat designations.''
Basically the GAO study said the agency needs to get off
the dime and issue some guidance. That is the problem here. The
agency under this Administration has not acted.
Now the question I have is some of you supported this bill,
have you been on the agency's case, in a polite way of saying
it, since the Bush Administration came into office to get off
the dime to issue some guidance here?
Mr. Liebesman. I will be the first to respond, Congressman.
I, too, have been very troubled by the lack of guidance over
the last couple of years. I think it is very unfortunate when
courts are running the program and the Administration does not
respond effectively to address some of those issues. I mean a
case in point deals with the consideration of economics. The
Cattle Growers case out of the Tenth Circuit basically took the
Service historically to task for not adequately considering the
broad-based economic effects of listing critical habitats. The
message quite clearly out of that case is you really have to
come up with clear-based guidance about how economics enters
into the analysis, and now we are just beginning to see
something.
The other issue that I mentioned in my testimony that you
picked up on in your questioning earlier is the Sierra Club
case out of the Fifth Circuit, which basically struck down the
uniform standard that is applied by the Service historically
for jeopardy, as well as adverse modification, saying that
Congress intended a lower threshold when you are dealing with
adverse modification of critical habitat, as opposed to
jeopardy. You know, adverse modification goes toward the idea
of recovery of the species, as opposed to jeopardy going to the
issue of survival. And clearly the message from that decision
is to go through a rulemaking.
So indeed I have been on that case. I think it is very
important that the Service move forward. It is good to see the
guidance. But I do want to say one other thing. I do not think
guidance is the only way. I feel very strongly that we need
some clear legislative mandate to make this happen.
Mr. Inslee. I want to ask you about that mandate. Basically
the thrust of the bill in a variety of ways--this is my
characteristic and you may challenge it--I think weakens in a
significant way the method of adopting critical habitat. For
instance, it makes concurrent designation for recovery plan
that does not have any deadline for that occurring. It
restricts the critical habitat to the range of currently
occupied area of the species but if you conclude scientifically
that that is going to result in the extinction of the species,
you have not solved the problem.
On economic benefit, it does not define economic
conditions. It could mean that just if the Administration does
not appropriate enough money economically for the
administration to do this, this problem does not get solved.
Does anyone want to comment on those concerns that I have
about this proposal?
Ms. Clark. If I could, and while I do not support the
current form of the bill, I still have an opinion on the
guidance that Judge Manson referred to.
What I find most troublesome about his announcement about
the guidance that nobody has seen and that I think is
interestingly timed to today's hearing is that for an issue
that seems to have been as controversial, dating back to my
time even with the Fish and Wildlife Service, I find it a bit
curious and troubling that it is a guidance of such magnitude
to provide guidance or policy for how the Service will move
forward in critical habitat determination that it is not
subject to public notice and comment? I had never heard of that
before. Or that indeed, from what I understand, the Fish and
Wildlife Service was not even involved in the development of
the guidance.
So I would just bring that to your attention. I am very
interested in looking at how this Administration has determined
that they would move forward with critical habitat
determination.
The concerns that you raised with the current bill are very
real because at the end of the day it becomes a question not
only of priorities but available resources. The notion of
shifting the determination, science-based determination of
habitat that is essential for recovery to the recovery planning
stage, which would suggest an open, collaborative fashion for
figuring out what is necessary to ensure safe passage to
recovery, makes clear sense. But I can tell you after many
years of implementing the Act in my former life that absent
some kind of affirmative deadline and a hammer if you will to
getting a recovery plan completed and over the finish line, not
only will you not have recovery plans completed because of
whipsawing of priorities but neither will you have habitat
articulated and it becomes a double jeopardy problem.
Mr. Inslee. Just one very brief comment. I just think that
is really an important point. Given the budgetary pressures
that the agency is under, we have to have something to make
sure these decisions get made in a timely fashion. Thank you.
Dr. Ramey. I wanted to disagree with your comment, the
first blanket comment that all these species would be gone if
it were not for the ESA. Let me speak specifically--
Mr. Inslee. I want to make sure you understand my premise.
I did not say they would all be gone. I wanted to say there
would be a significantly increased opportunity for them to
survive. I just want to make sure you understand. I did not say
that they would all be gone.
Dr. Ramey. OK, but let me point out that in the case of
Sierra Nevada bighorn sheep, they were specifically listed to
gain Federal supremacy over state law to control mountain lion
perdition, which was causing the significant decline in the
population. The mountain lion population has crashed in the
Eastern Sierra Nevada and the bighorn sheep population has
increased dramatically in recent years and they have only
removed two or three mountain lions from this area under the
Act, but the mountain lions did it on their own.
In the Peninsula Ranges, the primary causes for decline of
that population initially from empirical evidence is mountain
lion perdition, respiratory disease, and yet the effort is
actually going to other areas for hypothetical threats, such as
human disturbance. So in that particular case the real causes
that are demonstrated are not being dealt with.
Mr. Liebesman. Can I comment very briefly? One of the
things that I think is going to have to be thought through is
that the Service has adopted a lot of recovery plans already. I
do not have the numbers, but a lot of them have been in place
and I understand that a lot of them are out of date and need to
be updated.
So I would agree in many ways with the premise that you
raise, that you need to have some action-forcing mechanism to
adopt these plans, but you have to put that in sort of a
realistic context; that is, if plans have actually been
adopted, do they need to be updated, when would they be
updated, how would critical habitat tie into an updating of a
plan, what plans have not been updated and need to move
forward? So it is not so simple as saying well, let us just put
a deadline for recovery plans.
Resources are important. I could not agree with you more.
If you are going to really achieve the goal of the Act you have
to ensure that there are sufficient resources to develop
recovery plans and to mesh all this together in a commonsense
way, and we cannot do it in bits and pieces.
So it is not an easy issue to say let us just have a
deadline. There is a lot involved in this process.
The Chairman. Mr. Walden.
Mr. Walden. Thank you, Mr. Chairman.
I think my colleague from Washington sort of made the case
for why we need to fix what is wrong with the Endangered
Species Act. We are losing species. We are not recovering them
as fast as a lot of us would like to see. But it seems to me in
this debate that designating critical habitat up and down a
system, whatever it is, without having a recovery plan first is
like trying to build a house without a plan. You can go to Home
Depot and lock up everything that is there in the building but
you only may need half of it and we do not know what we are
going to end up with if we do not ever have a plan.
And it seems like in the recovery planning process you
could both develop a plan that would better for recovery of the
species and produce more public support because then the public
would know what it is we are trying to do and how we get there
and how there is an end point.
I face this problem in the Klamath Basin. When the
scientists declared we had to keep a high lake level in Upper
Klamath Lake to protect the suckerfish when, in fact, the
biggest die-offs occurred during the highest lake level years
and they cannot tell us how many fish were ever in the lake,
how many are there now, or how many they want there when the
plan is done. That, to me, forget deadlines; there is not even
a plan and that is nuts.
What we have to do is update this law so that we have a
recovery plan, gather the information, and then decide what is
necessary to achieve that plan. I mean it is a pretty simple
planning process. I mean is it just me or does it look like all
this is driven by whoever has a lawyer or wants to do fund-
raising somewhere out there to support and featherbed their own
nest oftentimes, rather than dealing with what is at the top of
the threatened list? Is this not litigation-driven? Does
anybody want to tackle that?
Mr. Liebesman. Since I am the only lawyer on the panel, I
guess by default I have to respond to your comment.
I think there has been a tremendous amount of litigation
that unfortunately has driven the process and I think a lot of
it is because you have deadlines in the bill, in the original
Act, that were unrealistic. Critical habitat has deadlines
about within a year of listing and the Service historically, in
my view, did not think critical habitat was that important.
They said let us put our resources elsewhere. They said that
basically the standard for adverse modification, same as
jeopardy, Section 7, no difference.
So what happened is that smart plaintiffs in the
environmental community and elsewhere said well, here are
deadlines; we can force that by going in and filing a citizen
suit and working out settlements and that, of course, starts
the cycle of a schedule. Then, of course, the plan comes out
oftentimes not tied to a recovery plan, inadequate, and then
folks unhappy with that sue to challenge the substance of that.
So it creates an endless cycle where there are entre points
for litigation to drive the process and there are not enough
resources on the part of the Service to respond effectively and
judges are forced to grapple with a statute that is very clear
with deadlines and a process that is broken. So I think that is
where we have come unfortunately, where this has all evolved
over these many years and why this kind of legislation, in my
view, is essential to try to put a halt to that process and
create some rationality so that judges and courts are not
running the program.
Mr. Walden. And you are not alone. The Tulane University
Environmental Law Journal says, and I quote, ``The entire ESA
budget runs the risk of being consumed by the bottomless pit of
litigation driven by listings and designations. And which
habitat is most vulnerable and should be designated as
critical, litigation-driven actions prioritize only those
species that have a plaintiff behind them and often a larger
political objective, rather than those species that are most
endangered.''
It seems to me that the professional biologists and
scientists should be looking at what is most threatened and
endangered and trying to save it first and the resources that
we have ought to be applied to those species in a constructive
way that has a recovery program in mind, you get the data, it
is peer-reviewed, it is scientifically sound, we put
parameters, we involve local communities and the state.
One of you mentioned how states and localities often have
some of the best data. Why would we not try to seek out the
best data when we are talking about whether or not a species is
going to go out of existence or not? We should open this
process, make it transparent, and then come up with the best
peer-reviewed recovery plan we can, taking into account all the
other parameters, as outlined in this bill.
I appreciate your testimony and thank you, Mr. Chairman.
With that, I yield back.
The Chairman. Mr. Cardoza.
Mr. Cardoza. Thank you, Mr. Chairman. I would like to
submit this question to Ms. Rappaport Clark.
Ms. Clark, you have made some broad, in my mind unfair
statements regarding the bill, that my bill devastates ESA. You
claim that critical habitat will not be declared by the
Secretary. I would like to have you look at page 2 of the bill,
Section 3, which states, ``The Secretary shall, in accordance
with subsection B, to the maximum extent practicable,
economically feasible, and determinable, shall concurrent with
approval of the recovery plan for the species under subsection
F, designate any habitat of such species that is then
considered critical habitat.''
My question to you is if you are Secretary and you feel
that there is critical habitat needing to be designated, you do
not think you can designate it under that regulation?
Ms. Clark. If I am Secretary it might be different.
Mr. Cardoza. So it is a question of who is Secretary?
Ms. Clark. And because what is laid out in this construct
is when you have words like practicable, economically feasible,
and the economic analysis debates that are ongoing now are
pretty serious, so--
Mr. Cardoza. That is exactly my second question that I
wanted to ask you because the point of that terminology being
in this bill is by your logic, conversely, if we determine it
is unpracticable, uneconomically feasible and undeterminable,
we would still have to declare that critical habitat. We would
have to turn logic on its head and we would have to determine
critical habitat even though it is undeterminable.
Ms. Clark. No, that is not correct.
Mr. Cardoza. Well, that is the way I understand it.
Ms. Clark. What I was linking here is the factors of
practicable, economically feasible and determinable concurrent
with the development of a recovery plan. Now I absolutely agree
with all of the comments that have been made prior to this
conversation about shifting the designation of habitat
essential to recovery to the recovery planning stage, but
having worked as a biologist all the way up to the Director in
the Fish and Wildlife Service, my frustration, their
frustration will continue to be and I suggest it is probably
this current Administration's frustration that if there is not
a deadline with commensurate appropriate resources to fill that
by which to compel the recovery planning process to be
completed, the debate on habitat, whether it is practical,
economically feasible, determinable, will not occur.
Mr. Cardoza. I am perfectly willing to engage in a dialog
with regard to deadlines because I think that there may be some
issue that we have to deal with there, but it is my feeling
that if you do not have a plan, how can you designate critical
habitat if you do not have a plan? That is one of my concerns.
Ms. Clark. I do not disagree.
Mr. Cardoza. Also, I am concerned that the discussion is
more political than biological and that is one of the problems
I have with some of your testimony because it is who is
Secretary is your concern. When we are dealing with the law,
that is part of democracy. We cannot write the law for when you
are Secretary versus when Mr. Manson is Secretary. We have to
write a law that is fair all the time.
Ms. Clark. And I do not disagree with that, so let me if I
could just clarify what I meant. I think there has been a lot
of discussion and debate over the years, regardless of whether
it was Secretary Babbitt or Secretary Norton sitting in the
chair of the Interior Department. Regardless of who sits in the
chair, what is troubling to me is how the discussion of
``critical habitat'' is shifted away from being the notion of
habitat essential to recovery of listed species to try to
counter this ongoing rhetoric and attack about how the Act has
been a failure and has not recovered any species to one of
costs and economics. So there has to be a balancing there.
What I have seen in the last few years is a serious shift
to economics and economic analysis and I find interesting that
when the economic analysis work that is being done today only
addresses economic costs and per OMB I sat in a meeting with a
Fish and Wildlife Service economist within the last 3 months
where they told me they were forbidden from evaluating economic
benefits, I think that is half an evaluation.
Mr. Cardoza. Mr. Chairman, I have a number of questions
that I would like to submit, including some to Mr. Liebesman,
that I would like to do in writing after the hearing.
The Chairman. We will hold the record open to allow members
to prepare further questions to be submitted to the panel in
writing because I know there are a lot of questions of this
panel.
Mr. Cardoza. Thank you.
The Chairman. Mr. Tancredo.
Mr. Tancredo. Thank you, Mr. Chairman.
I would like to ask the members of the panel, and I know
some of you have addressed this at some point in time, but in
the 30 years, over 30 years, since this last has been on the
books, has nothing changed in terms of our ability to make
better assessments as to exactly what is critical habitat, what
is the nature of the process that would bring something to the
point of being listed as endangered? Has nothing changed in the
science in that period of time?
Dr. Ramey. Let me speak to that. Yes, quite a bit has
changed and we have new standards in the judicial system for
evidence and we have computer-aided modeling for making
predictions about where species are occurring. So we can take
evidence from where they presently occur and make predictions
where they could occur or could have occurred in the past that
are far more certain than just simply based upon opinion.
So yes, we do have the tools but it is not a requirement to
apply those tools presently. We have a paper coming out in
about 2 months in the Wildlife Society Bulletin where we
utilize a large data set from the Fish and Wildlife Service on
observations that they did not use and we used it to develop a
model for asking how much of this critical habitat area has a
low probability of sheep use and 66 percent had a near zero
probability. So it is really a question of picking your battles
and putting your resources where they count most.
Mr. Tancredo. Go ahead, sir.
Mr. Liebesman. I just wanted to follow up, not being a
scientist but being a lawyer and having seen the process go on.
I think that policy has evolved to be hopefully a little more
rigorous in how you make these decisions but still because
there is no clear guidance and no way to pull together the best
science in a rational, clear way, we are seeing sort of a crazy
quilt of decisions going on all over the place.
For example, I talked about the Alameda whipsnake case,
which is a very interesting example. A recent decision came out
within the past year where the critical habitat designation of
over 400,000 acres in Central Valley, California was overturned
in many ways on bad science, basically saying that the Service
had presumed that habitat was critical based upon a theory that
the snake might be there and were trying to make some
connection based upon data that may not be scientifically
supportable and the judge basically said the record was not
sufficient to make that judgment.
What was very important about that case is the court jumped
on the fact that a recovery plan had not been adopted,
basically saying it is like shooting in the dark; it is like
shooting darts against a wall. Without a recovery plan with
clear goals, with science laid out, how can you make a judgment
about what part of that habitat is essential to the
survivability of the species?
You need to have some clear guidance and that is where I
think the linkage issue is so critical to this bill. And maybe
we need to think through about deadlines and timing and how you
deal with past recovery plans that may be out of date; I think
that is an important part of the debate and we cannot just
leave it hanging. But, at the same time, the recovery plan has
got to be the driving force. And I think that is the way to
pull science together and, from what I have seen and the way
courts are looking at this, judges are having to jump in and
make decisions in many ways beyond their capability because
they are being thrust a statute that is so hard to interpret.
These court decisions are the biggest I have seen in many
ways in 30 years of litigating environmental cases. They go on
50, 60 pages because judges are just trying to understand the
process and they should not be administering a statute that way
through litigation.
So that is sort of my assessment about where we are and why
recovery plans are so essential.
Dr. Ramey. May I give you one more specific example? In the
Preble's meadow jumping mouse case private landowners will
often be asked to have a survey done for the mouse on their
property. In one case a consulting group with Haligen Reservoir
in Northern Colorado sent us five ear punches from a mouse and
asked if we would run DNA testing on those. Two of those
specimens the DNA sequences came out wildly divergent from the
rest of our data set and I realized that there was a problem.
So I called the consultants up and said, ``Can you tell me
about these two samples?'' It turns out once they had examined
the photographs they had taken of the mouse that it was a
hispid pocket mouse and that they actually caught three Prebles
and not five.
Well, everybody laughs about this example except it is very
serious. These individuals used the best practices for physical
evidence for a species' occurrence. A lot of what is occurring
out there is consultants with a certain level of training and
experience saying yes, I caught it, but when they are asked to
produce the physical evidence, they cannot produce it. So a
species' occurrence is being based upon opinion instead of
experimental evidence.
The Service at one time required ear punches and
photographs to be taken. They dropped that requirement several
years back. I do hope they consider it again and that it be
considered in other cases.
Mr. Tancredo. Thank you all. My time has expired but I also
would have questions, Mr. Chairman, that I would like to submit
for the record since there are plenty of issues here to develop
that time just does not allow us to do so.
The Chairman. Mr. Bishop.
Mr. Bishop. Thank you. Let me ask a couple of quick ones if
I could.
Dr. Sunding to begin with, your testimony was interesting.
You talked about how some of this Act can shape urban areas. I
think you used the phrase leapfrog development. Are you telling
us that this critical habitat designation can lead then to
urban sprawl situations?
Mr. Sunding. Essentially, yes. It can push development
further out as land is set aside for habitat protection closer
to the center of the urban area.
Mr. Bishop. Thank you.
Dr. Ramey, I recognize how sometimes vague definitions
create some problems. I realize the gentleman from California
is attempting to try to tie those definitions down as best as
possible so that it is not the old if you ask the right
question you get the right kind of answer syndrome that may be
coming up here.
In your opinion, having looked at this bill, do you think
the Cardoza bill brings better and tighter science and less
discretion to the process?
Dr. Ramey. Yes, it tightens up definitions. And by also
giving more time to make a decision and specifying that
critical habitat has to be that area that is occupied with the
species or found to be absolutely essential to their existence,
it does help. I do think it could go farther, however.
Mr. Bishop. As far as the definitions?
Dr. Ramey. As far as the definitions and also requiring
some more specific standards for what constitutes evidence of
species occurrence. Is it a vague recollection from the 1970's
that you wrote down 30 years later or is it actual physical
evidence of them being there or a vouchered museum specimen,
which would obviously be of great value?
Mr. Bishop. So if we go down that road is it your opinion
then that you actually improve the science?
Dr. Ramey. Yes. Any time you are able to define the
question more clearly, the terms more precisely, I think that
you reduce the amount of dispute and unnecessary controversy on
the subject. Scientists will often argue a lot about terms and
definitions but that is a part of the process that you can get
a cleaner result later.
Mr. Bishop. So the assumption is that once you can do that,
you move past the point which could bring litigation in, which
sucks up the resources necessary to the program and therefore
you would actually, by being able to tighten those definitions,
you would actually be able to have a better recovery
opportunity in the future.
Dr. Ramey. Correct. It is all about an allocation of
resources. We are in a situation of triage on species, so it is
better that the money go to the species instead of to legal
fees.
Mr. Bishop. And Miss Clark, if I could also ask you a
question. The gentleman from California actually went to the
crux of it. I will give you a couple of softballs here. They
will be easy.
One dealt with the phrase of his bill which talked about
the maximum extent practicable, economically feasible,
determinable as the standards we use. It just seems difficult
to understand why that becomes a portion of the bill to be
criticized because, as I think he said, the opposite of that
means something that is impracticable, that is economically
infeasible and vague. I thought those would be the pluses of
his particular bill in some particular way.
So if you want to have another crack at that, answering
that question, I would appreciate it.
The second one, and maybe I can lump all these together and
then just let you run wild with them, I am assuming you were
here earlier when the representative from Oregon was quoting
some statements you have made in the past about the ESA and I
am assuming that you still stand by those statements you made
earlier, that that was nothing that was inaccurate.
I guess the other quote, to go along with his defense of
that language, which I kind of like, was during your service in
this particular agency both you and Secretary Babbitt seemed to
be supporting critical habitat reform. As I am listening to the
testimony now, I guess the question becomes what happened?
Ms. Clark. Can I run wild now?
Mr. Bishop. Go for it.
Ms. Clark. A couple of things. On the terminology
practicable, economically feasible, and determinable, in my
mind it sets up a presumption that there could be cases where
there is no linkage or no importance of habitat necessary for
recovery of species. What this bill does do that is very
positive is it links the articulation of critical habitat if
you will to the recovery planning stage.
So again, as I mentioned to Mr. Cardoza, it is the
connection of these two issues because I would be concerned
that when you have a term to the maximum extent practicable,
economically feasible and determinable, it could make, would
make the designation of critical habitat an exception, rather
than a rule. And because you link it to recovery which then
becomes not mandatory, it turns what is now a mandatory
requirement for the Secretary to evaluate and determine or to
decide whether or not critical habitat is prudent into one that
is totally discretionary. So it becomes a snowball effect.
Now regarding what I said before, the gentleman from Oregon
quoting me, yes, I stand behind I think what I heard him say in
my quotes in that any time that you take an agency full of, I
think, highly competent and highly trained biologists like the
Fish and Wildlife Service and you totally upset the apple cart
and rearrange their biological priorities, that is a recipe for
problem. And it was very frustrating during my time and I am
sure it is very frustrating now, the amount of litigation that
surrounds the Endangered Species Act and we worked very hard to
try to assert biological priorities for addressing the listing
program, which includes critical habitat. I cannot speak to
what this Administration has done to try to assert those
priorities.
I have been on record agreeing that reform of critical
habitat is important and could be positive and, in fact, worked
with the late Senator John Chafee and Senator Domenici in the
last Administration, the last Congress, which gave rise to
Senate 1100 that addressed a lot of what Mr. Cardoza is trying
to address, I believe, with his bill.
So any kind of reform that will guarantee safe passage for
species recovery, that will highlight the importance of habitat
and anchor the importance of habitat conservation for species
recovery can only lead to a positive outcome.
Mr. Bishop. I appreciate your saying especially that last
part because as I am listening to what I am hearing going on
here with the judicial intervention basically supplementing
their decision for others that are professionals, the failure
of sound science, the collateral issues that are coming on
here, any step to try and define this, narrow the definitions,
to move it forward, to make it more obvious the direction
should be a step forward in the process. I am actually very
much dismayed about the lack of what the status quo has been
doing and dismayed about any kind of efforts not to try to make
something to change that status quo so we are moving forward.
Mr. Chairman, the bell rang on me. I am done, right? I knew
all those years in school would pay off.
The Chairman. Thank you.
Before I dismiss this panel there were a couple of things
that came up in the questioning and I asked to clarify on a
couple of issues. In terms of the new regulations that are
being issued, Fish and Wildlife Service was included and
consulted in the matter of drafting those new regulations.
And in terms of an economic analysis, economic benefit,
Fish and Wildlife Service or the Administration is not banned
from including the economic benefit in their analysis. I do not
believe that any economic analysis that does not include the
benefits, as well as the costs, is complete and that is
something that I wanted to follow up on and got an answer to.
In terms of previous quotes, former Interior Secretary
Bruce Babbitt said, ``The best alternative is to amend the
Endangered Species Act, giving biologists the unequivocal
discretion to prepare maps when the scientific surveys are
complete. Only then can we make meaningful judgments about what
habitat should receive protection.'' And I believe that that is
the spirit, if not the essence, of what Congressman Cardoza is
attempting to do in the legislation that sits before us.
Also, in terms of the written testimony, Mr. Liebesman in
his prepared testimony, in talking about the Alameda whipsnake,
quoted the court that held that ``If the Service has not
determined at what point the protections of the ESA will no
longer be necessary for the whipsnake, it cannot possibly
identify the physical and biological features that are an
indispensable part of bringing the snake to that point.''
I think that was an extremely important point that was made
earlier in that I think a lot of the struggles that the members
have talked about, a lot of the anecdotal evidence that they
bring forth from their districts, the problems that they have
had, that their constituents are having to face, are rooted in
that one quote right there. I cannot expect the Administration,
whether it is the current Administration or the previous
Administration, to come up with critical habitat, court-ordered
critical habitat, unless they have the scientific evidence in
front of them. You cannot expect them to do that.
In my district, as well as Congressman Cardoza's, we have
had the whipsnake, we have had the kit fox, we have had the
red-legged frog. We have had all of these different things that
have come out and when the red-legged frog came out there were
places in my district that were listed as on the critical
habitat map where it is physically impossible for the frog to
live, yet it was included as critical habitat.
I do not blame the Service for that. They have a court-
ordered critical habitat map that they have to release, so they
do things without all of the evidence in front of them. And I
think what Congressman Cardoza is attempting to do with this
legislation is give them the tools that they need to make the
right choices. That does not mean they are always going to make
the right choices. That does not mean we are still not going to
complain, but at least we can make things better. We can at
least give them the tools that they need to do their job.
So I appreciate the testimony of this panel. It was very
informative, very educational, and I look forward to working
with all of you in the future as this legislation moves
forward. Thank you very much.
I would like to call up our third panel--Steven E. Webster,
Steven L. McKeel, Kathleen M. Crookham, Paul L. Kelley and
Donald B. Walters, Jr.
I want to thank this panel for sticking around with us. We
are trying to get through this as quickly as we can but
obviously it is an important issue to a lot of members.
Mr. Webster, we are going to begin with you. I will remind
the panel that your entire written testimony will be included
in the record. If you could contain your oral statements to the
5 minutes allotted. Mr. Webster?
STATEMENT OF STEVEN E. WEBSTER, EXECUTIVE DIRECTOR,
FLORIDA MARINE CONTRACTORS ASSOCIATES
Mr. Webster. Chairman Pombo and members of the Committee, I
welcome this chance to speak in support of H.R. 2933 and I am
very grateful to Representative Cardoza for his sponsorship of
this very good bill.
In Florida where what we call manatee madness has so
afflicted the state that this book, ``The Florida Manatee
Conspiracy of Ignorance,'' is becoming a political bestseller,
the Endangered Species Act is the enemy. Yes, we all agree that
the Act is well intentioned but for over 30 years some very
well heeled Washington lawyers have subverted and corrupted the
Act to the point where it does not protect endangered species
but it does harass, injure and sometimes even kill innocent
Americans.
In Florida the manatee is the poster child for regulatory
excess. The farther you get from Florida the more endangered
the manatee becomes and since none of you are from Florida, you
probably believe that the manatee is highly endangered and that
small, fast powerboats are literally slicing and dicing the
poor things into extinction. Wrong. I cannot tell you how many
visitors think manatees are either extinct already or that the
rivers and estuaries are full of their floating carcasses. The
truth is they are all over the place.
I am the Executive Director of Florida Marine Contractors
Association and Vice President of Citizens for Florida's
Waterways and we know there have never been more manatees than
there are today, both in terms of range and density. And I am
not talking about one every square mile. I am talking about
sardines. Near our home 2 months ago a tiny block-long drainage
ditch was filled with more than 120 manatees and since they
weigh a ton or more each, well, there was more manatee than
water.
Now speaking of our home, back in 1996 when manatee slow
speed zones were first proposed for our area, they were planned
for the western shore, but when the zones were ordered, after a
court settlement, the zones were built along the eastern shore,
my family's shore, and to this day I wonder what happened
between 1996 and 2001 that completely flip-flopped the plan.
And the only answer I have found is that instead of science-
based rules, a Washington lawyer and a Washington Federal judge
are now in charge of manatee protection in Florida. The lawyer
has made bagfuls of money suing the Fish and Wildlife Service
and the judge--well, he is wrong. He is terribly wrong.
They have used the ESA to close down factories, shut down
permitting, wreck boating, endanger our kids, and sacrifice
jobs. They have not reduced the rate of manatee mortality. They
have not found a way to count manatees accurately. They have
not helped reduce increasingly frequent manatee dust from
disease. They have blocked important scientific research and
they do hamstring state programs. They would not know science
if it kissed them on the lips and if it did, they would accuse
science of being a whore.
Thanks for the laugh. I was worried about that line.
They have not allowed responsible program managers to do
what should be done. They have ham-handedly demanded what the
law says can be done.
I represent an industry that contributes $4 billion a year
to Florida's economy, $1 in sales and another 3 in multiplier
effects. Dock-building is big industry. It is huge, even, a
substantial part of Florida's economy. But while it is a big
industry, it is all small business. Every single member of the
association is a small business and the Endangered Species Act
is endangering us. Even in the midst of a real estate boom we
already have members who have been forced out of business and
more are ready to go.
Last year in my home county of Brevard not a single dock-
building permit was issued until December. Why? Because the
Fish and Wildlife Service and lawsuit plaintiffs, including the
Defenders of Justice who were here earlier, were having a fight
with state agencies over how many slow speed zone signs are
required before Brevard manatees can be deemed adequately
protected. Because of the settlement agreement, if there is not
adequate predication then Army Corps permits will not be
issued. How many small businesses do we know that can survive a
year without work?
This sort of nonsense happens day in and out in Florida.
Similar events are being played out in counties across the
state. And truthfully I could keep you here all day and still
not adequately discuss everything that is wrong with the
implementation of the ESA in Florida because literally
everything about the implementation is wrong. And let us face
it; government is big. It is a lot of ground to cover.
But I will leave you with one specific request. In the
packet of information we provided we have seven additional
recommendations and suggestions for reform and clarification.
If I could pick just one, it would be that this committee help
clarify the relationship between the Endangered Species Act and
the Marine Mammal Protection Act so that the requirements of
the ESA are satisfied, then so, too, the requirements of the
MMPA will be satisfied. I swear there would be a street
celebration in Tallahassee if we could get that passed.
I greatly appreciate this opportunity to speak in support
of Representative Cardoza's bill. Thank you and later I will be
happy to answer any questions.
[The prepared statement of Mr. Webster follows:]
Statement of Steven E. Webster, Executive Director,
Florida Marine Contractors Association
Introduction
My name is Steven Webster and I am Executive Director of Florida
Marine Contractors Association, a not-for-profit association of dock-
builders, and businesses that provide goods and services to dock-
builders. I am also the Vice President of Citizens For Florida's
Waterways, a not-for-profit association of conservation-minded Florida
family boaters. I am pleased to be here to speak in support of the
Critical Habitat Reform Act of 2003.
Because of Federal interference in the State of Florida's manatee
protection program, brought about by a lawsuit in 2000 that effectively
put control in the hands of a Federal judge here in
Washington\1\, you could say that I represent the people of
Florida who can no longer enjoy a boat ride, and people who can no
longer earn a living by building a dock.
Don't for a second think this is hyperbole. Manatee madness has so
afflicted Florida that a book entitled ``The Florida Manatee Conspiracy
of Ignorance'' \2\ is on its way to becoming a best seller,
in the hands of government staff, office holders and ``radical go-fast
boaters'' \3\ across the State.
Marine construction is a billion dollar a year industry in Florida,
employing more than 10,000 people and generating three billion dollars
in additional economic activity each year from the goods and services
dock-builders purchase \4\. It's a significant piece of
Florida's economy, entirely composed of small businesses, yet the
Federal government, enforcing the Endangered Species Act, is killing
this industry and its member small businesses in the name of manatee
protection.
In Florida, ``mitigation'' to ``protect'' manatees has three steps:
1) Speed zones--restricting pleasure boats to slow or idle speed
2) Signage--double-piling, fixed signs roughly outlining the zones
3) Enforcement--state and local officers charged with manatee zone
ticket writing. Very little Federal enforcement takes place and for
that we are grateful, as the Federal agents are ill-trained and often
ill-mannered.
If the Service--or the Judge--says that any one of these three
steps is inadequate, then the Service will not concur and Army Corps
will deny permits. In some parts of Florida, no permits have been
issued for years. In most cases, permit moratoriums have nothing to do
with actual ``take'' of manatees by boats, but rather with arguments
between various government units over how much is enough and who pays
for it all. Last year, permits statewide were held up for five months
because the Service was unable to process a new type of form that its
own Washington headquarters had begun requiring. In Brevard County,
permits were held for a year when the Service demanded 50 new signs to
mark State--not Federal--zones.
The plain truth is: docks don't kill manatees \5\. But
Federal policies are killing dock builders. Over the next two months, I
sadly suspect three of our contractor members will go out of business
because U.S. Fish & Wildlife Service and the Army Corps won't allow
them to do business. Several members have already given up since I took
over as Executive Director in 2003.
I grew up in a mechanical contracting family. My father would never
bid on Army Corps projects. I asked him why, and it wasn't just the
piles of paperwork. ``They are so antiquated that some of the materials
they require aren't even made today,'' he said. ``Their specs are
usually wrong and even violate local building codes. I won't build
anything that'll break the first day it's used,'' he said.
Today, it's even worse. The manatee program in Florida is at best
broken, and at worst is responsible for more manatee deaths, more
danger to people, more job loss, and it even causes air and water
pollution.
Reform is needed before more damage is done. We enthusiastically
endorse H.R. 2933 and the amendments proposed by Representative
Cardoza.
Sustainable Population
In my position, I work closely with many biologists and wildlife
managers and have asked for their opinion and recommendations. In
section 5 of H.R. 2933's proposed changes, we recommend including the
phrase ``sustainable population'' in the clarified definitions of
critical habitat. For example:
(II) the term ``essential to the conservation of the
species'' means, with respect to a specific area, that the area
has those physical or biological features that are absolutely
necessary and indispensable to conservation of the sustainable
population of the species concerned.
``(ii) For purposes of subparagraph (A)(ii), the term
``essential for the conservation of the species'' means, with
respect to a specific area, that the area is absolutely
necessary and indispensable to conservation of the sustainable
population of the species concerned.''
Such a change will help wildlife managers better define the purpose
of identifying critical habitat.
I would briefly like to discuss other critical areas where we
believe the true intent of the Endangered Species Act has been
perverted and abused, and suggested resolutions for each. I would
welcome questions on any of these issues and proposals, particularly
those regarding the horrific misuse of science by Federal agencies
charged with manatee protection.
Critical Natural Habitat
Since 2001, the Fish & Wildlife Service has declared that hundreds,
if not thousands, of man-made canals, channels, dredge areas, warm
water discharges from power plants and factories, and even sewage
treatment facilities are now critical habitat for the Florida manatee
\6\.
If you're unfortunate enough to have bought your dream home on a
deep water canal, odds are your boat today sits on a trailer in your
driveway, because your canal has become a Federal manatee ``refuge.''
Unbelievably, old, inefficient power plants--some listed as the
worst polluters in Florida--are required to heat water inhabited by
manatees during the winter. Power plants must generate electricity
that's not needed, waste expensive fuel and pollute the air, if the
water grows too cold for manatees to survive.
Is this what Congress intended?
The fact is, manatees wouldn't be in any of these man-made places
if we hadn't built them. Lands and waters that were created by, or
substantially altered by, human activity should not be considered
``critical habitat.''
This change, virtually a ``technical correction,'' may be added to
(II) above:
(II) the term ``essential to the conservation of the
species'' means, with respect to a specific area, that the area
has those natural physical or biological features that are
absolutely necessary and indispensable to conservation of the
sustainable population of the species concerned.
ESA-MMPA Relationship
If there is one reform to the Endangered Species Act we consider of
greatest value, it is to clarify the relationship between the ESA and
the MMPA. Today, the Service contends that the manatee could be fully
recovered under the ESA, but ``take'' would still be prohibited under
MMPA, which would mean no boating and no dock-building, despite
recovery. The Service admits this relationship is illogical
\7\. No kidding!
An amendment stating that compliance with the ESA will be
considered compliance with MMPA can resolve this illogical and damaging
dilemma.
Pursuant to such a proposed amendment, applicants would not have to
conduct an independent MMPA analysis to obtain an incidental take
permit if the ESA's Section 7 consultation is triggered. Specific
language for such an amendment in included in our presentation package.
For Florida, or indeed for any coastal state, this is without doubt our
highest priority.
Exemptions for Economic Hardship
Incredibly, the ESA contains no allowance for economic hardship.
The Small Business Administration's Office of Advocacy has repeatedly
challenged the accuracy of Service economic impact statements, and the
Service has ignored every single challenge \8\. Factories
have been shuttered. Marinas closed. Downtown redevelopment ruined.
Jobs lost.
In several areas of Florida, there are overlapping State and
Federal manatee zones. In one such zone, the Brevard County Barge
Canal, Sea Ray boats asked for an exemption to planned slow speeds in a
small area of the Canal so they could continue to test newly built
boats. The State agreed, but the Service refused, stating it had no
authority to give an exemption for economic hardship \9\!
Incredibly, the Service now refuses to rescind its duplicate zone, on
the grounds that the State exemption to Sea Ray would unacceptably
reduce protection.
By the way, more manatee carcasses have been recovered in Brevard
in the years since the Federal zones went in than occurred before. You
would be correct to question how an ineffective program provides
``protection.''
,-- ,
Year \10\ Boat-Strike Mortalities
2001 7
2002 17
2003 8
Challenging the Service's lamentably bad economic impact statements
is nearly impossible. While the Office of Advocacy is a valued friend
of small business, when the Service rejects its findings, small
businesses' only recourse is to sue under the RFA. That's a lengthy and
costly process. The litigant will succumb long before the case is
decided.
To remedy, it should be the Service's obligation to disprove Office
of Advocacy findings.
Measurable Rules & Goals
Since none of you are from Florida, you are probably wondering just
what do we do to protect this highly endangered animal, brought to the
brink of extinction by the slicing propellers of small, fast boats? The
three-part answer is:
One--They aren't endangered
Two--Small fast boats have not and are not pushing manatees toward
extinction, and
Three--Federal programs and lawsuits in Federal courts have done
nothing to protect manatees, but they do harass, injure and sometimes
even kill innocent Florida family boaters.
Seriously, the manatee becomes more endangered the farther you get
from Florida. In truth, there are more manatees than ever, and their
population over the past 25 years has been growing about 5 percent a
year, which is several times faster than the human population of
Florida is growing \11\.
Just last year, the State of Florida's marine research institute
concluded the manatee barely qualifies as ``threatened,'' and that
status has nothing to do with the consequences of deaths caused by
boats. Rather, the manatee is possibly threatened by the long-term
risks from those power plants that are literally keeping manatees in
hot water. When those older, polluting, plants are inevitably shut
down, how will manatees stay warm through the winter? Because of the
power plants, the manatee's range has quadrupled or more in the past 30
years--and not surprisingly, the increase in population matches the
increase in range. Many manatees now winter far north of their historic
range, and many no longer migrate, as they all once did, when northern
Florida waters cool. Without the power plants, half of manatees could
die because of starvation and cold. By requiring power plants to warm
these waters, Federal agencies are priming manatees for the biggest
die-off in history.
Clearly, the future risk to manatees has nothing to do with boats,
but in planning for this inevitability, the Service remains focused on
preventing boat deaths. An increasing worry is the rising number of
manatees killed by red tide events. In 2003, more manatees died from
red tide than from boat strikes and the frequency of red tide episodes
may be increasing.
Yet, the Federal response is not to focus efforts on power plant
dependency and red tide deaths. It is to slow boats down. Chairman
Pombo's excellent analogy about health care and the ESA fits perfectly
with Florida's manatee madness. It's as if we decided to respond to the
obesity epidemic by slowing down cars. Rather than invest in education
and research, let's lower the speed limit and raise the fines! After
all, if we reduced vehicular deaths, that would mitigate the deaths
caused by obesity, wouldn't it?
The Service, in those lengthy biological opinions it just learned
to prepare last year, and in its inches-thick Manatee Recovery Plan
\12\, claims that slow boat speed can ``drastically reduce''
take by boats and cites a small study as proof. But, they are making
that up, and seriously misrepresenting the only quantitative study that
even suggests slow speed is productive mitigation. More startling, the
best scientific evidence says that slow speed can exacerbate risk,
because manatees can't hear large vessels traveling at slow speed. So
why does the Service insist on slow speed? Because a Federal judge told
them to.
This past year in Florida, our Association and other organizations
concerned about the lack of sound science, proposed a bill that would
seek answers to many unknowns--such as how many manatees are there, how
effective are speed zones, and how can we make speed zones safer for
boaters and for manatees? The Florida Wildlife Commission and the
Florida Marine Research Institute support the bill. But the Save the
Manatee Club--one of the batch of regulatory extremist organizations
whose lawsuits have caused this mess--opposed it. They actually opposed
a science bill! They actually opposed using the very measurable
biological goals they helped write to determine whether more
``protection'' is needed in a specific area.
What does sound science say is causing manatee/boat collision
deaths? According to a peer-reviewed study that the Service itself
cites as evidence, almost all propeller deaths--which account for at
least 35 percent of total watercraft deaths--are caused by vessels over
25 feet in length. Smaller boats have propellers too small to inflict
fatal wounds \13\. Meanwhile, these same experts say they
cannot tell the size of vessels that caused death by impact, which
occurs about half the timex \14\. (The other 15 percent of
deaths are combination impact and propeller.)
Less than 10 percent of Florida boats are less than 25 feet in
length \15\. If we were serious about reducing boat strike
mortality, why not focus on the 10% that we know cause at least one-
third of deaths, rather than the 90% that cause an unknown and
immeasurable portion of deaths?
Given limited resources, and a desire to do the greatest good,
which option would you pick? Today, without a shred of evidence to
prove their position, the Service continues to maintain that boat
strike deaths are caused by small, fast boats \17\. It is a
tragic waste compounded by what everyone in this room realizes. The
second toughest job in the world is to get government to do the right
thing. The toughest job is to get government to undo the wrong thing.
If the science and logic behind slowing down boats is lacking,
there is even less evidence (none!) to connect dock-building to manatee
mortality. Supposedly, if a dock is built, a boat will be moored to it
and a boat might someday strike a manatee. But in almost every case, a
family seeking a dock already owns a boat. And when a permit is denied
to an honest contractor, odds are the frustrated homeowner will find
someone else willing to build without it. In truth, the only reason the
Service is denying dock permits is because they can do it, not because
the should do it.
I believe that most docks in Florida are built without Army Corps
permits, and because of increasing cost, complexity, delay and
uncertainty, that number is trending up. Regulating docks to protect
manatees has been a mitigated disaster.
The ESA says the Service must ``show the relationship of [the best
available science] to such regulation,'' but courts grant such
incredible leeway that the requirement is toothless. In particular, the
Service is under no obligation whatsoever to demonstrate that what it
does works. Our recommendation is that except in emergencies, a Service
mitigation strategy must be reviewed and approved by a balanced panel
of experts and stakeholders before public hearings are held, and
effectiveness evaluations of all regulations must be conducted at least
once every five years.
I would welcome any questions about specific instances where the
Service has misrepresented science, and how we found ourselves in this
awful mess.
Presumption of Adequacy
Another related problem is that the ESA places no limit on
regulatory actions. More rules are always better, and no rule is ever
undone. This is bad practice.
There are supposedly four separate manatee ``stocks'' in Florida,
and in three of them, the Service's own Biological Goals are being met
or exceeded. Why then do we need more restrictions where the goals are
being met? Why is the Service allowed to promulgate more restrictions
in areas where rules are being met?
There should be a presumption that, if goals are being met for a
species in a given area, then no further restrictions are needed in
that area. Florida is enacting exactly that language as I speak. Sample
language is included in your packet.
Citizen Suit Provision
Finally, our Association last year was forced to sue the Service
because of its permit delays, and because of its illogical application
of MMPA rules to sovereign state waters. The Service objects to our
suit, claiming we don't have standing to sue outside an APA claim.
Currently, the courts have created a barrier forcing citizens to
sue pursuant to the APA, which prevents such citizens from being made
whole by recouping their litigation expenses.
The practical result of this is that citizens must ``pay their own
way'' to compel the Secretary to perform his nondiscretionary duties
under the ESA. This is an absurd result. Environmentalists who wish to
have a species listed or critical habitat designated can sue and
receive attorney fees, but a citizen wishing to have the clear and
unambiguous mandate of Congress concerning interagency cooperation
followed must pay the bill. Simply put, if you wish to expand the ESA,
the government will foot the bill; however, if you wish to protect your
private rights under the ESA, you better have deep pockets.
The practical solution to this judicially created barrier is to
complete the efforts initiated by Congress in the Citizens Fair Hearing
Act of 1997.
Your information packet also includes recommended language to
effect such an amendment.
Summary
What's my summation? It's that the manatee population in Florida is
growing in spite of, not because of, the ESA. The Federal manatee
program squanders millions of dollars a year on ineffective, even
counter-productive, programs that are directed not by sound science,
but by a Federal judge led by a Washington attorney.
I realize I'm preaching to the choir about the critical need for
ESA reforms. On behalf of Citizens For Florida's Waterways and Florida
Marine Contractors Association, thank you again for this opportunity to
support your hard work.
ESA/MMPA Relationship Amendment
Section 17 of the ESA states, ``except as otherwise provided in
this chapter, no provision of this chapter shall take precedence over
any more restrictive conflicting provision of the Marine Mammal
Protection Act of 1972.'' Therefore, even though the MMPA may be more
restrictive and broader in scope than the ESA, the propose amendment
would make the ESA paramount to the MMPA once section 7 ESA
consultation is triggered. This would be true even if the provisions of
the two statutes are in direct conflict or would produce different
results. The MMPA could only be applied independently when the ESA's
section 7 consultation has not been triggered; for example, the
Service's creation of speed zones and manatee sanctuaries and refuges.
TITLE 16--CONSERVATION
CHAPTER 35--ENDANGERED SPECIES
Sec. 1536. Interagency cooperation
(a) Federal agency actions and consultations
(b) Opinion of Secretary
(4) If after consultation under subsection (a)(2) of this
section, the Secretary concludes that--
(A) the agency action will not violate such subsection,
or offers reasonable and prudent alternatives which the
Secretary believes would not violate such subsection; and
(B) the taking of an endangered species or a threatened
species incidental to the agency action will not violate
such subsection; and
(C) if an endangered species or threatened species of a
marine mammal is involved, the taking is authorized
pursuant to section 1371(a)(5) of this title;
the Secretary shall provide the Federal agency and the applicant
concerned, if any, with a written statement that--
(i) specifies the impact of such incidental taking on the species,
(ii) specifies those reasonable and prudent measures that the
Secretary considers necessary or appropriate to minimize such impact,
(iii) in the case of marine mammals, specifies those measures that
are necessary to comply with section 1371(a)(5) of this title with
regard to such taking, and
(iii) sets forth the terms and conditions (including, but not
limited to, reporting requirements) that must be complied with by the
Federal agency or applicant (if any), or both, to implement the
measures specified under clause (ii).
Compliance with the requirements set forth in this subsection and
in subsection (a)(2) of this section and any incidental take authorized
thereunder will be considered compliance with the Marine Mammal
Protection Act of 1972 [16 U.S.C. 1361 et seq.]; including but not
limited to, sections 1361, 1371, and 1374 of this section and
constitute a finding of negligible impact under that Act.
Presumption of Adequacy ESA Amendment
Added language is in italics.
(f)(1) RECOVERY PLANS-.The Secretary shall develop and implement
plans (hereinafter in this subsection referred to as ``recovery
plans'') for the conservation and survival of endangered species and
threatened species listed pursuant to this section, unless he finds
that such a plan will not promote the conservation of the species. The
Secretary, in development and implementing recovery plans, shall, to
the maximum extent practicable-
(A) give priority to those endangered species or threatened
species, without regard to taxonomic classification, that are most
likely to benefit from such plans, particularly those species that are,
or may be, in conflict with construction or other development projects
or other forms of economic activity;
(B) incorporate in each plan-
(i) a description of such site-specific management actions as
may be necessary to achieve the plan's goal for the
conservation and survival of the species;
(ii) objective, measurable criteria which, when met, would
result in a determination, in accordance with the provisions of
this section, that the species be removed from the list.
Wherever these objective, measurable criteria are being met,
additional rules and actions will be presumed to be
unnecessary. However, such presumption does not prevent the
Secretary from addressing unique issues concerning a listed
species within such an area;
(iii) estimates of the time required and the cost to carry
out those measures needed to achieve the plan's goal and to
achieve intermediate steps toward that goal.
(iv) provision for an objective, qualitative annual
assessment of the effectiveness of promulgated regulations.
This assessment must include a quantitative effectiveness
evaluation of the listed species' mortality rate in each
regulated area before and after promulgation of the rule.
Citizen Suit Provision
16 U.S.C. 1540(g)
1. (g) Citizen suits
(1) Except as provided in paragraph (2) of this subsection any
person may commence a civil suit on his own behalf--
(A) to enjoin any person, including the United States and any
other governmental instrumentality or agency (to the extent
permitted by the eleventh amendment to the Constitution), who
is alleged to be in violation of any provision of this chapter
or regulation issued under the authority thereof; or
(B) to compel the Secretary to apply, pursuant to section
1535(g)(2)(B)(ii) of this title, the prohibitions set forth in
or authorized pursuant to section 1533(d) or 1538(a)(1)(B) of
this title with respect to the taking of any resident
endangered species or threatened species within any State; or
(C) against the Secretary where there is alleged a failure of
the Secretary to perform any act or duty under section 1533 of
this title which is not discretionary with the Secretary;
(D) against the Secretary where there is alleged a failure of
the Secretary to perform any act or duty under section 1536 of
this title which is not discretionary with the Secretary;
2. (g) Citizen suits
(1) Except as provided in paragraph (2) of this subsection any
person may commence a civil suit on his own behalf--
(A) to enjoin any person, including the United States and any
other governmental instrumentality or agency (to the extent
permitted by the eleventh amendment to the Constitution), who
is alleged to be in violation of any provision of this chapter
or regulation issued under the authority thereof; or and
(B) to compel the Secretary to apply, pursuant to section
1535(g)(2)(B)(ii) of this title, the prohibitions set forth in
or authorized pursuant to section 1533(d) or 1538(a)(1)(B) of
this title with respect to the taking of any resident
endangered species or threatened species within any State; or
(C) against the Secretary where there is alleged a failure of
the Secretary to perform any act or duty under section 1533 of
this title which is not discretionary with the Secretary
(B) against the Secretary where there is alleged a failure of
the Secretary to perform any act or duty under this title which
is not discretionary with the Secretary;
FMCA Information Quality Complaint
This Complaint against U.S. Fish & Wildlife Service was addressed
to Congressman Dave Weldon on March 8, 2004.
This Request for Correction of Information is Submitted Under DOI/
FWS Information Quality Guidelines. Federal law prohibits agencies from
``cherry-picking'' information to support a pre-determined conclusion
(Section 515 of the Treasury and General Government Appropriations Act
for Fiscal Year 2001 [Public Law 106-554]).
Unfortunately, distorted Service science claims are being used to
withhold building permits from Florida marine contractors.
Additionally, biased Service claims are being used to deny Floridians
constitutionally guaranteed rights to access and use waters held in
trust for all the people.
At the root is the Service's belief that ``manatees are especially
vulnerable to fast moving power boats.'' (Benjamin, 2003, FWS/R4/ES-
JAFL)
This is a commonly held belief:
The simple rationale is that at reduced speeds, the force of
impact will be less deadly, and manatees will be more able to
avoid slower boats. (Florida Manatees: Perspectives on
Populations, Pain And Protection; Thomas O'Shea, Lynn Lefebvre,
Cathy Beck)
It is the foundation of the Service's 2001 Manatee Recovery Plan,
3rd Edition:
Because watercraft operators cannot reliably detect and avoid
hitting manatees, federal and state managers have sought to
limit watercraft speed in areas where manatees are most likely
to occur to afford both manatees and boaters time to avoid
collisions.
But while this hypothesis has been repeated ad nauseam (there are
90 references to watercraft in the 3rd Edition), there is virtually no
supporting science. We have been able to identify three studies that
tested manatee/boat avoidance in the field. Two of these studies were
included on the disks sent to [Rep. Weldon] by the Service--their
compilation of the science they say they considered when drafting their
Plans and Opinions. A third watercraft/manatee study by Dr. Edmund
Gerstein was not included on the disks, but FWS staff personally
communicate they are aware of this major study. (Manatees, Bioacoustics
and Boats, American Scientist, Vol. 90, No. 2, March-April, 2002,
Edmund Gerstein)
In sum, FWS science is based on just two small studies. Not only is
the available science scant; FWS misrepresents what little there is.
Formal ESA Section 7 Consultations written by FWS to permit or deny
marine construction projects routinely exaggerate the scientific
findings. Here is an example from a Sept. 12, 2003, Biological Opinion
written by the Jacksonville Field Office for the Tampa Army Corps of
Engineers (a continuation of the Benjamin citation above):
Manatees are especially vulnerable to fast moving powerboats.
The slower a boat is traveling, the more time a manatee has to
avoid the vessel and the more time the boat operator has to
detect and avoid the manatee. Nowacek et al. (2000) documented
manatee avoidance of approaching boats. Wells et al. (1999)
confirmed that at a response distance of 20 meters, a manatee's
time to respond to an oncoming vessel increased by at least
five seconds if the vessel was required to travel at slow
speed. Therefore, the potential for take of manatees can be
greatly reduced if boats are required to travel at slow speed
in areas where manatees are expected to occur.'' (my italics)
The two sources cited by the Biological Opinion refer to one
study--``Manatee Behavioral Responses to Vessel Approaches: Final
Report,'' conducted near City Island in Sarasota, Florida in May, 1999,
by Nowacek, Wells and Flamm, researchers with Mote Marine Laboratory
and Florida Marine Research Institute. It was released in 1999.
FWS bases its entire manatee recovery strategy on a single
paragraph:
The timing of responses to vessel approaches is of concern. At
an average initial response distance of 20 m, the animal has
less than 2 sec to respond to a planing vessel, and about 7 sec
to respond to a vessel moving at slow speed. Clearly, boat
speed plays a major role in manatee exposure to collision risk.
High-speed vessel operations, especially in shallow water or
along channel edges where the manatee cannot dive safely below
the approaching vessel create a high-risk scenario (Wells,
Nowacek, 1999).
On the surface, this may seem to be definitive, but FWS, in relying
on this snippet of comment, has omitted important details about the
quality and quantity of the study data, which the authors themselves
say was insufficient.
According to the researchers:
Too few high-speed trials were conducted to provide the basis
for statistical comparisons to slow speed trials. Of the 12
usable (high speed) trials, six (50%) resulted in a response.
However, all the high-speed trials that did not result in a
response involved repeated passes 43 m to 77 m from a single
individual located in a seagrass meadow.
In other words, out of 135 trials, just 12 were at high speed and
six of those involved the fellow described above. Yet, this tiny sample
is the scientific foundation for a Federal program that costs untold
millions annually and jeopardizes the existence of more than 10,000
Florida marine construction jobs.
The FWS Biological Opinion flatly stated that slow speed would
``greatly reduce take where manatees are expected to occur.''
But the authors cited by FWS focused their concern about speed
specifically on shallow waters:
...We know that the animals [in channels] were diving to depths
greater than .69 m to 1.15 m. Such depths would place the
manatees safely below the propellers and keels of most of the
vessels operating in these waters.
The researchers concluded manatees in channels were reasonably safe
from boat impacts, but FWS chose to omit this important exception from
its Biological Opinion and from the Recovery Plan 3rd Edition.
Sadly, contrary to the research it cites, FWS regularly includes
channels in its slow speed zones (Barge Canal, 100, 200 and 400 Cocoa
Beach channels, the ``emergency'' Lee County zones, 60-foot deep waters
of the St. John's, etc.).
The best available science--a decade-long study reported in 2002--
opposes such a practice.
A key management strategy used in Florida for protecting
manatees over the past 20 years has been to slow boats in
waters frequented by manatees by creating idling and slow-speed
zones. This strategy can actually exacerbate the problem when
it is implemented in turbid water conditions (which, along with
tannin staining, are prevalent in Florida). (Manatees,
Bioacoustics and Boats, American Scientist, Vol. 90, No. 2,
March-April, 2002, Edmund Gerstein)
Somehow, despite its clear obligation to consider all relevant
scientific information, FWS is silent on Gerstein's well-known study.
Perhaps most egregious, FWS' Biological Opinion misrepresents its
cited research by inflating the conclusions of the authors. The authors
did not conclude their research ``confirmed'' mortality could be
``greatly reduced'' by slowing down boats. Rather, their key
conclusions were:
The effects of vessel speed, type and approach should be
examined in greater (sic) detail relative to response distance
and timing.
In light of the high degree of variability in the occurrence of
responses to approaching vessels, further studies of how
manatees detect vessels would appear to be warranted. Of
particular interest would be studies in manatee habitats of
transmission loss of sounds produced by vessels.
The researchers cited by FWS clearly recommended more studies,
particularly of acoustics.
Other Evidence Also Contradicts FWS
In the list of files provided to you by Service Regional Director
Sam Hamilton was a 1994 test that viewed manatees and boats near a St.
Pete power plant from aboard the airship Shamu.
This report, ``Responses of Manatees to an Approaching Boat: A
Pilot Study,--was drafted by three FMRI researchers (Weigel, Wright,
and Huff).
The study analyzed 16 boat passes: eight at slow speed, two at
32KPH and six at 48KPH. Despite the small sample, the researchers
concluded that manatees became aware of the approaching vessel nearly
three times as far away as the ``initial response distance'' of 20
meters (65 feet) cited in the FWS Biological Opinion:
At slow speed, the average distance to the boat when movement
began was 52 meters ... At 32kph, the average distance was 50
meters ... and at 48kph, movements were initiated when the boat
was an average of 58 meters away.
Clearly, a manatee may have much more time to evade than FWS states
in its Biological Opinion. (Manatees can produce bursts of speed up to
15 MPH. A manatee that hears a boat from 58 meters away could move 60
feet at 10MPH before the boat reached the manatee start point. Even
with two seconds' warning, a manatee moving only 10MPH can travel 20
feet in any direction. Obviously, there is no such thing as a
recreational powerboat with a 40-foot beam!)
FWS is aware of the existence of this Pilot Study, yet this second
study is never mentioned in the Biological Opinion.
Clearly, the difference between a 20 m and 58 m response time is
hugely significant, even critical. How could FWS not consider and
comment on this study? By what objective measure did they dismiss this
report, and by what transparent process did they make their
determination known?
Indeed, this critical issue looms even larger when Gerstein's study
results are considered:
Prior to our studies, wildlife officials relied on anecdotal
assumptions that manatees could readily hear as well as locate
the sounds of slow-moving boats....
Consider the results from our boat-measurement studies
simulating an encounter between an 8.2-meter boat and a
manatee. When the boat approaches at high speed, the noise
level crosses the manatees' critical ratio approximately 16
seconds before the propellers reach the hydrophone--about 198
meters away from impact. The noise of the same boat approaching
slowly remains undetectable and does not cross critical ratios
until the propellers are only 0 to 2 seconds away, less than
3.7 meters from impact. Under moderately noisy ambient
conditions, the sounds associated with slow-moving boats can
become acoustically transparent. (Manatees, Bioacoustics and
Boats, American Scientist, Vol. 90, No. 2, March-April, 2002,
Edmund Gerstein)
Gerstein's field tests in typically murky Florida water yield a
result diametrically different from the ``confirmed'' 20 meters cited
by FWS.
A similarly embarrassing lapse is the omission of any commentary on
the seminal 1983 report by Margaret Kinnaird, ``Evaluation of Potential
Management Strategies for the Reduction of Boat-Related Mortality of
Manatees,'' Cooperative Fish & Wildlife Research Unit, University of
Florida, 1983. Her report (one of two she wrote that year), is also
part of the documentation you received from Sam Hamilton:
Slow speed zones may be the most effective short-term strategy
for reducing--manatee/boat collisions. The establishment of
slow and idle speed zones throughout all bodies of water
important to manatees is an unrealistic endeavor. (my italics)
At what point did this short-term, ultimately unrealistic strategy,
become the focal point of FWS mitigation? Even in 1983, the evidence
did not demonstrate that speed zones were effective:
An initial evaluation of the first 13 sanctuary zones showed
boat/barge collision deaths were infrequent in and around the
regulated zones (within 0.5 km) both before and after sanctuary
designation (Kinnaird).
What studies or evidence contradict Kinnaird? If such studies
exist, why are they not a part of any FWS documentation? Where is the
required transparent, objective, analysis of scientific information?
Identifying Causes of Watercraft Mortalities
What, then, accounts for all the manatee watercraft mortalities?
This is a question FWS is able to answer just 35% of the time.
Their own experts--ironically, the only watercraft mortality-
related study cited in the Service's current Recovery Plan--state that
only large vessels (over 25ft) cause propeller-caused mortalities.
Propellers account for 35% of total manatee watercraft mortalities.
Propeller deaths comprise a significant portion of an ``Analysis of
Watercraft-related Mortality of Manatees in Florida 1979-1991 by Scott
D. Wright and Bruce Ackerman, FMRI; Robert Bonde and Cathy Beck,
Sirenia Project; Donna Banowetz, FMRI. Here is a key excerpt:
An important point by Beck et al. (1982) was that differences
in propeller diameters were distinct between boats powered by
inboard engines and boats powered by outboard or stern-drive
engines. Therefore, they suggested that scar patterns measured
on manatees could be used to determine the size of the
watercraft. The propellers of smaller boats (shorter than 7.3
m) with outboard and stern-drive engines were too small
(average 16.4 cm) to inflict fatal wounds, although they
probably caused most of the nonfatal wounds from propellers.
(my italics)
According to the Florida Office of Boating and Waterways, less than
10 percent of the vessels registered in Florida are more than 25 feet
(7.6 meters) in length.
Therefore, more than one third of manatee vessel deaths (>35%) are
caused by just 10% of boats.
When asked why FWS ``mitigation'' doesn't focus on this 10% of
boats responsible for at least one third of all watercraft deaths, the
typical response is that such a focus doesn't address deaths caused by
impact.
Aside from missing the critical point--wouldn't a reduction in
propeller deaths in and of itself be beneficial--the Service's own
experts report they do not know what types of vessels are causing
impact deaths.
The same study by Wright, et al. states:
Because few collisions are witnessed, the only available source
of information on the size and type of the boats is the
appearances of carcasses at necropsies.
However, there were no measurable features and therefore almost
no indication of the size of the boat that caused the [impact]
mortality.
FWS' own experts conclude smaller boats cannot cause propeller
mortality. FWS' own experts state they cannot tell the size of vessels
causing impact deaths. What, then, is the objective, transparent,
scientific reasoning that leads FWS to seek to slow small boats
wherever manatees are found?
FWS' own researchers are in disagreement over the causes of impact-
only deaths. Pat Rose, now the Manatee Club's Tallahassee lobbyist,
proposed in 1980 that slow-moving barges and tugs are responsible for
many impact deaths. Kinnaird (1983) cites him along with others:
A large percentage of manatee boat/barge deaths result from
internal damage without propeller wounds. It is likely that
these deaths are caused by deep-draft boats operating in
shallow water (Beck et al 1982). Rose and McCutcheon (1980)
suggested that water depth should be maintained such that fully
loaded barges pass safely over bottom-resting manatees in power
plant intakes.
This suggestion neatly ties with the observations from the Wells/
Nowacek study, which found that manatees in channels are relatively
safe from all but the largest vessels.
All these errors and omissions of fact raise a significant
question. What percentage of the 10% of vessels that cause propeller
deaths and a ``large percentage'' of impact deaths operate at slow
speed normally?
How can a mitigation strategy based on slow speed zones reduce
deaths caused by vessels that are already traveling slowly?
These very pregnant questions are ignored. But, as the saying goes,
you can't be just a ``little bit'' pregnant.
Our test results contradict several long-held beliefs that form
the basis of current protection strategies. Manatees have good
hearing abilities at high frequencies, however, they have
relatively poor sensitivity in the low frequency ranges
associated with boat noise. Ironically, manatees may be least
able to hear the propellers of boats that have slowed down in
compliance with boat speed regulations intended to reduce
collisions. Such noise often fails to rise above the noisy
background in manatee habitats until the boat is literally on
top of the manatee. In addition, near-surface boundary effects
can cancel or severely attenuate the dominant low-frequency
sound produced by propellers. In many situations, ship noise is
not projected in directional paths where hearing these sounds
could help the animals avoid collisions. Our basic and applied
research results suggest that there may be a technological
solution to address the underlying root causes of the collision
problem and resolve the clash between human and animal
interests. (Gerstein, 2002)
Once again, the best available science--which FWS did not include
in its evidentiary submission to you--flatly contradicts FWS policy.
The amazing conclusion is that FWS has absolutely no evidence to
offer, much less any proof, that manatees are especially vulnerable to
small, fast moving power boats. The Service has no proof that slow
speed is an effective ``protection'' and its own experts, from data the
Service relied upon to formulate its mitigation strategy, contradict
the Service's claims, as does research FWS has improperly ignored.
FWS has violated its Information Quality requirements. It has
cherry-picked data to support a pre-determined conclusion. That pre-
determined conclusion has dire consequences.
Compounding the Error
FWS compounds its error by extending its errant conclusions into
yet another realm--its insistence that the absence of speed zones means
an area is ``inadequately protected.'' The result of this inadequacy is
the denial of dock-building permits, because FWS argues that more boats
equals greater threats.
But is this necessarily true? From Wright, et al:
[Boat registration] numbers indicate a potential increase in
threats to manatees but do not necessarily prove cause-and-
effect relations in increased numbers of deaths. One can only
speculate about the effect of the increase in boating traffic
on manatee movement, communication, and other key factors in
manatee biology. (my italics)
Actually, we can do better than speculate. Using FWS' analogy, if
more boats equal more manatee deaths, then more boats should also equal
more human deaths and accidents.
Just the opposite has occurred. According to FWC's Office of
Boating and Waterways, the number of accidents per 100,000 registered
recreational vessels has declined from 172.1 in 1996 to 125.6 in 2002
(the most recent data available). The fatality rate dropped from 10.6
in 1994 to 5.6 in 2002.
No doubt, there are those who will contend that boat injuries are
down because boats are traveling slower in the 1/4 of Florida inland
waters that are now slow speed manatee zones. This conveniently ignores
the statistical fact that the zones have not decreased either the
number, or the likelihood, of manatee/vessel mortalities. Moreover, if
slower speeds truly accounted for a reduction in boating fatalities,
then automobile deaths, by analogy, should be increasing, as highway
speed and vehicle numbers have risen. But here, too, accident and
fatality rates have declined even as speeds and numbers increased:
Highway accident statistics indicate that the annual number and
rate of traffic accident deaths have declined to the lowest
levels since the early 1960's. (US Department of Transportation
website)
In the real world, there's not much support for a ``more boats:
more take'' analogy.
Perhaps the ultimate irony is that the ``confidence level'' for a
registration: take ratio is noticeably below the ``confidence level''
the Service seeks for the manatee recovery goals it has decreed. (The
registration confidence level is below .90. The Service seeks a .95
confidence level for its goals measurements.)
In other words, the Service sets a higher standard to prove that
its goals are being met than it does for the goals themselves. This is
not merely a matter of ``erring on the side of caution.'' As Gerstein
points out, current Service policy, based on this flimsy scientific
premise, likely exacerbates danger.
Requested Corrections
1) FWS' justification for speed zones is insufficient and must be
readdressed in light of all the best available scientific information.
2) FWS must withdraw its claim that small, fast powerboats are a
substantial threat to the manatee.
3) FWS' own data require that it focus mitigation efforts on the
10% of vessels known to cause at least 1/3 of all watercraft
mortalities. It has no data to justify mitigation of any other type of
vessel by slow speed restrictions.
4) FWS' own experts disagree with its contention that
registration: mortality is a viable measure. This premise, too, must be
addressed or withdrawn.
5) FWS must address the fundamental issue that its mitigation
strategy of slow speed restrictions is based on anecdote and not
science. Why, for example, does the release of a boat dock permit
require restrictions, and not, for example, research into improved hull
or motor designs, acoustic warning, or other technology?
Summary
In sum, neither the Service's own experts, nor a review of accident
statistics, nor the Service's own standards for confidence levels
supports a conclusion that more boats equals more deaths.
This shaky thread is the only link the Service has to its
presumption that docks equals deaths.
Neither a review of all the experts FWS cites, nor a review of
experts FWS ignores, supports the Service's belief that slow speeds
provide better protection.
Nonetheless, the Service flatly maintains:
Based on the absence of protection measures (e.g., speed zones,
signage, enforcement) for manatees, the Service believes that
an increase in watercraft associated with the proposed actions
[new docks] are reasonably certain to result in the take of
manatees in the form of addition deaths and injuries. (Benjamin
op cit)
The Service has failed to comply with the requirements of Federal
Information Quality standards, and it has failed to comply with its own
obligations to utilize the best available science.
FWS has failed to meet its own standards, and it has failed its
duty to the people it represents. As you are aware, this failure has
wrought terrible consequences in your district, where Brevard marine
construction permits were denied for more than a year, and lately in
Lee County, where a State court's removal of unconstitutional manatee
zones has resulted in a new ``area of inadequate protection'' where
permits are being denied.
While FMCA appreciates that a poorly articulated and unscientific
legal settlement (Save the Manatee Club v Ballard) is the sole grounds
for stopping dock construction, we find it distasteful that FWS is
attempting to hide its legal troubles beneath a blanket of science
fiction.
Bibliography & Footnotes
\1\ Save the Manatee Club vs. Ballard. This case is before Judge Emmett
Sullivan in the DC District. It was not filed in the Florida
district(s) where the alleged harm took place.
\2\ Capt. Tom McGill, The Florida Manatee Conspiracy of Ignorance,
RALCO Press, 2004
\3\ ``radical go-fast boater'' is a term coined by the Manatee Club to
describe anyone opposed to its ``go slow/no growth'' demands.
See http://www.savethemanatee.org/newslmmpa.htm
\4\ The Size and Economic Impact of Florida's Marine Construction
Industry, FMCA, Oct. 2003
\5\ see Federal Register / Vol. 67, No. 4 / Monday, January 7, 2002 /
Rules and Regulations: ``...watercraft-related `take' of
manatees is a distant indirect effect of the authorization of a
boat access facility. While we agree that construction of boat
access facilities is a potential contributing factor to
watercraft-related take of manatees, in the vast majority of
cases a direct cause and effect relationship does not exist
between the construction of a marina, dock, or boat ramp, and
watercraft-related take of manatees.''
\6\ see Federal Register / Vol. 67, No. 4 / Monday, January 7, 2002 /
Rules and Regulations for a description of Brevard County
Federal zones, which includes key industrial and commercial
waterways and dredged water sports areas.
\7\ FWS Spokesman Chuck Underwood email to Dale Weatherstone, reported
in FMCA Newsletter, Vol. 4, June, 2003
\8\ see as example www.sba.gov/advo/laws/comments/fws03--0603.html:
``Advocacy believes the Service has incorrectly certified the
proposed rule under the RFA as not having a significant
economic impact on a substantial number of small entities.
Advocacy recommends the Service publish an Initial Regulatory
Flexibility Analysis (`IRFA') for public comment prior to
publishing a final rule.''
\9\ in Federal Register / Vol. 67, No. 4 / Monday, January 7, 2002:
``Federal regulations provide exceptions to manatee protection
area regulations only in limited circumstances (50 CFR
17.105(c)). We do not have the authority under our existing
regulations to grant an exception based on economic hardship.''
\10\ Florida Marine Research Institute mortality database
\11\ Fraser, Thomas H. 2001. Manatees in Florida: 2001. A report to CCA
Florida--March 29, 2001; see also http://ccaflorida.org/
updates/Jan02-why--manatee.htm
\12\ Florida Manatee Recovery Plan, 3rd Edition, 2001
\13\ Analysis of Watercraft-related Mortality of Manatees in Florida
1979-1991 by Scott D. Wright and Bruce Ackerman, FMRI; Robert
Bonde and Cathy Beck, Sirenia Project; Donna Banowetz, FMRI.
Here is a key excerpt: ``An important point by Beck et al.
(1982) was that differences in propeller diameters were
distinct between boats powered by inboard engines and boats
powered by outboard or stern-drive engines. Therefore, they
suggested that scar patterns measured on manatees could be used
to determine the size of the watercraft. The propellers of
smaller boats (shorter than 7.3 m) with outboard and stern-
drive engines were too small (average 16.4 cm) to inflict fatal
wounds, although they probably caused most of the nonfatal
wounds from propellers.''
\14\ Ibid.
\15\ Office of Boating & Waterways, 2004
\16\ Conspiracy of Ignorance, page 128, citing the Recovery Plan, 3rd
Edition, page 684
______
[Mr. Webster's response to questions submitted for the
record follows:]
Response to questions submitted for the record by Steven E., Webster,
Executive Director, Florida Marine Contractors Association
Questions from Chairman Richard Pombo
(1) Mr. Webster, you outlined six additional changes. The most
important, you said, would be to establish the primacy of the ESA over
the MMPA. Why is this so critical?
The ESA and MMPA contradict each other. On the one hand, ESA
strives to ``recover'' a species by increasing species population. The
MMPA, on the other hand, places a general moratorium on the take of any
listed species. Thus, as manatee population grows (recovers), the
likelihood of illegal MMPA ``take'' increases. The MMPA punishes
success, complicated by the manatee's never-demonstrated standing as
``endangered.'' Because ``endangered'' species are ipso facto
``depleted stocks,'' it is literally impossible for the Service to
develop ``incidental take authorization'' for manatees.
Chuck Underwood, spokesman for the Jacksonville Field Office, says
the outcome is ``illogical, but that's the way the laws relate to one
another.''
For example, in Manatee County (along Florida's West Coast), dozens
of dock permits that would have been allowed under ESA have been denied
based on MMPA assertions.
Additionally, we believe MMPA jurisdiction is being improperly
applied to the inland waters of the State. However, this has been done
for so long that a legal resolution is unlikely. Hence our proposed ESA
amendment.
I would be happy to refer to Committee attorneys Frank Mathews and
Ted Guy, who developed this idea about a year ago.
(2) You said businesses have closed. Like what?
Whitley Marine in Cocoa, Florida. This marina served intracoastal
waterway boaters for 37 years, but was forced out of business by
litigation brought by Save the Manatee Club, using ESA and MMPA claims
as their ammo. The Whitley's finally sold and the site is now filled by
condos. Across Florida, ESA and MMPA hurdles are helping cause the
conversion of working waterfront--boat repair, boat storage, etc.--into
condos, usually either eliminating or greatly reducing public access to
public waters. There are three other boat-yard-to-condo conversions
underway within three miles of Whitley Marine.
In Fort Myers, a multi-million dollar downtown redevelopment
centered around a new high-speed ferry service to and from Key West was
canceled after U.S. Fish imposed extensive and unnecessary slow speed
zones in the region. ``Fast Cats'' instead built in Ft. Lauderdale.
In Jacksonville, a downtown redevelopment project tied to the Super
Bowl has been tied up in regulatory knots because of ESA and MMPA
manatee issues.
Also in Brevard, a brand new multi-million dollar boat
manufacturing plant was opened for one day, then shuttered in part
because the firm could not gain a Federal exemption that would allow it
to test its vessels in adjacent waters. Again, MMPA and ESA.
Statewide, lengthy delays and unpredictable demands have resulted
in literally thousands of docks being built outside the permitting
regime, usually with the tacit approval of local authorities. It's to
the absurd point where some builders actually advertise that they will
build without permits!
Over the past 16 months, five FMCA contractor members have closed
shop, all stating that the burdens imposed by ESA and MMPA were at
least in part responsible. There are three more members I prefer not to
name--hopefully they will survive--who are expected to give up in the
next few months. As the building boom cools (and it will), the pressure
will really begin to mount unless realistic reforms are made.
I would be happy to introduce the Committee to Joe and Diane
Whitley, past owners of Whitley Marine.
______
The Chairman. Thank you.
Mr. McKeel?
STATEMENT OF STEVEN L. McKEEL, EXECUTIVE DIRECTOR, MARTIN
MARIETTA MATERIALS, INC., TESTIFYING ON BEHALF OF THE NATIONAL
STONE, SAND AND GRAVEL ASSOCIATION
Mr. McKeel. Thank you, sir. Good afternoon. I am Steve
McKeel, manager of natural resources for there Southeast
Division of Martin Marietta Materials. We are the second
largest producer of crushed stone, sand and gravel in the
United States. I have a degree in geology from the University
of North Carolina and I have worked in the mining industry
since 1982. I expect you will hear testimony today on listed
animal species but my testimony involves two federally listed
plant species.
In 1989 Martin Marietta Materials leased 700 acres in
Augusta, Georgia containing a 40-acre exposure of granite that
was ideally suited for crushed stone production. Exposed rock
is rare in the Southeast but a few granite outcrops resembling
a paved parking lot do exist. The best known is Stone Mountain,
which is dome-shaped and rises a few hundred feet above the
surrounding Atlanta area.
These outcrops also represent an unusual habitat for plant
species where shallow pools have formed over time. We became
aware that some endangered plant species found only in these
pools might be present on our 40-acre granite outcrop.
My company needed a permit for wetlands crossing to access
the property. We informed the Corps of the possible endangered
plants and my written testimony that you have chronicles the
permitting events that trigger the consultation provisions of
the ESA.
During our informal consultation with the Fish and Wildlife
Service we conducted at our expense a habitat evaluation survey
for threatened and endangered plant species. We identified two
pools containing the threatened Amphianthus pusillus or
snorklewort and the endangered Isoetes tegetiformans or mat-
forming quillwort. The quillwort is known to exist in only
eight localities in Georgia.
We could not avoid these plants during mining. We tried
negotiating their possible transplant but the Fish and Wildlife
Service wanted them to remain intact. Several months of
informal consultation transpired without results, so we sought
legal guidance. We found one, the takings provision of the ESA
is more limited regarding listed plant species and does not
prohibit the landowner from relocating or even destroying the
listed plant species; and two, the listed plants did not occur
on lands under Federal jurisdiction or even jurisdictional
wetlands.
The finding triggered formal Section 7 consultation,
postponing our wetlands permit. Throughout the consultation
process we stressed our desire and our landowner's desire to
work with agencies and organizations alike to preserve and
relocate these plants and even proposed both avoiding the
plants for 2 years and funding a relocation program.
The Service finally issued a jeopardy opinion for the
quillwort, drawing heavily from a recovery plan that was still
in the agency draft stage. The opinion went on to state that
the endangered quillwort was historically known to occur in
both pools, so therefore both species should be protected under
this Act.
The jeopardy opinion also recommended reasonable and
prudent alternatives, which seemed to be neither reasonable nor
prudent. We were to maintain a permanent fenced buffer for a
100-foot radius around the plants. We were to mount an
industrial fan above the pools that was to run at all times
during quarry operation to blow the dust away. And, since we
would be mining essentially all the way around these pools, we
would presumably be leaving a several hundred-foot-tall column
of rock rising from the middle of our pit and I guess they
envisioned something like a butte in Montana, so we needed to
provide for stairs or some other way to climb up and monitor
the plants and, of course, maintain the fan.
These reasonable and prudent alternatives would have been
laughable if they did not represent so much time and expense to
us, such a travesty to the private property rights of the
landowners, and a continued drawn on taxpayer dollars.
We withdrew our wetlands permit application, negotiated a
separate easement into the site that did not require wetlands
crossing. I continued to seek to relocate the plants to various
agencies and botanical gardens. Our landowners then decided it
was in their best interest to relocate their plants themselves.
Their explanation to me by letter, I quote: ``We feel the
delays have cost us a considerable amount of monetary
consideration and mental anguish.'' I simply must question a
Federal agency process that so stridently attempts to regulate
plant species that are the sole property of the landowner.
If I can briefly quote Senate Report 100-240's reference to
my report, ``The basis for this differential treatment of
plants and animals under the Act was apparently the recognition
that landowners traditionally have been accorded greater rights
with respect to plants growing on their lands than with respect
to animals. The amendment made to the Act does not interfere
with the rights traditionally accorded landowners but instead
reinforces them in a way that also benefits the conservation of
endangered plant species.'' If this was the intent of Congress,
then the ESA failed miserably in our case.
The aggregate industry produced crushed stone in all 50
states and virtually every congressional district and is
significantly impacted by the Endangered Species Act. I
strongly support H.R. 2933, the Critical Habitat Reform Act of
2003 introduced by Congressman Dennis Cardoza, especially those
provisions found in Section 3, which requires an economic
impact analysis be conducted prior to designating a species'
critical habitat. Thank you.
[The prepared statement of Mr. McKeel follows:]
Statement of Steven L. McKeel, Manager, Natural Resources, Southeast
Division, Martin Marietta Materials Inc., Atlanta, Georgia, on behalf
of the National Stone, Sand & Gravel Association
Introduction
Good morning. I am Steven L. McKeel, Manager of Natural Resources
for the Southeast Division of Martin Marietta Materials, Inc. Thank you
for the opportunity to testify before you today in support of H.R.
2933, the ``Critical Habitat Reform Act of 2003.''
Martin Marietta Materials, Inc. is the second largest producer of
crushed stone, sand and gravel in the United States. Our Aggregates
Division operates more than 300 quarries and distribution facilities in
28 states, the Bahamas and Nova Scotia. Our products are used
extensively in concrete for road and other construction, asphalt,
railroad ballast and numerous other basic products that form the
literal foundation of our infrastructure and economy.
I graduated from the University of North Carolina, Chapel Hill,
with a bachelor's degree in Geology in 1982. I worked in the precious
metals mining industry for a few years before joining Martin Marietta
Materials, Inc. as a geologist in 1985. I became Manager of Natural
Resources of the Southeast District in 1990, and with the growth of our
company I moved to Atlanta, Georgia, in 1996 into my current role of
Manager of Natural Resources for the Southeast Division. The Southeast
Division currently oversees some 40 quarry and 20 distribution
operations.
In early 1990, I became closely involved with a company project
that involved two federally listed plant species. Through this
experience I was invited to serve on the National Stone Association's
Environmental Committee as their Wetlands and Endangered Species Task
Force Chairman, which I did for about seven years. I was also fortunate
to later serve as Vice Chair and also Chairman of the Environmental
Committee. The National Stone Association subsequently merged with the
National Aggregate Association in 2001 to become the National Stone,
Sand, and Gravel Association, and it is on their behalf that I relate
to you this morning the experiences I had with the ESA in the early
'90's.
The National Stone, Sand & Gravel Association is the world's
largest mining association by product volume, representing companies
who produce over 90 percent of the crushed stone and 70 percent of the
sand and gravel produced annually in the U.S. at over 10,000 operations
by approximately 120,000 working men and women in the aggregates
industry. During 2002, a total of about 2.73 billion metric tons of
crushed stone, sand, and gravel, valued at $14.6 billion, were produced
and sold in the United States. The aggregates industry directly and
indirectly contributes a total of $37.5 billion annually to the
nation's Gross Domestic Product (GDP). NSSGA's Environmental Guiding
Principles encourage members to meet all established environmental
regulatory requirements, and where possible to do more than the law
requires.
Having operations in all 50 states, in virtually every
Congressional District, the aggregates industry is significantly
impacted by the Endangered Species Act (ESA). NSSGA supports improving
the ESA by incorporating scientifically-based programs that implement a
balanced approach to protect endangered species while recognizing
private property rights and the need for continued economic growth and
responsible utilization of natural resources.
I would like to commend you on your efforts to reform and clarify a
law that has become a hazy quagmire for many industries and private
landowners alike. During my stint with the Environmental Committee of
what is now NSSGA, there were a number of attempts by Members of
Congress to reform a law that, by promulgation and interpretation by
federal agencies, often treads heavily on the basic private property
rights of private landowners. This was true for my experience in the
early 1990's, and it remains true to this day.
Leasing Private Property
In 1988, I began negotiations with a family of landowners for
Martin Marietta Materials, Inc. to lease for the purpose of quarrying a
700-acre parcel of property located near Augusta, Georgia. The 700-acre
lease property lay adjacent to a property owned by the Nature
Conservancy. I learned late in the lease negotiation process that the
Nature Conservancy had also entered into negotiations with the family
in an attempt to buy a portion of this land and have the remaining
property donated to them for favorable tax considerations. Our lease
proposal to the landowners provided for both an annual payment for the
leasehold of their property, plus a sum for every ton of material mined
and sold from their property. This lease arrangement made the most
economic sense to the landowners, and we executed a mining option and
lease in September of 1989. The landowners retained about 300 acres of
land outside of the 700-acre lease premises.
The Nature Conservancy's as well as our own interests lay in the
fact that the property contained a 40-acre continuous exposure, or
``pavement outcrop,'' of granite rock. The Nature Conservancy also
owned the adjacent parcel of land that contained a larger, perhaps 100-
acre outcrop known as ``Heggie's Rock,'' which lay some three-fourths
of a mile from the 40-acre outcrop under lease. A portion of the 700-
acre lease premises bounded part of this large granite exposure. Martin
Marietta Materials, Inc. owned the 100-acre outcrop, ``Heggie's Rock'',
in the 1970's. Company files I have from that time indicate that we
were instrumental in having this property become a nature preserve.
The Nature Conservancy had also indicated to the landowners during
our lease negotiations that there were endangered plant species located
on the 700-acre lease premises. Martin Marietta Materials, Inc.
initiated contact and a site visit with the Nature Conservancy in July
of 1989 to assure them our mining activity would have no detrimental
impact to their property. It was through this site meeting with their
consulting biologist that we learned of two federally listed plant
species that existed on the lease premises, and indeed existed on the
40-acre granite outcrop itself.
Our initial findings at this planning stage of the process were
informative and generally cordial. There were discussions involving
relocating the listed species versus mining around them, and other
possible alternatives. I later contacted state agencies that assured me
plants were treated differently than animals under the ESA, and that
these two plant species had been successfully transplanted in the past.
Granite Outcrops in the Southeast
Exposed bedrock of any kind in the southeastern United States is
quite rare. There are, however, a number of exposed granite bodies, or
``pavements,'' that occur in South Carolina, Georgia, and Alabama. A
number of these are concentrated in the Atlanta, Georgia, area. These
exposed rock bodies are generally semicircular in appearance and can
range in size from a few square feet to many square acres. The most
famous of these is perhaps the tourist attraction of Stone Mountain
near Atlanta, Georgia, which is a several hundred-acre exposed, dome-
shaped granite outcrop rising a few hundred feet above the surrounding
landscape.
Granite is generally a well-suited source material for crushed
stone. The physical characteristics of granite generally exceed all
state specifications for road and other construction projects. Only
about 15 percent of the total crushed stone output in the U.S. is
derived from granite, but about 70 percent of this output is mined in
just five southeastern states.
In many quarry locations, rock suitable for crushed stone
production lies under many feet of soil that requires costly removal
before processing can commence. This 40-acre exposure of granite on the
lease premises was readily available, quality stone, representing a
viable resource to our company and a valuable commodity to our
landowner. Conversely for our landowner, this 40-acres of exposed
granite had no potential developmental value other than for crushed
stone mining purposes. Mining was unequivocally the ``highest and best
use'' for this property.
However, in addition to being a source of crushed stone, these
outcrops also represent an isolated and unusual habitat, particularly
for plant species. Shallow, saucer-shaped depressions or ``pools'' have
formed over time on the level portions of these granite outcrops. These
pools are generally no more than five square meters in size, and
alternately fill with water during rainy periods or completely
desiccate during dry periods. A number of unique plant species are
endemic to these pools, including the federally listed endangered
Isoetes tegetiformans, or ``mat-forming quillwort'', and the federally
listed threatened Amphianthus pusillus, or ``snorklewort''. The
quillwort is known to exist in some eight localities in Georgia, and
the snorklewort--some 55 localities in Georgia, South Carolina, and
Alabama.
Wetlands and the ESA Process
I rezoned the entire 700-acre lease property to an M-1 (Mining)
designation through provisions of Columbia County, Georgia zoning
ordinance in the fourth quarter of 1989 and 1st quarter of 1990. The
Columbia County Land Use Plan, developed a few years prior to this
rezoning, had already, in anticipation, designated the general location
of this property as crushed stone mining because of its suitability for
mining, as demonstrated by one of our competitors located nearby. In
other words, the county recognized that crushed stone mining on this
property was both the highest and best use for the property as well as
a conforming use.
The 700-acre lease parcel was completely transected by two
significant drainage basins. The area between the two drainages, where
the 40-acre granite outcrop occurred, was to be the focus of our mining
operation. The first of these two drainages had to be crossed in order
to access the granite outcrop from a public road.
In July of 1990, I submitted a pre-discharge notification to the
U.S. Army Corps of Engineers (Corps) for wetlands permitting for
separate impacts on the two drainages transecting our 700 acre parcel--
one 0.48-acre impact for access into the site across the first
drainage, and a second 0.92-acre impact for a freshwater pond and
erosion control measures on the second major drainage. I requested that
the two areas be treated separately under what was, at that time,
separate permits under Section 14 and Nationwide 26 of the regulation.
Included in that application was a wetlands delineation by our
consultant for both drainage basins. A Corps of Engineers biologist had
verified the wetlands delineation in May of 1990 prior to the July
notification. We made the Corps biologist aware of the possible
presence of listed species on the property. Since each impact was less
than one acre, I requested that the Corps authorize by letter the use
of these permits.
In response, and in light of the possible presence of endangered
plants, the Corps recommended by phone that we conduct a biological
inventory of the site and begin informal consultation with the U.S.
Fish and Wildlife Service (FWS). I began to undertake both of these
recommendations in late August of 1990. The Corps also indicated they
considered the two wetlands impacts to be one impact under Nationwide
26.
In November of 1990 I informed both the Corps and the FWS that our
outside consultant had completed the ``Habitat Evaluation Survey for
Threatened and Endangered Plant Species'' for our 700-acre lease
premises. I scheduled a site visit with the FWS for early December of
1990. The FWS requested that an outside biologist with expertise also
attend the site meeting, and I agreed. I was surprised to learn that
the consulting biologist in attendance was the same individual employed
earlier by the Nature Conservancy.
Two pools within a few feet of each other were identified on the
granite outcrop by our consultant, one containing Amphianthus pusillus
and the other containing Isoetes tegetiformans. The FWS consulting
biologist also verified these occurrences. The pools were located in a
portion of the granite outcrop that could not be set aside as possible
buffer zone. It became painfully transparent from this meeting that I
had a vastly different view of mitigating impact to these species than
the FWS and this consulting biologist. The FWS wanted the species to
remain intact rather than be relocated.
The informal consultation process with the FWS began to drag on
into the first quarter of 1991 with no written response or
recommendation. It became increasingly clear to me that our corporation
needed to establish our legal rights with regard to this process. As a
larger aggregate producer, we were fortunate to have the financial
ability to seek excellent legal council on this matter where so many
other landowners might not.
In March of 1991 I informed both the Corps and FWS by letter of our
legal findings, i.e., that 1) the takings provision of the ESA are more
limited regarding listed plants species and do not prohibit the
landowner or Lessor from relocating or even destroying the plants, 2)
the wetland crossing of the first drainage and impoundment on the
second drainage should be treated separately by the Corps under
Nationwide 14 and 26, respectively, and that for the Corps to call the
wetland crossing a ``crossing/impoundment'' in order to place it under
Nationwide 26 was inaccurate, and 3) the listed plants did not occur in
wetlands or lands under federal authority, and that the plants were
considered the property of the landowners and could be essentially
removed or destroyed by mining independent of a Corps permit, which
essentially negated the relevance of FWS consultation. I requested that
the Corps reply within 20 days as specified under 33 CFR 330.7(3),
otherwise we would assume that in light of our legal opinion all
conditions of 33 CFR 330.5 (b) (3) regarding listed species had been
met, and we would be free to proceed under Nationwide 14 and 26. I
further reiterated our desire and our landowners desire to work with
agencies to preserve and relocate these species, and went on to outline
a plan where we would avoid mining the pools for two years as well as
fund the relocation of the listed species.
The Corps responded by treating the pre-discharge notification as
official, and through the agency coordination process the FWS made
formal comment to the Corps dated March 21, 1990, that, by our own
consultant's findings and the FWS site visit, two listed species had
been verified on the proposed quarry property. The FWS thereby
requested that the formal Section 7 consultation process be triggered,
with a 90-day consultation process and a Biological Opinion to follow
within 45 days. Apparently, none of the progress made during the
several months of informal process applied in any way towards reducing
this time frame. The Corps informed us on March 29, 1990, that as per
FWS request, the Corps would postpone determination of this application
until the consultation process was completed.
On May 19, 1991, in response to the formal consultation process, I
mailed a very detailed letter to the FWS outlining crushed stone mining
practices and procedures. I also illustrated by cross-section and mine
reserve calculations the very significant economic impact the plants
would have on our operation if we were forced to leave them in place. A
few of the more significant impacts were: 1) the reduction of our
overall minimal reserves by 15 or more million tons, which represented
a market value of some $60-70 million; 2) the reduction of the life of
our mine by 15 to 20 years, forcing us to seek another mine location
prematurely; and 3) the cost to our landowners of several million
dollars in royalties on the sales of rock measuring 15 million tons
less than anticipated.
I also learned in May of 1991, quite by circumstance, that the FWS
and State of Georgia had entered into a cooperative agreement in April
of 1990 for the purpose of preparing a Recovery Plan for three granite
outcrop plant species--including the mat-forming quillwort and the
snorklewort. The cooperative agreement was signed by the FWS on January
3, 1990, coincidentally just a few short months after I began informal
consultation with the FWS on these plant species. I requested and
received a copy of the Technical Draft, which was a thinly veiled
attack on the crushed stone industry as one of the main factors in the
continued demise of outcrop plant species. The report was written,
coincidentally, by the same consulting biologist who had visited our
site with the Nature Conservancy and the FWS the prior year.
On July 17, 1991, the FWS issued a jeopardy opinion for the Isoetes
tegetiformans, or mat-forming quillwort, for our wetlands crossing
permit application to reach the 40-acre granite outcrop on our lease
premises. The opinion drew heavily from the Draft version of the
Recovery Plan--a plan that had not been subjected to either the Agency
Draft review process or the 60-day written public comment period during
the Final Draft review process. Due to the less perilous ``threatened''
status of the Amphianthus pusillus, a non-jeopardy opinion was rendered
in regard to it. However, the opinion went on to state that the
endangered Isoetes tegetiformans was historically known to occur in
both pools, so therefore both should be protected under this action.
As per the process, the opinion recommended Reasonable and Prudent
Alternatives, which were, in brief:
1. No mining activity could be conducted within a 100-foot
perimeter or buffer of the two pools, and the buffer area in question
to be placed in a permanent conservation easement;
2. A six-foot chain-length fence composed of noncorrosive
materials with silt fence to be placed around the perimeter of the
buffer area;
3. And, by personal communication with the biologist authoring the
Recovery Plan, it was determined that even a small amount of quarry
dust build-up in the pools could affect the plant species, therefore an
industrial fan should be mounted above the fence to blow across the
pools during all times of quarrying activities;
4. Since the avoidance of quarrying of the pools will result in a
isolated column of granite in the pit [I suppose the FWS envisioned we
would leave a butte in the middle of the pit like you might see
naturally in Utah or Montana], there needed to be some type of stairway
or access up to the pools for monitoring and fan maintenance;
5. And lastly, the plants were to be monitored and logged on a
weekly basis with results submitted to the FWS for the life of the
quarry.
The Jeopardy Opinion went on to recommend, under ``Conservation
Recommendations,'' that since the survivability of both species at this
site was not predictable, a separate site containing both species
should be acquired and protected by transference into conservation
hands, such as the Nature Conservancy.
These Reasonable and Prudent Alternatives would be laughable if
they did not represent so much time and expense to the applicant, a
travesty to the private property rights of the landowner, and the
continued drain of taxpayer dollars for such endeavors by government
agencies.
Resolution
In the fall of 1991, I began negotiations with our landowners on
the 300 acres originally omitted from our lease premises. We were able
to reach an agreement on a right-of-way to the public road that
essentially skirted around the first drainage basin and all wetlands.
This added nearly a mile of additional road construction for us, some
additional annual rental payments, and also consumed a number of acres
of land that the landowners might have used for other purposes.
On January 24, 1992, we formally withdrew our pre-discharge
notification to the Corps and likewise notified the FWS. I notified our
landowners of our decision, and of our continued interest in seeking
avenues for the possible relocation of these species through various
agencies and botanical gardens. Groups that had once demonstrated a
strong interest now began closing doors on our negotiations; even given
the fact we had withdrawn the wetlands permit application.
On March 1, 1992, I received a letter from the property owners,
which I will read in part:
``I appreciate your efforts to working out a solution to our
problems with the endangered or threatened plants with the
various organizations that should have had an interest in their
relocation. After personally discussing the problem with
several people that have expertise in this area, we concluded
we would receive no help from these individuals or their
organizations.
``...it was decided it would be in our best interest to
transplant the plants to [our] outcrop located adjacent to
Heggie's Rock. The plants seem to be surviving quite well in
the new habitat.
``...It is our hope that Martin Marietta can move forward with
the necessary permitting to put this property in a state of
production. We feel the delays have cost us a considerable
amount of monetary consideration and mental anguish.''
We then began a two year, strongly contested mining permit process
with the State of Georgia. A number of opponents to our mining permit
were from the ranks of individuals that originally not want to see the
plant species relocated. Included were several negative newspaper
articles from the original biologist who was also the author of the
Recovery Plan.
In January of 1994, Martin Marietta Materials, Inc. received all
mining permits from the State of Georgia for this site. We are in
continuous operation at this location today. It should be noted that
once the species were documented as removed from the subject mining
area, we were granted in 1995 a Corps permits (i.e., Nationwide 26
under one acre) for an impoundment along the second of the two
drainages.
Conclusion
After all this effort on the part of landowner and government
agency alike, I simply must question a process that encourages federal
government agencies to attempt to rigidly regulate plant species that
are obviously the property of the private landowner. The interests of
the wetlands permit applicant were not served, and the interests of the
landowner certainly were not served, and, because this delicate species
was relocated by a private landowner with a shovel and bucket rather
than by a professional botanist, ultimately the interests of the plant
species were not served.
In my research during this project I came across Senate Report No.
100-240 (1988 U.S.C.C.A.N. 2700 at pages 2711-12) describing the
purpose of additional language added in 1988 to Subsection B of the
ESA, regarding animals and plants under federal jurisdiction. It reads,
it part,
Currently anyone who captures, kills or otherwise harms an
endangered animal commits a violation of the Act for which
substantial criminal and civil penalties may be imposed. By
contrast, it is not unlawful to pick, dig up, cut or destroy an
endangered plant unless the act is committed on Federal land;
and even on Federal land there is no violation of the Act
unless the plant is removed from Federal jurisdiction. The
basis for this differential treatment of plants and animals
under the Act was apparently the recognition that landowners
traditionally have been accorded greater rights with respect to
plants growing on their lands than with respect to animals. The
amendment made to the Act...does not interfere with the rights
traditionally accorded landowners but instead reinforces them
in a way that also benefits the conservation of endangered
plant species...Endangered plants have been vandalized or taken
from private land against the wishes of landowners. Most
private landowners take pride in the presence on their lands of
unique or rare species and are eager in their protection.
If indeed this was the intent of Congress, then the ESA failed
miserably in our case. I seriously doubt if our landowner has much
``pride'' left in the fact that these species occur on his property.
With almost fifteen years of hindsight, I can look back on this
episode and see the naivety of my actions. I mistakenly believed for
nearly two years that the ESA actually worked to protect listed
species. I was naive to believe that, when confronted with the legal
rights of ownership afforded the private property owner, governmental
agencies and environmental groups alike would be willing to work
towards a ``Win-Win'' solution to transplant and protect the plant
species. I came away from this episode believing that the ESA has
placed an adversarial tool in the hands of environmentalists who are
bent upon curtailing growth by impinging on private property rights.
I strongly support H.R. 2933, the Critical Habitat Reform Act of
2003, introduced by Congressman Dennis Cardoza, especially those
provisions found at Section 3, which require that an economic impact
analysis be conducted prior to designating species critical habitat. In
the above-mentioned case, economic feasibility should have been drawn
into question long before the numerous steps taken to issue biological
opinions were conducted. The jeopardy opinion rendered in our case
should have never been allowed to consult a Draft Recovery Plan when
making a determination.
______
[Mr. McKeel's response to questions submitted for the
record follows:]
Response to questions submitted for the record by Steven L. McKeel,
Executive Director, Martin Marietta Materials, Inc.
Questions from Chairman Richard Pombo
(1) Mr. McKeel, could you outline the economic impact on your
company and the landholder of the Jeopardy Opinion issued by the FWS?
The more tangible impacts to our company were the costs for
redesigning our overall site plan, the acquisition (annual lease of r/
w) of another route into the site that did not involve wetlands
permitting, the engineering design work for this new route, and the
construction of an additional approximate 2 mile of roadway beyond our
original plan. These costs can be calculated in the half-million dollar
range. More intangible are the costs associated with the lost revenue
potential during the three-plus year delay in bringing this site into
production, the continued maintenance on the extra 2 mile of road
footage, the annual lease costs of land for the secondary route, the
delays and extra effort necessary to obtain a state mining permit
because the plant issue was not resolved (i.e., we had to overcome
opposition to our permit from individuals and special interest groups
using the unsupervised relocation of the species as a reason to deny
our permit), and the negative impact to our well-earned company image
by attacks from opponents in the print media. These costs are largely
undefined but can be estimated in millions of dollars.
The more tangible costs to our family of landowners involve largely
the delay in bringing the quarry into production. As stated in my
written testimony, the property contained a 40-acre expanse of granite
not suitable for any other type of development. Our lease arrangement
allows for landowner participation in our sale of rock products from
the site, so that the landowner literally profits greatest from a high-
volume sale of rock products. The delay in opening this operation cost
this family of landowners potentially several hundred thousand dollars
annually in lost royalties from sale of rock products. This was
significant to many family members, especially those associated with
family members who passed away at about that time. The more intangible
costs to the landowners are derived from the fact that the original
access route across wetlands on original quarry lease property remains
unused, while a new route across the landowners adjacent un-leased
property was necessary. This previously un-leased property did not
contain granite outcrops, but remains unsold and undeveloped to this
day largely because the family had to give up a r/w swath through it in
order to make the quarry operation viable. Our customer trucks now
travel this route in and out of the site, rather than over the less
conspicuous route originally contemplated with a minor wetlands
crossing. This cost is largely undefined but represents several million
dollars to our landowners.
The most destructive impacts to both our company and our landowners
fall into the ``what if'' category, but are very real even so. In my
written testimony, I described a May, 1991 letter to the FWS during the
formal consultation process that indicated by illustration and
calculations that if we are forced to leave the plants in situ, we
would have to sacrifice some 15 million tons of product reserves on
site worth some $60-70 million, reducing our mine life by some 15 to 20
years, and reducing the total royalties to our landowners by several
million dollars. The FWS did not acknowledge that the quarry would have
to be mined in this manner, but recommended in their ``Reasonable and
Prudent Alternatives'' that the quarry could be developed in a manner
that in my opinion would be technically unattainable, violate industry
safety standards and best engineering practices, and unquestionably be
prohibited by the Mined Safety Health Administration and the Georgia
Department of Natural Resources alike.
If we as a company had failed to gain a separate access into the
site that did not require wetlands permitting, we may have been forced
to abandon the project due to insufficient reserves (described above)
to justify operation start-up. I had spent several years locating and
leasing a suitable site in this area of Georgia, and there were none
other in the county even close to the potential of this property. If we
had been forced to abandon this project, we would have sacrificed
untold millions of dollars in potential from jobs, tax revenues, and of
potential revenue for both our company and the landowners. It is
doubtful we would be in operation in Columbia County today. Our
landowners would have had no option for the 40-acre outcrop other than
to sell it as a conservation area.
(2) You mentioned in your written testimony that the Draft Recovery
Plan was a ``thinly veiled attack on the crushed stone industry as one
of the main factors in the continued demise of outcrop plant species.''
Can you elaborate as to how the Draft Recovery Plan
singled out your industry?
My written testimony chronicles a series of events, but one common
thread remains constant throughout them. The consulting biologist who
originally represented the Nature Conservancy at our first site
meeting, was the same consultant who advised the FWS during our
informal site visit, who was the same consultant hired by the FWS to
write the Recovery Plan, who was the same consultant who was quoted in
the newspapers as opposing our mine permit efforts even after the
consultation process had been dropped. In my professional opinion, this
relationship is far too intertwined to foster objective opinions in our
consultation process, which was apparently never a consideration for
the FWS.
50 CFR Part 17 of the Federal Register found in Volume 53, No. 24,
pg. 3560 (Friday, February 5, 1988) contains the final rule by the FWS
for listing three granite outcrop plant species, including the
federally listed endangered Isoetes tegetiformans and the federally
listed threatened Amphiantus pusillus. Section 4(a)(1) of the listing
identifies five factors of adverse impact to the species B only one of
which is quarrying. The Draft (and Final) Recovery Plan for these
species lists ``Quarrying'' as statistically the greatest of eight
``Threats'' (Section 1.F.1) to these outcrop species, while also
engaging in conjecture about the number of additional unknown
populations of the plants that may have been ``destroyed'' throughout
the history of quarrying in Georgia and also speculating on the
possible detrimental impact of dust on populations that lie near quarry
operations. One of the most significant detrimental impacts recognized
by the Plan for these species is the failure of state and federal
agencies to protect these species from recreational overrun even on
public lands. Protecting existing publicly owned populations of the
plants is the number one ``Recovery Objective'' which identifies six
locations in the public domain. Even so, most of the ``Conservation
Measures'' and other recommendations in the Plan repeatedly single out
the need for protection from ``destruction from quarrying'' while
conversely stressing the need for seeking landowner cooperation on
private lands. The Plan goes on to try to link the expenditure of
Federal Highway trust monies used for state projects, and the resulting
supply of crushed stone from quarries that may harbor the listed
species, with Section 7 consultation of the ESA. The Plan also calls
upon the State of Georgia specifically to consider these plant
populations while reviewing mining permits of granite outcrops, even
though neither federal nor state law support such consideration. None
of the other ``Threats'' sited for these plants are dealt with in such
a specific manner. Also, ``Literature Sited'' for the Recovery Plan
sites three unpublished papers written earlier by the author of the
Recovery Plan for the Nature Conservancy, as well as a number of other
unpublished papers, which seems contrived for a federal document that
is suppose to incorporate ``Public Review'' into its formulation.
As per my written testimony, the confluence of timing between our
consultation process and the initiation by the FWS of the Draft
Recovery Plan, together with the negative tone of the Draft Recovery
Plan towards quarrying, specifically in the State of Georgia, as
written by the same consultant who had previously implied during our
consultation process that he did not want our population of plants
disturbed, together with the federal listing objective implying that
the FWS would regulate these species through the section 7 process (see
the ``Critical Habitat'' section of the listing) leads me to the
personal opinion that our industry in general and our project
specifically was unfairly censured for listed plants which are
recognized by the ESA as being the property of the landowner.
Our company, Martin Marietta Materials, Inc., seeks to protect the
environment and exceed regulations wherever possible. However, in this
instance, the interests of neither the endangered plant species, nor
our company, nor our landowner was well served. The ESA, written for a
noble purpose, has been historically administered by federal agencies
in a glad-handed manner that violates the most fundamental private
property rights of our citizens. The process is in bad need of
overhauling. I applaud Congressman Cardoza and those legislators who
will take the actions necessary to restore balance and fairness to the
ESA. Thank you for allowing me to address these questions.
Questions from Congressman Tom Udall
In your testimony, you extensively discuss the impacts that two
federally listed plants, Isoetes tegetiformans and Amphiantus pusillus,
had on your mining operations. Are you aware that both plants do not
have designated critical habitat?
50 CFR Part 17 of the Federal Register found in Volume 53, No. 24,
pg. 3560 (Friday, February 5, 1988) contains the final rule by the FWS
for listing three granite outcrop plant species, including the
federally listed endangered Isoetes tegetiformans and the federally
listed threatened Amphiantus pusillus. The ``Critical Habitat'' portion
on pg. 3563 is quoted below in its entirety:
Critical Habitat
``Section 4(a)(3) of the Act, as amended, requires that to the
maximum extent prudent and determinable, the Secretary
designate critical habitat at the time the species is
determined to be endangered or threatened. The Service finds
that designation of critical habitat is not prudent for these
species at this time. Publication of critical habitat
descriptions and maps would increase public interest and
possibly lead to additional threats for these species from
collecting and vandalism (see threat factor `B' above).
Distinctiveness of the outcrops increases their vulnerability
since they tower above the surrounding vegetation and most are
easily accessible. No benefit can be identified through
critical habitat designation that would outweigh these
potential threats. All State agencies and counties will be
notified of the general location of the sites and of the
importance of protecting these species' habitat. Protection of
these species' habitat will be addressed through the recovery
process and through the section 7 jeopardy standard. Therefore,
it would not be prudent to determine critical habitat for these
species at this time.''
Yes, Mr. Udall, it is correct that neither of these two species
have critical habitat designations. Why? It is clear from the quoted
Federal Register that when these plants were listed--when Section
4(a)(3) of the ESA mandates that the Secretary is to designate critical
habitat ``to the maximum extent prudent and determinable--the FWS
exorcized its discretion to decide that these plants would be better
served if their locations remained a mystery to all but a select few
individuals who knew of their existence. Given that our landowner had
never been contacted by any state or federal agency regarding the
welfare of the listed plants on his private property, and given that
the state Inventory Program and even a private consultant not
associated with the FWS knew their exact location, one must presume
that the ``notification'' courtesy described in the ``Critical
Habitat'' portion of the listing was never extended to the landowner,
the owner of the plants. My written testimony quotes Senate Report No.
100-240 describing that intent the 1988 amendment to the ESA was to
reinforce the traditional rights accorded landowners with respect to
plants, and that landowners often participate by taking ``pride in the
presence ... [of] rare species...''. It is apparent from the listing
and the actions of the FWS that our landowner was intentionally never
afforded that opportunity.
The FWS carries this rationale further by stating that protection
of these species would be addressed ``through the Section 7 jeopardy
standard''. It is clear from this that the FWS intended to use Section
7 as a weapon to restrict any activity that might impact these plants,
irrespective of right of ownership, and clearly did so in our case.
My testimony documents how our wetlands discharge notification on
our leased property triggered the Section 7 consultation process of the
ESA regarding the federally listed endangered Isoetes tegetiformans and
the federally listed threatened Amphiantus pusillus, and particularly
how the FWS initiated the drafting of a Recovery Plan for these species
seemingly as a result of this notification. My testimony also documents
how the Habitat Survey we conducted at our expense and the Draft
version of the Recovery Plan B a Plan that had not even passed the
public comment phase--were both used by the FWS to attempt to regulate
these two plant species on our landowner's property in spite of
unquestionable legal evidence that plants are the property of private
landowners.
Even knowing our landowner's ownership rights, Martin Marietta
voluntarily entered into negotiations to relocate these plant species
at our expense. This quickly turned into a non-voluntary process where
we spent considerable time and resources to comply with regulatory
agencies. The sad fact remains that, as per my written testimony, the
FWS ``Reasonable and Prudent Alternatives'' were so unreasonable that,
after we negotiated a separate route into the site and dropped our pre-
discharge notification, the owner of the plants had little incentive
and no longer any desire to seek the best solution for the plants.
The ESA, written for a noble purpose, has been administered by
federal agencies in a glad-handed manner that violates the most
fundamental private property rights of our citizens. Federal agencies
take an uncompromising ``government knows best'' approach--something
that needs to be changed if America is serious about working together
to help save endangered species.
The legislation introduced by Congressman Cardoza to reform
Critical Habitat designation would take the necessary first step by the
government to actually start working in a collaborative way with
landowners. While it is true that the two listed plant species in our
case did not have critical habitat designation, the fact that our
landowner and our company voluntarily attempted to save the landowner's
plants and were met by a regulatory stonewall that began at the point
of listing the species, one in which the interests of the FWS and
special interests groups were so intertwined that the welfare of both
plant and owner were ignored, in my opinion, is highly relevant to the
committee and is the reason why I wanted to tell our story. Our
company, Martin Marietta Materials, Inc., seeks to protect the
environment and exceed regulations wherever possible. However, in this
instance, the interests of neither the endangered plant species, nor
our company, nor our landowner was well served. I applaud Congressman
Cardoza and those legislators who will take the actions necessary to
restore balance and fairness to the ESA. FOLLOWUP
______
The Chairman. Thank you.
Miss Crookham?
STATEMENT OF KATHLEEN M. CROOKHAM, DISTRICT 2 COUNTY
SUPERVISOR, MERCED COUNTY BOARD OF SUPERVISORS, SONOMA,
CALIFORNIA
Ms. Crookham. Thank you, Chairman Pombo and members of the
Committee. My name is Kathleen Crookham and I am a County
Supervisor in the County of Merced in California. I appreciate
the opportunity today to testify in support of H.R. 2933,
Critical Habitat Reform Act of 2003. As a County Supervisor and
a private landowner, I have first-hand experience of how
important it is to reform the current process in designating
critical habitat. I would like to briefly summarize for you
what happened in Merced.
The Board of Supervisors and the community members were
surprised and quite frankly, disappointed to read in the local
newspaper on September 25, 2002, that the U.S. Fish and
Wildlife Service proposed to designate 1.7 million acres of
critical habitat for threatened and endangered vernal pool
species. A total of 337,514 acres of this particular proposal
were the critical habitat located in Merced County, more than
twice the amount of any other county in California or Oregon.
The proposed designation covered 26 percent of our entire
county, which in addition to 307,280 acres that are already
protected as government lands, wetlands, and easements, this
would be a total of 50 percent of our county under protected
lands, quite a devastating blow to a county whose primary
industry is agriculture.
Despite the fact that Merced County had the largest acreage
in this proposed habitat within the jurisdiction, the Service
refused to hold a hearing in our county because of time
constraints. As a result, many of the landowners in eastern
Merced County who had been sensitized to the issues surrounding
the Endangered Species Act were stunned by the proposed
designation. They felt the Service was trying to set the
critical habitat designation flying in under the radar screen
hoping that no one would notice.
The Board finally convinced staff members from the Service
to make an informal presentation regarding the proposed habitat
for Merced County. While the presentation was helpful, it was
not an official public hearing and the information presented
stirred up more questions than answers. The maps presented were
outdated and did not provide enough detail for property owners
to be able to determine if their land was in or out of the
proposed habitat. The two-month comment period was hardly
enough time for landowners to attend a public hearing, gather
materials, and then provide thoughtful feedback concerning the
impact of the proposed designation.
Clearly the proposed habitat was poorly designed. The
proposed acreage in Merced County was not scientifically or
thoroughly selected and included an already-developed shopping
area, parking lot, and even Castle Airport. It is evident that
the proposed habitat would only escalate our economic problems.
The community recognized that habitat would devalue their land
and increase regulations on land use because individuals would
lose their own property rights and the government would lose
control over local planning and growth.
Granted, Merced County is a rural community, but the
residents really rallied together. Local residents took it upon
themselves to quickly raise awareness. They compiled a list of
affected property owners in the county and paid for the mailing
of the information to hundreds of individuals. Actually it was
about 1,200 people. They shouldered the burden of the expense,
knowing that someone needed to fill the void that the Service
had left empty.
While the County of Merced was excluded from the final
ruling on this particular proposed critical habitat
designation, we anticipate finding ourselves along a similar
path once again.
Based on my own personal experience, I would like to
reiterate two key issues that I have with the current process
for critical habitat designations. Landowners must be notified
and given ample time to provide feedback. The Service should
consult local agencies in order to obtain resource information
that is detailed and accurate. The Service must sincerely make
efforts to communicate with landowners and I support providing
a user-friendly website mechanism to help landowners determine
if they are affected by the proposed designation.
And second, the economic analysis must include
consideration of lost revenues to the landowners, as well as to
the Federal, state and local governments, so that the
designation does not protect the species at the expense of the
people.
Chairman Pombo and members of the Committee, I appreciate
this opportunity to share my personal story with you today and
I am optimistic that this committee will find a positive
resolution to this issue.
And I would also like to openly express my appreciation to
Congressman Cardoza for his steadfastness in championing this
issue. He has been a strong support and a guide for our local
board. And thank you for allowing me to speak to you today.
[The prepared statement of Ms. Crookham follows:]
Statement of Kathleen M. Crookham, Supervisor, District Two,
Merced County Board of Supervisors, Merced, California
Chairman Pombo, Ranking Member Rahall and Members of the Committee,
my name is Kathleen Crookham. I am a County Supervisor for the County
of Merced in California. I appreciate the opportunity to testify today
in support of H.R. 2933, Critical Habitat Reform Act of 2003. As a
County Supervisor for the County of Merced, and a private landowner, I
have first-hand experience on how important it is to reform current
processes for designating critical habitat.
I would like to briefly summarize for you what transpired in Merced
County, California. The Board of Supervisors and our community members
were surprised and, quite frankly, disappointed to read in the local
newspaper on September 25, 2002, that the U.S. Fish and Wildlife
Service proposed to designate 1.7 million acres as critical habitat for
threatened and endangered vernal pool species. A total of 337,514 acres
of this particular proposed critical habitat was located in Merced
County, more than twice the amount as any other County in California or
Oregon. The proposed designation covered 26% of our entire County;
which is in addition to 307,280 acres that are already protected as
government lands, wetlands and easements. This would have resulted in
50% of Merced County being under protected lands--quite a devastating
blow for a county whose primary industry is agriculture.
The Service arbitrarily set five public workshops about the
proposed habitat, none of which were located in the County of Merced.
In fact, the Service refused to hold a public hearing in our County
because of ``time constraints,'' despite the fact that Merced County
had the largest acreage of proposed critical habitat within its
jurisdiction.
To understand how insulting this was to us as the local government
entity and to our community at large, I need to explain that the
Service, the California Department of Fish and Game, University of
California, Merced and Merced County jointly signed a Planning
Agreement in preparation of a Natural Community Conservation Plan/
Habitat Conservation Plan (NCCP/HCP) in eastern Merced County. This
agreement stressed close cooperation among the principal agencies in
the preparation of this plan, and also stressed the importance of
public outreach and involvement of private landowners.
Merced County, as the lead agency in the preparation of this NCCP/
HCP plan, commenced a series of stakeholder meetings engaging various
landowners, agricultural interests, business interests, and
environmental interests in the beginning stages of the preparation of
this plan. Not only did the U.S. Fish and Wildlife Service fail to
actively participate in the stakeholder meetings on a regular basis, it
also failed to use this process to inform the public about the proposed
critical habitat designation.
As a result of the Service's disregard for adequate public
outreach, many landowners in eastern Merced County, who had been
sensitized to the issues surrounding the Endangered Species Act, were
stunned by the proposed designation because it had never been mentioned
in previous stakeholder meetings. They felt the Service was trying to
set the habitat designation by flying in under a radar screen, hoping
that no one would notice.
Despite numerous requests on our part, the Service did not hold a
public hearing in our area. Our Board of Supervisors persisted and
finally committed staff representatives from the U.S. Fish and Wildlife
Service to make an informal presentation on the proposed habitat in
Merced County. While the presentation was helpful, it was not an
official public hearing and the information presented stirred up more
questions than answers. The maps presented were outdated and did not
provide enough details for property owners to be able to determine if
their land was included or excluded in the proposed habitat.
It soon became apparent that the main reason the Service proposed
the critical habitat designation was in response to a lawsuit. The
Service's self-imposed ``time constraints'' included a two-month
comment period, hardly enough time for landowners to attend a public
hearing, gather materials and then provide thoughtful feedback
concerning the impact of the proposed designation. I still firmly
believe that proposals of this nature are too important to be rushed at
the expense of adequate public participation.
It also became apparent that the proposed designation was poorly
designed. The proposed acreage in Merced County was not scientifically
or thoughtfully selected, as the proposed land included already
developed shopping areas, parking lots and even the Castle Airport
Aviation and Development Center. After reviewing the economic analysis,
it was evident that the proposed habitat would escalate our economic
problems. The main industry of our County is agriculture and our County
has a consistently high unemployment rate between 16-18%. The proposed
designation would have taken valuable acreage out of agricultural
production and also forced many of our farmers and their workers into
unemployment, further devastating our local economy. The community
recognized that the critical habitat would devalue their land and
increase regulation on land use because individuals would lose their
own property rights and local governments would lose control over local
growth and planning.
Granted, Merced County is a rural community, but the residents
rallied together to ensure that everyone was informed about the
proposed critical habitat. As the Service did not make any attempts to
inform landowners who would be affected by the designation, local
residents took it upon themselves to quickly raise awareness. When the
Board of Supervisors finally succeeded in scheduling a presentation by
Service representatives, it was local residents who compiled a list of
all affected property owners in the County and paid for the mailing of
information to hundreds of individuals. They shouldered the burden of
this expense knowing that someone needed to fill the void that the
Service left empty. They also believed that the expense would be
worthwhile in comparison to the potential cost if the proposed habitat
had been adopted.
While the County of Merced was excluded from the final ruling for
this particular proposed critical habitat designation, we have not had
time to rest, as the California Tiger Salamander is now under
consideration to be listed as threatened. If it does become listed, we
anticipate finding ourselves along a similar path once again.
Based on my personal experience, I would like to reiterate two key
issues that I have with the current processes for critical habitat
designation. Landowners must be notified and given ample access to
information as well as ample time to provide feedback. The U.S. Fish
and Wildlife Service should consult local County agencies in order to
obtain local resource information that is detailed and accurate. The
Service must sincerely make efforts to communicate with landowners and
I support providing a user-friendly website mechanism to help
landowners determine if they are affected by a proposed designation.
Secondly, the economic analysis must include consideration of lost
revenues to the landowners as well as the federal, state and local
governments so that the designation does not protect the species at the
expense of the people.
Chairman Pombo, Ranking Member Rahall, and Members of the
Committee, I appreciate the opportunity to share my personal story with
you and am optimistic that this Committee will find a positive solution
on this issue. I also want to openly express my appreciation to
Congressman Cardoza for his steadfastness in championing this issue. He
has been a strong support and guide for our local County Board. Thank
you for allowing me to speak before you today. 621
______
[Ms. Crookham's response to questions submitted for the
record follows:]
Response to questions submitted for the record by Kathleen M. Crookham,
District 2 County Supervisor, Merced County Board of Supervisors,
Merced, California
Questions from Chairman Richard Pombo
1) We have heard that federal agencies could do a better job when
it comes to informing communities of critical habitat designations.
Communities deserve to be partners in this process. There are also
instances where it is unclear how the federal agency determined
critical habitat.
Example: The Final Rule for Santa Ana sucker critical habitat is
based on two ``personal communications'' between with biologists and
that nearby communities were not informed of these communications.
Will the bill improve cooperation and coordination with
local governments?
I am optimistic that H.R. 2933 will improve cooperation and
coordination with local governments because the Service would need to
consider information such as local resource data and maps from local
governments in the vicinity of the area. In my experience in Merced
County, the proposed critical habitat included land that was already
developed into shopping areas, parking lots and even the Castle Airport
Aviation and Development Center. Had the Service gathered basic data
about our communities, they would have instantly seen the errors in
their mapping techniques. Requiring the Service to consult local
governments will result in more thoughtful and accurate designations,
rather than hastily drawn habitats.
Local officials and governments possess a wealth of information
about their communities. Consulting local governments will increase
communication with the local officials. We want to be a partner in the
process and collaborate with the Service. Involving local governments
can also help to minimize the distrust felt by local landowners.
Landowners must be notified and given ample access to information as
well as ample time to provide feedback. I also support providing a
user-friendly website mechanism to help landowners determine if they
are affected by a proposed designation.
______
The Chairman. Thank you.
Mr. Kelley?
STATEMENT OF PAUL L. KELLEY, DISTRICT 4 COUNTY SUPERVISOR,
SONOMA COUNTY BOARD OF SUPERVISORS, SONOMA, CALIFORNIA
Mr. Kelley. Thank you, Mr. Chairman and thank you to the
Committee for allowing me the opportunity to come before you
and testify in favor of Congressman Cardoza's bill, H.R. 2933.
My name is Paul Kelley. I am a County Supervisor in Sonoma
County where I was elected nine-and-a-half years ago and have
had the honor to serve my constituents and friends in a premium
wine grape-growing region of California. I am here before you
today to discuss the challenges that the residents of Sonoma
County have faced subsequent to the listing of the California
tiger salamander and also to speak in favor of Congressman
Cardoza's bill.
On July 22, 2002, the Sonoma County distinct population of
the California tiger salamander was listed as endangered on an
emergency basis. The final rule was later published and our
inability to find a balanced solution to this listing is
particularly disappointing to the residents of Sonoma County,
where we have been willing and very willingly shouldered all
the responsibilities in the past to protect our environment,
regardless of the mandate recognizing it is the right thing to
do.
Sonoma County is the home of 450,000 people. In addition to
that, we are the home of other endangered species, specifically
steelhead, coho and chinook salmon, and local governments,
including the county, have had a long history of reviewing
policies and procedures to ensure their protection.
Our communities have diligently worked hard to protect our
environment. We even have a local sales tax initiative that was
passed that provides the opportunity to protect different lands
and land conservation programs that brings in over $13 million
a year.
As a result of our historical success at preserving the
environment, our community felt confident that we could address
the challenge of the salamander. Although paralysis in terms of
construction and project approvals, infrastructure maintenance
and construction has been incredibly costly and potentially
millions of dollars, we do feel confident that we have begun a
process that will meet with success.
Through the efforts of Wayne White of the Sacramento office
of the Fish and Wildlife Service, we have embarked upon a
conservation strategy for the CTS in Sonoma County. He has
offered us an opportunity to work together so that the economic
impact to the community is minimized and the opportunity to
protect, recover and conserve the salamander is maximized. If
we are successful we hope that this can be duplicated
elsewhere.
This strategy team has two tasks over the next 60 days--
first, to identify lands that need to be set aside for
conservation, and second, to craft solutions that are
economically palatable to our community. The members of the
strategy team include representatives from appropriate
regulatory agencies, local governments, private landowners, and
the environmental community.
The Endangered Species Act should be about a conservation
strategy and recovery. This bill is the right step to recovery.
We in local governments and communities need the tools or the
path for recovery.
Beyond the first 60 days of formulating strategy,
improvements will be made to certain parts of the landscape.
This will undoubtedly include the creation of perpetual
conservation easements on both public and private properties.
If the team is not successful, we are very concerned that the
Service does not have the resources or the personnel that would
allow them to respond in a timely manner to requests for
assistance and permits from public and private stakeholders.
This could be a moratorium on construction, both public and
private, including infrastructure critical to all of our
constituents.
In summary, my testimony today is meant to emphasize the
many components of our local team's efforts that support the
congressman's legislation. They include critical habitat
designation would be made concurrent with the recovery plan, by
developing a conservation plan first, as is currently under way
in Sonoma County, and we hope that the designation of critical
habitat will more accurately reflect what is actually needed to
recover the species.
Properties that are already part of a conservation plan
would be excluded from critical habitat designation. In Sonoma
County we are looking at properties that now support or could
sustain the salamander that are already subject to conservation
measures.
At the time the critical habitat is designated, economic
impacts of the designation would have already been considered.
And finally, the proposed legislation's word change from
``essential to the conservation of the species'' to ``essential
to the conservation of the species as areas which are
absolutely necessary and indispensable to conservation'' would
undoubtedly support efforts at crafting a workable conservation
plan.
In conclusion, we need the tools to recovery of species
that are listed and Congressman Cardoza's bill will, in the
long run, offer a better protection for threatened and
endangered species, it will go a long way in ensuring recovery
of the listed species and will strike a balance that also
addresses the needs of the people that we all serve.
I appreciate and thank you for the opportunity to speak and
testify before you and look forward to any questions at the
end.
[The prepared statement of Mr. Kelley follows:]
Statement of Paul L. Kelley, 4th District Supervisor,
Sonoma County, California
I would like to begin by thanking Congressman Richard Pombo for
allowing me to testify on Congressman Dennis Cardoza's bill, H.R. 2933,
that would amend the Endangered Species Act relative to the designation
of Critical Habitat. My name is Paul Kelley, and I represent the 4th
Supervisorial District of Sonoma County. I was born and raised in the
district that I now represent. I attended local public schools and
received my B.S. in Computer Science from San Francisco State
University. Experiences from my youth forward have made me intimately
familiar with the concerns of the people that I now represent. I've
worked in the beautiful vineyards of Alexander Valley, in one of our
largest manufacturing plants in the County, for a small computer
company and, eventually, in the classroom where I taught Math and
History.
In 1994, I was elected as Sonoma County's Fourth District
Supervisor. I have served in that capacity since that time. I feel
honored to serve the people who are my friends and neighbors.
Representing the people that I have known my entire life makes my
testimony of special personal significance. I am before you today to
discuss the challenges that the residents of Sonoma County faced
subsequent to the listing of the California Tiger Salamander.
On July 22, 2002, the Sonoma County Distinct Population of the
California Tiger Salamander was listed as endangered species on an
emergency basis. The final rule listing of the Sonoma County Distinct
Population Segment as endangered was published in the Federal Register
on March 19, 2003. Our inability, in the last year, to find a balanced
solution to this listing was particularly disappointing to the
residents of Sonoma County: people who have willingly shouldered
responsibility to protect their environment, not because it was
mandated, but because it is the right thing to do. To understand their
dismay, it is important to understand the community.
Sonoma County is a wonderfully balanced mix of urban and rural
development. We are home to 450,000 people and, for those of you not
fortunate enough to be familiar with our locale, about 40 miles north
of the Golden Gate Bridge. We live in an area that is varied in
scenery: giant redwoods, ocean beaches, rolling hills and, of course,
the beautiful wine country. In addition to our human population, Sonoma
County is also home to a number of endangered and threatened species
such as the Central Coast Steelhead, the Central Coast Coho Salmon and
the California Coastal Chinook Salmon. Local governments have a long
history of reviewing policies and procedures to ensure protection of
all threatened and endangered species. As just one example: The Sonoma
County Water Agency, at the direction of the Board of Supervisors, has
spent millions of dollars in an effort to protect and restore fish
habitat.
Our communities have diligently worked to protect their
environment. All of the cities within the range of the Tiger Salamander
have passed Urban Growth Boundaries. Community Separators are in place
between the communities for maintenance of open space and community
identity. Additionally, in 1990, the taxpayers of Sonoma County voted
to tax themselves a 1/4 percent sales tax for a 20-year period. These
monies fund the Sonoma County Agricultural Preservation and Open Space
District. The sales tax provides an annual allocation of approximately
$13 million to the District's land conservation program. This District
is one of the top ten farmland and open space preservation programs in
the Nation. It is one of the few jurisdictions in the Nation to use a
sales tax for the purchase of conservation easements to protect
agricultural lands and preserve open space. Thousands of acres of lands
paid for by Sonoma County taxpayers have been set aside.
As a result of our historical success at preserving the
environment, our community felt confident that we could address the
challenge of the salamander. Although paralysis in terms of
construction and project approvals has been incredibly costly--
potentially millions of dollars--we feel confident that we have begun a
process that will lead to ultimate delisting of the salamander and
certainty for those most economically impacted.
Through the efforts of Wayne White, Field Supervisor for the
Sacramento Office of the Fish & Wildlife Service, we have embarked upon
a conservation strategy for the California Tiger Salamander in Sonoma
County. He has offered us an opportunity to work together so that the
economic impact to the community is minimized and the opportunity to
protect the salamander is maximized. This strategy has the backing of
public and private entities alike. If we are successful, this process
could, and should, be duplicated in other areas of the country.
This strategy team has two tasks over the next 90 days: first, to
identify lands that need to be set aside for conservation; and second,
to craft solutions that are economically palatable to our community.
The members of the strategy team include representatives from:
1) United States Fish & Wildlife Service;
2) Environmental Protection Agency;
3) California Department of Fish & Game;
4) Regional Water Quality Control Board;
5) Army Corps of Engineers;
6) City of Santa Rosa, Rohnert Park and the County of Sonoma (1
person);
7) Environmental Community (1 person);
8) Private Property; (1 person);
9) NGO Representative; and, finally a
10) Facilitator.
Beyond the first ninety (90) days, improvements will be made to
certain parts of the landscape. This will undoubtedly include the
creation of perpetual conservation easements on both public and private
properties. Additionally, we are exploring ways in which we can
eliminate the expenditure of millions of dollars now spent on surveys
that indicate the presence or absence of salamanders, and on
Environmental Impact Reports that merely delineate the need for
mitigation. Monies spent on these studies can be better used for
conservation and ultimate delisting of the species.
If the team is not successful, we are concerned that the Service
does not have the resources or personnel that would allow them to
respond, in a timely manner, to requests for assistance and permits
from public and private stakeholders conducting activities in the
salamander habitat area. In practical terms, this could mean a
moratorium on construction, both public and private, on the Santa Rosa
Plain. Our greatest fear is that anything short of success will result
in the designation of Critical Habitat for the salamander. This
recently occurred in Santa Barbara County, and the proposal was for
13,920 acres.
In summary, my testimony today is meant to emphasize the many
components of this team's efforts that support Congressman Cardoza's
legislation. They include:
Critical Habitat designation would be made concurrent
with a recovery plan. By developing a plan first, as is currently
underway in Sonoma County, we hope that thoughtful preparation of the
plan will allow the time, and will incorporate the expertise necessary,
to ensure that the Critical Habitat which is designated meets the
stringent requirements in the Endangered Species Act's existing
definition of Critical Habitat and as it may be amended by this
legislation.
Properties that are already a part of a ``conservation
plan'' or under protection by other state or federal conservation
programs would be excluded from Critical Habitat designation. In Sonoma
County we are looking at properties that now support, or could sustain
or currently support, the salamander, and that are already subject to
conservation measures by local agencies. This would allow land to be
used for multiple purposes, including, preservation of open space,
wetlands restoration, plant conservation as well as habitat for the
endangered salamander.
At the time that Critical Habitat is designated, economic
impacts of the designation would have already been considered. This
approach is key if we want to ensure long-term continuation of the Act
itself. We have yet to evaluate how economically devastating a Critical
Habitat designation would be in Sonoma County. Given our current
process, we hope to avoid the challenges that the people of Santa
Barbara County now face.
Affected jurisdictions, with few resources available to
deal with the listing would receive additional notification of critical
habitat proposals. The information would have to be shared--precluding
the employment of firms to aid in gathering information pertinent to
the listing. This would give local jurisdictions access to information
that would allow them to make decisions that would best serve their
communities' needs.
Finally, the legislation's proposed word change from
``essential to the conservation of the species'' to ``essential to the
conservation of the species as areas which are absolutely necessary and
indispensable to conservation,'' would undoubtedly support our efforts
at crafting a ``workable'' conservation plan. Any conservation
requirements should be delineated in detail, clearly stating what is
needed in terms of acreage, and the life patterns of the species that
support that determination; and ``the best available'' science that is
consistently applied.
Congressman Cardoza's bill will, in the long run, offer better
protection for threatened and endangered species. It will go a long way
in ensuring recovery of all listed species, and will strike a balance
that also addresses the needs of the people we all serve.
Again, thank you for allowing me to testify before your committee.
______
[Mr. Kelley's response to questions submitted for the
record follows:]
Response to questions submitted for the record by Paul L. Kelley,
4th District Supervisor, Sonoma County, California
(1) Supervisor Kelley, we have heard that federal agencies could do
a better job when it comes to informing communities of critical habitat
designations. Communities deserve to be partners in this process. There
are also instances where it is unclear how the federal agency
determined critical habitat.
Example: The Final Rule for Santa Ana sucker critical habitat is
based on two ``personal communications'' between with biologists and
that nearby communities were not informed of these communications.
Will the bill improve cooperation and coordination with
local governments?
Response: Communications between all government agencies, and in
this case the USFWS and local jurisdictions, should be of the highest
priority. Open lines of communication would allow for elected officials
as well as regulators to share knowledge and make better and informed
decisions.
Frequently, people we represent in our communities have been
ignored in the process. Requiring the USFWS to notify every impacted
jurisdiction is of utmost importance. Affected jurisdictions with few
resources available to deal with listings would be helped if they were
to receive additional notification of proposals. Sharing of information
would help reduce concerns involving the expenditure of human and
financial resources.
Few federal agencies have an understanding of the needs of a
particular area. Locally-elected officials, however, have a very good
idea of what these needs are. By working together, we can create
solutions that would allow for recovery of the species--often through
voluntary action--thus promoting co-existence between human populations
and the protected species.
The present communication process largely ignores public input. Few
people have the time or energy to read the Federal Register on a daily
basis. Even fewer people have a concept of the impact a listing may
have on their lives. The time has come for individuals to be given the
opportunity to participate in these decisions. If, indeed, it is
appropriate that a species be offered federal protection, then a system
of communication and cooperation should be devised that allows for
maximum opportunity for species recovery with minimal economic impact
to the human population.
Thank you for allowing me to give additional testimony.
______
The Chairman. Thank you.
Mr. Walters?
STATEMENT OF DONALD B. WALTERS, JR., PRESIDENT, PRIMARY SYSTEMS
SERVICES GROUP, LLC., TESTIFYING ON BEHALF OF NATIONAL
ASSOCIATION OF HOMEBUILDERS
Mr. Walters. Chairman Pombo, members of the House Resources
Committee, I am pleased to share with you today the views of
the 215,000 members of the National Association of Homebuilders
on H.R. 2933, the Critical Habitat Reform Act of 2003
introduced by Congressman Dennis Cardoza. I thank you for the
opportunity to appear before you today.
My name is Donald B. Walters, Jr., and I am a homebuilder
and developer from Flagstaff, Arizona. As founder and President
of Primary Systems Services Group, I oversee a full-service
general contracting corporation involved in homebuilding,
development and commercial construction.
My family has lived in Arizona's Verde Valley since the
1860s and my company and I have a deep appreciation and respect
for the land on which we live and build.
As a result of the failure to either (A) designate critical
habitat or (B) properly conduct the analysis required under the
ESA, critical habitat designations have become increasingly
driven by litigation and inaccurate or incomplete science and
data. The problems and difficulties experienced by private
landowners with respect to critical habitat are well documented
and numerous. In seeking a legislative solution to the current
crisis regarding critical habitat, H.R. 2933 proposes several
important reforms to the process by which the Service
designates critical habitat.
NAHB supports the majority of the reforms H.R. 2933
proposes. However, we do reserve concerns over provisions in
the bill linking critical habitat designations to the recovery
planning process. The following comments to the Committee
address, in turn, four broad provisions of H.R. 2933. Section 2
of the bill proposes to link the designation of critical
habitat to the approval of a recovery plan. Although well
intentioned, NAHB believes that this may unintentionally create
a new litigation threat and place a higher regulatory burden on
the regulated community.
First, NAHB is concerned that by linking critical habitat
designation to recovery planning, the inherently discretionary
nature of the recovery planning process will be supplanted by
the mandatory nature of critical habitat designations.
Second, recovery plans are guidance documents that do not
have the force and effect of law. If critical habitat, the
designation of which does have regulatory impact, is morphed as
part of the recovery planning, the unintended consequence would
be likely that the elements of the recovery plan would be
transposed as having a binding legal effect on private parties.
Finally, if critical habitat were tied to a recovery plan,
NAHB is concerned that the boundaries of critical habitat,
traditionally interpreted as a smaller area than that which may
lead to a species recovery, would likely coincide with the
larger area of recovery habitat.
Mr. Chairman, NAHB stands ready to work with bill sponsors
and the Committee to address these concerns with H.R. 2933.
Next, H.R. 2933 would exempt habitat conservation plans,
HCPs, and other management plans from critical habitat
designations. NAHB supports the exclusion of HCPs and other
species management plans from critical habitat designations and
therefore supports these provisions of H.R. 2933. NAHB believes
that nationwide, private landowners represent a vital component
to species conservation and preservation actions.
While the Fish and Wildlife Service has exempted approved
HCPs from critical habitat designations, these exemptions are
more a matter of administrative policy and interpretation and
therefore subject to change. Accordingly, NAHB supports the
provisions of H.R. 2933 that would codify these important
practices.
Section 3 of the bill would require the consideration of
direct, indirect and cumulative economic impacts on designating
critical habitat. For years NAHB has questioned and challenged
the assumption by the Fish and Wildlife Service that all costs
are borne at the time of a species's listing and as a result,
there are only incremental economic impacts attributed to the
designation of critical habitat. The economic analyses
conducted for critical habitat routinely and significantly
underestimate the true costs imposed by the designation. As
such, NAHB supports provisions of H.R. 2933 that at long last
would provide this important direction to the Service.
Mr. Chairman, Section 5 of the bill would establish
statutory definitions for key terms relating to critical
habitat under the ESA and NAHB also supports these provisions
as they would restate and reemphasize the definitions of
geographical area occupied by the species and essential to the
conservation of the species. These are two terms that have been
traditionally misread and misinterpreted and NAHB supports
provisions in H.R. 2933 that seek to correct these past
failures.
Mr. Chairman, in closing I would like to express NAHB's
appreciation for your long-standing leadership on the issues
surrounding ESA reform and for holding this important hearing
today.
On behalf of NAHB, I would also like to thank Congressman
Dennis Cardoza for his leadership in introducing H.R. 2933.
Chairman Pombo and members of the Committee, I thank you
for your consideration of NAHB's views on this matter and hope
that endangered species conservation in this country becomes
less about litigation and gridlock and more about commonsense
conservation policies and programs. With the notable exception
of linking critical habitat and recovery planning, NAHB
believes that H.R. 2933 makes great strides in this direction.
Thank you.
[The prepared statement of Mr. Walters follows:]
Statement of Donald B. Walters, Jr., President, Primary Systems
Services Group LLC., President, Northern Arizona Building Association,
on behalf of the National Association of Home Builders
Chairman Pombo, Ranking Member Rahall, and members of the House
Resources Committee, I am pleased to share with you today the views of
the National Association of Home Builders (NAHB) on H.R. 2933, ``the
Critical Habitat Reform Act of 2003'', introduced by Congressman Dennis
Cardoza (D-CA), and on the process of critical habitat designation
under the Endangered Species Act (ESA). I appreciate the opportunity to
appear before the committee today to share the building industry's
views on this important legislation.
My name is Donald B. Walters, Jr., and I am a homebuilder and
developer from Flagstaff, Arizona, and the current President of the
Northern Arizona Building Association. As founder and President of
Primary Systems Services Group, I oversee a full service general
contracting corporation involved in home building, development, and
commercial construction. My family has lived in Arizona's Verde Valley
since the 1860s, and my company and I have a deep appreciation and
respect for the land in which we live and build. This appreciation and
philosophy guide my company and the work that we do.
Mr. Chairman, NAHB represents over 215,000 member firms involved in
home building, remodeling, multifamily construction, property
management, housing finance, building product manufacturing and other
aspects of residential and light commercial construction. Our members
are committed to environmental protection and species conservation,
however, oftentimes well-intentioned policies and actions by regulatory
agencies result in plans and programs that fail to strike a proper
balance between conservation goals and needed economic growth. In these
instances, our members are faced with significantly increased costs
attributed to project mitigation, delay, modification, or even
termination.
NAHB's members are citizens of the communities in which they build.
They seek to support the economy while providing shelter and jobs;
partner to preserve important historical, cultural and natural
resources; and protect the environment, all while creating and
developing our nation's communities. As such, NAHB supports the
Services efforts to protect and conserve species that are truly in need
of protection. NAHB believes, however, that a vital component of any
conservation effort is to ensure the proper balance of each species'
needs with the needs of the states and communities in which it is
located.
Because the ESA requires the Services to consider this balance,
NAHB supports the designation of critical habitat when it is completed
within the confines of the ESA. Unfortunately, as a result of the
failure to either: a) designate critical habitat or b) properly conduct
the analyses required under the ESA, critical habitat designations have
become increasingly driven by litigation and inaccurate or incomplete
science and data.
The problems and difficulties experienced by private landowners
with respect to critical habitat are well documented and numerous. The
General Accounting Office (GAO) has repeatedly visited the critical
habitat issue, and has twice raised concerns with the U.S. Fish and
Wildlife Service for its failure to issue guidance on critical habitat
designations (U.S. General Accounting Office. Fish and Wildlife Service
uses best available science to make listing decisions, but additional
guidance needed for critical habitat designations. GAO-03-803.
Washington, D.C., August 29, 2003.) Although FWS has repeatedly
examined the issue, and has at times solicited comments on the critical
habitat designation process, there has been no definitive guidance on
critical habitat in recent years. Without such guidance the building
industry has been faced with uncertainty and delay in moving forward
with many projects.
In seeking a legislative solution to the current crisis regarding
critical habitat, H.R. 2933 proposes several important reforms to the
process by which the Services designate critical habitat under the ESA.
NAHB supports the majority of reforms H.R. 2933 proposes. However, we
do reserve concerns over provisions in the bill linking critical
habitat designations to the recovery planning process.
The following comments to the committee address, in turn, four
sections of H.R. 2933, including the aforementioned concurrent
designation of critical habitat with the approval of a recovery plan;
the exemption of Habitat Conservation Plans (HCPs) and other management
plans from critical habitat designations; the mandated consideration of
direct, indirect, and cumulative economic impacts when designating
critical habitat; and the establishment of statutory definitions for
two key terms relating to critical habitat under the ESA.
I. Concurrent Designation of Critical Habitat with the Approval of a
Recovery Plan
H.R. 2933 proposes to link the designation of critical habitat to
the approval of a recovery plan. Some advocates of this position
believe that, if critical habitat is pushed back to the recovery
planning stage, the Services will have more time to compile the
scientific and economic data they need to make fully informed and fair
designations. Although well intentioned, NAHB does not believe that
this will solve the current litigation crisis that ensnarls the
designation of critical habitat, and may unintentionally create a new
litigation threat for the Services while placing a higher regulatory
burden on the regulated community.
First, NAHB is concerned that by linking critical habitat
designation to recovery planning, the inherently discretionary nature
of the recovery planning process could be supplanted by the mandatory
nature of critical habitat designation. The Services could effectively
be exposed to greater legal liability, and possibly faced with a new
breed of lawsuits focusing on compelling the issuance of recovery
plans. As the ESA does not currently mandate any set timelines for the
completion of a recovery plan, it would be up to the eventual judge to
set one. The litigation cycle that currently entraps the ESA would only
shift from compelling the issuance of critical habitat under set
timelines to the completion of recovery plans under set timelines.
A second concern with coupling the recovery planning process with
critical habitat designation is a blurring of the important
distinctions between the guidance of recovery plans and the regulations
of critical habitat. Indeed, while U.S. Fish and Wildlife Service staff
have relied upon recovery plans as the basis for their regulatory
actions in some cases, numerous courts have determined that recovery
plans are non-binding guidance--documents that impose requirements on
federal agencies only. See, e.g., Fund for Animals v. Rice, 85 F.3d 535
(11th Cir. 1996); Oregon Natural Resources Council v. Turner, 863
F.Supp. 1277 (D Or. 1994); Defenders of Wildlife v. Lujan, 792 F.Supp.
834 (D.D.C. 1992); National Wildlife. Fed'n v. National Park Serv., 669
F.Supp. 384 (D. Wyo. 1987)
By way of example, Fish and Wildlife field staff in Arizona have
used recommendations from working drafts of the recovery plan for the
Cactus Ferruginous Pygmy-Owl as justification for density requirements
in proposed critical habitat areas. See, e.g., Biological Opinion on
the Effects of the Countryside Vista (Blocks 5 and 6) Development in
Marana, Arizona (July 11, 2000). Accordingly, the potential for further
abuse of regulatory authority is of significant concern to NAHB.
The third and final concern with tying critical habitat
designations to the recovery planning stage is that such a change may
raise the standard for the designation and sweep broader areas into the
regulatory net than Congress intended. While economic and other ``real
world'' considerations are mandated under the critical habitat
designation process, there are no such requirements for the drafting of
recovery plans. Further, the ESA currently defines critical habitat as
``specific'' areas that are found to be ``essential'' for conservation.
This has traditionally been interpreted as a smaller area than that
which may lead to a species' ``recovery.'' Quite simply, if critical
habitat were tied to a recovery plan, the boundaries of critical
habitat would likely coincide with the larger area of ``recovery
habitat.''
Mr. Chairman, NAHB stands ready to work with bill sponsors and the
committee to address these concerns with H.R. 2933 in an effort to
ensure that the potential for future problems with critical habitat
designations are lessened not expanded.
II. Exemption of Habitat Conservation Plans (HCPs) and Other Management
Plans From Critical Habitat Designations
NAHB supports the exclusion of HCPs and other species management
and conservation plans from critical habitat designations and believes
that, in doing so, the Services provide powerful incentives to private
landowners to continue entering into such agreements. Accordingly, NAHB
supports provisions of H.R. 2933 that automatically exempt HCPs and
other management plans from critical habitat designations.
Nationwide, private landowners represent a vital component to
ensuring species conservation and preservation. True progress in
species conservation and recovery can only be accomplished with the
active and creative cooperation of this integral constituency. One way
to gain their support is through the creation and implementation of
incentive-based policies and programs such as HCPs, Safe Harbor
Agreements, Conservation Banking, and the No Surprises Rule. These
programs, however, can only be effective if they provide certainty and
predictability to the landowners who choose to participate.
Under the ESA, the Services are obligated to consider whether
``special management considerations'' in the form of critical habitat
are warranted for these specific areas. To demonstrate compliance with
this mandate and determine whether any such additional management
considerations are needed, NAHB believes that the Services are
obligated to consider and review all private, local, state, regional,
and federal protections, including all applicable management plans and
conservation agreements to assess the conservation benefits they
provide. If a specific area is already managed for the conservation of
a particular species, that area is clearly not in need of additional
protections or management considerations, and therefore fails to meet
the very definition of critical habitat and must be excluded from the
designation.
Unfortunately, recent litigation surrounding the Mexican Spotted
Owl has challenged this logical progression (See Center for Biological
Diversity v. Norton, Civ. No. 01-409 TUC DCB), and threatens to
undercut the attractiveness and usefulness of the full range of
conservation tools and management options available to land managers,
private landowners, and developers, resulting in a far-more onerous and
far-less effective ESA.
Ultimately, in areas covered by HCPs, Safe Harbor Agreements, and
other management plans and conservation programs, the designation of
critical habitat only serves to add another layer of review and
bureaucracy while failing to afford any additional protections for
listed species. It also serves as a disincentive in those instances
where voluntary measures are underway. Needless red tape is not a
substitute for commonsense conservation policy, and may even result in
detrimental impacts to threatened and endangered species.
Accordingly, NAHB appreciates the Services recognition of landowner
contributions in this regard, and notes as a matter of reference that
the Fish and Wildlife Service for one has exempted approved HCPs from
critical habitat designations (FWS has exempted HCPs from several
recent critical habitat designations including; the La Graciosa thistle
on March 17, 2004 (69 FR 12560) and the Santa Anna Sucker February 26,
2004 (69 FR 8847). In conjunction with Sec. 4(b)(2) of the Act, the
Fish and Wildlife Service has cited this very logic in its exclusion of
HCPs and other properly managed lands in, amongst others, the proposed
designation of critical habitat in Arizona for the Cactus Ferruginous
Pygmy-Owl. In that proposal, the Service even went so far as to
``encourage landowners to develop and submit management plans and
actions that are consistent with pygmy-owl conservation that [the Fish
and Wildlife Service] can evaluate and that may remove the necessity of
critical habitat regulation.'' (67 FR 71042)
As these exemptions are more a matter of Administration policy and
interpretation, and therefore subject to change, NAHB supports the
provisions of H.R. 2933 that will codify these practices.
III. Consideration of Direct, Indirect, and Cumulative Economic Impacts
when Designating Critical Habitat
For years, NAHB has questioned and challenged the assumption by the
Services that all costs are borne at the time of species listing and as
a result there is only an incremental economic impact attributed to the
designation of critical habitat. Indeed, the 10th Circuit Court has
itself rejected this so-called baseline approach, reemphasizing ``the
congressional directive that economic impacts be considered at the time
of critical habitat designation'' (New Mexico Cattle Growers Assn. v.
U.S. Fish and Wildlife Service, 248 F.3d 1277 (10th Cir. 2001)).
The Services should base their decision on whether to exclude areas
under Sec. 4(b)(2) of the ESA on economic analyses that are sound and
complete, fully addressing the direct, indirect, and cumulative impacts
of critical habitat designation. As such, NAHB supports provisions of
H.R. 2933 that would provide this direction to the Services.
By merely examining the administrative costs of Section 7
consultations and the costs associated with project modifications as a
result of those consultations, economic analyses conducted for critical
habitat routinely and significantly underestimate the true costs
imposed by the designation.
As pointed out in a report entitled, ``The Economic Costs of
Critical Habitat Designation: Framework and Application to the Case of
California Vernal Pools Report'' prepared for California Resource
Management Institute by D. Sunding, the Fish and Wildlife Service's
attempt at quantifying the impact of critical habitat for four vernal
pool species of crustaceans and eleven vernal pool species of plants in
California and Southern Oregon underestimated true costs by 7 to 14
times.
By way of further example, the Fish and Wildlife Service's study
for the economic impact of critical habitat for the Cactus Ferruginous
Pygmy-Owl in my state of Arizona was not so much a study of the
economic impact of the proposed designation, but a study of the costs
of designation on certain concerned industries. No attention was paid
to any effect on the local economy, local governments, or tribes; and
regional economic impacts, tax revenues, secondary impacts, and
increased housing prices were all excluded because they were assumed to
be minimal.
It is obvious that the Services have repeatedly failed to
accurately and fully account for the economic impact of critical
habitat designations. NAHB believes that H.R. 2933 recognizes and
reaffirms the statutory requirement of the Services under Sec. 4(b)(2)
of the ESA to examine the economic impacts of critical habitat and to
exclude any specific geographical area from a designation if the
benefits of exclusion outweigh the benefits of inclusion, and supports
these provisions.
IV. Establishment of Statutory Definitions for Key Terms Relating to
Critical Habitat under the ESA
Although critical habitat is clearly defined in Sec. 3(5)(a) of the
ESA, NAHB believes the Services have traditionally misread and
misinterpreted the Act's requirements. Accordingly, NAHB supports
provisions of H.R. 2933 that restate and reemphasize the definitions of
``geographical area occupied by the species'' and ``essential to the
conservation of the species,'' two key, interrelated terms relating to
the critical habitat process.
The ESA dictates two distinct classes of habitat that may be
designated as critical habitat: (1) those areas ``within the geographic
area occupied by the species'' and, (2) those areas ``outside the
geographic area occupied by the species.'' Congress intended that, as a
benchmark, critical habitat could encompass areas ``occupied'' by the
species. Under Sec. 3(5)(A) of the ESA, ``unoccupied'' areas may also
be designated--but only where the Secretary specifically determines
that the unoccupied area is ``essential to conservation.''
NAHB believes that the Services have only limited and exceptional
authority to designate ``unoccupied'' areas as critical habitat. The
current implementing regulations also evince a clear priority for
designating occupied areas as critical habitat in the first instance.
The Services' regulations state that areas outside of a species'
occupied habitat may be included in the critical habitat designation
but ``only when a designation limited to its present range would be
inadequate to ensure the conservation of the species.'' 50 C.F.R.
Sec. 424.12(e).
Despite this directive, in practice the Services have often treated
unoccupied areas as occupied to avoid its obligation to make
affirmative findings that the unoccupied area is ``essential for
conservation.'' The absence of such an affirmative finding, however,
does not permit the Services to arbitrarily define which areas may or
may not be occupied simply on the basis of habitat characteristics, as
seen in the designation of critical habitat for the Alameda Whipsnake.
As ruled in that case, (HBA of No. Calif. v. U.S. Fish & Wildlife
Service (1:01-Cv-05722 E.D. Calif., May 9, 2003), an area cannot be
labeled as occupied simply because it is deemed essential to the
conservation of the species and contains necessary primary constituent
elements. As the courts have ruled, such is ``an insufficient basis to
designate land as occupied critical habitat'' and nullifies ``the
distinction between occupied and unoccupied land, a distinction
Congress expressly included in the ESA.'' Id. at 29.
Likewise, NAHB believes Congress' intent in crafting the ESA is
being incorrectly interpreted by the Services when 1.2 million acres
were proposed as being ``within the geographic area occupied'' by the
pygmy-owl, a species that, in 2002, numbered 18 individuals. (FR 67
71035). Experience has shown that it can oftentimes be very difficult
for the general public to determine whether or not they are in an area
labeled by the Services as ``occupied.'' Only after extensive
litigation did FWS provide NAHB with site-specific data on where pygmy-
owls were located across federal, state, and private lands.
In the end, it is clear that, although already defined in the ESA,
``geographical area occupied by the species'' and ``essential to the
conservation of the species'' are two terms that have traditionally
been misread and misinterpreted. NAHB supports the provisions in H.R.
2933 that seek to correct these past failures.
Conclusion
Mr. Chairman, in closing, I would like to express NAHB's
appreciation for your longstanding leadership on the issues surrounding
ESA reform, and for holding this important hearing today. On behalf on
NAHB, I would also like to thank Congressman Dennis Cardoza for his
leadership in introducing H.R. 2933.
Chairman Pombo, and members of the Committee, I thank you for your
consideration of NAHB's views on this matter, and hope that as a result
of the discussion on this and other ESA reform bills, endangered
species conservation in this country becomes less about litigation and
gridlock and more about common-sense conservation policies and
programs. With the notable exception of linking critical habitat and
recovery planning, NAHB believes that H.R. 2933 makes great strides in
this direction. NAHB strongly urges the Committee to fully consider
both the intentional and unintentional consequences of any ESA reform,
so that these hard-fought efforts may leave species conservation better
off in the end. I'd be happy to answer any questions you may have for
me.
______
[Mr. Walter's response to questions submitted for the
record follows:]
Response to questions submitted for the record by Donald B. Walters,
Jr., President, Primary Systems Services Group, LLC., on behalf of the
National Association of Home Builders
Questions from the Minority Members
Question: How can we recover species without protecting habitats,
including areas where species do not presently live but where they
would if populations recovered?
NAHB believes that in order to truly recover species listed as
threatened or endangered, there must be an effective and workable means
to protect and conserve habitat essential to the conservation of the
species. Unfortunately, critical habitat has become an ineffective, and
often times inappropriate means of protecting habitat.
Congress intended critical habitat to encompass limited geographic
scope. The ESA restricts critical habitat to those ``specific'' areas
that are found ``essential'' to species conservation--based on the best
available scientific data, and after considering the economic impacts
of the designation. However, the Services usually designate critical
habitat only as the result of litigation. Accordingly, the Services
fail to engage in the rigorous scientific and economic analyses
required by the Act--and paint with too broad a brush and improperly
include huge swaths of historic and potential habitat areas within the
``critical'' habitat designation. Importantly, this has led to
tremendous expense and difficulty for the regulated community, with
little or no benefit to listed species.
NAHB believes that statutory reform is needed to correct the Fish
and Wildlife Service's abuses in relying too heavily on their limited
and exceptional authority to designate ``unoccupied'' critical habitat
areas. Congress intended that, as a benchmark, critical habitat
encompass areas ``occupied'' by the species. Under the Act
``unoccupied'' areas may also be designated--but only where the
Secretary specifically finds that the unoccupied area is ``essential to
conservation.'' In practice, however, the Service often treats
unoccupied areas as occupied and avoids its obligation to make
affirmative findings that the unoccupied area is ``essential for
conservation.''
Importantly, critical habitat, at best, offers only limited
protections to species while imposing significant costs on landowners,
builders, and homebuyers. Section 7 consultations only apply when the
landowner needs a federal permit and only when the other federal
permitting agency agrees to enter into consultation with the Fish and
Wildlife Service. That means many stakeholders are not affected to the
same degree as builders by the designation of critical habitat since
they don't typically require federal permits for the majority of their
land operations--even though they can affect significant amounts of
designated habitat.
Furthermore, significant conservation efforts are often
accomplished by builders and others though other ESA mechanisms beyond
critical habitat. Builders typically use ITPs (incidental take permits)
under Sec. 10 of the Act that require development of detailed species
specific plans and the investment of significant dollars and creation
and or preservation of species habitat over extended periods of time.
Since 1996 there are over 33 million acres in Habitat Conservation Plan
(HCP) landmass equal to the size of the State of Louisiana. Included in
that number is habitat created and or restored equal to the states of
Connecticut and Rhode Island combined. Farmers have also done a
significant amount of habitat conservation actions through several U.S.
Department of Agriculture (USDA) conversation programs.
The current critical habitat process is not working, and reform is
long overdue. As outlined above, a truly effective means of protecting
habitat for listed species must involve incentives for private
landowners, and must provide private landowners with certainty. As
indicated in my written statement, private landowners represent a vital
component to ensuring species conservation and preservation. True
progress in species conservation and recovery can only be accomplished
with the active and creative cooperation of this integral constituency.
One way to gain their support is through the creation and
implementation of incentive-based policies and programs such as HCPs,
Safe Harbor Agreements, Conservation Banking, and the No Surprises
Rule. These programs, however, can only be effective if they provide
certainty and predictability to the landowners who choose to
participate.
NAHB supports the exclusion of HCPs and other species management
and conservation plans from critical habitat designations and believes
that, in doing so, the Services provide powerful incentives to private
landowners to continue entering into such agreements. Accordingly, NAHB
supports provisions of H.R. 2933 that automatically exempt HCPs and
other management plans from critical habitat designations.
NAHB supports the goals of the ESA in protecting endangered and
threatened species and their habitats, but these protection measures
must be based on reliable, accurate and solid biological and scientific
data. Our members are often prevented from developing their property or
must submit to extensive mitigation requirements based upon what are
often hypothetical and speculative impacts to species and their
habitats. NAHB looks forward to continuing to work with this Committee,
with Congress, and with the Services to ensure that Congress' intent
with respect to critical habitat is properly carried out, and that
truly effective means of protecting both species and habitat can be
realistically employed.
______
The Chairman. Thank you. I thank the entire panel for this
testimony.
For this panel I am going to change things around a little
bit. I am going to recognize Mr. Renzi first for his questions.
Mr. Renzi. Thank you, Mr. Chairman.
I want to thank Don Walters from Flagstaff, Arizona whose
family has been up in the Verde Valley since the 1860s and who
is a true corporate citizen and a great leader in our
community.
I wanted to talk a little bit about economic impact. We had
a situation where a rodeo fire killed biologists think between
12 and 14 breeding pair of spotted owls. We had a situation
where a pygmy owl was found to be nesting at the Tucson
International Airport underneath one of the eaves of the
building and there were those in our community who actually
felt that we should consider shutting down the airport and now
that we have this legislation from Mr. Cardoza that economic
impact will be factored in.
You talked about underestimates that have occurred in the
past and can you help me understand maybe some of the economic
impacts that if they had been done in the past, what they would
have revealed? Mr. Walters?
Mr. Walters. Well, I would like to answer it this way. The
Service should base their decision on economic analyses that
are sound and complete, fully addressing the direct and
indirect cumulative impacts of critical habitat designation. As
such, NAHB supports provisions of H.R. 2933 that would provide
this direction to the Service.
Did I answer your question?
Mr. Renzi. I appreciate it very much.
When we are looking at economic impact we have had
situations in the past where we had a high school that was
getting ready to go into Tucson, Arizona. We spent three or
four years fighting over the location. It drove up millions of
dollars as to where the location would finally be.
So here we were--state of Arizona, we were about 48th or
49th for public education in America, trying to build a new
high school. We have our students that are overcrowded in the
local high school and while we are ready to go on and finally
had the funding to build the new high school, we were not able
to do it for three or four years.
So some of those stories I want to cull out and get on the
record as far as economic impact not only being the costs
associated but to cost to our future generation, the cost in
the education to our children, as well as some of the other
absurdities that I have listed today.
I want to welcome you and thank you for your testimony and
yield back. Thank you, Mr. Chairman.
The Chairman. Mr. Cardoza.
Mr. Cardoza. Thank you, Mr. Chairman.
I would like to direct my questions to Supervisor Crookham.
My bill requires the Service to provide GIS maps on the
Internet when proposing critical habitat. Can you please tell
us how this would have impacted the public comment period
relative to the vernal pool designation?
Ms. Crookham. Yes, thank you. The problem, I cannot even
tell you how many people came into my office and said, ``Am I
in the proposed designation or not?'' We had some really nice
fuzzy maps and it was very difficult to see exactly where the
line might have gone or was going and it was just a very
confusing matter all the way around.
Even if they had talked to us about the maps that we have
within our county, we have excellent maps but nobody would
approach us. So, as a result, we spent a lot of time trying to
help people define whether they were within the proposed
designation or not.
So I would think that it would behoove the Service to talk
to local entities for whatever kind of mapping they might have,
including GIS.
Mr. Cardoza. As we sit here and discuss this, the anger
comes back in me from the meetings that we held. I recall that
there were a number of areas that were clearly developed that
were included in the original designations.
Ms. Crookham. Including a brand new cancer center that had
just opened. It was under the designation. Castle Airport,
which I mentioned in my report today, was listed. There were
housing developments that had already gone in. It was just like
somebody had taken a big brush and gone zoom-zoom-zoom and
wherever it happened to land, that is where it was. And when
you realize that you had over 300,000 acres in the county that
were thrown into this map, you realize that it was not probably
defined too clearly.
Mr. Cardoza. I know from personal experience that residents
of Merced County commented in great numbers once they found out
about what was happening with the Service regarding their
concerns, yet you stated in your testimony initially the
community was not aware of the designation or the impacts. How
did the community become engaged in this issue?
Ms. Crookham. Well, it is really a long story and I will
make it very short. I actually read the article in the paper
and I asked somebody what they thought it meant and the person
I asked said, ``Oh, I do not think it amounts to anything. Do
not worry about it.'' But somehow in the back of my mind it did
not feel quite right and I did speak to your staff person, Dee
Dee DiAdamo, probably a short time later and she said,
``Kathleen, that does matter. It really is very important.''
So probably a month passed before I ever heard from anybody
again and then I had two constituents call me and say they had
heard from someone that probably it was not anything they
needed to worry about but they were concerned. And as a result
of those two people who came to me and I said, ``No, it does
matter,'' and then at that point we had a local businessman who
paid for the postage for the first notice that went out to the
folks. And the first meeting we had--we had it on the third
floor of our county administration building--people could not
even get off the elevator, so many people came. So we mailed
out about 1,200 letters.
So then the second meeting we had was at the high school
and Congressman Cardoza was there with us and it was amazing.
Again we filled the auditorium with people. People were very,
very concerned and they wondered how this had gotten this far
without anybody taking the time to notify them.
Mr. Cardoza. And, in fact, people's property were being
considered with no notice. The Federal government does not
issue notices to people when they put this designation onto
their property.
Ms. Crookham. Right. The Service said to us, ``Oh, we do
not have money to notify people.'' It was just like they were
going to find out through osmosis, I guess.
Mr. Cardoza. I want to at this point congratulate you and
thank you for your leadership in our community. It would not
have gotten to the level of attention had you not taken the
steps and frankly, I probably would not have been quite as far
along as I am today with this bill had you not stepped in.
My bill requires that the Service analyze the impacts of
proposed designations on state and local governments. Can you
tell us the impact that the vernal pool designation would have
had on Merced County?
Ms. Crookham. You know, I wish I could tell you
specifically because I know I have those figures someplace
along the line but just as many people have mentioned before,
it is not the initial impact; it is how the ripping effect
affects so much of what goes on. When you start talking about
any kind of development, any land use changes, and I guess I
have a major concern owning a ranch in eastern Merced County.
Can we put a fire guard in if we are going to plow through
vernal pools? Can I put a new corral in? Can I remodel a barn?
I do not know.
These are the things that I think really raise a lot of
questions and a lot of concerns but I know it had a real effect
financially on our whole community. And you know, we have huge
unemployment, like many of the people in the Central Valley. We
are a very poor county and this was just going to be a
devastating blow and it probably would have crippled us
totally.
And I wanted to say one more thing, please, kind of off.
Thank you for the nice compliments but you know really how we
got as far as we did was everybody working together and I think
that it is a wonderful example of how a small county can
marshall its resources and make something happen.
Mr. Cardoza. Thank you.
Thank you, Mr. Chairman. Again thank you for the bipartisan
cooperation on this.
The Chairman. Mr. Udall.
Mr. Udall. Thank you, Mr. Chairman, and thank you, members
of the panel, for being here today with us.
Let me direct my first question to Mr. Webster here.
Turning to critical habitat, which is the subject of this
hearing, protecting and maintaining areas important for
manatees, which you described the manatees in your testimony,
these areas that are important to maintaining them--grass beds,
estuaries and rivers--also benefit the fishing industry and
fishing and other marine and freshwater resources and the
tourism industry.
And I understand that tourism is one of the top industries
in Florida, comprising 20 percent of the economy, and that in a
recent University of Miami study, 92 percent of the tourism
industry leaders said they agreed or strongly agreed with the
statement that protection of the environmental and cultural
resources is necessary for their business. Moreover, according
to a 2001 opinion survey, 83 percent of Floridians support
increasing the number of manatee sanctuaries and making them
off-limits to boats and jet skis.
It seems that the sensible checks and balances in place for
manatees protection are a win/win situation all around,
supported by Floridians and benefiting both Florida's economy
and the environment. Could you give me your thoughts on that?
It seems like there is a whole other side here, Mr. Webster, on
benefits to the environment, to your industry and economics
down there in Florida.
Mr. Webster. Mr. Udall, I disagree with everything you just
said. I think most people in the state of Florida, especially
those who live in coastal areas, would disagree with it. I can
assure you that every member of our association disagrees with
it. In fact, the studies that you cite are generally studies
that are concluded by groups that do have an interest in
environmental stakes--not environmental stakes but
environmental law stakes in the state of Florida.
There was, for example, a survey that the Manatee Club did
which claimed that homes on slow speed zones would increase in
value faster than homes not on slow speed zones. That study was
so bad that the county appraisers of various counties in
Florida actually spoke out publicly to point out the flaws in
the study, yet it is still cited to these days.
As far as protection in Florida, we are all for protection.
Unfortunately, what is happening with manatees in Florida is
not protection; it is the result of litigation. If we were
seriously interested--if Fish and Wildlife Service was
seriously interested in saving manatee lives and increasing the
size of the herd, they would focus on what their own peer-
reviewed literature states is the leading cause of deaths and
the number two and number three causes of deaths, and let me
outline what those are.
The first--
Mr. Udall. Let me just take a second here because you
mentioned--
Mr. Webster. Am I getting off? Sorry.
Mr. Udall. You mentioned litigation and you talked about
the Federal judge in your statement exercising control over new
manatee protection measures. As I understood that case you are
talking about, those measures actually came about as a result
of a compromise settlement agreement between a broad coalition
of conservation and animal protection organizations, the
Department of Justice, and major industry groups, including the
National Marine Manufacturers Association, the Marina Operators
Association of America, and the Marine Industries Association
of Florida.
If this settlement agreement was so draconian as you have
described, then why was it signed by these four major industry
groups? It seems to me that this is good compromise here.
Mr. Webster. Well, the reason it was signed by those groups
is that they did not want the agreement, the implementation of
the settlement going forward without persons from the other
side of the table seeing what was happening in the judge's
chambers. I can tell you, knowing personally the people
involved in that settlement, that if they had it to do over
again today, they would have pressed forward with a lawsuit at
that time, rather than a settlement. They themselves as
respondents spent $2-3 million in legal fees just to watch the
process in a courtroom.
My own organization was not allowed as a respondent and
even though the purpose of the settlement agreement ultimately
says the final mitigation is to restrict dock-building, there
was not a dockbuilder on that panel. Nor was there an active
boat organization member on that panel that signed that
agreement.
No, we do not think it was a broad coalition or
representative of the needs of Florida or the people.
Mr. Udall. But these are four major industry groups that
signed on, that were a part of this court settlement. They all
had able counsel. So I just do not see, after they do that and
they know the conditions of the settlement, to now rewrite it
after the fact I think is a little bit late and it seems to me
a little bit disingenuous in a way.
Let me ask Mr. McKeel because I am not sure about--you talk
about the two plants that existed out there.
Mr. McKeel. Yes.
Mr. Udall. And the land you were trying to lease was not
designated as critical habitat for these endangered plant
species, right?
Mr. McKeel. They were only listed.
Mr. Udall. No critical habitat.
Mr. McKeel. Yes. I think possibly the pools themselves may
have been called critical habitat designated at the time of
listing but I am not entirely certain of that fact.
Mr. Udall. Well, I think they were just listed, that there
was no critical habitat designation.
Mr. McKeel. All right.
Mr. Udall. In that case this bill would not apply to that
situation at all. This bill is restructuring. It is a
procedural bill dealing with critical habitat, so this bill
would not have helped your situation.
Mr. McKeel. I see that you are referring to the bill as
pertaining to critical habitat, yes.
Mr. Udall. That is what my colleague and friend's piece of
legislation does, is restructure critical habitat. Your
situation dealt with two plants which were listed but critical
habitat was not designated.
Now moving on second on that, as a result of the listing,
you then had to participate and get involved in the
transplanting of the plants. Is that correct?
Mr. McKeel. Well, what transpired is we volunteered to
relocate the plants at our expense and through needing wetland
permitting, Section 7 came into play. The Fish and Wildlife
Service, after considerable months of negotiation, came back
with a jeopardy opinion basically that they wanted them left
where they were.
I think the crux of our matter was that plants are treated
differently than animals and after we withdrew from the
permitting process, the landowner was free to move those plants
within certain parameters of the Endangered Species Act and he
did so.
Now we maintained to the end that we would have rather had
a competent biologist or botanist transplant those species or
they could have gone into a heritage program at a botanical
garden or something of that nature. What wound up happening was
through the adversarial position through the Endangered Species
Act and the consultation process, the landowner himself ended
up having to move the species on his own.
Mr. Udall. And today you are, in fact, mining on the
property. Is that correct?
Mr. McKeel. That is correct.
Mr. Udall. Thank you.
Thank you, Mr. Chairman.
The Chairman. Mr. Inslee.
Mr. Inslee. Thank you.
Mr. Walters, I think you have probably heard concerns
expressed about the failure of the Administration to act within
3 years to adopt better guidance for the definition of critical
habitat and the like. Many of us cannot understand why the
Administration has not acted to try to clear up some of these
issues by means of rulemaking or guidance. It has been 3 years
or more now. Is that a concern that you shared during those 3
years with the Administration?
Mr. Walters. Sir, I am not qualified to respond on that at
this time. If you will submit those in writing to us, we will
respond in writing to you.
Mr. Inslee. Well, do you think that it would have been
helpful for the Administration, instead of sitting on their
hands for 3 years, to issue a guidance or rulemaking during
that 3-year period?
Mr. Walters. Again, sir, I do not know enough about the
issue to answer on that.
Mr. Inslee. Well, let me just explain a little bit to you.
The situation here is this statute has been in existence for
three decades. In 2001 a court struck down what was going on. A
lot of people were urging the agency to issue a rule or a
guidance in some sense to try to give property owners some
certainty about critical habitat and those who were interested
in species recovery, and yet the passage of 3 years goes on and
the agency did not give property owners any additional guidance
or rulemaking enlightenment at all until today, when we have
this hearing. All of a sudden we are told that this guidance is
going to pop out this week by some miracle apparently, with no
hearings, no testimony, no input by anybody.
Do you think that is a good way to run a railroad?
Mr. Walters. Sir, again I heard a lot of testimony today. I
hear what you are saying now but I heard testimony from the
gentleman that was sitting here on panel one and I am not sure
I agree with you.
Mr. Inslee. Mr. Kelley, I am sorry I did not hear to hear
your testimony but I note in your written testimony that you
said that ``We are concerned that the Service does not have the
resources or personnel that would allow them to respond in a
timely manner to requests for assistance and permits from
public and private stakeholders conducting activities in the
salamander habitat area.''
Many of us are concerned that the agency has not been given
the resources necessary to effectively carry out the statute
and here we have efforts to change the statute. Many of us
believe that the agency needs more resources so it can do its
job, both to recover species and to deal with local concerns
that you have expressed eloquently that deal with the
difficulties associated with these programs.
Were you aware that this Administration actually wants to
cut $10 million out of the recovery budget, planning budget, on
a national basis?
Mr. Walters. I am not aware that they are proposing to cut
their funding. I would say that one of the reasons why, as
described in my written testimony, that we have embarked on the
local initiative to work with the Service, provide much of the
resources that they need, as well as we need to facilitate the
conservation strategy that would move into the critical habitat
designation is because of that concern that I describe.
I also think that if there is a more succinct definition of
creating a recovery plan and a critical habitat at the same
time, as the bill is being proposed now, that there may not be
as much of a need for the resources within the agency to
actually accomplish that.
Mr. Inslee. Well, let me just ask you would you suggest to
the Administration that they revisit the decision to cut this
agency $10 million or not?
Mr. Walters. Well, I would suggest that they review it. I
think that as it relates to all of the activities that they are
dealing with throughout the country, we know specifically in
our area that we have had to come up with our own resources to
try to facilitate accomplishing the needs of our area.
Mr. Inslee. I think what you are seeing is really a
microcosm of what is going on nationally, where the Federal
government is reneging on some of its obligation and pushing
down these obligations onto local governments. You are not just
seeing it here. You are seeing it on a whole host of issues and
I think that is regrettable. When you get a chance after you do
review it, I hope you will help us get this agency the dollars
it needs to get this job done because I think there is a twin
need--one, so we can recover species but two, to deal with the
clear difficulties that property owners do have in getting
these permits processed and getting decisions and having
certainty so that they can make decisions. Thank you.
The Chairman. Mr. Walden.
Mr. Walden. Thank you very much, Mr. Chairman.
Mr. Walters, you mentioned in your testimony the problems
specific to the economic impact of critical habitat for the
pygmy owl and you suggest that no attention was paid to a
number of regional impacts. Could you explain for us what some
of those impacts would have revealed?
Mr. Walters. Sir, the Fish and Wildlife Service's study for
the economic impact of the critical habitat for the pygmy owl
failed to take into account any effect on the local economy,
local governments, or tribes and regional economic impacts. Tax
revenues, secondary impacts, and increased housing were all
excluded because they were assumed to be minimal.
Mr. Walden. They were assumed to be minimal? And what would
you think they are?
Mr. Walters. Again, sir, I am not qualified to express an
opinion on that. I just know what I have been told. The
information that was gathered and collected was not these
items. I think these items need to be taken into account to
really understand the economic impact.
Mr. Walden. And they were not?
Mr. Walters. They were not.
Mr. Walden. Supervisor Kelley, there is a pending May 15
decision regarding the CTS in both Sonoma and Santa Barbara
Counties. What would you like to see happen and why?
Mr. Kelley. Well, I think what we would like to see happen
is that the listing be downgraded to threatened, which would
open up some different options for those of us that are local
property owners, as well as local governments, and that the
distinct population designation be eliminated because we do not
feel that that has been properly studied or considered.
For those two reasons, it would also allow those of us in
local government to deal with some of the infrastructure needs
that we had. There was a discussion about the costs. The cost
of being in limbo and having to do studies just to get a water
line in or to do some maintenance on roads are incredible costs
to our local taxpayers.
Mr. Walden. I had a forest ranger tell me several years ago
she had to do an aquatic study to replace the steps on a fire
lookout on top of a hill, a fish study. Now there are not too
many walking fish out there, but they still had to go through
it.
I think one of the issues that at some point Congress needs
to address is the overlapping laws and rules and regulations
that we put on your backs and every taxpayer's back just to
comply, when we ought to focus on the outcome and the goal,
which is to protect species in the best way possible.
I was just reading some of the important points put out in
the guidance by the Director today apparently and he says
things like, ``Accordingly, designation should not detract from
other conservation efforts that provide greater species
benefits.'' That seems pretty logical guidance. I am actually
sort of surprised we have to tell people that.
``Critical habitat designation should not be based on
speculation or determinations that lack supporting data.'' I
mean this is the guidance we are hearing so much about. It
seems pretty reasonable. ``And do not designate critical
habitat where existing management or protection measures
adequately conserve essential habitat and those measures are
likely to continue for the foreseeable future. Protected lands,
such as state and national parks, wildlife refuges, national
forests, et cetera, are examples of areas that may not need
special management or protection.''
Are those things that you all agree make sense in terms of
guidance and common sense?
Mr. Kelley. It sure makes a lot of sense and I think there
is a lot of common sense to be said that especially for local
jurisdictions and local governments that already have property
set aside for certain conservation activities that could be
used for these activities, as well, thereby obviating the need
to impact many of the other infrastructure projects that we
have. It makes eminent sense.
Mr. Walden. You know, there is another issue that comes up
and that is this issue of habitat conservation plans. I know
landowners are encouraged to enter into that when half the
habitat out there is in private hands. If we are trying going
to have a government/private landowner partnership for the
benefit of the species, then you have to be able to
cooperatively involve private landowners. And it seems to me
when you have CHPs in place, those ought to be good and the
government should not come back and ask for another bite at the
apple.
Do you concur with that? Am I missing something here?
Mr. Kelley. I would completely concur with that. I think
that the issue that we have here and one of the reasons why I
think it is so important that providing the road map to
recovery and delisting of species is that when you have that
road map to recovery and a conservation strategy, then people
know what they are actually paying for and they know what they
are going to accomplish by paying for that.
The current system has a black hole of dollars and the more
dollars you spend, the less you know how much you have to spend
in the future and it is kind of once you are in the system or
in the maze, there is no road map out. That is one reason why
we in local government are serious about wanting the road map
and that is one of the reasons why the bill that is before us
today would provide that.
Mr. Walden. You will especially like this, then. Part of
their guidance also says, ``Working with landowners, local
governments, states and tribes on a voluntary partnership basis
often provides conservation benefits superior to the
designation of critical habitat.''
And finally, there are others here in terms of the
guidance. ``Complete and accurate administrative records are
essential to the process of critical habitat designations.''
Now whether this was done in a very bureaucratic way or
simply done, the important thing is I think it makes sense what
the Administration is suggesting as guidance to the people
making these decisions. Use common sense, work with local
governments, believe somebody outside of this imperial place
back here may have a lick of common sense that might help in
recovering a species and protecting habitat in a meaningful
way.
Mr. Kelley. I would concur, Mr. Congressman, and I think,
as you will see in my written testimony, the activities that we
in Sonoma County have done in some ways are patterned after
what those guidelines sound like are being laid out.
Mr. Walden. Thank you.
And thank you for your indulgence, Mr. Chairman.
The Chairman. Thank you.
A couple of points before I get to my questions. One of the
things that has been repeatedly brought up during this hearing
is that one part of Fish and Wildlife's budget has been cut and
I think in full disclosure it should be noted that the
Administration's request for Fish and Wildlife Service
increases spending by over $60 for Fish and Wildlife Service
and their request, while I do not completely agree with where
they put all their money, but their request is a response to
and reaction to, I believe, a lot of the litigation that has
occurred over the past several years where they are trying to
shift money to respond to areas where they are being sued and
to be able to have money in those accounts.
Just so that no one walks away from this hearing with the
idea that we are somehow cutting Fish and Wildlife Service's
budget, the request was an additional $60.3 million, a 3
percent increase into Fish and Wildlife's budget.
In terms of the impact that this has had on local
government, we have two members of boards of supervisors that
testified as part of this panel. I am obviously familiar with
both of your areas and I think this is something that a lot of
times Congress misses in terms of the overall impact of what we
are doing and what it does to real people out there that are
trying to live under this Act.
Supervisor Crookham, I can tell you in your answers to Mr.
Cardoza you talked about what the impact is of private property
owners. If you happen to have a farm, what happens? Can you
build a new corral? Can you build a fence? Can you do all of
that?
In my area one of my constituents had grazing land,
irrigated pasture land, and wanted to shift from a cattle-based
operation to planting vineyards. That was considered a
conversion to development by the Fish and Wildlife Service and
in order for him to accomplish that he would have had to give
up over half of his property to Fish and Wildlife Service as
mitigation for being able to plant grapes on the rest of his
property. They considered that a conversion to development, as
if someone was coming in and building houses on this property.
As you know, things are not always good in the cattle
business and sometimes you want to do something else that you
might make enough money to pay your taxes and this gentleman
ultimately ended up having to sell the place because he could
not afford to keep it.
Ms. Crookham. We actually have horror stories very much the
same as yours in our county and I think that is one of the
things that gets so confusing about all of these regulations
when people really wish to do a higher and better use of land
and then it is called conversion or it is called a development
and it really is not. It is just a way of actually increasing
the revenue.
And when we talk about how that affects us economically, it
does. It affects the person who is trying to make the change.
We lose tax dollars, revenue dollars coming back to us. It
really needs to be overhauled and I am just so glad that you
are looking at it at this point. I probably am not the most
objective person when it comes to talking about it.
The Chairman. Well, I do not think anybody that is
testifying is totally objective here. Everybody that is here
has an opinion and that is why they are here. It is people that
have had to live with this Act and have had to go through the
struggles of trying to comply with it. I think it is important
to hear from all of you.
One interesting thing with the fairy shrimp was that when
that was originally listed, you were not considered habitat.
The only place they looked at was further north in California
and if you go back at all of the so-called science that was
done on the listing of the fairy shrimp, you were not part of
that. It was only after it was listed that they discovered that
you were critical habitat.
Ms. Crookham. Right, and as a response to a lawsuit, like
most of these things are; then it came into play. Then there
was this quick time line and all these things that happened.
You are right, totally right.
The Chairman. One interesting thing about this legislation
and the attempt that is being made by Mr. Cardoza here is that
it is something that we have seen repeatedly. You are seeing it
first-hand but when something is listed as endangered, it is
done with incomplete information that causes it to be listed as
endangered and Fish and Wildlife is making the decision based
on what is incomplete science. They list it and then they go
through the process of critical habitat and adopting a recovery
plan and all of that and it is at that point that they discover
that the species is much more common than it was when it was
listed and we go through all the trials and tribulations of
trying to manage what is then considered critical habitat.
I found it interesting to hear you talk about land that was
developed that was included as critical habitat. In my area we
have other endangered species that had court-ordered maps that
were listed. In one instance we had a city of over 40,000
people that almost the entire city was included as critical
habitat and different things like that where I believe they
just looked at a map and decided well, we will just go around
all these different areas without ever actually looking at what
was on the ground.
For the red-legged frog we had areas that are dry creek
beds but on the map it says that it is a creek and it never has
water in it. It is just a dry creek bed. When we get a 100-year
flood action there might be some water going through there but
normally there is no water in there and being from the Central
Valley, you are fully aware of how hot it gets in these dry
creek beds and to consider that habitat for a frog is pretty
outrageous but that is what they did.
I know when it comes to fairy shrimp, which I have fairy
shrimp in my district, as well, that a lot of the areas that
were considered habitat, if anybody had ever actually looked at
them they would know that it was not habitat, that the map did
not actually fit, but that is the way it resulted.
I appreciate the testimony of this panel. It was very
informative. It is something that not only helps us with this
legislation but I think gives us the ability to go back to the
Administration and ask some questions about decisions that are
being made and what those decisions are based on.
Mr. Walden has legislation dealing with the science that is
used in this whole process that I am very interested in looking
at and hopefully being able to move forward on, along with the
legislation that Mr. Cardoza put in. I think if we look at
those two areas we can have some kind of broad consensus that
we can move forward and really start to bring some common sense
to the way this law is being implemented out in the real world.
I mean we can say all we want back here in these buildings but
truth of the matter is it is you people that have to live with
it every day.
Mr. Cardoza. Mr. Chairman?
The Chairman. Mr. Cardoza?
Mr. Cardoza. Would you yield for a comment on your
colloquy?
The Chairman. Sure.
Mr. Cardoza. There are two points I would like to raise.
First of all, the comments by Ms. Crookham about the real
impacts on individuals because it is widely circulated when
these designations are made that there are no impacts on
current landowners. That is true if you do not ever want to
change anything on your property. The minute you want to change
something there are significant and costly impacts to your
property, as well as there may be a chilling effect on the
value of your property because if you want to sell the property
for another use, someone who is purchasing it may very well not
purchase it for the same price.
The second point is the notice provision. All this happens
to you without any requirement for the Federal government to
give you notice that they are doing something to your property
and to the value of your asset. And while we did not include
that in this bill, it may be something that the Committee needs
to think about as we go forward. The Fish and Wildlife Service
has indicated privately that that is awfully expensive and that
they are already short of funds, but the reality is to take
someone's property or affect someone's property without any
formal notice is something that I think is foreign to our way
of government and I just wanted to raise those two issues.
The Chairman. I think both of those are extremely important
points. Your last point in terms of notice is something that I
have been working on for a number of years in terms of how do
we do this and there are two real issues. One is notifying the
affected property owners that their property is going to be
considered critical habitat and two is what restrictions are
going to be placed on them because right now they really do not
know and no one tells them what restrictions are going to be
placed on them.
I think those two issues probably would go a long way in
removing some of the fear and concern that property owners have
because it would get it all out in the open as to exactly what
restrictions would be placed on their property.
So I want to thank this panel very much for your testimony.
It is very worthwhile that you were here. Thank you.
I would like to call up the fourth panel--Michael Doebley,
Michael F. Martini, Joni L. Gray and Joseph K. Sheldon.
Before we begin with this panel I want to thank you. I know
this has been a very long day and you have all been waiting for
the opportunity to testify, so I appreciate you all being here
and your patience with the Committee.
Mr. Doebley, we are going to begin with you.
STATEMENT OF MICHAEL DOEBLEY, DEPUTY DIRECTOR
FOR GOVERNMENT AFFAIRS, RECREATIONAL FISHING ALLIANCE
Mr. Doebley. Thank you, Mr. Chairman and members of the
Committee. My name is Michael Doebley. I am the Deputy
Director, Government Affairs, for the Recreational Fishing
Alliance. RFA is a national grassroots organization
representing over 75,000 marine recreational fishermen and the
recreational fishing industry on marine fisheries issues. Our
mission statement is to safeguard the rights of saltwater
anglers, protect marine jobs, and assure the long-term
sustainability of our nation's saltwater fisheries.
I am here today very pleased to speak in favor of H.R.
2933, the Critical Habitat Reform Act. There have been a great
number of individuals here today who know so much more about
the technicalities of the Act. I really wanted to just let you
know some of the perspectives and real-world impacts on marine
recreational anglers.
One of the biggest issues in the country right now, as you
have heard from Mr. Webster, regards how they went about
designating critical habitat for manatees in Florida. It was
this committee, through the Atlantic Coastal Act of 1933 and
the Sustainable Fisheries Act of 1996, that we now see our
nation's saltwater fisheries rebuilding and because of that,
Florida enjoys some world-class recreational fisheries. People
come from everywhere to go fishing there.
The problem they are running into is a problem of access
and the access is being denied because of the critical habitat
provisions, these no-speed zones for manatees where you have to
go a slow or idle speed. First, folks cannot put in the private
docks, as Mr. Webster pointed out. But even if they can have
the private dock, what used to be perhaps a 15-minute run to
the ocean to get to the fishing grounds is now taking over 2
hours.
One of the things that all or most saltwater anglers like
to do is you always try to find that little trip that you can
sneak in in the morning or at night before work, after work,
before you have time with the family or whatever obligations
you may have. Going from a 15-minute run to a 2-hour run, it
takes you right out of it. Forget it. That is longer than the
amount of time you had to maybe get down and run a line. So
there is a definite impact on the quality of life there.
Ramp access. Without the private docks and you have to use
a ramp, well, ramps are becoming crowded and because of this
designation you cannot build new ramps, so the line is so long
again you lose the time and some folks cannot use a ramp or
launched boat. They either getting older, they have a
disability. It is always a dicey proposition, multiple-person
operation to get that done. Again access is being denied. So
this has become a real problem for us.
There is another example that was brought to my attention
by one of our members who heard that I was going to be here
today and this deals with piping plowbird habitat. This is a
shorebird. It is a shore nesting bird. They are endangered. I
do not think there is any question about that. What happens is
in many parts of the East Coast piping plowbird arrives in the
spring and they set up a nest literally on the beach. They lay
their eggs on the beach. So many areas have been designated
critical habitat.
Now the anglers are prohibited from going there for that
particular fishing season while the birds are present and we
are acceptable to that. We want to preserve the species. But
within the first few weeks of those birds showing up, the
biologists can go out and determine whether or not those birds
are actually present that year.
Some years they go to the critical habitat areas. Being
migratory, they go as far as South America. Some years they
choose another beach. It would be very easy for the government
to go out and look at the beach and say ``No birds'' and let us
on. Instead, those areas are closed year after year after year
and we are losing the six best months of the year from May
through September-October. So that is just another one of those
real-world applications.
Recreational fishing is a huge business. We are talking
about over 16 million participants in this country, about $60
billion of activity, hundreds of thousands of jobs. It sounds
impressive but it is, as Mr. Webster pointed out, it is as
business of small margins, slim profit margins, and any of
these actions that are taken without good science and a sound
policy certainly have an impact and lead to the loss of jobs,
loss of businesses, and again the loss of our quality of life.
We have a tradition of conservation going back over 100
years. We are very proud of that. But we would also like to see
a little bit more common sense brought in to how these
designations are made and we will be the greatest partners out
there for conservation but there is a lot of frustration,
especially when we lose access because of the law, and that
needs some amendments and being reformed.
So thank you again, Mr. Chairman and members of the
Committee, and I will try to answer any questions you may have.
[The prepared statement of Mr. Doebley follows:]
Statement of Michael Doebley, Deputy Director for Government Affairs,
Recreational Fishing Alliance
My name is Michael Doebley and I am Deputy Director for Government
Affairs for the Recreational Fishing Alliance (RFA). The RFA is a
national, grassroots political action organization representing over
75,000 recreational fishermen and the recreational fishing industry on
marine fisheries issues. The RFA Mission is to safeguard the rights of
saltwater anglers, protect marine, boat and tackle industry jobs, and
ensure the long-term sustainability of our Nation's saltwater
fisheries. I am pleased to be here to speak in support of the Critical
Habitat Reform Act of 2003.
There are numerous individuals here today who can go into great
technical detail regarding how the current process of designating
critical manatee habitat is fundamentally flawed and restrictions
placed on boaters causes unnecessary economic damage to a variety of
fishing-related industries such as dock builders, has a negative impact
on our members' quality of life, and in some cases may actually cause
biological harm to the animals that the designation was intended to
protect. The process for designating critical habitat cries out for
reform.
Recreational fishing in Florida is enjoyed by 2.5 million people,
accounts for almost $3 billion in economic activity and provides about
60,000 jobs. Please understand that while the raw numbers regarding
economic activity are huge, recreational fishing support industries are
often small businesses with slim profit margins. Even seemingly
innocuous rules can lead to the loss of businesses and a way of life.
With the reforms brought to fisheries management that were
championed by this Committee such as the Sustainable Fisheries Act of
1996, the Atlantic Coastal Cooperative Fisheries Act of 1993, and steps
taken by the State of Florida, Florida now enjoys truly world-class
recreational fisheries. Yet access to these fisheries is for all
purposes being denied to many anglers by the current system of
designation of critical habitat.
I offer to you some every day, real world scenarios of how the
designation of manatee critical habitat areas negatively impacts
recreational anglers and the industries they support.
An all-too-common situation is that in the name of manatee
protection, the necessary permits for homeowners to install a private
dock are denied. Slips in marinas are often at a price that is out of
reach of many fishermen. Due to advancing age or disabilities,
launching a trailer boat is simply not an option for many recreational
anglers. The denial of a permit to build a private dock for all
practical purposes effectively denies many anglers access to fishing
grounds.
If an angler is capable of launching a trailer boat, they are
increasingly finding that there is not a ramp in their area or an
adequate number of public ramps available. The same permits that are
necessary for the construction of a private dock are needed for a
public ramp. These permits are being denied for the same reasons.
Again, for all practical purposes, denying anglers access to the
fishing grounds.
Once in the water, recreational anglers often find themselves in an
area designated as critical manatee habitat despite the fact that these
areas were the creation of man. Boat speed must be kept to a slow or
idle speed over long distances. As you know, in today's world the most
precious commodity most of us have is free time. Many recreational
anglers enjoy a quick early morning or evening fishing trip squeezed in
around work or other obligations that take up the majority of their
day. These trips have been effectively eliminated by the use of slow or
idle speed manatee zones. In many parts of Florida, what was once a
brief run to fishing grounds of about 15 minutes, can now take up to
two hours. The simple act of reaching the fishing grounds can now take
longer than the amount of time available for the entire trip. What was
once the most enjoyable part of the day is being effectively lost for
the angler. The denial of access of course has an impact on the
industry that recreational anglers support. Bait and tackle shops
suffer, boats are not built, and jobs are lost or simply not created.
Recreational anglers have a history of seeking the conservation of
marine resources which dates back over 100 years. We are very proud of
this tradition. Yet sound conservation also requires a dose of common
sense and the need to consider man and his role in the marine
ecosystem. In the case of designating critical habitat for manatees, we
believe a well-intentioned law has become so distorted that it does
nothing to offer any real protection for manatees and is ruinous for
our members.
Thus, we respectfully request your full support for H.R. 2933 and
help put an end to the manatee madness, and to clarify the law so it
more closely resembles the original intent of Congress.
______
The Chairman. Well, thank you very much.
Mr. Martini?
STATEMENT OF MICHAEL F. MARTINI, COUNCIL MEMBER,
CITY OF SANTA ROSA, CALIFORNIA
Mr. Martini. Good afternoon, Mr. Chairman and members of
the Resource Committee. My name is Mike Martini and I serve on
the City Council for the City of Santa Rosa and I am very happy
to be here today to allow me to discuss some of the impacts the
listing of the California tiger salamander has had on our
communities. My written testimony is before you so I will
abbreviate my comments in the interest of time.
It is interesting to me that Santa Rosa shares with this
committee a lot of the values that have been discussed
throughout this hearing today. Its citizens embrace the
preservation of resources, the cessation of sprawl and the
protection of the environment, so much so that every single
municipality in Sonoma County has adopted voter-approved urban
growth boundaries. In addition, as Supervisor Kelley pointed
out, we have a voter-approved quarter-cent sales tax for the
acquisition and protection of open space. Millions of dollars
are used each year for the public acquisition of community
separators, agricultural lands, habitat preservation, and
restoration.
And it would be safe to say that if a poll was taken of the
citizens of the City of Santa Rosa, similar to what was
discussed earlier today, that the vast majority of its citizens
would support the Endangered Species Act. But as Rosanna
Rosanna Dana often would say, it is always something.
And it is not just the Endangered Species Act. It is the
interaction of the Endangered Species Act with the other public
policy decisions that we make that cause local government
consternation. A couple of examples.
A lot of conversation today was around housing but by
imposing voter-approved urban growth boundaries, we have set
aside, we have made a statement in our general plans where we
expect to see urban growth and where we expect to see the urban
separators, where we expect to see agriculture.
The listing of the tiger salamander overlays one quarter of
the area of the City of Santa Rosa, which is earmarked in our
general plans for our future growth and the studies that are
required because of that listing are easily adding $20-30,000
per finished house and that does not count in any mitigation
for the loss of habitat.
Santa Rosa shares with the Chairman's district in terms of
the cost of housing. It is quite high in Sonoma County and that
is great news to our homeowners but it is very difficult news
to our children, who can no longer buy a home in the town that
they grew up in. And as a parent of a 20-year-old, I am
beginning to think he may never move out of the house.
Another example where we have come in conflict is in our
waste-water treatment. Santa Rosa, in cooperation with the
county and working with the listing of the endangered species
in the Russian River of coho salmon and steelhead, we have
tried to modify the flow of waste-water into the river. We
treat the water to an advanced tertiary-treated level. We ship
it 42 miles up to a steam field and generate green energy out
of about half of it and the other half is used for agricultural
irrigation and this has proven to be a wonderful support for
agriculture in our area, maintaining an economic balance, but
it requires storage because, as you may know, agriculture does
not need water all year long.
The expansion of this system would require additional
storage and the listing of the tiger salamander is going to
have a significant impact on that and has already forced us to
spend thousands of dollars in studies.
Transportation is another area that I identify in my
written testimony. Homeless shelters is another area that I
identify in my testimony, as well as sewer lines.
But I think what is really important is coming here today,
I am encouraged that this committee is taking a look at the
Endangered Species Act and how it does not act in a vacuum. I
am very encouraged that you are considering the legislation
that is being proposed. And most importantly, I am encouraged
that Mr. Wayne White of the regional office for Fish and
Wildlife Service is working closely with the city and private
property owners, as well as the environmental community, to
come up with a conservation plan so we are not dealing with
this on a piece-by-piece basis but we are actually doing
something about the recovery of a species, as opposed to just
studying it to death. Thank you very much.
[The prepared statement of Mr. Martini follows:]
Statement of Michael F. Martini, Council Member,
Santa Rosa, California
Good afternoon, Mr. Chairman and Members of the Resource Committee.
My name is Mike Martini and I have the honor of being the past Mayor
and current Council Member for the City of Santa Rosa, California. I am
pleased to be here today with other elected representatives from Santa
Barbara and Sonoma Counties. We appreciate the time allowed to discuss
the impacts of the listing of the California Tiger Salamander on our
communities.
Santa Rosa, along with the entire County of Sonoma, is very much
like any other community in California. Its citizens embrace the
preservation of resources, the cessation of sprawl and the protection
of the environment. So much so that every city in the county has voter-
approved Urban Growth Boundaries. The citizens have also voted in a
quarter-cent sales tax to protect open space. Millions of dollars are
used each year for public acquisition of community separators,
agricultural lands, and habitat preservation and restoration.
It would be safe to say that the majority of Santa Rosa citizens
support the spirit of the Endangered Species Act.
This sense of preservation along with a healthy and balanced
economy and a wonderful climate have resulted in Santa Rosa being named
as one of the most desirable places to live!
As wonderful as it is, it is not without its problems. We in local
government struggle to provide necessary services in the face of
shrinking budgets and increasing regulation.
The character Rosanna Rosanna Dana was correct--it is always
something.
We as elected officials do a great job when we focus on a problem
but all too often as we focus on one solution we neglect how it impacts
other actions we have taken. This is where we find ourselves with the
listing of the California Tiger Salamander.
In Sonoma County, the United States Fish and Wildlife Service
included in the potential geographic range of the salamander
approximately 50,000 acres--an area of the county that is about 21
miles by 7 miles across at the widest point. This includes major areas
of planned development for the cities of Santa Rosa, Rohnert Park and
Cotati. The growth projected for these areas represents 65% of the
county's future planned residential growth. Most of the City of Santa
Rosa's affordable housing units are slated for this area. Further, it
impacts development of more than 15,000 housing units and several
million square feet of nonresidential development.
In addition to creating problems for private landowners looking to
develop their lands, the listing has had an impact on the city and
county's infrastructure needs.
The Santa Rosa Subregional Water Reclamation System serves 200,000
residents of central Sonoma County. The Santa Rosa system treats
wastewater to an advanced tertiary level and recycles 80 percent,
twenty five percent for irrigation of agricultural lands, currently
identified within the salamander range. Continuation and expansion of
this system is threatened by the listing of the salamander. It has
added considerable costs in studies as construction of additional
storage ponds and irrigation of agricultural lands are not consistent
with CTS habitat conservation under the current regulatory environment.
Application of the Services' current regulatory approach jeopardizes
the sub-regional water recycling system. Should the Service conclude
that continued irrigation is not permitted; the system would need to be
replaced at a cost of $200 million or about $5,000 per household.
Ironically, this system was devised to respond to the need to minimize
diversion of waters from salmon habitats used for irrigation. A further
irony is that agriculture assured preservation of open space that the
salamander currently relies upon, and now the ESA threatens
agriculture.
Affordable housing is another issue that has been negatively
impacted by the listing. Santa Rosa, as is true with most cities
throughout California, has struggled with providing affordable housing
to its citizens. Strong demand with limited supply has resulted in a
very high cost of housing. Santa Rosa has now topped $465,000 as its
median housing price. This is great news for those who are fortunate to
own their own homes but has made it extremely difficult for children to
settle down in the town where they grew up. It puts great demands on
our transportation infrastructure as service employees are forced to
live far from their jobs. Most affordable housing--i.e., workforce
housing that allows some of the communities most valued citizens: our
teachers, police officers and firefighters, access to the dream of
buying a home--was planned for the most impacted area. That dream
appears more difficult to achieve as it is estimated that as a result
of the CTS alone, the cost of a single housing unit will increase by
$30,000. This lack of affordability has exacerbated a homeless problem.
Transportation Infrastructure, specifically the only freeway
through our county (Highway 101) project is another challenge. In
Sonoma County, we are working to expand the major artery within its
existing boundaries. The 101-impacted area is 21 miles running north to
south. As a result of the listing, highway safety projects reliant on
federal money are forced to spend what scarce dollars they have on
studies that will likely delay the projects while using up precious
resources: This results in a public safety issue as well.
The City of Rohnert Park's main sewage line is nearing its
capacity. Until expansion of the sewer line, the City will not be able
to implement its General Plan. Line construction could mean costly
surveys to determine absence/presence of salamander. Perhaps more
challenging than the actual cost of the surveys is the environmental
risks of delays. We already know that the CTS is present and the City
is prepared to do what is necessary to prevent impacts to the species.
The City is counting on having the new line operational in 2006, which,
given current protocol procedures, is impossible. The City of Rohnert
Park is in the process of reviewing applications of five future
Specific Plan Areas. Development within these Areas will require
construction of a new sewer main to the subregional treatment facility.
The alignment goes through the center of tiger salamander habitat. If
the City were to follow the current protocol it would need to conduct
two years of surveys to determine absence or presence of salamanders
before expanding the line. We know that salamanders are present.
Currently, surveys are predicted to cost $450,000. This does not
include the cost of mitigation.
Application of the Services' current regulatory approach
jeopardizes our ability to provide for the neediest in our community.
The City sought to convert an existing building to a homeless shelter
in an underserved part of the community. The building is being acquired
from GSA under the California Desert Act, paying full value to allow
additional uses of community center and public safety training. These
components are needed to respond to neighborhood needs and concerns
about a homeless shelter. The listing of the salamander triggered the
need under the California Environmental Quality Act for an
environmental impact report adding costs to the already underfunded
project. To avoid these costs, the City substantially reduced the scope
of the project. Instead of providing a police outreach station, day
care facilities and playground for children of homeless families at the
homeless shelter, these important project elements were postponed for
the necessary review even though more than 10 acres of the 12.5 acre
parcel was being set aside as habitat. Fortunately, the City is moving
forward to convert the existing building to an 80-bed shelter with the
addition of the other components as the process is worked out.
We are willing to accept responsibility for addressing these
challenges, however, we are unable to effectively do so without active
participation from the Fish and Wildlife Service. Since the listing the
City, County and private stakeholders have made many attempts at
working with the Service to craft policies and procedures that would
ameliorate the concerns of all impacted.
We discovered that the Service had few resources and limited
personnel. The Service lacks key information and staff resources to
make decisions that have long-lasting impacts on the economy and on the
environment. For example:
The Service lacks the personnel to respond to project review
requests in a timely fashion. An example involves a stakeholder
requesting an initial consultation on a 6-acre parcel as required by
law. The Service told the stakeholder that staff would be available to
meet nine months after the initial request.
Field survey requirements have been inconsistently applied to
landowners as a condition of property development. Where required, the
surveys can cost in excess of $180,000 for a ten-acre parcel per year
for two years. Total cost for surveys on what is designated potential
habitat on private land over the last two years has easily exceed
several million dollars. In the case of my City, we spent this last
winter $600,000 on a study that has not been approved. If the full
survey protocol is required next winter it will cost up to $8 million
dollars to comply with Service survey protocols. The Service lacks the
resources to develop criteria for the appropriate geographic boundaries
for the salamander habitat. The result is hundreds of thousands of
dollars are spent on what may very well be unnecessary surveys.
Due to lack of information and resources, different Service staff
makes inconsistent determinations about the potential of a proposed
project to adversely affect salamander habitat or actual salamanders.
Projects are denied or approved on a case-by-case basis. If a
conservation plan and a recovery strategy had been developed, we would
be conserving the species, and not abusing the regulated community with
unnecessary economic hardship.
In summary, the Service, which is required under the Act to base
its decisions on ``best available science,'' instead defines the needs
of the salamander on a project-by-project basis.
Perhaps our experiences in Sonoma County can serve to bring about
much needed changes in the current process. We are relying on the
success of the ``conservation team'' strategy that Wayne White of the
Sacramento Office of the Fish and Wildlife Service has supported
putting in place.
This team should serve as an example of how regulators and the
regulated community can work together to ensure success in meeting the
demands of the Endangered Species Act as well as the needs of the
impacted human population. The process should be encouraged and
supported: Perhaps with the assistance of our Congressional Members,
and more specifically this Committee, we can continue to work together
for the betterment of all concerned.
As Supervisor Kelley has pointed out, our efforts are consistent
and supportive of the components contained in Congressman Cardoza's
legislation.
I would like to thank the Committee again for the opportunity to
testify today on this important issue. I would be happy, at this time,
to answer any questions Members of the Committee may have.
______
[Mr. Martini's response to questions submitted for the
record follows:]
Response to questions submitted for the record by Michael F. Martini,
Council Member, City of Santa Rosa, California
Questions from Chairman Richard Pombo
1) Council Member Martini, in reading through your testimony, it
sounds like you are seeing inconsistent decisions from staff
biologists.
Is that the case?
There are times when this is indeed the case.
Do you have examples?
Yes, several. One specific example is as follows: I have a
constituent who has a parcel of land already graded, curbs in place,
gutters and lights on site. Additionally, the site had two large
commercial buildings. This individual provided letters from California
Department of Fish & Game and a local Biologist, permitted to survey
for CTS, indicating absence of breeding and aestivation habitat. An
absence determination was due to current ground disturbance and a creek
that separated the parcel from any known CTS sitings. He sought a
letter of ``Not Likely to Adversely Affect'' from the Service and was
rejected. The letter indicated that the current development of the
parcel did not preclude the site from serving as aestivation habitat.
However, a parcel several blocks from the site, completely
undeveloped, was given a ``No Effect'' letter from the Service. The
reasons for issuing a ``No Effect'': ``buildings and storage units
would severely limit dispersal to the project site from the south...In
addition. Roads, curbs and a perennial stream presented a severe
impediment to dispersal from the northwest.'' (The perennial stream is
the same creek that borders the aforementioned property).
And, why do you think that is the case?
I think that not enough biological information existed that clearly
defined CTS habitat. Additionally, the FWS did not have clear policies
and procedures relevant to such requests for ``No Effect''
determinations. Combined, these allowed for broad and subjective
interpretation from individual staff Biologists.
2) We have heard that federal agencies could do a better job when
it comes to informing communities of critical habitat designations.
Communities deserve to be partners in this process.
There are also instances where it is unclear how the federal agency
determined critical habitat.
Example: The Final Rule for Santa Ana sucker critical habitat is
based on two ``personal communications'' between with biologists and
that nearby communities were not informed of these communications.
Will the bill improve cooperation and coordination with
local governments?
Yes, I believe that it will. The current ``team'' in place in
Sonoma County includes a local government representative. She has a
voice in what will be needed to recover the species on the Santa Rosa
Plain. Consistent with that need, the local government representative
is intimately familiar with current conservation plans and regionally
protected properties. These areas should be excluded from Critical
Habitat designation, but included, where appropriate, in what is
required to ``recover'' the species.
By sharing information, the local jurisdictions can do away with
costly and duplicative efforts. This would save time and money--
valuable resources to all parties. Information shared would include
potential economic impacts. Any conservation requirements should be
delineated in detail from shared information.
______
The Chairman. Thank you.
Miss Gray?
STATEMENT OF JONI L. GRAY, DISTRICT 4 COUNTY SUPERVISOR, SANTA
BARBARA COUNTY BOARD OF SUPERVISORS, SANTA BARBARA, CALIFORNIA
Ms. Gray. Thank you and it is always a pleasure to follow
someone with the name Martini in the afternoon. And I wanted to
particularly thank the members of Congress who are here to chat
with us today and hear what we have to say.
I am from a district called Santa Barbara County but I am
from the north end, so my district is more like Chairman
Pombo's and The Honorable Mr. Cardoza. So it is great to be
here. I am very impressed with the bipartisan support.
My county is made up of about 400,000 people. My district
is 80,000 and I represent the district that is the most ag-
oriented district.
As a local official I work with mayors, city council
members. In fact, I have City Councilmember Alice Patino here
with me from the City of Santa Maria. I work with school
trustees, work with special district members, and we all take
this responsibility very, very seriously, as you do. And given
the responsibility that we have to meet the challenges of
providing for our communities with these very limited resources
that we have, we have to, and you know--I have heard it all
morning and I am so appreciative of this. I have learned more
by sitting here than I could ever have imagined. You guys
really know a whole heck of a lot, so that is encouraging. I
want to thank you.
But we want balance, so I am going to give you my story,
not just my story but the story of what happened in Santa
Barbara County. On January 19, 2000, the United States Fish and
Wildlife Service in an emergency rulemaking listed a subset of
the California tiger salamander species in Santa Barbara County
as an endangered distinct population segment. The rulemaking
became final January 2001. Now true, there are disagreements as
to whether it is scientific, whether it is right, whether it is
wrong, but as a public servant, I, my fellow mayors, city
council people, school trustees, we have to work with that.
Now some of the impacts that you heard today, because
everyone has much more of an ability to tell you this than I
do, have talked about the things. In my district we have had a
delay on a project to build a food bank. No, you cannot build a
food bank because there might be a red-legged frog there. We
have a 6-month delay on an animal shelter, a shelter that would
stop the euthanasia of animals, because the tiger salamander
might live there.
We have had tremendous problems with attracting new
business. There is delay in both residential and industrial
construction. There is delay in the needed infrastructure, such
as roads, flood control, water, sewer, all those types of
things, and this has greatly impacted our ability to provide
affordable housing, housing for those children that need to
move out. This guy has one that is 30 years old, so the story
is going to get worse as we go along here. We also have delays
on our high schools. We cannot build high schools because there
is a problem.
The salamander is probably thank you to my district. One of
my friends who has lived on a ranch for many, many years tells
her daughter, ``Would it not be a great idea to study this
little yellow and black lizard that has been on our ranch for I
know 100 years?'' Daughter and mom start digging around. They
are finding things. They are talking to--whoops, the mistake--a
UCSB scientist. So from that point forward she is now in a
heated controversy over the protection of the tiger salamander.
Well, Mrs. Sainz--her name is Janette Sainz--thought this
is a challenge. I will just give them some property and that
tiger salamander can go live there. California Department of
Fish and Game said great idea; let us do that. They decided we
are all ready to go forward, we are going to plant grapes, we
are going to change this property. Whoops, the Fish and
Wildlife Service came in and said not acceptable.
So Mrs. Sainz, the winery, and Mrs. Sainz's daughter have
now caused a problem and no one has the answer. That is what
all of you have said today that is the single most important
thing.
Let me move along. There are thousands of people in my
community that would like very much to coexist and get along
and do what the plan is if they knew the plan or if they were
included in the plan.
It really came down on my community this January 22. The
United States Fish and Wildlife Service proposed 14,000 acres
of critical habitat for the protection of the tiger salamander
in northern Santa Barbara County. The proposal was totally
prepared by scientists that were chosen by the Service who met
privately--underline that word privately. Their meetings with
what they call stakeholders--that is us ordinary people--only
occurred once in a very, very limited amount of time.
Once they decided to publish the proposal, they announced
that there would be a meeting. Now they did not notify the
county and they did not notify city officials, but they said
there would be a meeting and the meeting only identified the
14,000 acres.
Now it was not until the day of that meeting, which was
March 10, when my constituents, government representatives,
raised their voices so strongly and so angrily that the Fish
and Wildlife has now scheduled another hearing for May 11 where
there will be a public hearing and we can talk about it.
In a way, we are the reverse of Sonoma County because first
they drew the map, then they whispered around about what was--
they, meaning the Department of Fish and Wildlife--then
finally, they talked to us. And what causes that problem is
that people become so angry.
I am going to hurry along and I would like to thank Paul
Henson, the assistant manager of the Sacramento office, and
Diane Noda in the Department of Fish and Wildlife. They are
finally recognizing that it is going to be a problem for us.
I want to thank Congressman Cardoza because I think if his
bill would have been in place, critical habitat designation
would be made concurrent with the recovery plan. Properties
that are a part of a conservation plan already in effect or
protected by another state agency would be excluded. Darwin and
Janette Sainz could plant their grapes and the salamander could
have protection. At the time the critical habitat is
designated, economic impacts would be considered. Then the
affected jurisdictions, with few resources available to deal
with this listing, could be adequately noticed and we would not
have our constituents rising up screaming and yelling and
having a fit.
It was interesting; the gentleman from Washington talked
about why had not Mr. Manson, who was sitting this seat, done
something sooner. In my experience he has. Three years ago,
prior to his taking over the administration of Fish and
Wildlife, we could not get answers, we could not get responses,
we could not even get a no, we could not get a yes. We could
maybe get a maybe but the maybe changed 2 weeks later.
So all we are asking for is a plan and I think that is what
all of you are attempting to do. The public needs to know. Just
give us the plan and we will do it.
Thank you so much, Chairman, for letting me be here and I
admire your effort.
[The prepared statement of Ms. Gray follows:]
Statement of Joni L. Gray, 4th District Supervisor,
Santa Barbara County, California
I am grateful to have the opportunity to testify on H.R. 2933,
sponsored by a member of my State's Congressional delegation, The
Honorable Dennis Cardoza. I am encouraged that the legislation has
received bipartisan support. My name is Joni Gray, and I represent the
4th Supervisorial District of Santa Barbara County. I was born and
raised in Orcutt, a small community within my district. I attended
Santa Maria Public Schools, and earned my Bachelor's of Science and
Master's Degree in Education at Cal Poly, San Luis Obispo. I hold
teaching credentials in Secondary Education, Adult Education,
Counseling and Guidance and in General Administration. Additionally, I
am a member of the Family Law and Taxation Sections of the State Bar of
California. For many years I worked in the classroom teaching at Santa
Maria High School, and later at Allan Hancock Community College. I
subsequently practiced law. Those experiences provided me a unique
insight into the workings of public agencies and how they can best
serve community needs.
In August of 1998, I was appointed by Governor Pete Wilson to serve
as the Fourth District Supervisor for Santa Barbara County. In November
1998, I won the seat in the General Election and have continued to
serve as Fourth District Supervisor since that time. Before taking
office, I served as Chairperson of the Santa Barbara County Planning
Commission. Today, I sit on many community organization Boards as well.
These years of public and private service have inspired a deep
commitment to address the concerns of the people who have been my
friends and family all of my life. That commitment takes on additional
significance, as I present them to this elected body today.
As a locally elected official, I take my responsibility to these
people very seriously: a responsibility that proves challenging as we
attempt to meet the varied and many needs within the community with
increasingly limited resources. I have learned that no matter what we
do, or how hard we work, we will never be able to address individual
needs without considering where they fall into the larger picture of
community needs. We must therefore look at solutions that are balanced
in their approach: incorporating the needs of both. That is why I am
here today, to ask that, as Members of Congress, you apply that sense
of balance to the implementation of the Endangered Species Act.
I would like to share the story of the existing Act's impact on my
community, and how I believe that Congressman Cardoza's legislation
could bring that much-needed sense of ``balance'' to resolving the
challenges that my constituents now face. And while the California
Tiger Salamander is but one of the many endangered species listed in my
district, it is the focus of my testimony.
On January 19, 2000, the United States Fish & Wildlife Services, in
an emergency rulemaking, listed a subset of the California Tiger
Salamander species in Santa Barbara County, as an endangered, Distinct
Population Segment. That rulemaking became final in June of 2001.
Although there is strident disagreement over the process as well as the
scientific basis for the listing, as an elected official I am obligated
to aide in charting a course that allows my impacted constituents to
move forward with their economic lives. Some of those impacts include:
Delays in vital projects that serve the most needy in our
community, specifically the delay in the construction of a Food Bank
that has resulted in turning away over 2 million pounds of donated
food, vitamins, and agricultural products;
An impediment to attracting new business and industry to
the Santa Maria Valley;
Delays in residential, commercial and industrial
construction. This includes the Santa Maria Airport project that has
spent hundreds of thousands of dollars over the last decade in
planning;
Delays in much- needed infrastructure, including: repairs
to streets, initiation of flood control projects and completion of
utility projects;
Reduced ability to provide affordable housing while
laboring under a mandate by the State to build housing or risk fiscal
penalty,
Delays and added expenses in school construction;
Escalation in housing prices; and
Subsequent job loss and employment opportunities.
Aside from impacts I have just referenced, the story of the
California Tiger Salamander is rather personal and individual as well.
Over thirty years ago, Janette Sainz, a life-long resident of Los
Alamos encouraged her young daughter to make this salamander the focus
of a school project. And while the critter was novel for her daughter,
Janette knew that the spotted salamander had existed on her ranch her
entire life. The ranch has been in Janette's family for over 100 years.
Both mother and daughter were enthusiastic about this school
project. They began looking for details about the habitat and life
patterns of the creature. Janette contacted a Santa Barbara scientist,
who immediately expressed intrigue by the finding. Until that time, it
was not recognized that the California Tiger Salamander lived that far
south. The school project was a success for the Sainz's daughter--
however, thirty years later that discovery placed Janette in the middle
of a heated discussion over the protection of the salamander.
Not easily deterred by a challenge, Janette and her husband Darwin,
prior to the listing, volunteered to set aside acreage for the
preservation of the species. The California Department of Fish and Game
agreed with an independent scientist that the land to be set aside was
sufficient for the sustainability of the species. However, the Federal
listing preempted consummation of the agreement, and four years later,
the Sainz are still unable to use their land. Today, Janette and Darwin
have approximately 500 acres of property that is leased to a winery for
the growing of grapes. Due to the listing, 360 acres of the property
has remained uncultivated and unplanted. The loss in terms of dollars
to both the winery owners that lease the land, and the Sainz family
that own it is dramatic.
It was always the intent of Janette and Darwin to continue sharing
their land with the salamander that had called it home for as long ago
as Janette could remember. In her own words: ``Our family has lived
with the salamander for years, and we have always gotten along just
fine.''
This story is but one of hundreds: people, willing to work with
regulators to provide for the protection of a species, yet coexistence
has been denied. Their proposals are not denied because of the ultimate
demise of the species in question, but rather because current demands
of the Endangered Species Act offer limited opportunity for delisting
of the species, and no opportunity for economic protection of the
individual impacted.
This point was well-demonstrated when on January 22, 2004, the
United States Fish & Wildlife Service proposed designation of nearly
14,000 acres of critical habitat for protection of the California Tiger
Salamander in Santa Barbara County. The Service stated that these
14,000 acres, the vast majority of which are privately held, are
essential to the species conservation. My constituents feel that the
proposal was in large part prepared by scientists chosen by the
Service, who met privately. Their meetings with stakeholders were
infrequent, and because stakeholder's participation was so limited, it
was impossible for them to constructively contribute to the recovery
teams' efforts. Post publishing of the proposed Critical Habitat, an
informational meeting on March 10th was scheduled. This meeting was
open to invitees only, and convened merely to notify stakeholders of
the designation. County or City elected officials were not even
notified.
It was not until the day of the meeting, March 10th, 2003, when
constituents and governmental representatives alike, raised their
voices in anger that the Service agreed to reopen the comment period
and on May 11th, allow for a public hearing on the proposed Critical
Habitat. One of the grave concerns expressed at that time was that the
Service proposed publishing Critical Habitat prior to the completion of
an economic analysis, largely ignoring the economic needs of the
community impacted. The community has been informed that the economic
analysis is underway that identify impacts relative to the proposed
critical habitat designation. In the words of the Fish & Wildlife
Service, ``It will be released separately for public review and
comment.'' We have since received a commitment from the Fish & Wildlife
that a public hearing will be held on the economic analysis as well. If
not for the efforts of Mr. Paul Henson, Assistant Manager, Ecological
Services in the Sacramento Office of the Fish & Wildlife Services, and
Diane Noda, Field Supervisor of the Ventura Office of the Fish &
Wildlife Services, we would not have the opportunity to participate in
public hearings.
This chronology highlights the need for the proposed changes
offered by Congressman Cardoza that would balance the needs of the
community with that of the protected species. If his proposed changes
were in place, the story of Santa Barbara would be quite different.
Critical Habitat designation would be made concurrent with a
recovery plan. Currently, critical habitat designation is so large, and
appears to be such large taking of private and public lands that we
were placed in a combative and contentious position from the moment
that proposed habitat was published. By developing an inclusive plan
first, and than designating critical habitat there is opportunity for
input from all stakeholders, and the ultimate decision on critical
habitat, while still painful, would be inclusive.
Properties that are already a part of a ``conservation plan'' or
offered protection by other State or Federal conservation programs
would be excluded from Critical Habitat designation. In the case of
Janette and Darwin, they would have a plan in place that protects the
species but also allows them useful access to their land.
At the time that Critical Habitat is designated, economic impacts
would have already been considered. This would allow for a much more
balanced approach when determining what is needed for the coexistence
of the salamander and the human population. The legislation requires
that the analysis reflect direct, indirect and cumulative impacts. It
would have to consider the loss of revenues to private property owners
such as Janette and Darwin, and Local governments such as Santa Barbara
County.
Affected jurisdictions, with few resources available to deal with
the listing would receive additional notification of critical habitat
proposals. The information would have to be shared--precluding the
employment of firms to aid in gathering information pertinent to the
listing. This would have eliminated much consternation and frustration
at the county level with respect to the most recent meeting referenced
earlier.
Finally, the legislation's proposed word change from ``essential to
the conservation of the species'' to ``essential to the conservation of
the species as areas which are absolutely necessary and indispensable
to conservation,'' would undoubtedly have resulted in development of a
recovery plan and than designation of Critical Habitat that was less
than the 14,000 acres currently proposed.
My colleague, Supervisor Joe Centeno, and I have scheduled a
meeting with the Service and impacted constituents on May 5th. We hope
that this will be the opening of a dialogue that will allow us to
consider a more balanced approach to the challenges presented by the
current law. Further, we are encouraged that the Service has responded
to our requests to re-open the public comment period on Critical
Habitat designation and a public hearing is now scheduled for May 11th.
Perhaps the bottom line is that if Congressman Cardoza's ``balanced
approach'' legislation had been in place, Santa Barbara County would be
well on its way to conservation of the species while at the same time
recognizing the economic needs of those affected.
Chairman Pombo, thank you for allowing me to testify before your
Committee today.
______
[Ms. Gray's response to questions submitted for the record
follows:]
Response to questions submitted for the record by Joni L. Gray, 4th
District Supervisor, Santa Barbara County Board of Supervisors, Santa
Barbara, California
Questions from Chairman Richard Pombo:
1) Supervisor Gray, what do you think of the methodology used by
FWS to craft a recovery plan? Would the elements of this bill make it a
more inclusive and open process?
The Recovery Plan process that recently occurred in Santa Barbara
County left many people frustrated and disenfranchised. That included
many elected officials as well as constituents. A Recovery Plan, in my
estimation should be all-inclusive--people who have the most at stake
should have a seat at the table as well as scientists familiar with
subject species. Further, I think that various Biological perspectives
should be represented--this too would eliminate distrust in the end
product.
Currently the Recovery Plan process is broken. The USFWS has failed
to provide timely recovery plans and this has prolonged a process
(denial of certain land uses) that is costly to local governments and
landowners. As currently structured the ESA requires certain actions to
be completed within specific timeframes following a listing. This bill
would require these actions to be completed concurrent with the
listing, thus improving the performance of the USFWS.
The bill requires that concurrent with Critical Habitat designation
would be the presentation of the Recovery Plan. This Plan would outline
what is required to recover the species. Additionally, the economic
analysis would have already been considered, ensuring that protection
for the species does not economically devastate a specific region.
The experience in Santa Barbara County is that vast tracts of
public and private land are sequestered while the USFWS evaluates data
and determines what kind of protections are required, if any. By
preparing a Recovery Plan prior to establishing a critical habitat
designation all of the scientific merits would be fully developed,
goals established and the need to protect the species fully justified
BEFORE action is taken.
All of these are important not only to the sustainability of a
species but the sustainability of the Act itself. People need to feel
that they are a part of the process--elements of Cardoza's bill go a
long way in ensuring that this is the case.
2) Supervisor Gray, if the Cardoza bill had been in effect, how
would your experience in Santa Barbara be different?
The provision of the bill that require Critical Habitat designation
to be made concurrent with a recovery plan would have eliminated a
great deal of consternation among my constituents. Currently, critical
habitat designation for the Tiger Salamander is so large (14,000 acres)
and appears to be such large taking of private and public lands that we
are placed in a combative and contentious position from the moment that
proposed habitat is published.
By developing an inclusive plan first, establishing the recovery
goals and then designating critical habitat there is opportunity for
input from all stakeholders, and the ultimate decision on critical
habitat, while still painful, would be inclusive and fully justified.
Additionally, at the time that Critical Habitat is designated,
economic impacts would have already been considered. This would allow
for a much more balanced approach when determining what is needed for
the coexistence of the salamander and the human population. The bill
goes on to require that the analysis reflect direct, indirect and
cumulative impacts. Designation would have to consider the loss of
revenues to private property owners such as Janette and Darwin Sainz--
constituents I referenced in my testimony, and local governments such
as the City of Santa Maria and Lompoc.
It is logical to conclude that if a Recovery Plan had been required
for each species listed in Santa Barbara County that many would not
have been listed. The premise of the Recovery Plan is that a species
population has diminished and to bring it back to a sustainable
population. To successfully accomplish these actions it is necessary to
fully understand the species in question, its historical range and its
habitat.
3) We have heard that federal agencies could do a better job when
it comes to informing communities of critical habitat designations.
Communities deserve to be partners in this process. There are also
instances where it is unclear how the federal agency determined
critical habitat.
Example: The Final Rule for Santa Ana sucker critical habitat is
based on two ``personal communications'' with biologists and that
nearby communities were not informed of these communications.
Will the bill improve cooperation and coordination with
local governments?
The use of ``personal communications'' from listing advocates seems
to be a common occurrence as the endangered species listings are
reviewed. Requiring a Recovery Plan as part of the listing process will
allow technical issues, such as the historical range and census counts
of the subject species, to be fully vetted prior to any federal action.
Requiring the USFWS to publish these communications so that
knowledgeable members of the community can evaluate their relevance and
provide comment is an important step forward.
Requiring the USFWS to notify every jurisdiction within the
proposed recovery area is of utmost importance. Frequently people in
Santa Barbara County have been ignored in the process. For example when
the Pacific Coast Population of the Western Snowy Plover was proposed
for listing the notice only appeared in the Los Angeles and San
Francisco area newspapers. No notice was provided in Santa Barbara
County media, however the listing of the WSP has had a significant
impact on my constituents.
Affected jurisdictions, with few resources available to deal with
the listing would receive additional notification of critical habitat
proposals. The information would have to be shared--precluding the
employment of firms to aid in gathering information pertinent to the
listing. This would have eliminated many of the concerns at the County
level with respect to the Critical Habitat designation.
Few Federal agencies have an understanding of the needs of a
particular area. However, locally elected officials have a very good
idea. By working together we can create solutions that would allow for
recovery of the species--often through voluntary action--that promote
co-existence between the human populations with that of the protected
species.
The communication process today appears to be designed to exclude
the public in general. Few people have the time or energy to read the
Federal Register on a daily basis. This limits the ability of the
public in general to participate in decisions that can have a dramatic
impact on their lives.
The bottom line is that unless the Congress adequately funds the
ESA process there will be continued abuses of the system. This bill
seeks to improve the process by clarifying the policy and establishing
new requirements. Funding and interpretations by the judicial system
will limit the successful execution of this policy.
In conclusion, I would ask that you examine the ECOS website. This
is a Summary of Listed Species and Recovery Plans as of 06/02/04.
http://ecos.fws.gov/tess--public/TESSBoxscore
This is a very telling statistic. Less than half of the species
listed have recovery plans. The impact of the proposed amendment to the
ESA would cut the list in half.
*There are 1855 total listings (1292 U.S.). A listing is an E
(endangered) or a T (threatened) in the ``status'' column of 50 C.F.R.
17.11 or 17.12 (The Lists of Endangered and Threatened Wildlife and
Plants).
**There are 541 distinct approved recovery plans. Some recovery
plans cover more than one species, and a few species have separate
plans covering different parts of their ranges. This count includes
only plans generated by the USFWS or jointly by the USFWS and NMFS, and
includes only listed species that occur in the United States.
Thank you for allowing me to give additional testimony.
______
The Chairman. Thank you.
Dr. Sheldon?
STATEMENT OF JOSEPH K. SHELDON, PH.D., PROFESSOR OF BIOLOGY AND
ENVIRONMENTAL SCIENCE, MESSIAH COLLEGE, GRANTHAM, PENNSYLVANIA
Dr. Sheldon. Chairman Pombo and members of the Committee on
Resources, Honorable Mr. Cardoza, it is a pleasure and an honor
to be here today. I applaud your efforts to strengthen the
Endangered Species Act but there are some areas that I have
some concern about and I would like to address those
specifically.
I direct my comments to you as a Christian and as a
conservation biologist. I have been invited to speak out of my
concern for the stewardship of biodiversity that was wrought
into existence and is sustained by God.
Many Christians consider themselves to be stewards of God's
creation and their stewardship to be an act of worship. Others
see stewardship of creation as an act of responsibility for
their children and grandchildren. In both cases we are not the
owners but rather, act on behalf of either the one above or
those to come and our efforts to maintain and assure the
fruitfulness of God's creation.
A responsible steward must have sufficient foresight to
anticipate and prevent problems from occurring in the first
place. Lost, threatened and endangered species, as a result of
human impact, testify to our past failure as stewards. Yes, we
must address problems when they are recognized but it is your
responsibilities as high stewards in Congress to make meetings
like this unnecessary in the future as we are doing our job
properly in preserving the creation.
As stated by theologian Steven Bouma Predager, all
creatures are designed to sing the praises of God. To see a
tree only as so many board feet or a river as only a place to
fish are forms of near-sighted utilitarianism that reduce all
value to human terms. A focus only on human use, even if wise
use, is a stunted viewpoint that fails to acknowledge intrinsic
value in a world that is not of our making.
H.R. 2933 reduces some of the essential protection from
present and future species. It strengthens other areas that are
necessary.
Habitat destruction and degradation is the primary factor
responsible for more than 80 percent of the U.S. species that
are currently listed under the Endangered Species Act. By the
time a species qualifies for ESA listing, their viability is
already seriously threatened and they often survive only in
degraded and marginal habitat, and that is critical to
understand. The remnant population of most endangered species
could still be recovered by removing the factors that have
threatened them. Often this will require suitable habitat
currently unoccupied by the species for reintroduction or
recolonization.
Rather than assuring adequate habitat for recovery, H.R.
2933 limits habitat protection to absolutely necessary and
indispensable landscape presently occupied by the species. That
does not give any room for reintroduction or recolonization. I
am assuming that the critical habitat is also habitat that has
been identified by the best scientific means and it is not the
middle of a tennis court or a housing development that already
exists. I am talking about critical habitat that is necessary
for the sustainable living of the species.
A minimum viable population requires a minimum dynamic
habitat but a minimum viable population is hardly the fruitful
population described in Genesis 1:22. Are we not stealing the
birthright of God's creatures when we fail to provide them with
the essentials necessary not just to survive but to flourish?
Resource managers base their production goals on maximum
sustained yields yet when God's creatures stand in our way we
set minimum viable populations as an acceptable standard.
The Endangered Species Act is an act in process. It demands
adaptive management from the scientific end and adaptive
legislation from your end. The steward's role, your role, must
be to craft a win/win solution for all stakeholders and to
transform the ESA into an act that is supported by property
owners who see value in preserving and enhancing the
fruitfulness of their piece of creation, not the current
practice of shoot, shovel and shut up.
We live in the richest nation that the world has ever
known. We have a national heritage of conservation that has
persisted even through the worst of economic times. Surely we
can and we must have the political will to commit the necessary
resources to live sustainably within God's creation.
Humanity was placed in Eden, in the garden, to serve and to
care for creation. Adam's first task in the garden was to name
the animals. It is this act of loving servant leadership that
must characterize our lives today. As we step back and evaluate
our job as stewards, let us remember that we have only one
chance to do the job right.
A real danger lurks here. Webster's New Collegiate
Dictionary defines blasphemy as the act of insulting or showing
contempt or lack of reverence for God or the act of claiming
the attributes of God. If we deny the fruitfulness of God's
creatures, have we crossed an unacceptable line?
In our arrogance we have created a committee that we call
the God squad to decide whether a species is worthy of
continued existence. Section 3 of the current bill extends this
policy by inserting an economic impact argument as the primary
determining factor on evaluating whether to protect critical
habitat. It is the steward's job to care for creation. Only the
creator has the right to determine when it is time to call a
species home.
I applaud your efforts. I encourage you. We need to change
the Endangered Species Act but we need to do it in a way that
will guarantee the fruitfulness of the species that have been
placed in our hands to care for. Thank you.
[The prepared statement of Dr. Sheldon follows:]
Statement of Joseph K. Sheldon, Ph.D., Professor of Biology and
Environmental Studies, Messiah College, Grantham, Pennsylvania,
Representing Au Sable Institute of Environmental Studies, American
Scientific Affiliation, The Evangelical Environmental Network
Chairman Pombo, Ranking Member Rahall, and Members of the Committee
on Resources:
It is an honor and privilege to be here today. I direct my comments
to you as a Christian and as a conservation biologist. I have been
invited to speak out of my concern for the stewardship of biodiversity
that was wrought into existence and is sustained by God. Many
Christians consider themselves to be stewards of God's creation and
their stewardship to be an act of worship. Others see stewardship of
creation as an act of responsibility for their children and
grandchildren. In both cases, we stewards are not the owners, but
rather act on behalf of the One above or those to come to maintain and
assure the fruitfulness of God's Creation.
Some Biblical and Scientific Perspectives on Species Protection:
a response to h.r. 2933, critical habitat reform act of 2003 and why
h.r. 2933 should not be supported
How many are your works, O LORD! In wisdom you made them all; the earth
is full of your creatures...teeming with creatures beyond
number. May the glory of the LORD endure forever; may the LORD
rejoice in his works.
from Psalm 104:24,25,31.
Introduction
Taking care of endangered species engenders heated debate. What are
our priorities? Is it worth the expense? Should government be involved?
H.R. 2933, the Critical Habitat Reform Act of 2003, weakens the
Endangered Species Act by denying adequate habitat protection and by
requiring a cost-benefit analysis. The steward's responsibility is to
preserve the fruitfulness of God's creatures and the sustainability of
all the Earthly Creation. This bill, if approved, will compromise that
task. It should not be approved.
Individuals with a Judeo-Christian heritage need to think
biblically about these issues? How can Scripture inform our discussion?
What would be a biblical response to the endangered species debate?
What might God think of endangered species? Here are some guidelines
for reflection on how we might follow Christ and respond with godliness
to the needs of his creatures.
Important Scriptures
Is it not enough for you to feed on the good pasture? Must you also
trample the rest of your pasture with your feet? Is it not enough for
you to drink clear water? Must you also muddy the rest with your feet?
From Ezekiel 34:18.
Hear the word of the Lord...because the Lord has a charge to bring
against you who live in the land: There is no faithfulness, no love, no
acknowledgment of God in the land. ... Because of this the land mourns,
and all who live in it waste away; the beasts of the field and the
birds of the air and the fish of the sea are dying. From Hosea 4:1-3.
The creation waits in eager expectation for the sons of God to be
revealed--in hope that the creation itself will be liberated from its
bondage to decay and brought into the glorious freedom of the children
of God. From Romans 8:19-21.
Thy kingdom come, thy will be done, on earth as it is in
Heaven...(Matthew 6:10). ``This is the common denominator among
Christians. Life is a primer for eternity, learning to love God as he
loves us, by practicing that redemptive love in the framework of our
daily lives. Not building utopia, not the final completion or
redemption, but being good neighbors to all, especially to the least
among us--human and non-human alike'' (David Foster, Messiah College).
Biblical and Theological Perspectives
Goodness of creation. Scripture expresses God's delight
at the myriad of species. Gen. I pronounces them ``good'' (vv. 21, 25).
The creation story also repeats the word ``kinds'' (seven times in five
verses, Gn. 1:20-25) showing that God gave special attention to
variety. The Creator also commissioned Adam to name each specie: Gn.
2:19-20. Scripture also affirms the goodness of the human creation: Gn.
1:26-28, Ps. 8:3-8, Mt. 10:31. Despite the grandeur of creation, humans
must be careful to worship God alone: Is. 42:8, Rm. 1:18-25.
God's Joy. Throughout Scripture, we find the Creator
rejoicing in his works (Ps.104:24-25, 31, etc.) and paying attention to
even the most insignificant (Mt. 10:29). God describes his creatures
with awe, admiration and pleasure. Dare we diminish the joy God finds
with his handiwork?
God's concern. Matt. 10:29-31. Not a sparrow falls to the
ground apart from the will of the Father. This reveals an intense
involvement in the daily, seemingly inconsequential affairs of
creation. It reveals a God who is not a scientist collecting cold data,
but a Creator intimately leading creation toward the accomplishment of
his will. Also revealed is the supreme value of the human creation: If
God so esteems slugs and salamanders, what does this imply about me? It
could be said that advocating for the protection of species elevates
the stature of the human as well. When we know what is out there, it
makes the human all the more valuable. Could it be said that a
contributing factor to the demeaning of human existence is a loss of
contact with the Creator God and his splendid creation?
Human responsibility toward creation. Humans have a very
special and exalted place within creation (Gn. 1:26-28, Ps. 8:3-8, Mt.
10:31). However, Scripture provides us with no mandate or calling to
destroy; our commission is to serve as stewards of creation: Gn. 1:28,
2:15. Genesis 1:28 is a strong passage that refers to ruling over
creation. The ancient Hebrew word is redah and it generally is used to
describe the righteous and loving rule of a good and kindly king.
Genesis 2:15 describes how this rule is to be carried out. The two key
words in Genesis 2:15 are ``till'' (abad in Hebrew) and ``keep''
(samar). In other texts, abad is translated to ``serve.'' Joshua 24:15
says, ``we will serve (abad) the Lord.'' What kind of service would our
God require of us? Responsible or destructive? How would our God have
us serve (abad) creation? Samar, on the other hand, describes the type
of keeping that is illustrated in Numbers 6:24 where the Lord through
the prophet Aaron speaks of his keeping of the Israelites. ``The Lord
bless you and keep (samar) you.'' Certainly, God keeps his people in
such a way as to demonstrate his great love and care. His keeping would
cause his people to thrive. In a similar fashion, we are charged with
the ``keeping'' of creation. Creation deserves our love and our labors
that contribute to its health and vitality.
Human Concerns. Most Scripture would seem to lend support
for preserving species for their own sake. Scripture also teaches that
humans can enjoy the benefits of creation: Gn. 1:29-30. It would be
difficult to enjoy the benefits of something which no longer exists.
Also, all creation is to enjoy these benefits as well: Gn. 1:30.
Fruitfulness. Scripture commands us to tend creation so
that it can be preserved and regenerate itself. Dt. 22:6-7.
God Sustains. The Bible says that God sustains his
creation: Ps.145:15-16, Mt. 6:26,30. By what calling do humans override
God's involvement with what he has made?
Covenant. God made a very specific covenant with all
life: Gn. 9:8-17; it is not to be destroyed.
God's Will. In the Noah story, God has revealed his will
that all life be preserved, Gn. 6:19-20, 7:1-3, 7:14-16, 8:17, and in
such a way that it may regenerate itself: Gn. 6:19b, 20b, 7:3b, 8:17c.
Natural extinctions will sometimes occur as a part of God's will, but
this is not a human prerogative.
God's Witness. ``For since the creation of the world
God's invisible qualities--his eternal power and divine nature--have
been clearly seen, being understood from what has been made, so that
men are without excuse.'' (Romans 1:20). Who are we, through our
actions, to degrade the witness to God's power and divinity? Who will
face him on the Judgment Day and give an explanation for our actions?
What will we say to him?
Worship. The Bible says that all creation praises God:
Ps. 96:11-13, Rev. 5:13. Silenced voices of praise are a great tragedy,
a symphony ``finished'' in an untimely manner.
Human Worship. Can one read Psalm 104 or Job 38-41
without experiencing awe and wonder as the Lord describes the creatures
of His creation? To know what God has made is to know him better and to
be better equipped to worship him.
Human Responsibility. God gave to Noah and to Adam
specific responsibilities regarding the care of creation. Are we called
to be any less responsible than Adam and Noah? If we claim to know the
Creator and to have a personal relationship with him, then how can we
not be grieved at the destruction of the cherished gift that has been
placed in our hands?
Ethical questions. It would be easy to consider some
species as more important than others. Most of us are far more
appreciative of butterflies than slugs. But can we really make such
decisions? Who are we to determine which species are more important
than others? Could we call this ``playing God''? Are we given a
scriptural mandate to destroy? That is the prerogative of the Creator,
not the steward. Our responsibility is to tend the garden.
Judgment. ``Your wrath has come. The time has come for
judging the dead ... and for destroying those who destroy the earth.''
Rev.11:18. Our destruction of species is most often rooted in sin and
for this we will be judged. Environmental degradation results from
forms of idolatry, greed and pride: our technological pursuits lead us
to forget about and be ignorant of God's work in creation; we presume
the importance of our work and needs, to the point of destroying God's
work; the powerful among us ignore the needs of the weak, destroying
what provides subsistence for the poor or forcing them to marginal
frontiers where they must live destructively in order to survive. In
contrast to God's knowledge, our ignorance is such that we don't know
all the different species that exist, how they interrelate, or how they
might be useful or even necessary to us.
Species extinction is symptomatic: It is a problem reflecting the
sinfulness and unsustainability of lifestyles and our economy. ``The
sins of the father are visited on the sons,'' says the Lord in Deut.
5:8-10. We now see that the sins of humanity are visited on other
species as well.
Evangelism. The unbelieving world is waiting for
Christians to take a relevant stand on a variety of issues, including
species protection. Ultimately, Christian involvement in species
protection will be undertaken for its own sake as a way to honor God.
Nonetheless, we can expect some in the unbelieving world to respond
positively. Our work in species protection will speak powerfully about
the very character of our God.
Scientific Perspectives
Introduction. The branch of science which focuses on the
protection of the world's species is referred to as conservation
biology. In scientific circles it is known as a ``crisis discipline''--
often called upon to act or advise with little or no warning, with a
limited knowledge base, and frequently dealing with emergency
situations. In many ways it is similar to a medical emergency room;
only the patients are not humans, but rather the other creatures of our
Lord's magnificent creation. Each is a Mona Lisa in its own right--
painted into existence by the Lord's own hand. The very fact that
conservation biology exists is reason for concern, especially for
Christians: it is testimony to our failure to properly steward
creation.
What do we know about species? Science tells us that
there are between 5 and 40 million species alive today. Approximately
1.7 million have been identified and catalogued. We know that millions
of unidentified species exist. How many we are not sure. The temperate
areas where the great majority of scientists work and reside are
relatively well-known, but our knowledge of the species of the tropics
and the deep oceans where the majority of the world's species reside
remains largely a mystery. But the point is not the sheer number of
species. The crisis involves what is happening to known species as well
as to the myriad unknown.
What are the primary causes of extinction? Many factors
contribute to the loss of species including the impact of introduced
species, global climate change, pollution, disease, and excess hunting
and other forms of harvesting which exploit species at a rate that
exceeds their reproductive potential. But the single largest and
expanding threat is habitat destruction caused by human actions. No
species can continue to exist when its ecosystem, its very home is
destroyed; the occupied habitat of most endangered is reduced to a
fragment of its former area and is often marginal in quality at best.
It should be noted that in January 2004 a major research paper in the
journal Nature identified Global Climate Change as a major contributing
factor, perhaps equal or greater to habitat destruction.
What species are going extinct? The best known groups of
organisms are birds and mammals. Since the year 1600, a total of 83
known mammals species (2.1%) and 113 birds (1.3%) have become extinct.
This number is expected to rise rapidly as the breeding populations of
many species continue to decline. But even before the advent of modern
technology, humanity took a heavy toll on creation. Approximately 70%
of the known bird species have become extinct in the Hawaiian Islands
since humans first arrived. Indeed, large-scale extinctions of Pacific
island birds apparently was widespread. Recent evidence points to a
loss from these islands in excess of 2,000 species following human
habitation--a 20% reduction in the world's bird species. Evidence also
links the colonization of Australia and North America with the
disappearance of many species of large mammals (over 100 pounds). More
than 50 mammal species have become extinct since the arrival of humans
in North America. Fossils of extinct species have been found with spear
and arrowheads imbedded in their bones. A few thousand years ago,
western grasslands rivaled the great savannas of Africa in terms of the
enormous numbers of animals. Both large grazing mammals and their
predators were in abundance. Where are they today?
Determining present extinction rates and even the status of most
species is difficult for all but a few well-known groups. For example,
we know that 17 of the 22 crocodile and alligator species are
threatened with extinction from habitat destruction and overhunting.
But what about the world's plants or its insects? Peter Raven, perhaps
the world's leading specialist on tropical botany has stated that 25%
of the world's plant species are seriously threatened. And what about
beetles which represent approximately 25% of all known species? You may
be wondering why we should be concerned about beetles at all. After
all, a bird or mammal must be far more important than a species of
insect! Not necessarily. Each species plays a unique role in creation.
The loss of any species has ripple effects across the fabric of
creation. In recent studies of Central and South America, more than 90%
of the beetles collected were from unknown species. A single tree may
have as many as 1200 species of beetles of which 20% (160) are
specialist feeders that occur only on that species of tree. There are
approximately 50,000 species of tropical trees--each with its
specialist beetle population. If the tree becomes extinct, so will the
other species associated with it. And there are many other specialists
on tropical trees besides beetles!
How are scientists able to estimate the numbers of
animals going extinct? There is a direct relationship between the size
of an area and the number of species that it contains. A square yard of
temperate forest habitat may have 10 species of plants, while an acre
will often number in the hundreds. The larger the area, the more
species encountered--up to a point. Of equal importance is the size of
the area occupied by each species. Species that are restricted to small
geographic areas are much more likely to go extinct than are those with
widespread distributions. Also the smaller the population, the higher
the probability of extinction. And here lies a disturbing fact. It is
thought that tropical species commonly have smaller populations and
much more restricted distributions. Thus, destroying an acre of
tropical forest will likely have a much higher extinction impact than
the loss of an acre of temperate forest.
With this limited information, it is possible to explain how
estimates of species extinction rates are obtained. In a major tropical
forest research study, scientists found that if 50% of the habitat was
destroyed then approximately 10% of the species disappeared. When
habitat destruction reached 90%, then 50% of the species were lost. At
least 12 African and eight Asian countries have lost more than 50% of
their wildlife habitat. In some cases (Hong Kong and Bangladesh),
habitat destruction exceeds 90%. Using this logic, Dr. Edward Wilson of
Harvard University estimates that, if 1% of the world's tropical rain
forests are destroyed each year (a conservative estimate based on
current rates of deforestation), then 0.2 to 0.3% of all species would
become extinct per year. Over 100 years, this would be a loss of at
least 20% of all species, if extinction rates remain constant. Based on
a total of 10 million species, the current annual loss has been
calculated to be 20,000 to 30,000 species. Are these numbers real? Some
current studies indicate that the rate of species loss may be somewhat
less that the model predicts. There is no question, however, that
unless the escalating rate of habitat destruction is reversed, the
extinction toll will continue to rise. And if recent evidence from
studies on Global Climate Change proves to be true, atmospheric
modification may become the major threat to species in the future. It
appears that we are entering a major extinction episode with unknown
global consequences. It is time that those in Congress join the rest of
the world in addressing these problems. Long-term ecosystem
sustainability must be our first priority as we carry out our role as
stewards of God's creation.
Is a minimum minimum viable population ecologically
extinct already? The answer is probably yes. All species occupy an
ecological niche and as such contribute to important processes of
ecosystem function. When a species population is reduced to the point
that it would qualify as a ``minimum viable population'' its
contribution to these ecosystem processes is minimal. Such a species
can be considered to be ecologically extinct. Many of our large
predators fall into that category through much of their former range,
if they exist there at all. The American Bison as well as many other
species that are not currently listed by the ESA are functionally
already extinct. They certainly do not exhibit the biblical concept of
fruitfulness.
What about those animals, like the dinosaurs, that would
go extinct anyway? Isn't it true that many species have become extinct
in the past due to natural events? If so, why should we be concerned
about more extinctions today? Yes, it is true that extinctions have
taken place in the past. Indeed, scientists have identified at least
five major periods of extinction in the fossil record when large
numbers of species disappeared during a ``short'' (geologically
speaking) period of time. Various explanations have been proposed to
account for these sudden losses. Perhaps the most well-known is the
asteroid-impact hypothesis. But even if extinctions have taken place in
the past, is this sufficient reason to cause more today? Indeed, I
think not. Peter Raven, Director of the Missouri Botanical Garden,
describes the present crisis as one of the greatest extinction episodes
in the history of the Earth. What we are facing today is a catastrophic
loss of the species that God placed here to share Creation with us.
They are the species that God entrusted to humanity to name and to care
for. We also have been given the privilege to use this special trust to
meet our own needs--but it must be done in a sustainable fashion. We
may take from the fruitfulness (the ``interest'') of creation, but must
not destroy its ``principal.'' This is clearly illustrated in
Deuteronomy 22:6-7 where the Lord instructs the Israelites that ``If
you come across a bird's nest beside the road, either in a tree or on
the ground, and the mother is sitting on the young or on the eggs, do
not take the mother with the young. You may take the young, but be sure
to let the mother go, so that it may go well with you and you may have
a long life.''
What good are many of these species anyway? ``When it
comes to a snail darter or a dam, I vote for the dam! After all...what
use is a snail darter?'' More and more frequently we find ourselves
forced to make a choice between human activities and species
protection. Rarely (if ever) is the choice between the life of humans
and the life of a non-human species. When conflicts arise they
typically involve economic restrictions, projected or actual loss of
jobs, and inconvenience. In response to these conflicts some are
suggesting that the Endangered Species Act should be weakened and that
all proposed listings under the act be examined through the eyes of a
cost-benefit analysis. What is the value of the project vs. the value
of the species? This raises a difficult question. How does one actually
determine the value of the species? What constitutes value? Can a
monetary value be established for a species in the same way that we can
measure the monetary value of a dam or the lumber cut from a tree?
Let's briefly look at the question of establishing value.
There are many types of value that are recognized. Some are easy to
associate with monetary value, others are perhaps impossible. A species
that can be harvested and sold in the open market has economic value
that is relatively easy to determine. Clothing (wool, cotton, silk),
building materials (lumber), and medicinal products extracted from
plants (taxol to cure cancer) provide obvious examples. But what about
values not yet discovered? Wild plant species provide the primary
source for new medicines and genes for new agricultural strains. Does a
species whose use has not yet been discovered have a value? How is it
to be determined? What if the species becomes extinct before its use is
discovered? Another value is ecosystem value. Plants produce oxygen and
remove pollutants from the air. Marshes are biological filtering
systems. All species remove energy through food chains and are involved
in the cycling of materials. Can one determine the value of the oxygen
produced by a single tree? Or the amount of toxic air pollution that it
removes? These are values that benefit the entire ecosystem. In most
cases we will never know the ecosystem value of a species. Each plays a
unique role in the functioning of Creation. If there is no obvious
value directly to humans, does that mean the species is worthless?
Another form of value involves esthetics. Can we reduce the beauty of a
monarch butterfly, a zebra, or a mountain goat as it bounds across a
snowfield in the high Rockies to a monetary cash value? Is it even
right to try? Perhaps most difficult is the concept of intrinsic value.
Do species have an intrinsic right to exist? Are humans the measure of
all value or is God? When we read in Genesis 1:12 and 1:21 that God
declared that the plants and animals of Creation are good, what does it
mean? Can the value of goodness be reduced to cold, hard cash? Perhaps
there is a higher value that we often ignore. This value is related to
our responsibility as stewards. We are not asked to care for our Lord's
creatures because of their economic or even intrinsic value to us. We
are asked to he stewards because of Creation's value to the One who
painted it into existence.
CONCLUSION
When thinking about endangered species, it is easy to get caught up
in political and economic agendas. Certainly, these many issues must be
debated. However, the faithful disciple of Jesus Christ must first ask
the question, ``Is there anything spiritual about this debate? How
would my faith inform my own position on this matter?'' These questions
have rarely been asked by evangelicals. It is time to ask such
questions.
In the opinion of a growing number of evangelicals, the protection
of species is supported by Scripture and therefore, must be the concern
of all God's people everywhere.
As pointed out in the oral testimony and more fully explained from
a Biblical perspective above, H.R. 2933, Critical Habitat Reform Act of
2003, if enacted will significantly weaken our ability to protect
species under the Endangered Species Act. It withdraws habitat
protection from land that is not currently occupied by the species.
This unoccupied habitat will frequently be needed for reintroduction
and/or recolonization if the species is to recover. It also introduces
a cost/benefit analysis as a primary determinant in whether to list a
species. Neither change is acceptable; both compromise the
responsibility/ability of a steward to preserve God's creatures. As
pointed out in the oral testimony, it is the stewards responsibility to
maintain the fruitfulness of God's creatures; only God has the right to
determine when their time on Earth is has come to an end.
H.R. 2033 SHOULD NOT BE SUPPORTED.
______
[Dr. Sheldon's response to questions submitted for the
record follows:]
Response to questions submitted for the record by Joseph K. Sheldon,
Ph.D., Professor of Biology and Environmental Science, Messiah College,
Grantham, Pennsylvania
Questions from Congressman Tom Udall
1)``Dr. Sheldon, you indicated that many of the non-charismatic
creatures that often go unrecognized by the general public are included
in the most important elements of biodiversity to preserve. You also
suggested that we must move beyond a focus on individual species; that
it is critical to preserve essential ecosystem processes as part of our
task. How should the Committee on Resources address these issues?''
Response: Thank you for the opportunity to continue our discussion
of this critical issue. Before I respond to your questions, I would
like to clarify my response to two previous questions associated with
my oral testimony.
First, I was asked, as an evangelical Christian, what my view was
on evolution/creation. I responded that God did it, but I did not
provide a more detailed response. My short answer is that we need to
move beyond the debate of ``how god did it.'' It is a done deal. Now we
need to act as responsible stewards of God's Creation. It is my
personal belief that God used a process over time. Some refer to it as
theistic evolution; others as continuous creation. Even as God
continues to act creatively and to sustain Creation, our role is to
tend the garden.
Second, I spoke earlier of our home on one-acre in Pennsylvania and
my effort to enhance the fruitfulness of that tiny piece of Creation. I
was asked what I would do if I was faced with the necessity to grow my
own food to feed my family. Would I cut down and destroy what is
precious to me to provide food? Such hypothetical questions trouble me;
they frequently are diversion tactics to avoid having to deal with the
real issue of the stewardship of biodiversity and sustainable living.
If this were to happen, however, it would indicate the failure of our
elected officials to carry out their task of governing our country with
foresight and thus assuring long-term sustainability. I trust that I
will not be faced with that choice.
My assumption in answering this question is that a primary goal of
the Committee on Resources is to protect the integrity and
functionality of our biological diversity as an essential part of the
Committee's task of stewardship. Success in this effort will require
both adaptive management on the scientific side and adaptive policy
making within Congress as we adjust to meet the needs of dynamic
ecological systems and as our level of understanding of the problems/
solutions matures. On your part, the Committee on Resources must begin
to think ``out of the box''. ESA in its current form has indeed helped.
But it must be improved and strengthened. There are species alive today
that would now likely be extinct if it were not for ESA. The California
Condor, eastern Peregrine Falcon, and Black-footed Ferret are good
examples. Neither would we have recovering Gray Wolf or Grizzly Bears
populations. But ESA in its current form is not the sole answer. ESA
needs revision so that it can indeed accomplish its intended purpose.
Efforts to weaken protection are not the answer. Congress must craft
ESA into a much more powerful and effective piece of legislation, but
also one that is seen by all stakeholders as positive.
But ESA alone will not solve the problems that we face. ESA
addresses single species issues. It is the little Dutch boy with his
finger in the dike--essential in the short term, but not the long-term
solution. Congress must continue to address the threats to individual
species but at the same time must determine how to solve the problems
leading to species loss. This will require extending our thinking to
the ecosystem and landscape levels. Healthy ecosystems = healthy
species.
Ecosystem-level management at the functional level focuses on
understanding and maintaining essential processes (biological and
physical) that provide the integrity of the system. It is these
ecosystems processes that are critical for long-term global ecological
sustainability. As I pointed out earlier in my testimony, species not
recognized as significant by the general public are the ones that drive
the essential processes. These include soil dwelling organisms,
decomposers, herbivores, parasites, and predators. Placing the ESA
focus on more charismatic species may be popular with the public but
will loose the battle in the long run. It is easy to dismiss something
as insignificant that we do not understand.
What is known as the ``Greater Yellowstone Ecosystem'' provides an
excellent example of landscape-level thinking that will be required to
adequately protect many of the species within Yellowstone National
Park. The park itself is not sufficient in size to maintain fruitful
populations of all if its species. The boundaries of Yellowstone Park
are artificial and do not coincide with the boundary of the ecoregion
that contains the park. Essential seasonal habitat for Yellowstone
species falls outside of the park. Stewardship of Yellowstone's species
will require ecoregional-level management involving multiple government
agencies, states, and other stakeholders. To the degree that this is
done, Yellowstone will serve as a model of ecological wholeness.
2)``You indicated that it is critical to preserve essential
ecosystem processes as part of our long-term efforts as we focus on
biodiversity preservation, critical habitat, and the Endangered Species
Act. How and where should federal efforts be focused?''
Response: First we must identify those areas (ecosystems) that are
unprotected or underprotected. It was suggested in the hearing that we
should increase our focus on federally managed land. We must recognize
that existing federal land does not include many essential ecosystems
and historically represents the ``leftovers'' of the pioneer days. Much
of this federal land is in the western states at high elevation. Other
areas including the majority of BLM land are arid to semi-arid. These
landscapes are important in terms of their biodiversity, but other
areas not represented by significant federal protection support much
higher levels of biodiversity including important endemic species. The
coastal mountains and lowlands of southwestern California are
recognized as a global biological hot spot for endemic species (species
unique to the area). Southern Texas and Florida also provide examples
of both high biodiversity and high population pressure. Here the
Biblical admonition in Isaiah 5:8 (NIV) must be taken very seriously in
our planning from the local to federal level--``Woe to you who add
house to house and join field to field till no space is left and you
live alone in the land.'' We must not seeking quantity of human life,
but rather quality. And quality of human life can only be found when it
is embedded within a healthy ecological region. What percentage of an
ecosystem's area should the human steward use for personal gain and how
much must be left to maintain the integrity of the ecological system
processes? Scientists and policy makers must join together to address
these difficult questions. We currently do not have all the answers. I
recommend that the Resources Committee invite input from The Society of
Conservation Biologists and The Nature Conservancy--organizations that
contain the scientific expertise necessary to provide insight and
direction.
The mission of Congress must be goal driven--to assure long-term
sustainability of biological diversity at the genetic, species, and
ecosystem levels. The playing field will not be level; hurdles are
ahead. Global warming and its associated effect on shifting
distribution patterns of species and ecosystems will have to be faced.
Adaptive management will be required. It will take strong leadership
and commitment from elective officials who understand and are committed
to the stewardship and sustainability of the world in which we live. We
have put humans on the moon and landed spacecraft on Mars. Surely we
can also have the commitment to care for the world that we call home.
3) How would you suggest federal land managers work with developers
and landowners to help develop sustainable win-win solutions to the
frequent ESA-land development debates?
Response: Regional planning that recognizes and includes essential
ecosystem elements will be central to this effort. The planning must
take place with key stakeholders as active participants in the process.
We must begin to think, plan, and live differently. Traditional
unplanned urban sprawl must be replaced with regionally sustainable
growth plans. The non-human creation must be included within the matrix
to provide for healthy human and non-human living space. Several
important ``tools'' for implementation include regional and local
zoning, the purchase of development rights, and selective use of tax
breaks and other monetary incentives for conservation efforts. For our
efforts to be successful, we must learn to value and to live with
biological diversity. Reserves and wilderness areas are critical, but
more important will be the desire and willingness to live as partners
with God's Creation in our own back yards. The National Wildlife
Federation's ``Backyard Wildlife Habitat Program'' is a good example of
what can be done by an individual landowner to enhance wildlife and
habitat (see http://www.nwf.org/backyardwildlifehabitat/). The question
is how to work with developers and landowners to eliminate the
bulldozer mentality. Too often the scenario is: enter the bulldozers,
remove a thriving forest, put up walls, and then plant quick-growing
junk trees and exotic grass species. To a large degree this will
require a world-view shift empowered by re-education of the public
regarding the essentials of sustainable ecosystem living as partners
with creation.
We must find ways to avoid conflicts between species protection and
the human community. The critical habitat designation of the California
Tiger Salamander appears to exemplify failure in both policy and
process. Or perhaps the problems emerged because of insufficient
funding Regardless of the cause of the conflicts in this particular
case, it is clear that critical habitat designations must be based on
the best available science. Actual and potential habitats must be
identified with care to define real boundaries. Good maps are essential
as is adequate public comment and notification. It should also be noted
that tiger salamanders require both a vernal wetland plus sufficient
upland buffer. Essential buffers may extend as far as 100 meters or
more from the vernal ponds depending on the situation and species.
Salamanders breed in the pond but spend most of the year in the upland
buffer. A matrix that includes connectedness for movement between
breeding/living sites must also be included. Lack of adequate
connectedness in this metapopulation will result in genetic isolation
of the subpopulations and eventual extinction. Adequate funding and
commitment to solving the problem is the key to doing the job right. It
seems that in this particular case, there was definitely a lack of
funding and questionable commitment to really solving the problem.
An effective way to kill ESA is to botch the job of critical
habitat designation such that the general public is unnecessarily hurt.
The outcry will turn public sentiment against ESA and politicians will
respond to the public outcry. A way to guarantee that this happens is
to under fund ESA on an annual basis.
Species and ecosystem protection is not an option, but a necessity.
The longer we delay, the greater the problems that will face us and the
more expensive will be the solution. I urge members of the Committee on
Resources to face this challenge today with passion and a unified
heart. If we fail, our children and grand children will view us as a
ship of fools. God, on the other hand, has spoken with a clear voice:
``The time has come for judging the dead, and for rewarding your
servants the prophets and your saints and those who reverence your
name, both small and great--and for destroying those who destroy the
earth (Rev. 11:18 NIV).
______
The Chairman. Thank you. And I want to thank the entire
panel for their testimony.
To begin with, I will start with Mr. Martini. You talked
about the impact of costs, housing costs, that you have
locally. Obviously in your position you know that there are
hundreds if not thousands of things that impact housing costs.
The decisions that are made by city councils, by boards of
supervisors impact housing costs, supply and demand. There are
a lot of things that impact the cost of housing in a particular
area.
What you described was a community that I think took a step
beyond what is typical with local government. In your general
plan, your long-term planning, you set aside areas that would
be permanent agriculture, permanent open space, as well as what
is proposed for housing and industrial development off into the
future.
In my understanding of the way that you described that, you
have this plan for the future and the area that was set aside
as potential development land, it is that land that is now
habitat. Is that accurate?
Mr. Martini. The range that has been listed includes that
area. It also includes areas outside of the city's urban growth
boundaries. And I want to say that the City of Santa Rosa has
probably done as many things to artificially increase the cost
of housing. We have urban growth boundaries. We have said this
is all we are going to grow. We have growth management. We say
we are only going to build 950 homes a year. That, in
conjunction with a very high demand in our area, drives the
prices up.
But at the same time this is a community that is very
concerned about maintaining balance, not becoming so gentrified
that only the wealthy can live there. We have inclusionary
zoning policies. We have in-lieu fees that are paid by builders
to help subsidize. We are very active and aggressive in going
after Federal and state tax credits. We have at least three
major not-for-profit builders in our community who work very
hard at providing housing available to low and very low income
families.
We set aside money from our real estate transfer tax so
that as people gain in their appreciation of the property when
they sell it, that money goes back in. We have an equity-
sharing pool that the community set up, recognizing that we
need to have that balance in our community. You need to have a
place for your service workers, for your teachers, for your
firemen because if you do not have that, what you have now done
is you have exacerbated your transportation problems, your
infrastructure problems, and everything else that goes along
with that.
We are not perfect. We are trying very hard to arrange a
level of balance where we respect and preserve resources but,
at the same time, allow that economic balance to take place.
We thought we had a lot of the pieces in place and then the
listing of the tiger salamander came along and, as I said, many
in my community would support that but in overlaying in that
one major portion of our community, it has significantly
impacted what plans we had in place to try to address some of
the inequities that we were facing in terms of housing.
And it is that conflict as we try to deal with the various
public policies of affordable housing, of responsible waste
treatment, providing homeless shelters, improving
transportation infrastructure. Those are all concerns that I
have to balance as a local policymaker. When we look at it with
blinders on to a certain extent that you have one entity, the
Endangered Species Act, you have to take into account the rest
of these items.
The Chairman. In the context of all of that and both of my
local elected officials that are here come from areas that in
many ways are similar in terms of being outlying areas outside
of the major urban areas that have experienced growth over
recent years, but in the context of everything you are doing,
Santa Barbara County is a very progressive area. They do a lot
of things, as well as the city that you represent.
But you heard earlier a discussion of a poll that was
done--do you support the Endangered Species Act? Do you think
that we ought to set aside more habitat? You know, all of those
issues that are asked in a very black-and-white way. My guess
is that overwhelmingly your constituents would answer in the
affirmative as those questions were asked because that, I
believe, is a moral value that we as Americans share. We do not
want species to become extinct. We feel it is our
responsibility to keep animals, to keep plants, to keep
wildlife from becoming extinct.
Yet if you asked people in a little different way, would it
be OK if we set aside this land in our town if it meant that
your house was going to cost $50,000 more, they may answer a
little differently and that is kind of what we are struggling
with. I mean it is your responsibility as local elected
officials to determine your rate of growth, where you are going
to grow, what is going to remain open space. All of that is
your responsibility. It should not be ours. It should not be
Congress's.
And yet we are taking away from you the tools that are
necessary for you to make those decisions because we are
stepping in on top of you with land use decisions through the
Endangered Species Act.
Ms. Gray. In response to your question about the poll, the
answer would be that by far the majority of my constituents
would have supported the Endangered Species Act maybe 5 years
ago but today there are bumper stickers in my community that
say ``Free Surf Beach'' because the plowbird is there and the
folks cannot go to the beach. There are bumper stickers that
say, ``Eat salamander; save the broccoli.'' Things are changing
here, which is not the direction that we would like to move.
So the answer to the poll is there is an attitude
developing out there that is an attitude because of
frustration, and I think that is what you are moving to do.
Also, the man who wanted to build a patio onto his house in
an urban area, urban meaning semi-rural--you know, he lived in
a subdivision. I want to build onto my house. Oops, you cannot;
you are in the circle where there may be an endangered species.
Those are the kinds of things that cause the attitude to change
and folks to get a little bit testy.
Mr. Martini. Chairman, if I can just add to that, the piece
of this poll that is important is also to change the question.
You are right. You ask the question of anybody walking down the
street, ``Should we save endangered species?'' You are right.
It is a value system and everybody says yes.
But if you ask the citizens of Santa Rosa, now is it
appropriate to spend $500,000 of very scarce transportation
dollars to study whether or not the salamanders can get across
an existing four-lane freeway in order to add a third lane, or
do we take 250,000 of those dollars and acquire habitat, to
acquire or to support financially a conservation or a recovery
plan, clearly they would jump at the latter, as opposed to the
prior.
That is why we are encouraged by what you are doing here,
what Wayne White is doing in the area, so that we are not just
spending money identifying more studies but that we are
actually spending money to accomplish the thing that we are
trying to accomplish. I think that is the key that we have to
look at, that in addition to having it in balance with all of
the other priorities we have in a municipality.
The Chairman. Thank you.
Mr. Cardoza?
Mr. Cardoza. Thank you, Mr. Chairman. As usual, we are on
the same wavelength in that my questioning goes to exactly the
same area.
It has been my contention for some time that misapplication
of the Endangered Species Act, specifically the critical
habitat aspects of this Act, are constantly degrading public
support for what should be the overarching goal of
preservation. And when we start dealing with Mr. Baca's
problems about the Delhi sand-loving fly--
The Chairman. Delhi sandflower-loving fly.
Mr. Cardoza. Thank you. Versus the bald eagle, not that all
species are not deserving of being protected, but there are
differentiations amongst the public sentiment for different
creatures. In fact, as Mr. Baca said, we are out swatting flies
and we are crying about the fact that there are not enough bald
eagles or there were not. Actually, that is probably a poor
case because my understanding is they have come back and that
is one of the success stories. But there really is a
differentiation.
I just want to, in my question, ask if you are not seeing
that on the local level like I am seeing it at home, as well,
that, in fact, when you talk about the Endangered Species Act,
what you see is not people caring about it but the frustration
on their faces immediately about what they have seen happen in
their communities. Even though they care about the overarching
goal of preserving species, they are very frustrated by the
bureaucratic processes that government has set up to deal with
that concern.
Ms. Gray. You have it nailed. That is exactly what it is
because it is the misapplication and not the fault, in my
opinion, of the Department of Fish and Wildlife. It is because
they did not have a plan.
And the fellow that said if you are going to build a house,
you do not go down to Home Depot and buy everything in the
store and then figure out how it is going to--I mean he nailed
it. That is what we are trying to do.
I live in a county that is so pro-environment that every
person in planning and development comes out of the University
of California at Santa Barbara environmental studies and even
they say, ``Just give us the plan. We do not know what to tell
the people that come in.''
And that is why your bill is working, because we need to
know. We will do it. We might gripe. Someone said we might
gripe. But we will do it, but we need to know how to do it. So
you got it nailed.
Mr. Cardoza. Thank you, Mr. Chairman.
The Chairman. Mr. Rehberg.
Mr. Rehberg. Thank you, Mr. Chairman. I think just exactly
like you, as well.
The Chairman. Today.
Mr. Rehberg. Today, yes.
I want to go off in the same direction but on a little
different point. I apologize that I do not know California as
well as I should so I am not specifically knowledgeable about
your area. You are county commissioners. And you are a mayor?
Mr. Martini. I was a mayor. I am a city council member now.
Mr. Rehberg. OK. Are you aware of the unequal application
of the Endangered Species Act between the East versus the West?
I specifically asked the staff if there was any discussion
today and perhaps you had heard while sitting here of a case
back in Washington, D.C. right here of sludge being dumped into
the Potomac and a lawsuit that was filed by the good guys,
although we came up with an environmental name so that we would
sound like environmentalists, and the lawsuit was it is not
good for you to be dumping sludge from the Georgetown sewer
into the Potomac, affecting the snub-nosed sturgeon.
Unfortunately, a stay of execution was given by the Federal
government saying well, it is OK for the next 5 years until you
can get your act together for you to continue dumping the
sludge in, affecting that endangered species. And oh, by the
way, you can go ahead and build the Wilson Bridge.
Are you aware of some of the inconsistencies that are
occurring throughout the nation, in deference to the problems
that you are having most recently in your city and your county?
Ms. Gray. My answer is no. The only time there is unequal
application is when the Service changes a worker. So if there
is one scientist there that sees it one way, then her
interpretation will be what we are working with in year 2000.
If that scientist moves, then we are working with the
interpretation of 2001. But that is different from what you are
setting forth. Mine is just being back begging for the plan
again.
Mr. Martini. And just following a theme of being on exactly
the same wavelength as not only the Chairman but everybody on
the Committee today, it would be far from me to ever comment
that Washington, D.C. is treated differently than--
Mr. Rehberg. And Virginia and Maryland, unfortunately. I
guess my point is I am from Montana and Congressman Walden and
I and Mr. Pombo for a different reason, but we fought the
Healthy Forest Initiative, trying to get it passed. We were up
against a brick wall until Colorado started having fires and
then I will be darned if Southern California did not start
having fires and then Mr. Daschle made a special exception for
the Black Hills and all of a sudden we had our coalition built
to pass this and it never would have occurred if it had not
been real to people in California, Colorado and South Dakota.
My point is I hope you will go back to the National
Association of Counties and I hope you will go back to the
League of Cities and Towns and tell them of the problems that
you are having and the inconsistencies that are occurring
nationwide because until we develop enough of a coalition to
get people to support the repeal or the reform of the
Endangered Species Act as we know it, it is not going to occur.
We have felt the problems in our individual district and
our individual states but it is now starting to boil. Again I
apologize for not knowing California but I welcome you now to
the fight. It is nice to have you. You see what we have been up
against.
Ms. Gray. And I was commenting on that because I was doing
my research in the bar last night to find out what people
thought of stuff--
Mr. Rehberg. So you are an insider in Washington.
Ms. Gray. Right. So one of the things that kept occurring
as the conversations were going was the difference in the
eastern interpretation of what is going on with the endangered
species than the western. I did not think that the other part
of the country saw it as a problem, as we do in California. We
have so many--Wyoming obviously, Montana, Nevada, Florida--so
it is coming. I hear what you are saying.
Mr. Rehberg. Real quickly, Mr. Martini, was it you that
mentioned the 14,000 acres?
Ms. Gray. It was me.
Mr. Rehberg. It was you, Ms. Gray. Is that private land?
And are--
Ms. Gray. Mostly private land. Some public airport. Mostly
private.
Mr. Rehberg. Do you have a map? Did they hand you as part
of the process--it was a secret procedure, right?
Ms. Gray. Right.
Mr. Rehberg. You were not involved, so they unveiled
something. Is it clearly defined with legal descriptions?
Ms. Gray. No. It is just a circle. We need the GPS so we
know exactly. We still do not know exactly. We just have panic
guessing.
Mr. Rehberg. A question I have then, Mr. Chairman, is can
the executive create an executive order to establish critical
habitat, similar to what they did in Montana in the last throes
of the Clinton Administration, saying well, we have lost our
position, we are not going to be President and Vice President
anymore, so here it is? For all eternity, this is the Missouri
Breaks Monument without deference to us being involved in the
determination of the boundaries. Can a President do the same?
The Chairman. That is, in essence, what they are doing, is
unilaterally drawing a circle on a map. In my instance with my
district, it was not a circle. It did look like somebody took a
brush and just went like that and everything within that area
became habitat. Anybody that actually knew what was on the
ground would not have drawn the map the way they did. And I am
taking from this testimony that that is the--
Ms. Gray. Right. They located pools where they thought that
the salamander might breed and then they said we will go so far
from there and that should work. But no, maybe we ought to go a
little further, and that should work. So then pretty soon it
resulted in a big circle that started from little circles, very
similar to what happened to you in your vernal pool situation,
very similar.
Mr. Rehberg. Thank you, Mr. Chairman.
The Chairman. Mr. Udall.
Mr. Udall. Thank you, Mr. Chairman. And thank you, members
of the panel, for being here. Sorry I did not get to hear all
of you but I did get to hear some.
Mr. Chairman, I have two statements to put in the record.
Our colleague, Congressman Grijalva, I would like to submit his
statement for the record, and then comments of the North
American Section of the Society for Conservation Biology. Can I
have permission to--
The Chairman. Without objection, they will be included in
the record.
Mr. Udall. Thank you very much.
[The prepared statement of Mr. Grijalva follows:]
Statement of The Honorable Raul Grijalva, a Representative in Congress
from the State of Arizona
The Endangered Species Act is a law that aims to conserve and
recover species which have reached a critical point in their existence.
The law attempts to assist wildlife and plants that without changes in
management or human activity will likely head down the road toward
extinction.
The goals of the ESA are lofty ones. We as a society have decided
that we want to take care of imperiled species and help make them
healthy again.
But, the goal of the ESA is not to preserve wildlife and plants in
zoos and laboratories. Instead, the Act aims to conserve species
through the designation of natural habitat in which the species can
recover.
In my community in Arizona, we are attempting to set aside habitat,
and allow for reasonable growth, in order to recover not only listed
species, but those that have not yet reached the point of needing the
Act's protection. Several years ago, the cactus ferruginous pygmy owl
was listed, and later critical habitat was designated for the species.
As a consequence of listing and critical habitat, a multi-species
conservation plan, which attempts to protect and recover over 50
Sonoran desert species, was put together. This planning process
involved a broad range of stakeholders in the area who sat down
together and created this ground-breaking plan. Governmental
representatives, environmentalists, homebuilders, and business owners,
among others, were all represented. The plan contains areas that will
be set aside for habitat, and other areas that will be developed for
homes or commercial space. Currently we have widespread support for
bond measures that will fund the plan.
I am convinced that the listing and critical habitat designation
for the pygmy owl were the impetus for something very special. The ESA
presented us with an opportunity to comprehensively address the future
growth and health of our community and our environment. We sat down
together and decided what we wanted over the long term for our
community, which we would not have done but for the ESA's requirements.
Critical habitat designation is an essential element of endangered
species protection. Without adequate habitat, species cannot survive,
much less reach a point of no longer needing human assistance. And,
without the requirements of the ESA, communities like mine will not
have the impetus or opportunity to take a comprehensive look at their
environment.
I believe the bill before us today will render the ESA's critical
habitat provision toothless, and no longer able to provide help to
species as it was intended to do. I cannot support this legislation
because it will do nothing to further the goals of the ESA and will
instead make it more difficult and less likely that we will be able to
recover species.
The proposed legislation would limit habitat designations to areas
where species currently live. This will preserve the smallest possible
area, and will make it impossible to recover species to a point where
they no longer need listing. The bill would also prioritize economic
impacts over environmental impacts in the designation process.
For the sake of argument, if assume that, as critics claim, the ESA
is not working to recover species, the stated goal of the Act, we have
to ask and answer the question: Why isn't it working? Before we go
about changing a law that has been in place for over 30 years, we
should find out the real reason that the Act is not working, if it is
true that it is not.
We should look at the original legislative language and ask the
question: Is the ESA being properly implemented according to
legislative intent?
Criticisms of the ESA have often focused on the plethora of
lawsuits that environmental groups bring under the Act's listing and
critical habitat provisions. However, I would emphasize that the reason
these lawsuits are necessary is that the agencies involved often have
failed to meet their duties under the ESA. The agencies consistently
delay listing when evidence that species are imperiled is clear and
convincing. Moreover, agencies do not designate critical habitat on
time and often the critical habitat designated is not enough to meet a
species' basic needs. Because there is no deadline for completion of
recovery plans, they often are not created or implemented.
Adding to the problem, the agencies that have jurisdiction over the
ESA have consistently requested lower amounts from Congress than is
necessary to complete their work in listing and designating critical
habitat. They do not ask for enough funding to address the backlog of
actions that are needed to assist species in trouble. These same
agencies later claim that lawsuits and other actions are crippling the
budgets of the agencies, when in reality this problem appears to be
self-created.
Before we take the radical and drastic step of changing one of our
fundamental environmental laws, it would be more appropriate to
properly fund the agencies that manage wildlife so that they can carry
out their duties in the manner as intended under the Act, and at the
same time require more accountability from these agencies in terms of
their inaction to list, designate critical habitat, and create recovery
plans in order to address species protection.
This bill would take us backwards in our goal of recovering
endangered species. It will result in less protection for species and a
reduced likelihood that species will recover. I strongly urge my
colleagues to reject this legislation.
______
[The statement of the North American Section of the Society
for Conservation Biology follows:]
Statement submitted for the record by the North American Section of the
Society for Conservation Biology on H.R. 2933, The Critical Habitat
Reform Act of 2003 1
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\1\ This document represents the opinions of the North American
Section of the Society for Conservation Biology only. It does not
necessarily represent the opinions of the Society for Conservation
Biology as a whole or of any of its other sections.
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Prepared for the Section by Kathryn Kennedy and Karen Hodges
23 April 2004
In this document, we provide a section-by-section analysis of
certain sections of H.R. 2933, highlighting various scientific issues
pertaining to the conservation of endangered species and the
designation of critical habitat.
ANALYSIS OF KEY SECTIONS OF H.R. 2933
Section 2: Designation of Critical Habitat concurrent with approval of
Recovery Plan
Issue 1. Proposed change in language to Sec 4 (a) General.- section
4 (a) (3) FROM ``The Secretary, by regulation promulgated in accordance
with subsection (b) and to the maximum extent prudent and
determinable--designate''..critical habitat...'' TO ``The Secretary, by
regulation promulgated in accordance with subsection (b) and to the
maximum extent practicable, economically feasible, and
determinable...designate...critical habitat''.
Comment: This proposed text is a significant change in the criteria
for determination of critical habitat. The current inclusion of the
word ``prudent'' places the emphasis on the benefit to the species that
may accrue both biologically and functionally through designation of
critical habitat and implementation of its associated regulations.
Currently, the Fish and Wildlife Service (hereafter, FWS) examines the
biological importance of any designated habitat in terms of survival
and recovery. Agency biologists also consider their ability to reliably
determine and evaluate the elements needed to define critical habitat.
This approach relies on a scientific analysis of benefits. The proposed
change in wording shifts the focus to matters of ``practicality'' and
``economic feasibility'' as well as determinability. The proposed
wording is a significant change in focus away from the needs of the
species. Loss of the term ``prudent'' essentially removes the concept
of biological importance to the species from the criteria. It weakens
the ability of critical habitat to serve as a conservation tool under
the Endangered Species Act.
The ``prudency'' standard also provides an important exemption from
critical habitat designation in cases where designation would likely
increase a species risk of extinction, as could be the case when
specific georeferencing would enable vandals or collectors to locate
and damage the population (this issue is particularly pertinent for
populations of at-risk plants or species such as raptors with few
nesting locations). Although FWS use of the ``prudency'' exemption has
far outstripped this intention, we are concerned that loss of the
possibility of a ``prudency'' exemption could actually damage
protection and recovery efforts by forcing designation in cases where
``take'' of a species could increase as a result. Although this issue
likely affects the minority of listed species, it could be highly
damaging to them.
Furthermore, these new criteria of ``practicality'' and ``economic
feasibility'' are not well defined. As written they introduce great
uncertainty to the process. We anticipate that, as written, the
proposed legislation would lead to additional litigation. A careful
definition of terms and a clear understanding of the implications of
the wording are essential in preventing legislative and judicial
gridlock. We thus fear that this proposed wording change will do little
to stem the existing problems with ESA implementation.
We are also concerned that imposing a criterion of ``economic
feasibility'' rather than the present requirement of ``taking into
consideration the economic impact'' may reduce the decision to one of
current or near term budgetary and economic factors, rather than
emphasizing long-term stewardship or benefits of designation to the
species, habitat function, and economic sustainability. This concern is
amplified by the suggested removal of the prudency standard. Under the
proposed wording, ``practicality'' and ``economic feasibility'' could
be volatile and inconsistently interpreted on the basis of agency staff
priorities, budgets, or current economic conditions. For example, a
strict interpretation of these proposed criteria today could be grounds
for making no critical habitat designations simply given current
limitations in FWS staff levels and budgets--regardless of potential
benefits to the species under consideration. Similarly, significant
areas necessary for the survival and recovery of the species could be
excluded based on temporary economic conditions which may be the result
of the same forces that make the species vulnerable. Failure to
designate critical habitat based on economic issues alone would
increase the risk of extinction.
Issue 2. Proposed language further amending the current section 3
FROM ``The Secretary...(A) shall, concurrently with making a
determination under paragraph (1) that a species is an endangered
species or a threatened species, designate any habitat of such species
which is then considered to be critical habitat...'' TO ``The
Secretary...(i) shall, concurrent with the approval of a recovery plan
for a species under subsection (f), designate any habitat of such
species which is then considered to be critical habitat''.
Comment: Many scientists and practitioners believe this change has
some advantages. At the time of listing there is seldom as much
information about the species, its range, and its habitat requirements
as there is following the development of a recovery plan. Hence, the
process of evaluating critical habitat would be enhanced by the
recovery planning process, and allowing more time may yield more well-
defined designations and give the FWS more time to work with the public
to help them understand the process. Further, critical habitat is
supposed to meet the needs of the species for survival and recovery,
but at the time of listing recovery criteria have not been determined.
Consequently, estimated recovery goals must be used.
However, the potential drawback to having critical habitat
designation concurrent with recovery planning is that some species are
under severe threat from ongoing activities, and the legal protection
afforded by critical habitat would be delayed. In cases where there are
immediate threats to an at-risk population from human-induced habitat
alteration, then delaying critical habitat designation and the
attendant protections afforded to the species could substantially
increase the risk of extinction. Further, recovery plans in many cases
lag behind statutory requirements, and many species do not have
approved recovery plans,1 which means that the potential benefits of
critical habitat might not be realized even if designation were delayed
until the recovery planning stage.
In 1995, at the request of Congress, a panel of the National
Research Council2 reviewed some ESA issues. They recommended that at
least some habitat be designated at the time of listing, which can then
be modified at a later date--whether or not the entire designation
process is deferred. This suggestion remains viable. Species are listed
on the biological grounds that they are threatened with extinction:
listing implies that human activities in their ranges need to be
controlled in order to reduce the risk of extinction. For species where
populations have dangerously low viability, threats are imminent, or
there are clear current land use controversies, delaying the use of
species recovery tools such as critical habitat designation would
increase extinction risks, and perhaps may also increase species
protection costs when actions are finally implemented. In such cases,
we think it is essential to preserve the ability to act early and then
refine the protection. This option is clearly biologically preferable
to delaying such decisions. Such a policy could be developed as a
parallel to the existing ``emergency listing,'' with only some species
receiving a temporary critical habitat designation at the time of
listing. While it may be feasible for all newly listed species to
receive some critical habitat protection that is later modified during
recovery planning, the costs and logistics of doing so for species with
less critical situations needs to be weighed against the benefits that
accrue to the community by taking more time to define recovery needs
and inform the public about the process, and putting those dollars to
more direct recovery implementation.
Finally, for some species, full recovery is not possible (for
example, when very few patches of suitable habitat remain) and the best
we can hope for is that population size will be stabilized. In such
cases, critical habitat may be important to protect the remaining
patches of habitat, but a recovery plan will not be developed. To
ensure that critical habitat can be used as a protection tool in such
cases, there should be a requirement for critical habitat designation
at the time a recovery plan is approved or a determination is made that
such a plan will not benefit the species.
Issue 3. Addition of a new section 4 (a)(3) (B) (the previous
section (B) having been amended to become 3 (A)(ii)) adding the
following language:
``(B) Notwithstanding subparagraph (A), the Secretary may not
designate an area as critical habitat of a species, and any designation
of critical habitat of a species shall not apply to an area, if the
area is subject to--
``(i) a habitat conservation plan under section 10 (a)(2)
that the Secretary determines provides protection for habitat
of the species that is substantially equivalent to the
protection that would be provided by such designation; or
``(ii) a State or Federal land conservation program that the
secretary determines provides protection for habitat of the
species that is substantially equivalent to the protection that
would be provided by such designation''
Comment: This exemption permits the FWS to exclude certain areas
from the designation of critical habitat based on current protection
afforded to the habitat by other plans, programs or regulations. This
proposed change further reduces the biological emphasis on whether a
conservation benefit to the species would occur, with little
justification for this proposed change. The phrase ``substantially
equivalent to the protection that would be provided by such
designation'' is undefined. The basis for the Secretary to make a
determination of ``equivalence'' is unclear, and could be subject to
abuse and inconsistent application if left discretionary. We expect
inconsistency in application as differences emerge in the way it is
interpreted, followed by litigation as people challenge those
interpretations. Such lack of clarity has two likely impacts. First, it
could significantly reduce the areas benefiting from critical habitat
designation. Second, the contention and litigation that would follow
would deepen rather than reduce the existing problems in ESA
implementation. At-risk species are the ultimate losers in this
scenario.
Furthermore, the Act already provides for exclusions based on
benefits comparison. Under Section 4 (b) 2 the Secretary may exclude
any area from critical habitat, ``if he determines the benefits of such
exclusion outweigh the benefits of specifying such area as part of the
critical habitat.'' It seems that the existing provision for exclusions
is sufficient.
The existing language emphasizes benefit to the at-risk species,
whereas the proposed text is less clear in demanding careful benefits
analysis. The exclusion from critical habitat designation of areas with
state and federal conservation programs may damage recovery efforts.
Areas currently under conservation programs are often areas where many
types of federal funding and jurisdiction are involved. Costs of
evaluation and implementation of critical habitat are likely lower in
these areas, as there is often more information, and federal and state
agencies have staff able to undertake the process. It makes little
sense to exempt areas where federal actions are common and conservation
of the species is likely to be both cost effective and relatively
uncontroversial.
Plant species make up more than half of the federally listed
species under ESA, and critical habitat for listed plants on federal
lands managed for conservation has the potential to benefit these
species. Prohibitions on activities harmful to listed plants are
limited on private lands. Federal lands are those where damage and
destruction of listed plants are violations of the Act and listed
plants receive more protection. These are exactly the situations where
critical habitat is most likely to benefit plant species via the
consultation process, and may significantly assist reaching recovery
objectives.
Moreover, exemptions based on today's activities and protections
may be shortsighted. Under this proposed amendment, habitat
conservation areas and areas covered by state and federal conservation
programs would be exempted from designated critical habitat based on
our current perception of what constitutes substantially equivalent
levels of habitat protection, and our estimation of likely activities
that might affect the species and trigger Sec. 7 consultation
requirements. This determination would not allow for unanticipated
future activities that ``may affect'' listed species and which current
HCP provisions or state and federal conservation programs may not
protect against. This provision would then foreclose options for future
benefits from the process.
Furthermore, once we allow designated critical habitat to exclude
lands covered by other protections, shifts in the protections afforded
by these other plans, programs or permits and regulations would open
species to additional hazards. To be sure that species receive the same
benefits from other protections as would accrue from critical habitat,
the FWS would have to constantly review and re-certify these
exclusions. The more cost-effective and assured approach for habitat
protection of listed species would be to designate critical habitat
even in areas protected under other plans, programs, or regulations.
These exclusions from critical habitat designation are not likely
to reduce the regulatory process for permits and approvals. With or
without critical habitat, in most cases a ``may affect'' activity would
still trigger the need for a section 7 consultation and biological
opinion, so exempting these areas from critical habitat designations is
not particularly advantageous, nor is it likely to cut costs beyond the
initial savings of not designating critical habitat. Designating
critical habitat in these areas is still important because it
highlights the issue that species protection requires more than just
the prohibition on ``take,'' since habitat is necessary for the
behaviors and reproduction for the species to maintain itself.
Listed species and the regulated public are probably better served
in the designation of critical habitat if sound biological information
is used to identify all the areas necessary for the survival and
recovery of the species. Otherwise, critical habitat designation
becomes a piecemeal approach that does not reflect the biological needs
of the species. Under the proposed amendment, we anticipate that
critical habitat designations would not be accurate reflections of
areas where it is advisable to avoid any adverse modification. As a
result, the public and agencies would not be as well informed for
determining ``may affect'' findings, evaluating recovery needs, and
tracking the condition of the habitat and the species.
We oppose provisions for exempting areas under other programs,
plans, permits, or regulations from the designation of critical
habitat, with the exception of areas covered by safe harbor agreements,
where the potential imposition of critical habitat could deter private
landowners from participating in habitat restoration and enhancement
efforts. We believe that at a minimum, it should be clear that the
Secretary may not exclude areas when the failure to designate such an
area will result in the extinction of the species, as currently
required under Section 4 (b)(2)--and indeed, increasing the extinction
risk of a species would mean that the jeopardy standard in ESA was
being transgressed. We feel that this provision should instead be
broadened to include ``may significantly increase the likelihood of
extinction'' rather than the current ``will result in the extinction of
the species.''
Section 3: Bases for Determination
Issue 4. Adding to Section 4(b)(2) a requirement (B) ``that in
determining whether an area is critical habitat, the Secretary shall
seek and if available, consider information from local governments in
the vicinity of the area, including local resource data and maps.''
Comment: It is our understanding that the FWS usually seeks this
sort of information now, and provided that the FWS is not required to
give undue credence or emphasis to locally provided information over
information from other sources, this change poses no particular
problems or added expense over current practice. We think the major
issue with using information during critical habitat designation is to
ensure that information from more credible sources is given more weight
than information from less credible sources, rather than assigning
emphasis based on the geographical origin of such information. It could
weaken critical habitat designation if very poor but local information
was given more credence than very strong information from a different
location.
Issue 5. Adding to Section 4(b)(2) a requirement ``(C)
Consideration of economic impact under this paragraph shall include''
``(i) the direct, indirect, and cumulative economic impacts
of the designation, including consideration of lost revenues to
landowners and to the Federal Government and State and local
governments;''
Comment: This is an extension of the existing requirement that
economic impacts be considered in designating critical habitat (see
Sec. 4 (b) (2)). The ESA currently requires economic evaluation and we
feel the appropriate place for specifying how that evaluation is to be
undertaken should be in agency guidelines, where more detail can be
provided. This more explicit requirement will require additional
guidance, implementing standards, and regulations, at considerable
expense. It may also open additional areas for litigation, as
estimating indirect and cumulative costs is difficult. It will also
likely increase the costs and time needed to evaluate potential
determinations, to the detriment of intended protection and progress
toward recovery objectives.
``(ii) costs associated with the preparation of reports,
surveys, and analyses required to be undertaken, as a
consequence of a proposed designation of critical habitat, by
landowners seeking to obtain permits or approvals required
under Federal, State or Local law.''
Comment: This provision puts an expensive burden on the FWS that is
not justifiable when one examines the differences between consultation
regarding areas with and without critical habitat. Because critical
habitat regulations only come into play in the context of Section 7
consultations, and in most cases exclusion from critical habitat would
not obviate the need for a Section 7 consultation altogether, the
landowner's and agency expenses for biological reports, surveys, and
analyses associated with the process are likely similar. We do not
think this provision would enhance species protection nor reduce
implementation costs.
Section 5. Clarification of the Definition of Critical Habitat
Issue 6. This section adds more language to define the terms
``geographical area occupied by the species'' and ``essential to the
conservation of the species'' as used in Section 3 (5)(A).
The statute currently states: ``The term `critical habitat' for a
threatened or endangered species means--
(i) the specific areas within the geographical area occupied by the
species at the time it is listed...on which are found those physical or
biological features essential to the conservation of the species and
(II) which may require special management considerations or protection;
and
(ii) specific areas outside the geographical area occupied by the
species at the time it is listed''.upon a determination by the
Secretary that such areas are essential for the conservation of the
species.''
The proposed legislation adds a section 5(D)(i) (I) and (II), as
follows:
Adding language: 5(D)(i) for purposes of subparagraph (A)(i)--
(I)``the term `geographical area occupied by the species' means the
specific area currently used by the species for its essential
behavioral patterns, including breeding, feeding and sheltering; and
(II) ``the term essential to the conservation of the species means,
with respect to a specific area, that the area has those physical or
biological features which are absolutely necessary and indispensable to
conservation of the species concerned.''
Comment: The proposed wording change establishing the definition of
``geographical area occupied by the species'' is potentially damaging
to species recovery efforts. There are two issues here. First is how
habitats that are sometimes occupied are classified. Some species may
use particular habitats for only part of a year or part of a life
cycle. It is essential that these habitat types be recognized as
``occupied,'' despite the periods of time when they are not being used
by the species. Insofar as the proposed wording would enable this
classification, it could be useful.
However, the second issue, and the more important one, is to what
extent unoccupied habitat can be designated as critical habitat. ESA
makes it very clear that species recovery is the ultimate aim, and
species recovery in many if not most cases will require reoccupation of
former areas of a species' range. Thus it is essential that critical
habitat designation be possible for currently unoccupied habitat so
that it is available for recolonization during recovery. The proposed
wording change would hinder designation of non-occupied habitat. Thus
the proposed wording change would make it so that critical habitat
designation collapses down to being a bare minimum of where populations
are continuously present, which is a minimalistic approach to species
protection and recovery, and is counter to ESA's mandate.
The addition of a specific definition of ``essential for the
conservation of the species'' as ``absolutely necessary and
indispensable to conservation of the species concerned'' does not
provide any biological or semantic clarification. It therefore is not
helpful in evaluations or determinations. We think it aggravates
imprecision, and might actually increase confusion and subsequent
litigation.
References
1. Hoekstra, J. M., W. F. Fagan, and J. E. Bradley. 2002. A critical
role for critical habitat in the recovery planning process? Not
yet. Ecological Applications 12:701-707.
2. National Research Council. 1995. Science and the Endangered Species
Act. National Academy Press, Washington, D.C.
______
Mr. Udall. Dr. Sheldon, you have been sitting here today, I
assume, for a bit listening to what has been going on and you
are a conservation biologist. Is that right?
Dr. Sheldon. That is right.
Mr. Udall. You have been teaching conservation biology and
been involved--
Dr. Sheldon. I have been a member of the North American
Society of Conservation Biologists for 20 years.
Mr. Udall. One of the things I am wondering, you sitting
here as a conservation biologist, you hear a lot of the
arguments here and you hear all the down sides of saving
species and the problems. This panel and the previous panel and
many of the witnesses today have brought those home in a
passionate way and looked at those specifics and brought them
to light for us and I applaud them for doing that.
I wonder if you could help us on the up sides of a healthy
ecosystem. I mean what is in it for men and women, having a
healthy environment? When you hear these kinds of arguments,
what comes to your mind when you think of the Endangered
Species Act and why it is important to have a balanced, healthy
ecosystem?
Dr. Sheldon. Critical habitat provides green space in the
middle of an urban area, which otherwise would be wall-to-wall
houses. It gives place for enjoyment. It gives place to
celebrate the awe and wonder of creation. I mean green space is
essential.
And there is a point, I think, at which in some
communities, as we have heard, we have boundaries for growth
but too often we simply assume that our economy and our society
can grow infinitely within a finite world. And if it is a
choice between human growth and the protection of species,
there is always going to be enough political power to push us
on the side of human growth at the expense of the species.
There has to be a balance. It is not an either/or. It has to be
a both/and.
We somehow must find the willpower to recognize that there
are limits to growth. We have to have quality of life, but
quality of life depends upon a healthy creation around us. It
is necessary. It is very similar to the analogy that has been
given that if you have an airplane, what we are arguing about
is how many of the rivets can fall out of the wing before the
wing falls off? There are thresholds within the ecological
system beyond which the system will crash and we do not know
where those thresholds are right now.
The critical thing from a conservation biology perspective,
and it is widely applied in many of our lives, is to operate by
the precautionary principle. We do not have to have all of the
information in to be absolutely sure before we err on the side
of conservation. Sometimes that means that we may protect
habitat in the beginning and realize that the habitat is not
necessary in the long run, can be released.
I am hearing the pain of some of the people around here and
I hear it loudly where we did not have enough funding in the
ESA to draw adequate maps so that we knew own the ground what
the distribution was of the critical habitat to protect for the
tiger salamander. That is a classic example of a failure not to
release enough funding to do the science adequately to allow us
to live sustainably within our communities.
It is a joy to be able to say I have an endangered species
in my back yard. I have one acre of land and I have identified
109 species of birds on that one acre of land. I have a house
on it. It is covered with wild flowers. I have 19 species of
trees on my one acre. I walk out onto my back porch and I
celebrate the beauty around me. I do not have to go on a
vacation to feel a release from the pressure. I just walk out
onto my porch because I have landscaped for wildlife and
invited them to be part of my backyard, too.
I think the question is whether we have the willpower in
the country to learn that we have to live with the creation
instead of against it, and figure out how to do that. That is
the essence of what you have to do here, is to come together
and recognize that there are going to be boundaries. We have to
recognize when we say no. We have to be able to have a quality
of life.
I look back--I grew up in Oregon. I am from the Pacific
Northwest. I teach during the summer at the Arava Institute of
Environmental Studies on Whitby Island northwest of Seattle. It
is a gorgeous place. But when I was growing up in my high
school and my grade school in St. Helens, Oregon I did not know
of a single person in my entire history in the school who had
asthma. And as I went to church all my life I never knew of a
single person that suffered from cancer, as a child.
When I ask my class today how many of you in my class have
asthma, 25 percent of my students acknowledge the fact that
they are suffering from asthma today. And you look around you
and ask how many people in your community are struggling with
cancer.
This is not dealing with the Endangered Species Act but it
is very much part of the message that we are fouling our nests.
We have to learn what quality of life is. We have to learn how
to say no. And when it comes to the Endangered Species Act, as
I said in my testimony, we have to figure out how to craft that
Act so that we have a win/win situation instead of a win/lose
situation, as it so often happens.
Frankly, if we have enough money to give a half a trillion
dollars in tax rebates to bail the country out for short-term
economic stability, we certainly have got enough money to
provide a sufficient amount of funds to maintain the
biodiversity that not only we depend upon but all of creation
depends upon. And it is a matter of choices. We simply have to
determine what is important. And for me and my household, we
will serve the Lord. And for me and my household, we have to
maintain the sustainability of the global creation.
So that is how I would answer your question. It is a matter
of choices and we in this room all are living with problems. We
are all struggling with aspects of an Endangered Species Act
that frankly is broken and it needs to be fixed. Part of the
current bill will indeed move us in that direction but critical
habitat, the critical habitat description, that aspect is
absolutely necessary but the critical habitat is the habitat
that the species needs to flourish on and we have to have good
science to provide us with that information.
Then we are going to have to recognize that sometimes we
have to make the choice of having a tiger salamander in my back
yard is really great but there may be a financial cost to it,
too, but we need to preserve the species.
The Chairman. The gentleman's time has expired.
Mr. Walden?
Mr. Walden. Thank you, Mr. Chairman.
I think what we are hearing is a growing consensus on the
need for critical habitat reform. This dates back to the days
of Secretary Babbitt or Jamie Rappaport Clark or Michael Bean,
the environmental defense attorney. Republicans, Democrats on
this committee today, we must focus on how we can get recovery,
which is what the Cardoza bill does, and we must improve
science. I fully agree with that. I think that is the
foundation for our decisions so we do not make decisions that
are actually harmful to the species, which is what happened in
my district when one agency--two agencies made two bad
decisions, both of which were threatening to the very species
they were supposed to protect.
As one agency said, let us flow warm water out of a lake
down a river system that had microsprings in it that kept the
water cold, and when you diluted that with warmer water, it
imperiled the salmon they were supposed to protect.
Another agency said to maintain a high lake level because
we think that is the thing to do, when the history and the
science showed just the opposite once the National Academy of
Sciences did the review.
So sometimes to me government rushes to make decisions that
are not based on sound science and in doing so, not only upends
an economy perhaps but also may actually imperil the very
species we are supposed to protect, we are supposed to be
stewards of. We need to get it right and that is why Mr.
Cardoza's legislation makes sense to me and it is why my
legislation requires outside independent peer review.
I think it makes sense for the Endangered Species Act
modernization. This is a 30-year-old law that we are seeing
some result from but I think it could do more and do it better
than 12 or 13 species out of 1,300 or whatever the number is
after 30 years.
And we have learned a lot. You talk about growing up in St.
Helens. I grew up in the Dalles and Hood River and I have to
tell you people are living longer today in this country than
they did 20, 30, 40, 50 years ago and we are detecting some of
these diseases because of the miracles of modern technology and
the things we have learned.
I mean technically--we were just looking this up--under the
ESA it is probably a violation to rid the face of the globe of
polio if you read the statute correctly and clearly. The only
exception are insects that are a threat to humanity. That is
the only specific exception. So are we doing something terrible
here because we are going to rid the face of the globe of polio
or some other disease that we as a civilization decide is bad
for us?
To me, we can find a balance and to me, there is a certain
sense that communities and countries that are strong
economically probably are more engaged to protect, preserve and
enhance their environment than those that are struggling to
develop. I have seen that in China when I have been there. I
have seen that in other Third World countries, certainly. They
do not care.
And what my colleague from Montana said I think made a lot
of sense. Right out here in this river system one of the first
listed species, the short-nosed sturgeon, gets to swim through
sewer sludge because it would take 5 years to fix the problem.
In my home state there is a city that every other day on
average dumps sewage into the Willamette River and they get 10
or 15 years to fix it because it is a big problem and an
extraordinarily expensive problem and I understand that, but we
can do better. We should do better.
I think every once in a while it is a good idea to look at
one of these laws and say is it working? Does it make sense? Is
it causing hardships that are not necessary? Can we do it a
better way with a partnership, especially when the bulk of the
lands that are needed for habitat are private?
Sir, I would say I admire you for what you do on your
property. It sounds splendid. But there could come a day when
they come and say your house is in the way and we need to have
you tear it down. You probably would say fine, take it; I'll
find something else to do. But for a lot of people trying to
change out from running a cattle ranch to planting grapes
should not be upended. They should not lose their property over
that, in my opinion. That is part of what this country is
about, is private property rights.
So we need to find a balance in the law, Mr. Chairman, and
I appreciate your work on this issue and Mr. Cardoza, yours, as
well. I think together we can come and find solutions that work
to modernize the Endangered Species Act to protect the species,
to allow for our country to have a strong economy and not
poverty. Thank you, Mr. Chairman.
The Chairman. Mr. Pearce.
Mr. Pearce. Thank you, Mr. Chairman. I will not stoop to
declare that my beliefs are the same as yours, but I would like
to associate myself with the comments of Mr. Cardoza and Mr.
Rehberg, in just in case it works well.
I was fascinated by Dr. Sheldon's comments and his
perspective. Growing up on a five-acre farm as one of six kids
in the 140-degree temperatures of southern New Mexico, I began
to believe the words of the Lord when it says in Genesis 3:17-
20 that the ground is going to be painful for you to toil and
it is going to produce thorns and thistles by the sweat of your
brow. I learned that very carefully and at an early age and
have not gone back to that five-acre farm since leaving, but I
appreciate that.
Dr. Sheldon, you did say that you are a practicing
evangelical, right?
Dr. Sheldon. Yes.
Mr. Pearce. If many evangelicals come down in a debate that
falls very close to your field, choosing creation theory over
evolution theory. Where do you fall in that?
Dr. Sheldon. God did it. I am not defining what process he
used.
Mr. Pearce. And also just to put it in perspective, the
question of your one-acre farm and the way that you are able to
use that, if no one else in the world produced anything, food,
would you plow up that habitat to provide your family with
food? That comes down to the essential question for all of us
because if we choose one thing with our own property, depending
on others to do with their property, to mine the ore that is
used in the metal for our cars, to drill the wells on their
property to get the fuel for the cars that we drive if we drive
cars, or if we fly in airplanes, then sometimes we, I think,
simplify the decisions before the society and in these
equations.
So how would you use your one acre if no one else produced
food?
Dr. Sheldon. No one else produced it? That is a very
interesting question.
Mr. Pearce. I will just let you ponder that. I really don't
want--
Dr. Sheldon.--moving to Whitby Island because I will have
five acres there. I will be moving there in 4 years and I have
a garden spot planned. But it is a question that we have to--
Mr. Pearce. It is a very deep question that we all are
troubled with and--
Dr. Sheldon. I would struggle with the question. I
certainly would not cut all of the trees on my half an acre
that I might be forced to grow my produce on. Can you feed a
family on one acre?
Mr. Pearce. But you see there is a quandary for all of us
if you have--we have members in this body with 12 people in the
family.
Anyway, before my 5 minutes expires, Miss Gray, thank you
very much for the balance that you bring into this and you
expressed the frustrations that all of us do, that we must have
some common sense. We have to reach the balance somewhere here.
I made comments earlier today in this same hearing that we are
taking away private property rights from people and that is not
in the best interest of the country. If we just have a plan,
almost all of us will live by it.
I was really amazed that people talk about Republicans and
their concern for the environment. In January the Clear Skies
Initiative was discussed and we have in the Clear Skies
Initiative by the President 70 percent reduction in emissions
under the President's plan; never before. Usually the
reductions are in 10 and 12 or 4 and 3 percentages. Seventy
percent reductions and business is saying we can do those in
return for one thing--certainty.
Just stick with those rules. We can do almost anything
here. It is when we set the rules and we begin to move them
around that I think that the entire balance, the need to
preserve a species with the need to have jobs and the need to
provide livings and food sources and heat sources for our
entire civilization so, I hope, Mr. Chairman, that we will
drive ourselves to that again.
Mr. Cardoza, thank you for presenting the valuable
discussion and if any of you want to make comments on the
things I brought up, feel free to until the red light goes on.
Thank you.
Mr. Udall. Would the gentleman yield?
The Chairman. His time is up.
Mr. Udall. I just wanted to get a last question on his
time, Mr. Chairman.
The Chairman. You can ask one more question.
Mr. Udall. OK, thank you.
Dr. Sheldon, one of the things that has struck me today
listening to the testimony is that people have an emotional
connection to different kinds of critters. Clearly you have the
American bald eagle and it is a national symbol and everybody
loves the eagle and we have done an incredible job at
recovering the bald eagle. But there are all these other
insects and plants that are out there and everybody can
probably think of the little plants and insects that they like
the least--flies and chiggers and ticks. You can think of all
of those.
But is it dangerous to judge species based on an emotional
perception? When we are talking about ecological balance and
the whole equation, you need all the--flies are part of the
pollenization--flies and bees are part of the pollination
process. I mean what would be your comment on this kind of
emotional attachment, that we are going to save the things we
really like but the others, we do not? Do you have any comment
on that?
Dr. Sheldon. Conservation biology is recognizing the
difference between fine-filtered approach and coarse-filtered
approach to solving the biodiversity crisis. The fine-filtered
approach is linked in with the Endangered Species Act. We
identify critical species and we try to help them one at a
time.
The coarse-filtered approach recognizes that we have so
many species that are currently threatened that that is not a
long-term viable solution. The only long-term solution is
actually ecosystem-level protection. If we preserve the
ecosystems that the species depend upon sufficiently, the
species themselves will remain viable within the ecological
system.
What is critical here is to recognize what are referred to
as ecosystem processes, energy flow and biogeochemical cycles
within the ecological systems. And what is interesting there is
that many of the players, many of the absolutely critical
players in ecosystem processes, the key functioning that drives
the sustainability of the system, those key players are the
microscopic organisms. They are the things that we are by and
large unfamiliar with. That is what is generating and recycling
the soils. If it were not for those creatures, you would be up
to your eyeballs in dead dinosaurs right now. We have to have
the recycling, the program within the system.
It is part of what I would describe as the fruitfulness
that has been built into the ecological system itself from the
beginning by the creator. It is what keeps the system going.
So we are very quick to identify with the pandas and the
bald eagles. My work currently is I am working on a research
project on the grasshoppers of Pennsylvania. It has never been
done. The last work on the Northeastern grasshoppers was done
in 1922. We cannot identify the species that are there. We have
no idea what the distribution is. And the Nature Conservancy
has no idea what rare or endangered species even exist in
Pennsylvania because they are so poorly known.
But the point is that some of the things that we feel have
essentially no value--the fly that we will swat or the
grasshopper that we will render into a grease spot with
mechanical control while we are walking down a sidewalk--those
are the species that are the glue that holds the whole system
together. That is what keeps the integrity of the processes
going.
It is not the few species that we see on the top, the big,
charismatic species. Too often those are already so few, their
populations have been reduced to the point from an ecological
perspective that they are already extinct. I mean we do have
American bison in the U.S. but from an ecological perspective
they are an extinct species. There is virtually no place in the
country where they are carrying out the keystone roles that the
American bison were known for.
There are not any wolves or cougars in the Eastern United
States. The keystone predators are missing and as a result, we
are having an explosion of coyotes and the mesopredators in the
middle are taking over, filling in the role.
Those animals we can identify with but it is the other
things that we often are very hesitant to even acknowledge with
the Endangered Species Act because if you start listing
grasshoppers under the Endangered Species Act everybody is
going to scream their head off if there is habitat description
set aside, protected areas for grasshopper species because most
people cannot recognize their value at all.
I think that is one of the big issues that we are
struggling with. How do we really deal with the preservation of
all of the creatures, even those that we as a general public do
not see as being critical for the functioning of the
ecosystems?
So it is the processes that are important on an ecosystem
level. It is the landscape processes that we have to maintain.
The Endangered Species Act is critical because it is filling in
the gap and it is protecting species in the short run. In the
long run we have to have habitat protected sufficiently to
maintain those processes. And as we do that we should not lose
that many more endangered species. If we are preserving the
integrity of the habitat, if we are learning to live with
creation itself, maintaining its fruitfulness, then a lot of
the problems that we are addressing here are not going to be
ones that are going to be major problems in the future. It is
simply learning to live with the system.
Mr. Udall. Thank you, Dr. Sheldon. Thank you to the rest of
the panel and Mr. Chairman, thank you for your indulgence.
The Chairman. Thank you.
Just in wrapping up this hearing, first of all, I want to
thank Mr. Cardoza for his legislation, for his work in trying
to bring people together on what has proven to be a
controversial issue over many years. It is efforts such as his
to try to bring balance to the Act, to try to bring so many
different people together to come to a compromise, knowing that
there are some people that are just going to be opposed to it
no matter what. And it does not matter what the bill says;
their response to it will be that it is gutting the Act.
Dr. Sheldon, to you, I found it very interesting to listen
to you and your responses, not only your testimony but your
responses to the questions that were asked. I would like you to
think about maybe on a somewhat larger scale, what you are
talking about on your one acre. Your one acre, you want your
home, what is necessary for you to live, and the rest of your
acre you are using as habitat. And it not just endangered
species. It is wildlife. It is the beauty of God's creation
surrounding you.
When you talk about--Mrs. Gray talked about somebody with
their farm and it does not matter if it is one acre, 1,000
acres, 10,000 acres. They are setting aside what is necessary
for them to live and thrive and produce and the rest of it,
they are willing to set aside as wildlife habitat.
That is all we are asking. We are asking for the
flexibility in the Act for Mr. Cardoza's constituents to be
able to earn a living off of a farm and set aside the rest as
that habitat and be able to do that in a proactive way and to
remove some of the disincentives that exist under the current
Act and its implementation so that people can do that.
I grew up in the California Delta and I loved every day of
it. I can tell you what it is like to see a bald eagle or a
hawk hunting. I can tell you what it is like to be out in those
rivers fishing. That is what I grew up with and I never wanted
to leave it. I mean that, to me, was paradise growing up as a
kid.
Yet so many of my friends and neighbors are terrified today
that you are going to find an endangered species on their
property because they are afraid they are going to lose it.
They are afraid they are going to lose the ability to use that
property and that is what drove me to get involved in this
crazy game to begin with and to be able to come back here and
be part of the effort that is being made to bring some
rationality, some common sense back into the Act.
I believe that the members of this committee can sit down
and come to a compromise, can come to an Endangered Species Act
that accomplishes exactly what you describe and, at the same
time, takes care of the issues that these local elected
officials are having to deal with every day.
You know, in listening to all the debate today and all the
talk today, people talk about setting aside habitat. How much?
At what point do we say OK, this is enough? The Federal
government owns a third of our country right now. A lot of that
could be used to recover endangered species. A lot of that
should be used to recover endangered species.
We have land in my district, in Dennis's district that is
set aside with conservation easements on it and land that has
been paid for under habitat conservation plans. That all ought
to be part of what the ultimate solution is. But the way the
Act is being implemented today, we still have things where the
City of Santa Rosa is running into problems, where the County
of Santa Barbara is running into problems.
Balance is what we need to find. That is how we need to
come up with a solution that removes some of the negative
incentives, the perverse incentives that exist under the Act
today and turn it into a positive if you find an endangered
species on somebody's property. That is what we need to do, but
the law right now does not allow that. That is not the way it
is being implemented and that is why it gets so frustrating for
those of us that are up here trying to deal with this because I
agree with most of what you are saying. I think you are right,
but that is not the Endangered Species Act we are living with
and we need to change that.
So I appreciate the testimony of this panel, all of the
panels that were here today. I think this was a very worthwhile
hearing to have. I think we got a lot of very important
information. I know that Mr. Cardoza and I can go back and sit
down and take another look at this bill and see if there are
things that we can change that address some of the issues that
been brought up today. I think it is a good bill in general. I
think it is a very good bill and it is something that we need
to move forward with.
So I thank all the panels. I thank the witnesses for your
testimony today. I thank the members of the Committee for
sticking around during all of this. I know it has been a long
day.
So thank you all very much. The hearing is adjourned.
[Whereupon, at 4:02 p.m., the hearing was adjourned.]