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S. HRG. 109–991

THE ENDANGERED SPECIES ACT AND THE ROLES

OF STATES, TRIBES, AND LOCAL GOVERNMENTS

HEARING

BEFORE THE

SUBCOMMITTEE ON FISHERIES,

WILDLIFE, AND WATER

OF THE

COMMITTEE ON

ENVIRONMENT AND PUBLIC WORKS

UNITED STATES SENATE

ONE HUNDRED NINTH CONGRESS

FIRST SESSION

SEPTEMBER 21, 2005

Printed for the use of the Committee on Environment and Public Works

(

Available via the World Wide Web: http://www.access.gpo.gov/congress.senate
(II)

COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS

ONE HUNDRED NINTH CONGRESS

FIRST SESSION

JAMES M. INHOFE, Oklahoma, Chairman

JOHN W. WARNER, Virginia

CHRISTOPHER S. BOND, Missouri

GEORGE V. VOINOVICH, Ohio

LINCOLN CHAFEE, Rhode Island

LISA MURKOWSKI, Alaska

JOHN THUNE, South Dakota

JIM DEMINT, South Carolina

JOHNNY ISAKSON, Georgia

DAVID VITTER, Louisiana

JAMES M. JEFFORDS, Vermont

MAX BAUCUS, Montana

JOSEPH I. LIEBERMAN, Connecticut

BARBARA BOXER, California

THOMAS R. CARPER, Delaware

HILLARY RODHAM CLINTON, New York

FRANK R. LAUTENBERG, New Jersey

BARACK OBAMA, Illinois

ANDREW WHEELER, Majority Staff Director

KEN CONNOLLY, Minority Staff Director

SUBCOMMITTEE ON FISHERIES, WILDLIFE, AND WATER

LINCOLN CHAFEE, Rhode Island, Chairman

JOHN W. WARNER, Virginia

LISA MURKOWSKI, Alaska

JIM DEMINT, South Carolina

DAVID VITTER, Louisiana

HILLARY RODHAM CLINTON, New York

JOSEPH I. LIEBERMAN, Connecticut

FRANK R. LAUTENBERG, New Jersey

BARACK OBAMA, Illinois
(III)

CONTENTS

Page

SEPTEMBER 21, 2005

OPENING STATEMENTS

Chafee, Hon. Lincoln, U.S. Senator from the State of Rhode Island .................. 1

Clinton, Hon. Hillary Rodham, U.S. Senator from the State of New York ........ 5

Inhofe, Hon. James M., U.S. Senator from the State of Oklahoma .................... 4

Jeffords, Hon. James M., U.S. Senator from the State of Vermont .................... 7

Obama, Hon. Barack, U.S. Senator from the State of Illinois, prepared statement ...................................................................................................................... 30

WITNESSES

Baughman, John, Executive Vice President, International Association of Fish

and Wildlife Agencies .......................................................................................... 25

Prepared statement .......................................................................................... 99

Responses to additional questions from:

Senator Chafee .......................................................................................... 109

Senator Inhofe ........................................................................................... 110

Senator Jeffords ......................................................................................... 111

Burnham, Bill, President, The Peregrine Fund .................................................... 24

Prepared statement .......................................................................................... 83

Responses to additional questions from:

Senator Chafee .......................................................................................... 95

Senator Inhofe ........................................................................................... 98

Senator Jeffords ......................................................................................... 98

Davison, Robert P., Wildlife Management Institute ............................................. 22

Prepared statement .......................................................................................... 55

Responses to additional questions from:

Senator Chafee .......................................................................................... 82

Senator Jeffords ......................................................................................... 82

Frank, Billy, Jr., Chairman, Northwest Indian Fisheries Commission .............. 8

Prepared statement .......................................................................................... 30

Responses to additional questions from:

Senator Chafee .......................................................................................... 33

Senator Jeffords ......................................................................................... 35

Gardner, Cory, Colorado State Representative ..................................................... 10

Prepared statement .......................................................................................... 36

Responses to additional questions from:

Senator Chafee .......................................................................................... 39

Senator Inhofe ........................................................................................... 44

Senator Jeffords ......................................................................................... 46

Pasteris, Michael, A., Executive Director, Forest Preserve District of Will

County, IL, National Association of Counties .................................................... 12

Prepared statement .......................................................................................... 47

Responses to additional questions from:

Senator Chafee .......................................................................................... 49

Senator Inhofe ........................................................................................... 50

Senator Jeffords ......................................................................................... 50
Page

IV

Shaw, Dwayne, Executive Director, Downeast Salmon Federation/Downeast

Rivers Land Trust ................................................................................................ 20

Prepared statement .......................................................................................... 51

Responses to additional questions from:

Senator Chafee .......................................................................................... 53

Senator Jeffords ......................................................................................... 54

ADDITIONAL MATERIAL

Cartoon, 10-Journal-Advocate, Sterling, Colorado, September 14, 2005 ............ 39

Chart, Species Breakdown ...................................................................................... 42

Conservation Plan ................................................................................................ 117–141

Letter from Dave Freudenthal, Office of the Governor, The State of Wyoming

to Senators Chafee and Clinton .......................................................................... 147

Position Paper, International Association of Fish and Wildlife Agencies, September 30, 2004 ................................................................................................ 102–109

Report, Practical Solutions to Improve the Effectiveness of the Endangered

Species Act for Wildlife Conservation, The Wildlife Society, Technical Review 05–1, 2005..................................................................................................... 63–81

Statements:

Scarborough, Karen, Undersecretary, State of California Resources Agency .................................................................................................................... 113

Responses to additional questions from:

Senator Chafee .......................................................................................... 142

Senator Inhofe ........................................................................................... 143

Owens, Bill, Governor of Colorado and Dave Freudenthal, Governor of

Wyoming on Behalf of the Western Governors’ Association ..................... 144
(1)

THE ENDANGERED SPECIES ACT AND THE

ROLES OF STATES, TRIBES, AND LOCAL

GOVERNMENTS

WEDNESDAY, SEPTEMBER 21, 2005

U.S. SENATE,

COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS,

SUBCOMMITTEE ON FISHERIES, WILDLIFE, AND WATER,

Washington, DC.

The subcommittee met, pursuant to notice, at 9:33 a.m. in room

406, Dirksen Senate Office Building, Hon. Lincoln Chafee (chairman of the committee) presiding.

Present: Senators Chafee, Inhofe, Clinton, and Jeffords.

OPENING STATEMENT OF HON. LINCOLN CHAFEE,

U.S. SENATOR FROM THE STATE OF RHODE ISLAND

Senator CHAFEE. Good morning. This is a meeting of the Subcommittee on Fisheries, Wildlife, and Water, and it is a hearing on

the Endangered Species Act and the Role of the States, Tribes, and

Local Governments. Welcome, everybody.

This morning we will be focusing on the roles of States, tribes,

and local governments in implementing the Endangered Species

Act. A variety of witnesses have been invited to testify before us

today, all with extensive knowledge of the Act and how it works

at the State, tribal, and local levels.

According to the U.S. Geological Survey, a study based on National Heritage data in all 50 States found that federally listed species, over 50 percent of these species are found on non-Federal

lands, such as State, local public lands, tribal lands, or private

lands; and 64 percent of all listed species, including State-listed

species, are found exclusively on non-Federal lands. Meanwhile,

only 12 percent of federally listed species are known to spend their

lives solely on Federal lands.

This data points strongly to the importance of developing and

strengthening Federal efforts for protecting species by meeting the

partnerships and cooperative agreements with State and local

agencies, nonprofit organizations, and private landowners.

Since the enactment of the ESA in 1973, Congress has recognized

the important role that States play in protecting species within

their boundaries. Section 6 of the ESA is dedicated exclusively to

working with States in implementing the law.

As indeed its title, ‘‘Cooperation with the States,’’ indicates, the

law further mandates the Secretary of the Interior and Secretary

of the Commerce shall cooperate to the maximum extent prac-
2

ticable with the States in carrying out the programs authorized by

this Act.

While all 50 States currently have some type of cooperative

agreements with the U.S. Fish and Wildlife Service and NOAA,

many of these agreements focus exclusively on specific species and

are not comprehensive enough. A lack of strong Federal funding for

cooperative agreements may be one cause for this, or State budgetary downturns and program staffing reductions. Regardless, I am

interested in finding out more where we can improve the relationships between the States and the Federal Government for improving the prospect of species recovery.

In a similar vein, tribal governments play an important role in

protecting and conserving species across the landscape. I look forward to hearing more from Mr. Billy Frank, Jr., our tribal witness,

on ways in which we can strengthen the Federal Government’s

trust partnership with the tribes in order to reach the shared goal

of protecting threatened or endangered species.

Local governments are also integral to the ESA solution, and

work closely with States and Federal agencies to implement species

conservation programs, including voluntary land management initiatives such as Habitat Conservation Plans, Safe Harbor Agreements, and Candidate Conservation Agreements with Assurances.

Without willing local officials and private landowners working in

partnership with the Federal agencies, States, tribes, and nongovernmental organizations, effective species conservation and recovery would come to a screeching halt. I believe we are all here

with a common shared goal to locate the right formula for propelling species protection and recovery forward, while also preventing

healthy species from ever reaching the status where they need to

be listed as threatened or endangered.

As we have heard in the past hearings, a renewed focus on voluntary landowner incentives appear to be a critical component for

successful species recovery in this country. During today’s hearing,

we will be looking at the second important component for species

protection, enhancing the role of States, tribes, and other non-Federal entities in species conservation.

Strong Federal funding leveraged by public and private funds

will be critical to any effort to encourage a greater role for States,

tribes, and local governments. Federal funding opportunities for

ESA section 6, State Cooperative Programs, Voluntary Landowner

Incentive Programs, and Recovery Plans, to name a few, will need

to be identified and significantly increased in order to encourage

partnerships at all levels of government.

As we move forward with taking a hard look at ESA and its need

for reauthorization, there are two main areas in which we must

focus our attention: preventing species from being added to the list

and recovering species currently on the list. States, tribes, and

local governments have the expertise, knowledge, and relationships

with private landowners to work as strong, committed partners

with the Federal Government to accomplish both of these tasks.

Thank you. I will note that there is legislation in the House, and

this is our third hearing, as I mentioned, and we will just be evaluating the different legislations that come forward. But this hearing
3

is centered, as I said, on the title of the cooperation between

States, tribes, and local governments and the Federal Government.

[The prepared statement of Senator Chafee follows:]

STATEMENT OF HON. LINCOLN CHAFEE, U.S. SENATOR FROM THE

STATE OF RHODE ISLAND

Good morning and welcome to the Subcommittee on Fisheries, Wildlife and Water’s third hearing on the Endangered Species Act (ESA).

This morning, we will be focusing on the roles of States, tribes and local governments in implementing the ESA. A variety of witnesses have been invited to testify

before us today, all with extensive knowledge of the Act and how it works at the

State, Tribal and local levels.

According to the U.S. Geological Survey, a study based on National Heritage Data

in all 50 States found that among ‘‘federally listed species,’’ over 50 percent of these

species are found on non-Federal lands such as State and local public lands, tribal

lands, or private lands; and 64 percent of ‘‘all listed species’’, including state-listed

species, are found exclusively on non-Federal lands. Meanwhile, only 12 percent of

federally listed species are known to spend their lives solely on Federal lands.

This data points strongly to the importance of developing and strengthening Federal efforts for protecting species by means of partnerships and cooperative agreements with State and local agencies, non-profit conservation organizations, and private landowners.

Since enactment of the ESA in 1973, Congress has recognized the important role

that States play in protecting species within their boundaries. Section 6 of the ESA

is dedicated exclusively to working with States in implementing the law, as indeed

it’s title ‘‘Cooperation with the States’’ indicates. The law further mandates that the

Secretary of Interior and the Secretary of Commerce ‘‘shall cooperate to the maximum extent practicable with the States’’ in carrying out the programs authorized

by this Act.

While all 50 states currently have some type of cooperative agreements with the

U.S. Fish and Wildlife Service and NOAA Fisheries, many of these agreements focus

exclusively on specific species and are not comprehensive enough. A lack of strong

Federal funding for cooperative agreements may be one cause for this, or State

budgetary downturns and program staffing reductions. Regardless, I am interested

in finding out more about where we can improve the relationships between the

States and the Federal Government for improving the prospect of species recovery.

In a similar vein, Tribal governments play an important role in protecting and

conserving species across the landscape. I look forward to hearing more from Mr.

Billy Frank, Jr., our Tribal witness, on ways in which we can strengthen the Federal Government’s trust partnership with the Tribes in order to reach the shared

goal of protecting threatened and endangered species.

Local governments are also integral to the ESA solution, and work closely with

States and Federal agencies to implement species conservation programs, including

voluntary land management initiatives such as Habitat Conservation Plans, Safe

Harbor Agreements, and Candidate Conservation Agreements with Assurances.

Without willing local officials and private landowners working in partnership with

Federal agencies, States, Tribes, and nongovernmental organizations, effective species conservation and recovery would come to a screeching halt.

I believe we are all here with a common, shared goal—to locate the right formula

for propelling species protection and recovery forward, while also preventing healthy

species from ever reaching the status where they need to be listed as threatened

or endangered.

As we have heard in past hearings, a renewed focus on voluntary landowner incentives appears to be a critical component for successful species recovery in this

country. During today’s hearing, we will be looking at the second important component for species protection—enhancing the roles of States, Tribes and other non-Federal entities in species conservation.

Strong Federal funding, leveraged by public and private funds, will be critical to

any effort to encourage a greater role for States, Tribes and local governments in

species conservation and recovery programs. Federal funding opportunities for ESA

Section 6 State Cooperative Programs, Voluntary Landowner Incentive Programs,

and Recovery Plans, to name a few, will need to be identified and significantly increased in order to encourage partnerships at all levels of government.

As we move forward with taking a hard look at the ESA and its need for reauthorization, there are two main areas in which we must focus our attention—preventing species from being added to the list, and recovering species currently on the
4

list. States, Tribes and local governments have the expertise, knowledge, and relationships with private landowners to work as strong, committed partners with the

Federal Government to accomplish both of these tasks.

Thank you.

Senator CHAFEE. Chairman of the committee.

OPENING STATEMENT OF HON. JAMES M. INHOFE,

U.S. SENATOR FROM THE STATE OF OKLAHOMA

Senator INHOFE. Thank you, Mr. Chairman. I regret that I am

going to have to be in and out today; I have other committee commitments. I do regret that because this hearing was kind of my

idea, to get the people who are affected most and closest to the

problem.

As a former mayor, I can attest that dealing with the Federal

Government is not easy. Many times the Federal Government believes they know the State and local problems better than the local

people do, and that is not right. There is this kind of a mentality

in Washington that if the decision isn’t made in Washington, it is

not a good decision. I have lived with this for a long time and I

will share a story I don’t think any of my colleagues have heard,

but it goes back.

Here I chair the Environment and Public Works Committee, but

many years, when a good friend of all of ours, David Boren, and

I were freshmen legislators in the Oklahoma State House of Representatives, in January 1967, David Boren and I came to testify

before this committee, the Environment and Public Works Committee. It was Randolph from West Virginia, the chairman at that

time. I can remember this wasn’t even built yet, I guess, at that

time, but I remember this lofty committee and we were here protesting Lady Bird’s Highway Beautification Act of 1965 on the

basis of property rights.

I think all too often there is, as I say, a mentality that the decisions made here are the right decisions, and that is not true. People who live close to the problems are the ones who are most familiar with it. I have served in the State legislature, I have served as

mayor of a major city, and I have served in the House and the Senate, and I can assure you that when I was mayor of Tulsa, I was

much more familiar with those problems.

So there are some good things that we have been doing. We had

a hearing in Oklahoma on the Partnership Act. Very good. It is

something that has worked really well. It shows that the landowners are big on conservation, the environment, and the endangered species. They want to do something to help, but they want

to do it in concert with us in Washington, not in spite of us in

Washington.

So those things are the things that I will be looking at during

the deliberation of the Endangered Species Act. I want to know,

whether it is the Arkansas shiner or one of the other critters, how

that is going to affect my Oklahoma farmers. So we are going to

be coming to you guys and coming to the local entities for our information, and that is certainly the way that I will be performing on

this subcommittee on reauthorization of the Endangered Species

Act.

Thank you, Mr. Chairman.
5

[The prepared statement of Senator Inhofe follows:]

STATEMENT OF HON. JAMES M. INHOFE, U.S. SENATOR FROM THE

STATE OF OKLAHOMA

Mr. Chairman, thank you for holding this third hearing on updating the Endangered Species Act (ESA). Today, we are examining the role of State and local roles

in implementing the ESA. I look forward to hearing from the witnesses about their

successes and their frustrations in working with the Federal Government on species

conservation and recovery.

As a former mayor, I can attest that dealing with the Federal Government is not

easy. Many times the Federal Government believes they know better than State and

local entities. When I was mayor of Tulsa, I knew the characteristics, concerns, and

challenges of my city and its people better than any bureaucrat in Washington.

With respect to conservation efforts, State and local government entities are the

front lines. These are the individuals with the closest knowledge of the species, its

habitat and local conditions. These individuals also have a responsibility to the people they serve to ensure economic viability of their state, city or county. As a mayor,

you spend countless hours working with agencies, interest groups and private citizens to manage your city’s resources and plan for the future. These decisions and

plans are not made lightly. I have heard numerous stories where State and local

officials, private landowners, local environmental and citizen groups have worked together in partnership and have agreed to a sensible, protective strategy to recover

species while protecting land use rights, only to have the Federal Government come

in and overrule them.

In each of the previous hearings, I have expressed concern that those closest to

the problem are all too often ignored when it comes to regulatory decisionmaking

under the ESA. As we look at legislative changes to the ESA this fall, it will be

a priority for me that we open up the regulatory process, increase the public participation of all parties, including private stakeholders, and provide State and local government with specific authorities and responsibilities for recovery and day-to-day,

on-the-ground implementation. I hope that the testimony today will help us find a

clear path as to how best to do that with recommendations from the front line.

Thank you, Mr. Chairman, for holding this important hearing and I look forward

to hearing the testimony.

Senator CHAFEE. Thank you, Chairman Inhofe. Senator David

Boren also came to the Senate.

Senator INHOFE. Yes. I succeeded him. That is right.

Senator CHAFEE. And now he is president of the University of

Oklahoma?

Senator INHOFE. That is right. Don’t talk about that football for

a while. We will wait for a couple of years.

Senator CHAFEE. Thank you.

I yield to Senator Clinton.

OPENING STATEMENT OF HON. HILLARY RODHAM CLINTON,

U.S. SENATOR FROM THE STATE OF NEW YORK

Senator CLINTON. So far as we know, though, the Sooners are not

an endangered species.

Thank you so much, Mr. Chairman, for holding this third hearing on the Endangered Species Act. I really want to commend our

committee and our leadership, Chairman Inhofe and Ranking

Member Jeffords, because they have initiated the keystone center

dialog along with myself, Senator Chafee, Senator Crapo and Senator Lincoln, and I think that is a very ingenious and productive

way of dealing with some of these quite difficult, thorny problems

that are raised with this reauthorization.

I am delighted that today we are going to be talking about State,

tribal, and local roles in protecting threatened and endangered species. But before I make just a few comments about that, I do want

to say that I am quite concerned about the bill that Chairman
6

Pombo introduced on the House side earlier this week, which is

scheduled for markup in the Resources Committee tomorrow.

I regret that that has sort of jumped the gun. I think that our

committee has a very deliberative and thoughtful process that I

think will lead to the right kind of decisions being made with respect to the reauthorization.

But the bill introduced by Chairman Pombo really, I think,

would abandon our national commitment to species recovery, would

diminish habitat protection, would provide very broad exemptions

to Federal agencies, creates more bureaucracy, the way I read it,

with more layers of decisionmaking, instead of trying to streamline

and allocate responsibility. I think it turns sound science on its

head and it requires taxpayers to pay companies and developers for

actions that may or may not be ones that are in the public interest

or the furtherance of species preservation.

So I believe, as I have said in prior hearings, that the Endangered Species Act certainly can be improved to work better for all

stakeholders. I think we can do a better job at achieving recovery.

Unfortunately, the House bill, as introduced, simply does not meet

those goals, and, therefore, I think that what this committee, and

particularly the subcommittee under Senator Chafee, is attempting

to do is really try to find where true consensus exists and where

progress is possible on a broadly bipartisan basis.

Now, this keystone center dialog group has already begun its

work; it will meet twice later this year. It should have recommendations for us, which is what we have asked them to do, regarding critical habitat by early next year. I think that there may

be additional hearings that our committee and subcommittee want

to hold. So I really applaud both the chairman of the full committee

and the chairman of the subcommittee for proceeding in a very

careful, thoughtful way.

As for today’s hearing, I am looking very much forward to the

testimony of our witnesses because you do bring perspective from

different governmental partners and wildlife management. States,

tribes, and local governments have expertise and resources, as well

as a strong interest in wildlife management. So I think it is clear

that we want to explore how States, tribes, and local governments

could play a greater role in implementing the Endangered Species

Act.

Now, I think it is also evident, however, that the capacity of

States varies widely in this regard. Some States are very well

equipped right now. Even some municipalities are. Some counties

are. But many others are not yet in a position to assume the kind

of responsibility that we would want to pass on to them.

As I have noted earlier, I think the test for any change in the

Endangered Species Act, including a change in the State, local, or

tribal role, ought to be whether it can create conditions to avoid the

listing of species because we have a positive, healthy habitat plan

in place, and whether it can help us move species off the list. Those

are the two main things.

In looking at the bill introduced by Chairman Pombo—and we

haven’t had a lot of time to analyze it—I don’t believe that we

would have saved the grizzly bear or the peregrine falcon or other

species that are important to our sense of self—the bald eagle—
7

with the plan that he outlines. I think we can do better and make

improvements without losing sight of our commitment to protecting

and promoting wildlife in our country.

So I am going to have several questions. First, how effectively

are States, tribes, and local governments already implementing

their current authorities under the Act? Do they have the resources

and legal authorities they need to be effective? If not, what do they

need? How can State, tribal, and local roles in species conservation

be enhanced? Are changes to the Act advisable? If so, what? Would

more funding of the current section 6 be helpful or sufficient? Are

there other ways in which the relationship among Federal and nonFederal partners can be improved?

So again, Mr. Chairman, I thank you for the very deliberative

way you are proceeding here. It is exactly what I think needs to

be done. I believe we can reach a consensus which is a win-win for

everybody. None of us will get everything we want, but we will

come up with some enhancements and reform to the ESA that I

think will really stand the test of time.

Senator CHAFEE. Thank you, Senator Clinton.

Senator Jeffords.

OPENING STATEMENT OF HON. JAMES M. JEFFORDS,

U.S. SENATOR FROM THE STATE OF VERMONT

Senator JEFFORDS. Thank you, Mr. Chairman, for holding the

third in a series of hearings on the Endangered Species Act.

I want to thank all the witnesses for coming here today to share

their views on the important role that States, tribes, and local governments play in preventing species extinctions.

When it passed the Endangered Species Act in 1973, Congress

recognized that the successful development of an endangered species program would be dependent upon good working arrangement

between Federal and State agencies.

In my State of Vermont, the Fish and Wildlife Service has

worked with the State’s Department of Fish and Game Outreach

for Earth Stewardship and the Central Vermont Public Service to

restore bald eagle population that is now thriving. The collaboration between the agencies is the reason for this success. Vermont

also has a cooperative agreement with the Fish and Wildlife Service that is continuing to foster collaboration.

I am sure there are other examples of successful collaborations

that we will hear today from other witnesses. I am sure you will

also hear ways that the Act can be improved.

I also look forward to hearing how we can build on Federal-State

partnerships and new ideas you may have to those partnerships so

that they survive and thrive.

Thank you, Mr. Chairman.

[The prepared statement of Senator Jeffords follows:]

STATEMENT OF HON. JAMES M. JEFFORDS, U.S. SENATOR FROM THE STATE VERMONT

Thank you, Mr. Chairman, for holding the third in a series of hearings on the

Endangered Species Act.

I want to thank all of the witnesses for coming here today to share their views

on the important role that States, tribes and local governments play in preventing

species extinction.
8

When it passed the Endangered Species Act in 1973, Congress recognized that the

successful development of an endangered species program would depend upon a

good working arrangement between Federal and State agencies.

In my State of Vermont, the U.S. Fish and Wildlife Service has worked with the

State Department of Fish and Wildlife, as well as the National Wildlife Federation,

Outreach for Earth Stewardship, and Central Vermont Public Service to restore a

bald eagle population that is now thriving. The collaboration between the agencies

is a reason for this success.

Vermont also has a Cooperative Agreement with the Fish and Wildlife Service

that is continuing to foster collaboration. I’m sure there are other examples of successful collaborations that we will hear about today from other witnesses. I am sure

we will also hear about ways the Act can be improved.

I also look forward to hearing how we can build on Federal-State partnerships

and new ideas you may have to make those partnerships thrive.

Thank you, Mr. Chairman.

Senator CHAFEE. Thank you, Senator Jeffords.

We will now proceed to the first panel. We have Mr. Billy Frank,

Jr., chairman of the Northwest Indian Fisheries Commission; Mr.

Cory Gardner, a Colorado State Representative; and Mr. Michael

Pasteris, executive director of the Forest Preserve District of Will

County, IL to represent the National Association of Counties.

Welcome, gentlemen.

You can see the electronic box which allocates the 5 minutes per

witness, with a yellow light coming on and then a red light at the

conclusion of the 5 minutes. Make every effort to strive to keep the

comments within that timeframe to allow us adequate question

time.

Thank you, Mr. Frank. Welcome.

STATEMENT OF BILLY FRANK, JR., CHAIRMAN, NORTHWEST

INDIAN FISHERIES COMMISSION

Mr. FRANK. Thank you, Mr. Chairman and the Senate Committee. This is an honor to be here and listen to you. It gives us

hope in the great Northwest along the Pacific Ocean. I am chairman of the Northwest Indian Fisheries Commission. I represent 20

tribes and speak with one voice when I come to the U.S. Congress,

and I think today is going to be a great day.

The Endangered Species is an important law to the tribes, and

everyone else. As far as our treaties in the Northwest are concerned and throughout the Nation, the Endangered Species is

something we can work with and make it happen as partners with

the Federal Government, as partners with the States—State of

Washington in my case—and with the local governments, and the

ports and all of the volunteers on the watersheds—and we have a

lot of them up in the Northwest.

Treaty rights are the supreme law of the land, as everyone

knows, and the ESA is the pit bull dog of the Federal law; and we

understand that. It is very important that we get together and sit

down and have hearings like this to move us forward.

ESA has helped return the eagle and the gray whale along the

Pacific Coast and in our backyard, in Puget Sound and throughout

the Pacific Coast, and I have seen them where they weren’t on the

beaches anymore and along the Nisqually River, where I was born

and raised and lived, and still live there. All of us brought the eagles back along the Pacific Coast, the U.S. Government as well as

the local and the State of Washington, U.S. Fish and Wildlife, and

Commerce, and all the tribes.
9

We worked together to make that happen, and they are there,

healthy right now, and getting healthier. The eagle stories are very

important to all of us to hear, and if I had time I would tell you

some.

The salmon recovery efforts in the Pacific Northwest, the Endangered Species is part of that, is part of everything that we do, with

our hatchery reform, all of our things, working with our wild stock

and everything, making it happen. The funding is probably the biggest part of everything that we do out there, and the funding has

to continue.

There have been some failures. The Endangered Species is looking at, more or less, as part of the hatchery and the harvest of

salmon, it does not look at the habitat up on the watersheds. It has

to look at the habitat. The habitat is the most important thing to

bring our recovery and all of our salmon back to us.

The habitat is part of everything that we are talking about; all

the animals and all the critters, and everything that is alive up

there; the food chain, the cycle of the food chain and all of that.

We have to work with the timber industry as we do. We have

agreements with the timber industry, the tribes and the State, and

all of us in the Northwest.

We have agreements with the agriculture community, as we

heard a little bit earlier one of our Senators talking about how important the agriculture community is, and it is very important to

us. We want the agriculture community to stay where they are. We

want them to be in the agriculture business, whether they are

farmers or what.

We are getting overrun with people in the Northwest, more people and more people coming, and we have to work together. We

can’t depend upon the U.S. Congress to write laws for us. It is all

right if we all go to the Congress and ask for the laws, but we have

to work together to make it happen. It is up to us out on the

ground to make that happen.

The timber industry, we want them to stay in business. We want

them to harvest; we want them to reproduce; we want them to

keep growing trees and make it happen. But that habitat is so important to all of us in the great Northwest along the Pacific Ocean.

I have to tell you this little story in my little time. We had a

head-on collision when the Endangered Species, as our Senator

said, in 1973, it came together. Well, it was kind of a head-on collision for the tribes, treaty rights and ESA coming together, Endangered Species. So we got together, over maybe 100 or 200 tribes got

together and we said we can’t have a fight over this head-on collision, so what are we going to do.

We came up with a secretarial order. It took us 2 years to negotiate that with the Interior and Commerce. We negotiated it and

that is working together, not colliding with one another. So that is

very important to tell that story and make that known, that we

work together side by side.

The tribes in the Northwest are very important. We are co-managers with the State of Washington. We sit on the United StatesCanada International Treaty; we sit on the Pacific Salmon Management Treaty, 200 miles managing out in the ocean. Along the Pacific Coast, we have comprehensive plans throughout the North-
10

west, working with the State and the local governments and the

ports, and anybody and everyone. We are leaders in the infrastructure of the tribes, keeping them together and keeping them moving

forward.

The environment and our salmon are so important in our culture

and way of life is so important to us. The Indian tribes today, the

majority, maybe 80 percent of our tribes are sitting on the bank

now, we don’t harvest salmon like we did anymore. It is very important that we work together and recover that salmon back to a

harvestable number to keep the economy going in the great Northwest and all of our communities along the Pacific Coast, as well as

inside.

So thank you for letting our tribes come today, and hopefully we

can answer any questions that arise. Thank you, sir.

Senator CHAFEE. Thank you, Mr. Frank.

You mentioned back in 1973, building the coalition and Senator

Clinton talking about the keystone coalition here these many years

later, doing the same thing, hopefully, trying to get us all together

instead of in conflict.

Mr. Gardner, welcome.

STATEMENT OF CORY GARDNER, COLORADO STATE

REPRESENTATIVE

Mr. GARDNER. Thank you, Mr. Chairman, Senator Clinton, and

Senator Jeffords. Thank you for holding this hearing and allowing

me to share my perspective this morning on the States’ role in the

Endangered Species Act.

I am a member of the Colorado General Assembly. My constituents depend on farming and ranching for their livelihoods. Over the

past 32 years, the role of the Endangered Species Act has grown

dramatically in their lives, and, unfortunately, many times has instilled fear rather than trust and cooperation.

The Act may have noble intentions. Unfortunately, the actual recovery of species doesn’t necessarily happen every time we put the

animal on the list, or the plant. The numbers speak for themselves.

Of the 1,827 listed species, only 16 have been delisted as a result

of recovery.

I urge this committee to make it a top priority to update the Endangered Species Act and craft a policy that results in real recovery, while respecting property rights and the rights of those who

live on the land. The following recommendations will help update

the Endangered Species Act to help meet its intended purpose.

Point No. 1, the State must be made a co-equal. The research,

talent, efficiencies of State resource programs should be utilized

and rewarded. After all, it is the State that has to live with the

Act.

Point No. 2, flexibility in the administration of section 6. Giving

greater flexibility would clarify and delineate the roles of States

and Federal agencies, and allow them to take over many of the programmatic responsibilities of the Endangered Species Act.

Point No. 3, the Secretary should give a presumption in favor of

State information and recommendations on listing. The State has

a far better understanding of its species needs than the Federal

Government.
11

For example, in 2003, the Fish and Wildlife Service considered

listing the range rodent, which would have resulted in a significant

portion of eastern Colorado being designated as critical habitat.

Studies by the State of Colorado found seven times the amount of

habitat acreage than those same studies performed by the Fish and

Wildlife Service. Yet, under the Endangered Species Act as written,

this doesn’t matter that much when the State comes up with that

kind of finding.

Point No. 4, taxonomic and genetic uncertainties should be studied and independently peer reviewed prior to listing of a species.

Because of the power of the Endangered Species Act, it should not

be a matter of act now, ask questions later. Nothing illustrates this

better than the Preble’s Meadow Jumping Mouse in Colorado. Officials listed the mouse in 1998, based on a 1954 study, the best

science that had been done up until the listing of the mouse. Over $100 million has been spent to cope with the Preble’s Meadow Jumping Mouse since then. Ranchers were prohibited from

clearing weeds out of their canals, reservation was constructed in

the middle of the worst drought in 300 years, a $5 million bridge

was built to cover the expanse of Preble’s habitat.

Finally, a Denver scientist released a modern genetic study revealing that the Preble’s Meadow Jumping Mouse was actually

identical to the Bear Lodge Meadow Jumping Mouse.

To avoid mistakes like the Preble’s listing, the scientific bar must

be raised to embrace modern scientific techniques and independent

peer review.

Point No. 5, flexibility to not list a certain area or State if it is

receiving adequate management within that portion of its range.

Last year, the Fish and Wildlife Service entertained the listing of

the Mountain Plover. Working with local farmers, ranchers, Federal agencies and nongovernmental organizations, a partnership

formed to conserve the Mountain Plover.

The ultimate product included agreements between individual

landowners and the Department of the Interior, wherein landowners agreed to put into place conservation measures to stave off

the listing of the bird. Had the Mountain Plover been listed,

though, this solution would not have been available. Section 9 taking prohibitions and section 7 consultation requirements would

have imposed restrictions that would have stopped the agreement

in its track.

Point No. 6, significant changes should also be made to critical

habitat designation. The State and individual landowners should

be equal partners with the Federal Government during the designation process. Statutory time lines should be eliminated, thereby

providing State and Federal Governments with greater flexibility

to enter into private contracts and other cooperative agreements.

Point No. 7, true recovery plans should be published at the time

of listing. The Fish and Wildlife Service should be statutorily required to develop a quantifiable recovery plan at the time of the

species listing. In Colorado, it took 14 years to establish recovery

goals for the Upper Colorado Fish Recovery Program. The recovery

plan should identify key benchmarks and measurable scientific

data that is designed to provide a road map to the species recovery

and delisting.
12

We have spent the last 32 years living under an Endangered

Species Act that falls short of accomplishing its goals of delisting.

It is time to put aside the perception that changes to the Endangered Species Act will result in a complete rollback of ESA protection. The measures offered by the Endangered Species Act should

not be the status quo, but, as many have said before me, should

be a tool of last resort. Earnest modernization will make this a reality.

Thank you, Mr. Chairman and the committee. I have prepared

more detailed remarks and hope that they will be included in the

hearing record, and would be happy to answer any questions.

Senator CHAFEE. Those remarks will be included in the record

without objection. Thank you for your concrete suggestions and also

the cartoon, part of your submitted testimony.

Mr. Pasteris, welcome.

STATEMENT OF MICHAEL A. PASTERIS, EXECUTIVE DIRECTOR, FOREST PRESERVE DISTRICT OF WILL COUNTY, IL, NATIONAL ASSOCIATION OF COUNTIES

Mr. PASTERIS. Good morning, Chairman Chafee, Senator Clinton,

and distinguished members of the subcommittee. Thank you for

holding today’s hearing on the roles of States, tribes, and local governments in implementing the Endangered Species Act.

I am the executive director of the Forest Preserve District of Will

County, IL. In that capacity, I represent the National Association

of County, Park, and Recreation Officials on the Board of Directors

of the National Association of Counties, on whose behalf I am appearing today.

Will County is located in highly urbanized northeastern Illinois,

just southwest of Cook County. Forest Preserve Districts are special units of county government in Illinois. Our statutory mandate

is to preserve natural and cultural resources within the county for

the education and recreation of the public.

The Forest Preserve District of Will County currently owns or

leases approximately 18,000 acres, 7,000 of which are actively managed to conserve natural resources. These include the habitats or

known populations of 13 threatened and 7 endangered species listed under the ESA. We also provide habitat for dozens of species

listed as threatened or endangered under Illinois law.

As you know, the ESA was enacted in 1973 with the promise

that we can do a better job of protecting and conserving our Nation’s resident species and the ecosystems that support them.

Today, over 30 years later, on behalf of the Nation’s 3,066 counties,

I bring that same message back to this subcommittee: we can and

must do better. We have learned many lessons over the past three

decades about how and what can be done to protect species, and

it is time to update and improve the ESA to reflect those lessons.

NACo has identified several key elements that should be considered as Congress considers legislation to update and improve the

ESA.

First, counties should be full partners in all aspects of implementing the ESA. Our experience in Will County bears this out.

For the last several years we have been actively engaged in efforts

to preserve the habitat of the endangered Hines Emerald Drag-
13

onfly. County Forest Preserve Districts staff were part of the team

formed to develop the Dragonfly recovery plan.

Because of our close connection to the local communities, we

have been able to facilitate effective communication strategies with

adjacent private landowners and municipalities about the habitat

needs of the dragonfly. Our efforts have led to a number of adjacent property owners reducing groundwater use voluntarily and to

adopting best management practices for stormwater management

within the watershed.

Similarly, we have been invited to serve on the team developing

a recovery plan for the Eastern Massasauga Rattlesnake, a species

listed as threatened under the ESA and which is in decline. Even

while recovery plan is in the development, the District has been

acting to improve the rattlesnake’s habitat using section 6 funds

from the Illinois Department of Natural Resources and discretionary funds from the Fish and Wildlife Service.

This model of a cooperative conservation partnership is an important key, we believe, to setting threatened and endangered species

on a path to recovery. Unfortunately, it is a model that is not always emulated. We believe that the ESA’s provisions for Federal,

State, and local communication, cooperation, and collaboration

could be strengthened so that the positive partnerships currently

benefiting the dragonfly and rattlesnake and the citizens of Will

County can be reproduced around the country.

Sonoma County, CA, provides another example of how local participation in ESA decisionmaking has aided efforts to recover

threatened and endangered species. While the final listing of the

California tiger salamander in 2003, Sonoma County was jolted by

the realization that, given the location of the salamander habitat,

much of the county’s entire economic future was in serious jeopardy. This is because much of the salamander habitat is within a

voter-approved urban growth boundary.

Because the U.S. Fish and Wildlife Service was short of personnel, consultation on individual projects, as well as field survey

requirements, were lengthy and at times inconsistent. The Service

recognized that, in order to deal with Sonoma County’s unique

challenges relating to the salamander, a different and more collaborative approach was required. This led to the creation of the Santa

Rosa Plain Conservation Strategy Team in March 2004.

In 17 months, this collaborative team has developed a cooperative conservation plan that will lead to conservation and recovery

of the salamander, and at the same time a consistent process for

the approval of projects that are important to the economy of

Sonoma County.

The willingness of the Fish and Wildlife Service to engage in cooperative conservation plans that support the President’s Executive

order on cooperative conservation issued in August 2004 has resulted in a successful partnership that is directly benefiting the

welfare of the salamander, while preventing serious financial detriment to Sonoma County.

Both Will and Sonoma Counties’ experiences demonstrate the

great potential for new collaborative locally driven approaches to

the conservation of endangered species. We believe that provisions
14

to encourage it, and to remove barriers to it, should be built into

the ESA.

Second, NACo believes that science must be used more effectively

in all aspects of implementing the ESA. I recounted for you the initial success of our efforts in Will County to contact private owners

and municipalities to reduce their pumping of groundwater in

order to improve the Hines Emerald Dragonfly habitat.

This effort was made possible by the fact that we had in our

hands the results of a unique hydrological study which mapped the

aquifer which feeds the habitat. This information enabled us to

persuade groundwater users to voluntarily reduce pumping in ways

that will improve the habitat.

However, we were only able to afford this study because the U.S.

Army Corps of Engineers happened to have money available from

penalties paid by a local party in violation of section 404 of the

Clean Water Act. Obviously, essential information should not be

available only to communities ‘‘lucky’’ enough to have large Clean

Water Act violations in their neighborhood.

We know by our own experience that local governments and their

citizens want to do the right thing to protect species, but we need

to take action based on good information. Too often actions are prescribed by the Federal Government on the basis of a scientific

record that is incomplete and unpersuasive to all stakeholders. We

believe that a major investment needs to be made in gathering and

interpreting data in a way that is open and transparent so that it

can withstand the scrutiny of both the scientific community and

can command the respect of the public.

Third, and finally, NACo believes that the ESA could be

strengthened and improved by creating more opportunities for

State and local governments to encourage and facilitate conservation measures. Again, we believe that local people want to do the

right thing, but more often than not, they lack the tools to get the

work done on the ground.

There is so much more that Will County could do to protect and

enhance the habitat, and thereby the populations of species and

species of concern, if only we had funding. If the goals of the ESA

are indeed a national priority, then the burden of meeting them

rests with Congress. Counties stand ready to implement sensible

strategies at the ground level, but it is simply unjust to expect all

the costs to be borne by our local taxpayers.

Ultimately, NACo believes that environmental values must be

balanced with socioeconomic values to achieve a policy which results in a high degree of environmental protection, while also preserving and enhancing local community sustainability. County officials and their constituents are keenly aware of the historical, economic, and aesthetic values of their local environment, as they are

certain of the need to prepare for a sustainable future to assure the

viability of their communities. We look forward to being your partners on the ground as we work toward these common goals. Thank

you.

Senator CHAFEE. Thank you very much, Mr. Pasteris.

Picking up on that theme, in some of the previous hearings we

have had, the incentives for landowners to protect critical habitat

have been hailed as being successful, and you talked about pro-
15

viding the funding so that landowners can have some compensation

for protecting habitat. I think we are hearing that refrain.

I would just ask the three members of the panel if I am correct

in that assumption, that if we can generate the funding and the

incentives, we are going to eliminate many of the conflicts and the

criticism of the ESA that have come over the years, as the conflict

comes between landowners and the desire to protect species? Am

I correct in that?

Mr. PASTERIS. The simple answer is yes. The current ESA forces

and mandates certain activities, but provides no resources for assistance.

Senator CHAFEE. Do you think there would be a willingness on

the part of the local governments to participate in that funding if

there were some Federal funding already available?

Mr. PASTERIS. I have already seen it throughout the Nation,

where local communities are even probably more interested than

the Federal Government in certain cases in preserving species in

their own area.

Senator CHAFEE. Mr. Gardner.

Mr. GARDNER. Mr. Chairman, thank you.

Certainly funding is a concern that State governments have, as

well as counties and those involved with the actual conservation

practices themselves on the ground. However, it is only one part of

an overall fix to the Endangered Species Act. I believe further delegation of section 6 programs for the powers under section 6 of the

Endangered Species Act, allowing the States greater flexibility and

a greater role could eventually lead to cost savings at the Federal

level, which you could then turn around and use some of that savings and provide on the ground incentives. Not necessarily increasing funding, but finding cost savings within the Federal Government to help those incentives and pay for them.

But, again, I think that would help. It is one part of an overall

solution.

Senator CHAFEE. Is there any danger in changing the section 6

requirements that the local municipal or State might weaken the

requirements? Certainly you don’t want the heavy hand of Federal

Government everywhere, but, on the other hand, there is a fear

that the local governments might not be stringent enough, just the

pressure to protect the business—whether it is a timber business

or a farming interest—might be greater than the species.

Mr. GARDNER. Thank you, Mr. Chairman.

Mr. Chairman, I think that the States will do—and they have

done—a very good job of not only policing themselves, but enforcing

the agreements that they have, and making sure that the agreements they are carrying out are fulfilled to the letter of the Endangered Species Act and the law.

The concern that I would continue to have on not giving States

greater flexibility, Fish and Wildlife Service right now is overworked; they are consumed with litigation, with listing work, reviewing petitions, doing work that the biologists simply don’t have

time to do here in Washington, DC. Allowing States greater flexibility to control section 6 delegation under section 6 would alleviate

some of the workload in the headquarter office, in the Washington,
16

DC office, and I believe that the States have done and will continue

to do an excellent job of species recovery under section 6.

Senator CHAFEE. Thank you. Before I move to Mr. Frank, I have

one more question.

Mr. FRANK. Mr. Chairman, the ESA is a good law, and as long

as the treaty rights are respected, and minor changes are probably

coming. But an example of the great Northwest and the Pacific

Ocean from Alaska to New Mexico, we have salmon recovery going

on, and we have a comprehensive plan together working on all the

watersheds, and that is big time, and that includes everyone on the

watershed—the agriculture, the timber industry, the hydroelectric.

That is everyone, the private landowners, the volunteers, the Army

and the Navy. That is everyone.

Now, when we say we have a comprehensive plan, we work with

the agencies, Fish and Wildlife, Commerce, NOAA, and all the

agencies, the Federal EPA and everyone. What we do is when we

put a comprehensive plan together—you have heard the things

here today—we stand ready to be challenged by the courts. We

stand ready.

We have to put a plan together that is going to stand up. We

know where we are going to be challenged. We know that the challenge will come when we put the plan together, and it will be

there. We have to have our day in court to make that happen, that

ESA coincides with what we are doing, and the wild stock and everything else that we take into consideration.

So we stand ready to work with everyone on all of our watersheds, including the ocean, including the Puget Sound and cleaning

up. We have a lot of challenges ahead of us, not only just ESA, but

a lot of the Hood Canal in the Northwest is dying. We have to be

together to make that come alive. If the other part of South Puget

Sound starts dying in water quality and quantity and all of that,

then we are all in trouble.

So we have to work together. We have to make it happen, the

people on the watershed and the partnership with the Federal Government, the partnership with the States and the local governments and all of us. We have to work together. Funding is so important that makes it whole.

Senator CHAFEE. Thank you, Mr. Frank. Yes, chilling words, a

dying ecosystem or a dead ecosystem, especially when you are talking about such a vast watershed area.

Mr. FRANK. Yes, sir. It gets the attention of the people up there

in the great Northwest.

Senator CHAFEE. I am sure it does.

Senator Clinton.

Senator CLINTON. Thank you, Mr. Chairman.

I want to thank the witnesses. Their testimony is very helpful

and certainly provides a lot of good ideas. In Mr. Frank’s written

testimony he makes a very profound statement, he says,

‘‘Wild salmon recovery in western Washington is a biologically simple, but politically difficult, task. All the fish need is clean, cool water, adequate spawning and

rearing habitat, and adequate numbers of returning adult salmon to spawn, and

they will take care of the rest.’’
17

So that about sums it up. But getting from where we know we

need to go to where we can go is sometimes a difficult journey. So

I appreciate these suggestions.

What Senator Chafee and I are attempting to understand is how

better to describe this partnership. The partnership exists. I mean,

if it didn’t exist in Will County, if it didn’t exist in Colorado, if it

didn’t exist in the Northwest, none of the examples you have given

would be available or relevant. So we know that the partnership

between different levels of government, between the public and the

private sector is a fact.

Our challenge is to figure out how to make it more effective, how

to put certain accountability into it that would enable us to be sure

that the objectives were being achieved. I guess what I would ask

first Mr. Gardner and then Mr. Pasteris is, right now, what is the

capacity of your State, county, and local agencies, both in terms of

staffing and budget, for the enhanced ESA role that you both have

outlined in your testimony?

Mr. Gardner.

Mr. GARDNER. Thank you, Senator Clinton. Obviously, States, as

well as the Federal Government, have financing issues that they

have to deal with. But I do believe working together in a full partnership it would be very beneficial to both and they would indeed

have the resources to accomplish the tasks set out before them in

the Endangered Species Act. Whether it is working with a Federal

biologist who is also partnering with a State wildlife biologist, I believe between the two governmental entities, they do have the resources to handle these types of responsibilities.

The resource work going on in Colorado has at times been a partnership, but it is a one-sided partnership often. The Federal Government, for instance, during the Preble’s Meadow Jumping Mouse

situation, based their determination to list on a 50-year-old study.

Senator CLINTON. I wanted to ask you about that because I was

very struck by your point in your testimony that taxonomic and genetic uncertainties should be studied and independently peer reviewed prior to listing of a species, and the information threshold

and listing petition should be raised.

How do you envision that happening? Is this an ad-hoc occurrence, where we are dealing with a species of mouse or a species

of bird or fish, and you go out and try to find experts and put them

together, or do you envision more of an organized ongoing independently peer reviewed scientific effort?

Mr. GARDNER. Thank you, Senator Clinton. There are a number

of ways that you could do that. One of the problems that arose with

the Preble’s Meadow Jumping Mouse is indeed it was peer reviewed, unfortunately, it was not independently peer reviewed.

Senator CLINTON. Now, explain what you mean by that.

Mr. GARDNER. There were a number of members on the committee who were involved in the listing in 1998. So it is hard for

anyone to go back on the work that they did previously and say I

was wrong, this never should have been listed.

So when I talk about independent peer review, I mean taking the

pool of national experts that we have across the country within the

Government agencies and saying, let us form a panel, let us form

a committee, let us form a review that, when questions do arise
18

and there are genetic uncertainties, or perhaps when the data is

the best available and not the best possible, that we do have a way

to independently peer review and get to the science that we need

in order to make an effective listing, because the Endangered Species Act has tremendous impact. Over $100 million was spent on the Preble’s Meadow Jumping

Mouse, and it really affected development, affected farmers and

ranchers. So those are the things that we have to do and be prepared to deal with at the national level.

The other partnership issue that I would like to address with you

is the Western United States and the ownership of Federal lands.

In Colorado, in 2002, we lost hundreds of thousands of acres to

devastating forest fires. One of the problems, of course, was the undergrowth in the forest and the need to go in, clear the undergrowth in the forest to alleviate some of the fire concerns and some

of the fuel for the fires.

Unfortunately, the Snowshoe Hare was living in the undergrowth. Snowshoe Hare just happens to be food for certain endangered species. So without a partnership, the Federal Government’s

hands were tied to clear the undergrowth because it was habitat

to the necessary species for an endangered species.

So we risked losing an entire forest from a forest fire because of

the vast amounts of undergrowth, but we left it there because there

was an endangered species issue that had to be dealt with. Those

are the kinds of partnerships, whether it is critical habitat or

other, that we need to be dealing with.

Senator CLINTON. Thank you.

Mr. Pasteris, same question to you about resources and capability.

Mr. PASTERIS. I happen to be in a rather lucky situation or a special situation. My form of county government is in fact mandated

with the protection of natural and cultural resources. As a result,

one of our specific goals is the protection of endangered and threatened species.

In addition to that, since I am in a highly urbanized area of the

Chicago land region, we have often gone back to our citizenry and

asked for their input, and they have resoundingly approved two

referendum in the past 6 years providing us with $165 million to

buy additional lands and preserve what remaining natural resources we have.

As far as staff goes, with all the budget cuts we have seen in the

Federal Government, especially in the areas of U.S. Fish and Wildlife, and now in the State of Illinois, I probably actually have more

biologists on staff than the Federal Government or the State currently has, which puts me in a unique position.

I do not have time, the citizens of Will County don’t have time

to wait for the Federal Government; we are doing it on our own.

I do not think, however, though, that most counties outside of Illinois would be in that similar situation.

I must stress again, I am a special unit of government. In most

States, my function would be part of county government, and I

have a feeling that it would be somewhere lower on the list of priorities amongst roadways, health services, and other services that

a county must provide. So in that case, I would think that Federal
19

funding is almost mandatory if we are going to get anything done

on the local level.

Senator CLINTON. Well, thank you. It is extremely interesting

testimony, and the points about the forest preserve districts are

ones that I am interested in, because what you have done, as you

have described it, is to create an entity that is largely a habitat

preservation entity that can create public support for that function

apart from every other county function, and people can focus their

attention on what needs to be done. As I understand what you

said, you even have a referendum and taxing authority to go directly to the people. That is a very unusual arrangement.

Thank you, Mr. Chairman.

Senator CHAFEE. Thank you, panelists. I think there is some justified criticism. I don’t know about Preble’s Jumping Mouse and

what happened there in particular, but we always strive to do it

right, and I think some of our testimony about the big four fishery

rivers in Colorado, we did do some things right. So that is our goal

in the big four fishery rivers of Colorado. Am I correct in that?

Mr. GARDNER. Yes, sir. Thank you, Mr. Chairman. They did some

wonderful things. Unfortunately, in that example, it took 14 years

to reach the recovery plan and to come up with a recovery plan for

delisting.

But they have done a tremendous job and that is a great example of what I see as perhaps delegating section 7, section 9 authorities, maybe through a pilot program to the States, and allowing a

massive project like that to move forward. So instead of having 800

individual section 7 consultations going forward based on every single water use, you did have one umbrella program that was given

the authority to make the necessary decisions.

Senator CHAFEE. Well, thank you very much, panelists.

Mr. Frank, one more comment?

Mr. FRANK. Mr. Chairman, none of this is a quick fix. You know,

we sit on watersheds, all of us, and your next panel will understand, but we are looking out maybe 50 or 100 years to try to find

a balance, and a balance between all of us, and that is so important.

We have a lot of models. You have heard some today, models of

us working together, how important it is to start, if we are in the

9th Circuit Court of Appeals, an example is to work our way back

to the district and then out and get agreements settled. We have

a lot of models like that, and I think with this hearing it gives hope

to me. Thank you, Senator Clinton and thank you, Senator Chafee.

Senator CHAFEE. Thank you for traveling so far to be here, all

of you, and also for your good testimony. Much appreciated. I hope

we can make the ESA stronger and better. Thank you, gentlemen.

I will now welcome the second panel: Mr. John Baughman, Mr.

Bill Burnham, Dr. Robert P. Davison, and Mr. Dwayne Shaw. Welcome. Once again, thank you for traveling here and giving us your

comments on the ESA.

We will start from the other end this time. Mr. Dwayne Shaw

is executive director of the Downeast Salmon Federation/Downeast

Rivers Land Trust.
20

STATEMENT OF DWAYNE SHAW, EXECUTIVE DIRECTOR,

DOWNEAST SALMON FEDERATION/DOWNEAST RIVERS LAND

TRUST

Mr. SHAW. Thank you. I appreciate the opportunity to come here

from Downeast, ME to talk to you about the Endangered Species

Program that we are involved with and to make a few suggestions.

The tremendous bounty and the natural beauty of our environment is a gift that has been bestowed upon us and has co-evolved

with us over many millennia. Stewardship of and respect for our

fellow inhabitants on this planet is a responsibility which was delivered to each of us by previous generations and which we have

a responsibility to pass on to the next generations. In this regard,

the Endangered Species Act is perhaps one of our most enlightened

of all laws and exemplifies our commitment to protect and restore

the most vulnerable of all creatures in their habitats.

After 32 years, the Act remains among the most popular and effective environmental laws of our country. I believe the public support for this law exists because it is viewed as a strong response

to an unacceptable and most often entirely avoidable loss of a species.

I come to you from the Northeastern most hinterlands of our

country, Washington County, ‘‘The Sunrise County’’ of Maine. This

is a hardscrabble Yankee region, most known for lobsters, lumber,

and leisure—for some, tourists and others—but is also known as

the home to five of the eight remaining rivers in the United States

with endangered populations of wild Atlantic salmon.

Three other wild Atlantic salmons rivers in the United States

designated under the ESA are also in Maine, though historically

the Atlantic salmon ranged throughout most of New England in

numbers plentiful enough to have been at one time a source of fertilizers for fields and even up until recently, a great recreational

economic resource in our very poor region.

The wild Atlantic salmon is often referred to as ‘‘the King of

Freshwater Game fish’’ and its loss to our region has meant the

loss of millions of dollars in tourist and fisheries revenues. Salmon

is a fabled species that the European settlers were pleased to find

in abundance upon arriving on this continent. In fact, the earliest

documented stone pictographs found throughout the British Isles

are ornate carvings of Atlantic salmon.

It is clear that both Europeans and First Nation peoples of this

continent possessed great reverence and placed high value upon

salmon as food, and this reverence symbolizes and persists, despite

the atrocities that have been dealt by our ignorance upon our fisheries and waters. The ESA and its implications for restoration of

this species, and many, many other species, illustrates that current

generations understand our need to protect our heritage and our

interconnectedness with the environment of our ancestors and of

generations yet unborn.

Is the ESA protecting salmon? From direct experience on the

ground working to protect and restore Atlantic salmon in Washington County and beyond for the past 22 years, I can tell you that

the positive implications under the ESA for our salmon have been

the difference between night and day in Sunrise County.
21

In 2000, the Atlantic salmon ‘‘Distinct Population Segment,’’ encompassing at first seven and later eight rivers in Maine, was

granted emergency endangered status under the ESA. Unfortunately, this designation was granted only after a lawsuit was

threatened by several conservation organizations, including Trout

Unlimited and the Atlantic Salmon Federation, with whom my organization is affiliated.

The bottom line at that time was that the State of Maine, under

then Independent Governor Angus King, sought to circumvent the

listing via implementation of a ‘‘State Recovery Plan’’ that had

been sanctioned and approved under the ESA itself, under the 4–

D rules. This approach was widely encouraged and endorsed by industry and economic development forces in the State.

Many angler groups and other conservationists were drawn into

the ‘‘State plan’’ because it promised a much greater level of industry cooperation and government interest and investment than the

preceding decades, during which very little attention was paid to

serious population enhancement efforts and habitat protection.

However, when it became apparent that Governor King and his

Salmon Task Force were more interested in maintaining the status

quo than seriously retooling and applying needed resources to the

situation, it was very fortunate that the Federal services were

standing by to pick up the pieces.

Provisions under ESA allowing for States to manage species recovery under the 4–D rules should be examined very closely by

your committee, particularly within the context of the Maine Atlantic salmon case study. Many believe that valuable time was lost for

Atlantic salmon while the State reacted to the interests of a few

influential user groups.

In the end, when the populations were listed, a number of groups

were brought together through the watershed councils, and this,

combined with the additional funds and resources provided under

the heightened Federal salmon programs, gives new hope that a

dire situation will improve. This hope and optimism is what draws

the private sector into the greater effort, again, despite the fact

that fishing was ended several years ago.

Federal funds directed toward salmon recovery through challenge

grants issued by the National Fish and Wildlife Foundation, which

are Federal funds coming to the Foundation, are particularly effective in sustaining public investment and interest. In just the past

3 years, our organization, working at the local level, has brought

in an estimated $2 million worth of private investment into salmon

recovery in the poorest county in our State, and one of the poorest

in the Nation. These numbers are phenomenal and have been

largely attributable to small Federal seed investments in our outreach efforts, which have made it possible because of the listing.

I wanted to make just a few points because I see my time is

nearing here.

Essentially, I think that the Federal investments in outreach and

education are extremely important. This is something that hasn’t

been raised earlier this morning, I don’t think, to a great degree.

But getting that funding level at the local level, where peer to peer,

landowner to landowner, neighbor to neighbor can be brought infor-
22

mation that provides them with a clear image of what is needed

for a species is crucial.

Funds need to be applied at the local level. That can be through

a local conservation organization such as ours, through a county,

perhaps, in some cases through a municipality. But, again, it needs

to be put and done through an organization that has a real interest

in seeing the species recovered.

The need for additional Federal resources—this is a common

theme we have heard this morning—and a more equitable and consistent funding mechanism needs to be developed for all ESA listed

species. There are species receiving no funding and there are species receiving tremendous funding. If you look at the discrepancy

between Atlantic salmon and Pacific salmon, you will see a vast

difference, despite the fact that the regions in which these species

occur are comparable in size, or the areas that they did occur.

In Maine we have a particularly interesting situation, and that

is a joint listing between two Federal agencies of a single species.

We have the U.S. Fish and Wildlife Service and NOAA Fisheries,

both equally responsible for the recovery of this species.

Somehow we need to streamline this process. This creates a problem for everyone involved, and we do not want to lose Federal

funds in any way toward the effort by reducing or making one the

lead entity, but in some way I think that that is something that

could be looked at more closely.

Thank you.

Senator CHAFEE. Thank you, Mr. Shaw. Good points. You say in

your prepared statement, ‘‘Finally, if I am to avoid being brined for

lobster bait.’’

Mr. SHAW. I skipped that part.

Senator CHAFEE. Certainly don’t want to let that happen.

Dr. Davison is from the Wildlife Management Institute. Welcome.

STATEMENT OF ROBERT P. DAVISON, WILDLIFE

MANAGEMENT INSTITUTE

Mr. DAVISON. Thank you, Mr. Chairman, Senator Clinton. I appreciate this opportunity to provide the views of the Wildlife Management Institute on the role of States, tribes, and local governments in implementation of the Endangered Species Act.

I am also pleased, as the Chair of the Wildlife Society’s Technical

Review Committee on the Endangered Species Act, to present the

relevant portions of the committee’s report titled ‘‘Practical Solutions to Improve the Effectiveness of the Endangered Species Act

for Wildlife Conservation.’’ The full report here is appended to my

testimony. It presents the views of the appointed committee members and the Wildlife Management Institute, but not necessarily

the views of the employers of other committee members, nor of the

Wildlife Society itself.

In general, implementation of the Endangered Species Act would

be improved by greater partnerships with States, tribes, and local

governments. Specifically, there are four points that I will highlight

from my written statement.

No. 1, State fish and wildlife agencies are not being provided

adequate and stable funding from the section 6 Cooperative Endan-
23

gered Species Conservation Fund which is needed to fulfill State

roles in the conservation of endangered and threatened species.

This is not a matter of Federal assistance to States, it is a matter

of effective conservation of imperiled species. I think we need to

look at it that way.

Eighteen years ago, this committee expressed the concern that

‘‘Current Federal-State cooperative efforts to protect endangered

species are inadequate and in danger of disintegrating altogether.’’

Matters only have gotten worse, if anything. By the start of fiscal

year 2006, there will be 1,264 listed U.S. species. That is more

than six times the 194 U.S. species that were listed in 1977. Yet, the $9.9 million appropriated in State grants under section

6 for this coming fiscal year—which is a record, by the way—has

only somewhat more than one-third as much buying power as the

$4.3 million that was provided 28 years ago. Six times the number

of species; a third to a half the funding.

The section 6 Cooperative Endangered Species Conservation

Fund should be restored to its original intended purpose of providing adequate and stable funding to State fish and wildlife agencies to make it possible for them to participate as full partners. In

doing so, priority should be given to the programs that maximize

leverage of non-Federal match with the available Federal dollars.

No. 2, too often State expertise, data, personnel, and their working relationships with others still are not sufficiently utilized in

listing and critical habitat decisions and actions. State fish and

wildlife agencies should have a clearer and more significant role in

efforts to prevent species from becoming candidates and in listing

decisions and critical habitat designations. Increased Federal funding should be provided to the States under the State Wildlife Grant

Program to conduct monitoring and evaluation of declining species.

No. 3, although under the Endangered Species Act recovery is

the responsibility of all Federal agencies in partnership with the

States, in reality the States too often are not full partners in these

efforts. Given the importance of non-Federal lands to the conservation of listed species, collaboration with tribes, local governments,

NGO’s, private landowners is essential to recovery of many listed

species. However, these partnerships also currently are insufficient.

Recovery plans should be developed by teams that are of manageable size and sufficiently diverse to include the needed expertise

and representation of entities responsible for management of the

species and its habitats, including State fish and wildlife agencies,

Federal land management agencies, tribes, local governments, private landowners, and any others needed to recover species.

The section 6 cooperative agreement provisions should be redesigned to function as a true recovery partnership agreement requiring close collaboration and coordination among States, tribes, and

the U.S. Fish and Wildlife Service and NOAA Fisheries. State fish

and wildlife agencies and tribes should be provided with the opportunity to take the lead in development, implementation, and monitoring of recovery plans and plan activities.

No. 4, too many private landowners continue to distrust and fear

any application of the Endangered Species Act to their lands or to

their activities. State and local government involvement is a key

aspect of addressing successfully these issues. The States increas-
24

ingly have sought umbrella style section 10 permits to assume responsibility for minimizing and mitigating non-Federal incidental

take activities and promoting non-Federal habitat conservation.

These are innovations that should receive far greater support

both in terms of authority and funding. Through increased Federal

matching funding and expanded use of section 6 agreements and

other mechanisms, State fish and wildlife agencies should be allowed and encouraged to assume the lead for administration of

Safe Harbor Agreements, Candidate Conservation Agreements, and

Habitat Conservation Plans.

Thank you.

Senator CHAFEE. Thank you, Dr. Davison. Does your region encompass the Klamath issue at all?

Mr. DAVISON. It does, Mr. Chairman.

Senator CHAFEE. Dr. Burnham is the president of the Peregrine

Fund. Welcome.

STATEMENT OF BILL BURNHAM, PRESIDENT, THE PEREGRINE

FUND

Mr. BURNHAM. Thank you. I appreciate the opportunity. I am

glad you are interested in hearing of our experiences and our recommendations.

The Peregrine Fund was founded in 1970 to try to prevent the

predicted extension of the peregrine falcon. About 29 years later

the species was delisted, so the efforts were successful. Through

those almost three decades we learned a great deal. We ended up

working in 29 different States with quite a large number of tribes

and local communities and with thousands or people in the private

sector, as well as with government.

As a matter of fact, to document this, we wrote a book, and I

would like to leave a copy for your committee library, if I may, ‘‘Return of the Peregrine Falcon,’’ as written by 69 authors that were

involved importantly in peregrine falcon restoration with The Peregrine Fund and government and States and beyond that.

Another project and species we are involved with is the California condor restoration in Arizona and Utah. We are working

there with local governments, tribes, and various government agencies. The condors are being released under section 10, part J of the

Endangered Species Act, as a nonessential experimental population. That effort goes quite well.

We are also working with restoration of the aplomado falcon in

Texas. There are 58 counties involved in this restoration effort.

There are 1.8 million acres of private property enrolled in the Safe

Harbor. I would assume it is the largest Safe Harbor that presently

exists.

We also have experience in Hawaii working with about a dozen

endangered birds there, none of which are birds of prey. We are no

longer involved in that project at this point in time.

Based on these experiences, we conclude that for the Nation to

be successful at endangered species restoration, the ESA must be

changed because the original intent has been subverted. No change

will only mean a worsening political and biological situation. Part

of the change should be shifting more responsibility, authority, and

funding to the States.
25

The U.S. Fish and Wildlife Service role should be more facilitation and, as appropriate, oversight, the State and private sector

roles being coordination and implementation. The role of the tribes

and communities can be fit within this framework. The ESA restoration must become a local endeavor. I emphasize that based on

30-some years of experience.

Our general recommendation is to refocus the ESA on incentives.

As part of the refocusing, the ESA and the regulation should be

simplified. Listing and delisting species, recovery team composition

and function, recovery plan process and content, and other administrative changes should be made to enhance function and effectiveness. A stronger State and Federal partnership should be established, and greater private sector involvement incorporated.

In summary, the ESA should be made more effective at conserving species and less burdensome for those it affects, particularly natural resource users. Unless the ESA is modified, or until

the Nation has a law focused on habitat and biome conservation,

endangered species will continue to suffer from lack of private sector and landowner support. This will continue to produce conflict

over designation of critical habitat and punitive measures; litigation will continue to consume dollars critically needed for recovery

actions. Congress should consider passage of a new law dealing

with habitat and biome conservation at the same time they consider modifying the Endangered Species Act.

Within the modifications, I would also emphasize that, wherever

possible, flexibility should be instilled. What is being done under

10(j) of the Endangered Species Act is very important with condors

and other species. Safe harbor is great. That flexibility provides a

lot of opportunities.

Another thing it helps create is trust, and that is an essential

component. By making this more of a local issue, moving it to

States, local communities, involving the tribes and others in this

process, particularly the private sector, you can help increase that

trust. You need to be able to look the guy in the eye and believe

what they are saying, and that is not going to happen when they

are dealing with the Federal Government.

Senator CHAFEE. Thank you, Dr. Burnham.

Mr. Baughman is the executive vice president of the International Association of Fish and Wildlife Agencies. Good to have

you here.

STATEMENT OF JOHN BAUGHMAN, EXECUTIVE VICE PRESIDENT, INTERNATIONAL ASSOCIATION OF FISH AND WILDLIFE AGENCIES

Mr. BAUGHMAN. Thank you, Chairman Chafee and Senator Clinton. It is my honor to be here before you today. I am John

Baughman, executive vice president of the International Association of Fish and Wildlife Agencies.

Your State wildlife agencies, in fact, all 50 State wildlife agencies

and the Federal agencies charged with wildlife land management

are members of our association.

I am also past director of the Wyoming Game and Fish Department, which gives me a first-hand perspective on some of these
26

Federal-State interactions on some of our most contentious threatened and endangered species.

Our more detailed testimony has been submitted, and we have

also appended our white paper on our principles recommended for

Endangered Species Act Reauthorization Enhancement, along with

a Web site reference to materials on proactive conservation through

State Conservation Plans.

Given our limited time, I will simply summarize our recommended principles, then offer a few personal observations.

Our five recommended principles have been worked on for over

15 years; they have broad support in the conservation community;

they are the basis for much of the National Governors’ Association

and Western Governors’ Association policy, and they are as follows:

No. 1, restore congressional intent that reflects and respects authorities, roles and responsibilities of the State fish and wildlife

agencies for wildlife conservation in general, and for listed species

in particular.

No. 2, make recovery plans meaningful and nondiscretionary, including both incentives and obligations for all parties to the plan.

No. 3, restore congressional intent in creating the statutory distinction between threatened and endangered status.

No. 4, a full portfolio of incentives for private landowners and

also other government agencies and industry need to be statutorily

institutionalized.

No. 5, congressional recognition of the need for preventive conservation.

Many of our former speakers mentioned some of those same

points. We have more specific details on each of these points in the

white paper.

I would like to close with a few perspectives from my days as director of a State wildlife agency.

Wyoming has relatively few listed species compared to California

or Hawaii. Some of those States have hundreds. But we had some

of the most expensive species: grizzly bears, grey wolf, peregrine

falcon, bald eagle, black-footed ferret. The State spent literally millions of dollars—as did the surrounding States—on the restoration

and management of these species, and the States continue to spend

the money.

When we at least look at grey wolves, grizzly bears, bald eagles,

peregrine falcons, these species reached recovery goals long ago.

Grizzly bears in the greater Yellowstone area first reached their recovery goals in 1989. In 1994 Wyoming asked for the Federal Government to pursue delisting. These species, the ones I just mentioned, are the poster children for America’s charismatic megafauna, and we ought to be celebrating the recovery of these species,

and the progress and the good things that can be done under an

Endangered Species Act.

Unfortunately, these species symbolize many of the negative aspects of the Endangered Species Act, such as a lack of progress toward legal recovery, never-ending Federal control, tens of millions

of dollars wasted on years of litigation and bureaucratic process,

and the source of endless acrimony between Federal, State, and

private interests.
27

You can contrast this situation with the conservation efforts for

sage grouse, where a decision not to list a species-at-risk has allowed State, Federal, corporate, and individual partners to come together in over 70 working groups in 10 States to consult and cooperate in planning and delivering on-the-ground restoration efforts for sage grouse and their habitat.

Government agencies, organizations, individuals, even our pet

dogs repeat behaviors that consistently get rewarded. It is no doubt

unintentional, but right now administration of the Endangered

Species Act rewards litigation instead of collaboration, it rewards

lack of progress instead of recovery, it rewards listing instead of

restoration and proactive management of species-at-risk.

If we truly want to enhance the whole process—and really this

endangered species issue is a whole process, it is not just the act;

it is our Federal, State, tribal agencies, it is individuals, it is corporations, it is a lot of ancillary legislation, appropriation bills, the

farm bill and so forth—if we want to improve the whole process to

better serve species conservation and our citizens, we need to reward efficiency, we need to reward people who work together, we

need to reward private land conservation, and we need to reward

conservation of species before they become threatened and endangered.

Thank you, Mr. Chairman.

Senator CHAFEE. Thank you, Mr Baughman.

Thank you, panelists. I think the common theme is that funding

is important. Probably the reality is, as you all know, that is going

to be difficult. But we will do our best on that front. Also a common

theme is better cooperation with the local people that are on the

ground, as the hearing is titled, Cooperation Between the Federal

Government, Tribes, State Government, Local Governments.

Dr. Davison, I asked about your experience in the Klamath

Basin. How was that cooperation between the local municipalities

and the Federal Government as that challenge was tackled?

Mr. DAVISON. Well, Mr. Chairman, I think that the cooperation

certainly could have been greater. The difficulty in resolving this

issue, though, had less to do with cooperation with the local government, and more to do with scientific uncertainty about effects

of the action and the difficult process in the west of trying to resolve many competing demands, including conservation of endangered species, within the framework of western State water laws

and a large Federal project.

I think the Klamath is a case where more open transparent decisionmaking would have helped tremendously, where more robust

decisionmaking would have helped, and in that sense cooperation

was lacking.

Senator CHAFEE. Thank you. Many of the panelists have talked

about specific species, whether it is the Preble’s Jumping Mouse or

Atlantic salmon or peregrine falcon or California condor. I think everybody agrees that seeing them recovery is a positive. Maybe, Mr.

Baughman, some might not agree that the recovery of grizzly bears

or grey wolves is positive. In your experience, was that true, the

ranchers in the area affected by loss of lands or calves? How is the

conflict there?
28

Mr. BAUGHMAN. Well, there are certainly differences of opinion

on these large predatory animals, depending on people’s interests,

but I would think most people take great pride in the fact that

those animals are recovered in the greater Yellowstone area. The

real frustration is that after reaching management objective and

actually restoring these species with active on-the-ground management, which, with these large predatory species will be needed forever, there is great frustration that we never get to an end point.

Just like the upper Midwest with the grey wolves and, again the

greater Yellowstone area, the Northern Continental Divide, the

same with grizzly bears, where there is total uncontrolled expansion of these animals that includes a great deal of cost and conflicting problems. That worries people, that there is no end point,

there is no place where the public and the State agencies get reinvolved in establishing meaningful objectives and meaningful on

the ground programs, so it is just seen as a constant money pit.

Senator CHAFEE. Thank you.

Senator Clinton.

Senator CLINTON. Thank you very much, Mr. Chairman.

You know, one of the recommendations that we have heard from

the prior panel, as well as some of the witnesses on this panel, is

to create a co-equal role for States, and I would like to ask Mr.

Shaw and Dr. Davison to comment. Do you think that delegation

of ESA authority to State is advisable? I know, Mr. Shaw, you, in

your testimony, talk about what you consider to be an unsatisfactory experience with the State attempting to deal with Atlantic

salmon. How do you think that the Federal Government and the

States could work better? Mr. Shaw and then Dr. Davison.

Mr. SHAW. Yes, thank you. I think that, again, we come back to

the funding issue. In my written statement, I made the statement

that better funding would float all boats, and that means that

those people interested in development, have interests in logging

and other interests beyond just the restoration of a species, all of

those interests are limited in their ability to work with the Endangered Species Act because of the response or the lack of adequate

response, sometimes, from the Federal services, as well as those of

us working in the actual implementation of restoration activities.

When we go for permits, there is a time delay, and that delay

needs to be eliminated for everyone involved.

So an adequately funded Federal service is critically important

and, again, the incentives issue is one that, of course, is a big piece

of this puzzle, and I think that that is the carrot. But the stick cannot be put away. The stick has to be on the table and available

when needed, and only as a last resort, of course.

But it is, I believe, critically important to have a direct, continual

oversight by the Federal Government in this process. I would be

very hesitant to suggest otherwise, having been through this experience where the State of Maine attempted to do it on its own and

create a cooperative project that everyone was intended to buy into,

but on the surface that was the case. It looked good in writing, but

when you look at what should have been happening on the ground

and failed to happen, ultimately the ability to file a suit, to force

delisting was what has made action begin to happen.
29

Senator CLINTON. There has to continue to be some triggering

mechanism to get action is what you are saying.

Mr. SHAW. Absolutely.

Senator CLINTON. Dr. Davison.

Mr. DAVISON. Senator Clinton, Mr. Chairman, as Mr. Frank said

earlier, I think one thing to keep in mind is that recovery is a process that is going to take many decades. So for those that look at

the 30-year history of the Endangered Species Act and say that it

has not recovered many species, I say that we are looking at processes that took hundreds of years, in some cases, to create, and it

is going to take a long time to undo that.

From my perspective, this perspective is relevant here because I

think the only way we are going to get there and recover species,

which is all of us have as our goal, is to have a combined FederalState-local government-tribal effort on this, and I think that means

maintaining the Federal Government involvement and increasing

the ability of States, tribes, and local governments to participate in

that effort.

So in that sense I don’t think that this is a role that should be

shifted to the States, or that it should be primarily a local government responsibility. I think it needs to be the responsibility of governments at all levels. I think the Federal Government has a role

in helping make that happen, both through funding assistance, but

also through providing authorities.

I think States are logical entities to be much more heavily involved in recovery activities, developing recovery plans, leading recovery efforts, monitoring the recovery plan activities and both

States and local governments are really the entities best suited to

carry out some of the Endangered Species Act provisions with respect to activities on private lands and non-Federal lands. They

have seized the initiative there and are increasingly doing that, but

they are limited by a lack of Federal matching funding to help

them in that endeavor, and I think there is a great potential there.

I think the question about delegation also comes down to what

does one mean when one talks about delegation. Are we talking

about State implementation of Federal programs or are we talking

about a delegation of the States to carry out some program that

might look quite different than the current Endangered Species

Act; a program that only meets some kind of fairly vague standard

of consistency with the law? That is a quite different proposition,

from my perspective, than State involvement and State lead in carrying out the program under the Endangered Species Act.

Senator CLINTON. Thank you.

Thank you, Mr. Chairman.

Senator CHAFEE. Thank you, Senator Clinton.

Senator CLINTON. Mr. Chairman, could I ask consent to have a

report, the ESA Section 6, The Role of the States, admitted to the

record?

Senator CHAFEE. Without objection.

[The referenced document was not received at time of print.]

Senator CHAFEE. Thank you for your testimony, gentlemen, our

first panel and second panel, both. Many of your recommendations

are in your submitted testimony, beyond what your oral testimony

was.
30

We are very grateful and also extend the offer to please stay in

touch with Senator Clinton or myself as different legislation comes

forward. Criticisms or positive comments are both welcome. Thank

you once again for traveling here and giving us the benefit of your

thoughts.

The hearing is concluded.

[Whereupon, at 11:05 a.m., the subcommittee was adjourned.]

[Additional statements submitted for the record follow:]

STATEMENT OF HON. BARACK OBAMA, U.S. SENATOR FROM THE STATE OF ILLINOIS

Mr. Chairman, I want to thank you for holding this hearing. This is an important

issue to me and the people in my State.

First, I’d like to give a special welcome to Michael Pasteris, the executive director

of the Forest Preserve District of Will County, IL. For those of you not from Illinois,

Will County is the fastest growing county in the State. So, I’m very interested in

hearing from Mr. Pasteris as to how a developing county balances the competing

demands of economic growth and protection of the environment. Mr. Pasteris, I also

want to thank you for your service to the National Association of Counties. It’s a

great organization, and I always value the input I get from its members.

As we move towards improving the Endangered Species Act, it’s important to keep

in mind that we don’t have all the answers here in Washington. Our local partners

are our eyes and ears in the affected community. They can provide insight into the

human piece of the puzzle. Over time we have learned that if people perceive their

interests are being compromised in order to protect a particular species, it is a much

harder and longer process.

That’s when our local partners can really make a difference. Often they know who

the community leaders are, both elected and nonelected, and they have a finger on

the pulse of the community. As Mr. Pasteris says in his written testimony, collaboration with affected public and private stakeholders can go a long way towards developing conservation plans that protect endangered species without causing financial detriment to localities.

I apologize that I will not be able to stay long at this hearing, but I look forward

to reading the transcript and written testimony. I also want to express my thanks

to Chairman Chafee and Senator Clinton for their leadership on this issue here in

the Senate.

STATEMENT OF BILLY FRANK JR., CHAIRMAN, NORTHWEST INDIAN

FISHERIES COMMISSION

Chairman Chafee and honorable members of the Senate Subcommittee on Fisheries, Wildlife and Water, I am Billy Frank, Jr., Chairman of the Northwest Indian

Fisheries Commission. The Commission has served the Treaty Indian Tribes in

western Washington since 1975 in natural resource management, supporting their

fisheries, hatchery management and environmental protection programs. The tribes

co-manage natural resources in our region with the State pursuant to the United

States vs. Washington (Boldt) Decision of 1974. We retain treaty-protected rights to

harvest and the Federal Government has an ongoing trust responsibility to the

tribes to support this right through the protection of indigenous fish, wildlife and

plant resources, and their habitat. The resources the tribes co-manage provide farreaching economic and cultural benefits to all who live in the Northwest. These are

critical issues to us, and we appreciate being invited to speak to you regarding the

Endangered Species Act.

The goals and objectives of the Endangered Species Act of 1973 are more essential

today than they have ever been. Worldwide, nearly 16,000 species face extinction,

including 800 species of fish. In the Pacific Northwest, 26 species of fish and wildlife

have been protected by this law over the years. In our area, Puget Sound Chinook,

Hood Canal/Strait of Juan de Fuca Summer Chum and Lake Ozette Sockeye were

listed as ‘‘threatened’’ under ESA in 1999.

To some, such listings are abstract names in the Federal Register. To us, they

are signs of a decaying environment and of an eco-system faltering under the pressures of an ever-growing and expanding population and short-sighted exploitation

of the Earth. The rapid decline of these resources is directly related to habitat destruction, which should remind us all to conserve land and water resources, so our

descendants can have the fish and wildlife abundance we have enjoyed in past generations. The ESA has been an important tool in the ongoing effort to protect and
31

restore species the tribes have depended on culturally and economically for thousands of years. It has helped return the mighty eagle and the grey whale from the

brink of extinction. It has helped bring attention to the plight of the salmon and

it has helped bring some badly needed funding to the effort to turn the tide on salmon decline. It is important for you to know that salmon are keystone species in the

Northwest. If they are healthy, it is a sign that other life is healthy, including humans. If they are not healthy, it does not bode well for any of us.

Many resources in the Pacific Northwest are in trouble because of growing human

populations, urban sprawl, pollution, over-allocation of water, climate change and

lack of wisdom and vision by non-tribal governments. Sadly, the Federal Government has done a poor job, overall, of implementing ESA with respect to the listed

salmon species in the Northwest. Emphasis placed on harvest and hatcheries in the

response has been largely misdirected while the major cause of resource decline—

habitat degradation—has been largely ignored. The tribes have grown hoarse trying

to get Federal officials to understand these things, and yet these officials continue

to hammer on harvest that has been severely curtailed for two decades, and hatcheries that are already being reformed. To them, it is low hanging fruit. To us, the

approach has been shortsighted and misdirected. The reason for this is apparent.

Using long-term vision and providing the leadership needed to deal with habitat

challenges means taking a strong stand for modifying the way major industries such

as agriculture and development, do business—something that should have been

done long ago. But lobbyists for short-term economic interests are strong and wellfinanced, and have been highly resistant to meaningful change. When such lobbies

can sway the Federal Government from the path of fair and reasonable implementation of the law it is sad to behold. And when the Federal Government fails to provide rightful leadership, it is tragic.

It is also tragic when Federal agencies fail to comprehend and respect treaty law.

Treaties are the supreme law of the land, according to the U.S. Constitution. They

are sacred contracts between sovereigns. Yet they have often been disregarded in

the implementation of ESA. The tribes have a treaty-protected right to harvestable

levels of fish. It is our culture, our tradition and our lifeblood. The Federal Government has a trust responsibility to assure that the tribes have meaningful harvest

opportunities. We have voluntarily embraced the principles of government-to-government relations and co-management with the Federal and State Governments, as

well as the comprehensive allocation process that was born out of the Boldt Decision

of 1974 and the 1978 U.S. Supreme Court confirmation of that decision. Treaty law

supercedes the ESA, and it calls for harvestable levels of fish. Yet the Federal agencies have not been able to implement ESA with any degree of adequacy—a ‘‘last resort’’ law actually intended to prevent species from going extinct.

The restoration of fisheries in the Northwest will benefit the overall economy. It

will help spur the rejuvenation of communities on the coast, the Puget Sound and

other inland waters. It will help enhance the tourism industry and inspire greater

comprehension of stewardship throughout our region. It will improve the health of

our rivers, marine waters and our overall eco-system. I have always spoken for the

salmon, in the hearing rooms of Congress and the courtrooms of this nation, in the

council chambers of the tribes and in public statements. My fellow tribal members

and I have worked hard to protect the resource, and the habitat that sustains it,

because we have always known that salmon are the keystone species of the Northwest. They are our miners’ canary, the measuring stick of the overall physical, economic and spiritual well-being of our region. If salmon runs return to our rivers in

great numbers, it means we have cool, clean waters and healthy bays, rivers and

streams. That means healthy people. There is a critical need for Congress and for

people throughout the nation to understand the value of stewardship and ecosystem

management, the unbreakable link between vibrant natural resources and healthy

people. When I talk about managing salmon, that is what I am talking about.

Tribal governments take salmon management very seriously, just as we have

taken co-management with the State and Federal Governments very seriously. The

path to recovery is one we must travel together, and it’s one that must be traveled

for the benefit of future generations. That is why it is critical for Federal investments in Northwest salmon recovery programs to continue, and increase, rather

than decrease, funding levels as program needs continue to be identified.

Those who make the mistake of blaming the demise of wild stocks on harvest in

our region are thinking of a different era. Today, Indian and non-Indian fisheries

are governed by management principles that are truly responsive to all harvest impacts and total fishery impacts are constrained to sustainable levels for all stocks.

Still, wild salmon populations continue to decline. Why? Because the primary cause

for the decline of wild salmon is loss and degradation of spawning and rearing habitat. And eco-system-level habitat needs have not been adequately respected.
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Those who think this issue is a matter of choosing between salmon and people

are sadly mistaken. Healthy Northwest communities are connected with healthy

runs of salmon. It has always been that way, and it always will. As a species that

swims through both fresh and salt water throughout the region, the salmon is a living gauge of our overall quality of life. In addition to harvest and habitat, we must

look at other factors affecting the health of wild salmon populations. Take salmon

hatcheries, for example.

Once viewed by many simply as factories for producing salmon, now we are reforming hatchery practices to help recover and conserve wild salmon populations

while providing limited fisheries for Indian and non-Indian fishermen.

Tribes have made efforts over the past decade to reduce impacts of hatcheries on

wild salmon stocks—such as carefully timing releases of young hatchery salmon into

rivers to avoid competition for food and habitat with young wild salmon. Funding

challenges have at times hindered efforts to apply a comprehensive, systematic approach to hatchery reform, although funding has been provided in the last few years

to conduct much-needed research, monitoring and evaluation of hatchery practices

at the approximately 150 tribal, State and Federal hatchery facilities in western

Washington. Continued funding for this effort will be critical to its overall success.

Yet this Congress has chosen to zero the tribes out in funding for hatchery reform.

It makes no sense for that to be the case. Tribal natural resource managers have

consistently proved their metal and their ability to be cost-effective. Tribal natural

resource managers are on the rivers, and they know better than anyone, anywhere,

what is needed to save the salmon in their respective watersheds. Tribes need funding for hatchery reform. Cutting our natural resource funding is a giant step backward in tribal/Federal relations.

Federal legislation has created an independent Hatchery Scientific Review Group

to provide scientific oversight for tribal, State and Federal hatchery practices and

to provide recommendations for implementation of hatchery reform strategies. A top

priority of the tribal and State co-managers under the hatchery reform initiative has

been to complete Hatchery Genetic Management plans for each specie at each

hatchery on Puget Sound. The plans provide a picture of how stocks and hatcheries

should be managed, and will serve as a tool for implementing hatchery reform. The

plans are especially important in light of efforts to respond to ESA listings of salmon species in western Washington. Already, some salmon enhancement facilities

have been switched from producing hatchery fish solely for harvest to restoring wild

fish through broodstocking and supplementation. Such efforts help preserve and rebuild wild salmon runs that might otherwise disappear.

Hatchery reform has just been one part of an integrated strategy for salmon recovery we have pursued. The tribal and State co-managers have also responded to

declining wild salmon populations by developing highly conservative harvest management plans. The goal has been to restore the productivity and diversity of wild

salmon stocks from Puget Sound and the Washington coast to levels that can support treaty and non-treaty fisheries.

As I’ve pointed out, the tribes conduct extremely conservative fisheries to protect

weak wild salmon stocks. Tribal fishermen are literally at the end of the line when

it comes to most salmon fisheries. Under treaties with the U.S. Government, tribes

are required to take their share of the salmon in traditional harvest areas, mainly

in bays and at river mouths. This allows tribal fishermen to target only healthy

runs that can support harvest.

With all the efforts expended so far, and in spite of the ESA listings, native salmon continue to be in danger, a fact that jeopardizes the overall economy of our region as well as the cultural identity of the tribes and the health of everyone who

lives in the Northwest. Why? Again, the answer is habitat. There is a desperate

need for habitat protection and restoration. Healthy estuaries are needed, as well

as natural riparian areas, spawning grounds and rearing habitat—if salmon are to

survive. These things take care, and require long-term vision.

Habitat protection and restoration projects, hatchery reform and improved salmon

management planning are just some of the ways that the treaty Indian tribes in

western Washington are working to protect, enhance and restore wild salmon populations.

Wild salmon recovery in western Washington is a biologically simple, but politically difficult task. All the fish need is clean, cool water, adequate spawning and

rearing habitat, and adequate numbers of returning adult salmon to spawn, and

they will take care of the rest.

Providing for those needs is the hard part.

The treaty tribes and State have been working on salmon restoration efforts for

decades. These efforts won’t conclude until there are healthy wild salmon populations that can support harvest by both Indian and non-Indian fishermen, and until
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there is real restoration of ecosystem functions with clean water, good habitat and

salmon stocks capable of providing ongoing economic and cultural benefits to tribal

and non-tribal communities. Any other measure of success should be unacceptable

to everyone.

As an example of current efforts, tribes in the Puget Sound region have been

working hard with others to develop a comprehensive recovery plan for Puget Sound

Chinook. The Shared Strategy process delivered an unprecedented plan for 14 watersheds and the Sound to the Federal agencies on June 30. To create this plan,

the tribes have worked with Federal, State and local governments, landowners,

business interests, and environmental groups. As part of this effort, recovery goals

and comprehensive recovery plans have been developed for all listed Chinook salmon stocks in the Puget Sound region. Specific recovery plans have been developed

for each watershed to guide how harvest, habitat and hatcheries will be managed.

It will require such collective efforts and good will to achieve recovery.

CONCLUSION

Tribes are ‘‘on the line’’ full time when it comes to managing salmon. Our biologists and managers don’t just visit the rivers, the Puget Sound and the coast on

occasion. They are there are all the time. Tribes are also the co-managers of the

resource. We have managed, and depended on the salmon resource from time immemorial. For thousands upon thousands of years, our elders have taught us how to

care for this great resource of the Pacific Northwest. For all of these reasons, it is

critical for the Federal Government to invest more salmon restoration and management funding directly to the tribes. A strong tribal fisheries management infrastructure is by far the most productive investment the Federal Government can make

in this regard, and ESA is a vital tool to help achieve this.

There is a responsibility for leadership in salmon restoration at the local level.

It must include effective collaboration between tribal, local, State and Federal Governments. There is also a need for improved leadership in Congress and the Administration. Federal legislation should serve as both and carrot and a stick. On one

hand it should provide effective incentives for ‘‘good behavior’’ and support the process of recovery administratively. On the other hand, it should provide effective

mechanisms to discourage ‘‘bad behavior.’’

However, restoration of the Pacific Northwest salmon resource must involve more

than protecting what currently exists. It must bring increases in the numbers of

fish, so our harvests can be restored. Salmon is a gift we always respect, one that

sustains us—in every sense of the word. If there are modifications in the Endangered Species Act, it is critical for the Federal Government to acknowledge and fulfill its trust responsibility to the tribes, and to stand up for the implementation of

treaty law.

Thank you.

RESPONSES BY BILLY FRANK, JR., TO ADDITIONAL QUESTIONS FROM SENATOR CHAFEE

Question 1. With regard to the Pacific Northwest salmon resource, what are the

Federal Government’s trust responsibilities to the Tribes? What treaties govern the

tribes’ access to the wild salmon stocks in Puget Sound and along the Washington

coast?

Response. The following treaties were established between the United States and

Western Washington Tribes:

Treaty of Medicine Creek, 1854; Treaty of Neah Bay, 1855; Treaty of Olympia,

1855; Treaty of Point Elliott, 1855; Treaty of Point-No-Point, 1855.

These treaties were required for Washington to become a state. Without exception, they reserved fishing harvest and management rights to the tribes. The U.S.

v. Washington Decision of 1974 in Federal District Court (confirmed by the U.S. Supreme Court in 1979) defined the tribal harvest right as 50 percent of the harvestable resource of both wild and hatchery stocks of salmon, confirmed Treaty Tribes

as co-managers of the resource, and stated that the treaties are to interpreted as

the tribes understood them. By entering into these treaties, the Federal Government

has accepted the trust responsibility to protect the Tribes rights of access to their

fisheries and the obligation to protect and restore Tribal fisheries. The Tribes believe that the harvest right goes hand-in-hand with a requirement for there to be

harvestable numbers of salmon available and thus the Federal Government has a

trust responsibility to protect and restore the habitat salmon need to survive and

perpetuate.
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Question 2. In your testimony, you note that loss of habitat is driving the continued decline of native salmon in the Northwest river systems. What efforts are underway to restore habitat and provide the necessary estuary and riparian spawning

grounds that salmon require to survive?

Response. As co-managers of the resource, Tribes work with State and Federal

agencies, as well as local governments, in every watershed. In harvest management,

these efforts operate under international agreements, such as the U.S.-Canada Pacific Salmon Treaty. In habitat, the efforts have resulted in such processes as the

Timber-Fish-Wildlife/Forests and Fish Agreement and Shared Strategy (which lays

out goals and objectives linking habitat restoration to specific salmon returns).

Tribes have been real leaders in habitat protection and restoration efforts, in part

because they are located on the rivers and are directly dependent on salmon for cultural and economic survival. Watershed plans exist on every river. Water quality

is monitored and habitat restoration projects (ranging from the placement of woody

debris to replanting of riparian areas) have taken place and are taking place wherever funding is available to support them. Tribes make every effort to manage rivers

holistically and to work cooperatively with the State and other entities. Such processes and projects are critical to the restoration of critical habitat. However, with

the expansive population growth and development taking place in Washington, it is

an uphill battle for such efforts to keep pace with habitat destruction. That is why

it is very important for the Federal Government to live up to its trust responsibility

to the Tribes and keep meaningful and well-enforced habitat protection regulation

in place, as well as continue to fund Tribal programs.

Question 3. What are the economic benefits that would ensue from a stable population of salmon in the Northwest?

Response. Salmon are the measuring stick of the economic and cultural health of

the Northwest. If they are wiped out due to habitat destruction, other natural resources upon which the economy of the entire region depends would also collapse.

Communities all along the coast and Puget Sound (Tribal and non-tribal) feel the

crunch of diminished runs. The economic benefits of having salmon in the rivers

runs the gambit. The fishing industry itself benefits when it can harvest, of course.

But so does tourism, one of the State’s largest industries. People want to be able

to go to the Northwest to go fishing. Also, because the needs of salmon are so connected with the needs of all other life here (e.g., clean, flowing water in the rivers

and streams, as well as natural and healthy upland forests, etc.), the well-being of

the salmon also equates to boating, hunting, hiking, camping and numerous other

such activities. Salmon continue to be the economic as well as cultural backbone of

the Tribes. With so much of the Tribal fleet in drydock, Indian people do go hungry

and are unemployed at levels far surpassing other communities. Healthy runs of

salmon in the rivers mean good health in so many ways. One must link good health

with economic benefits for both Tribal and non-tribal communities. Salmon are our

miner’s canary.

Question 4. We have heard a great deal about conflicts between hatchery-raised

salmon and wild salmon populations in your region. How do the inherent conflicts

between hatchery and wild stocks affect Tribes in your region? How are the Tribes

addressing these conflicts?

Response. There is an amazing amount of misinformation about hatcheries and

their impacts on wild stocks. The Hatchery Reform Process in place over the past

several years has done a great deal to mitigate the effects of hatcheries on wild

stocks, but the challenges they pose have been blown way out of proportion. The

State and Federal Governments introduced major hatchery facilities in an effort to

mitigate the effects of dams and other development. As time has passed, and development/urban sprawl has continued to take its toll on our water and other resources, the need to supplement runs has been apparent. In earlier years, there

were major impacts on fish health due to genetic hybridization, competition for feed,

etc. But there was also a need for supplementation if certain runs were to survive,

if there were to be a source of broodstock for outplanting and for re-establishment

of natural stocks (not to mention an adequate supply of fish for harvest management), there would have to be hatcheries and other enhancement facilities and efforts.

While the Tribes have made efforts over the past decade to reduce impacts of

hatcheries on wild salmon stocks—such as carefully timing releases of young hatchery salmon into rivers to avoid competition for food and habitat with young wild

salmon—a lack of funding has prevented the Tribes from applying a comprehensive,

systematic approach to hatchery reform. In the most recent Congressional budget,

Tribes were zeroed out of hatchery reform. Yet, Tribal efforts have already been integral in switching some salmon enhancement facilities from producing hatchery
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fish to restoring wild fish through broodstocking and supplementation. Through

these programs, wild salmon are captured and spawned at a hatchery. Their offspring are then reared in the facility and later released in various locations within

the watershed to increase their chances for survival. Such efforts help preserve and

rebuild wild salmon runs that might otherwise disappear. Hatchery reform has been

a major factor in the restoration of runs on some rivers. It is clearly part of an integrated strategy for salmon recovery.

RESPONSES BY BILLY FRANK, JR., TO ADDITIONAL QUESTIONS

FROM SENATOR JEFFORDS

Question 1. Your testimony states the need for a strong tribal fisheries management infrastructure using the Endangered Species Act as a tool. Could you elaborate on how you see this infrastructure, the role of the Endangered Species Act

would play, and the level of funding that would be required?

Response. The Treaty Indian Tribes of the Northwest are co-managers of the

salmon resource. As such, they have developed natural resource management ‘‘infrastructures’’ or programs to work with the State and Federal Governments to manage the resource, ranging from harvest management (an international, national and

state/tribal process), catch accounting, enforcement, enhancement, habitat protection

and restoration, etc. The policy people, technicians and scientists, etc. comprise the

‘‘infrastructure’’ I spoke about. Tribes maintain their own infrastructure on the reservations, and they created the Northwest Indian Fisheries Commission, which I

chair, in 1975 to help them achieve the various tasks required in natural resource

management, including technical support and a forum for coordinating their efforts.

When I speak of the Endangered Species Act, I speak of the Federal Trust responsibility to the tribes to implement the terms of the treaties we have with you. One

of these responsibilities is to protect and restore the habitat needed by salmon and

other natural resources. There have been many problems with the Federal implementation of ESA, due largely to the pressures of the development industry, etc. Yet

it is a ‘‘bottom line’’ law—one intended to keep species from going extinct. As described in the Secretarial Order issued by the Department of Interior, the Federal

Government is responsible for assuring that there are levels of salmon sufficient to

sustain Tribal harvest. That bar has not been achieved, and yet implementation of

ESA as regards listed salmon in the Northwest has focused on harvest and hatcheries, and failed to adequately address the fact that most salmon are killed by habitat destruction. If a ‘‘bottom line’’ law, such as ESA, cannot be adequately enforced,

we are left to wonder how the Federal Government intends to keep its word regarding harvest.

Tribes are on the front line in the effort to protect and restore salmon, and they

have done an exceptional job. But we are overwhelmed by the continued onslaught

of habitat destruction. So are the salmon.

The level of funding required? That is a question with many variables. If co-management works as it should, and if the Federal Government protects the natural

heritage of this country, it would have a bearing on the response. Either way, Federal appropriations to the Tribes in Salmon Recovery Funding (currently at $80 million for Tribes in 5 states) falls short of the funding needed to sustain, and continue

to develop, an adequate Tribal natural resource management infrastructure. Any increase will be helpful, but the SRF should at least be returned to the $100 million

level next year, and the Federal Government should take a strong stand to support

coordinated government-to-government efforts to support habitat restoration (and

protection) to enable salmon to return to the rivers of the Northwest at harvestable

levels. A strong statement should also be issued that Congress does not concur with

efforts to deter attention from habitat-protection and restoration responsibilities by

pointing at harvest, which has already been cut by 80–90 percent, if not totally.

Question 2. What role has the ESA played in helping develop the ‘‘Shared Strategy’’ salmon recovery plan in Puget Sound?

Response. ESA has provided an opportunity to secure some desperately needed

funding to support the development and pending implementation of this process.

Just as important, the listing and pending implementation of the law has helped

the region focus on the problem. Salmon recovery efforts in the Northwest is being

played out against the backdrop of ESA, including Shared Strategy. It should come

as no surprise that those who feel threatened by the challenges associated with good

stewardship are barking most loudly about the law. But the simple fact is that overexploitation of habitat must be addressed if there are to be natural resources to sustain future generations. The envelope is being pushed by developers and others who

wish to keep an open path to riches and uncontrolled expansion. Shared Strategy
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1 As of March 30, 2005, a total of 1,078 species of animals and 749 species of plants had been

listed as either endangered or threatened, of which the majority (518 species of animals and

746 species of plants) occur in the United States and its territories and the remainder only in

other countries. Sixteen species have been delisted due to recovery, to date. Nine species have

become extinct since their listing, and 15 have been delisted due to improved data. Numbers

compiled using data from the Congressional Research Service.

is a process to help restore good science and common sense to the way we do business, and ESA had a lot to do with it.

Question 3. Please describe current ESA enforcement with respect to Puget Sound

salmon recovery and has it allowed for a flexible, voluntary approach to recovering

these fish?

Response. There are good aspects to ESA enforcement. The law can be credited

with helping return the Bald Eagle to our watersheds, and the Gray Whale to our

marine waters. There are occasional instances of ESA-driven fines for incidents of

mass polluting, etc. ESA has also helped protect thousands of acres of spotted owl

forest habitat, on Federal lands. However, the current Administration has undone

much of this protection, essentially prioritizing the needs of the timber industry

over the need to protect habitat that is critical for the owls as well as thousands

of other species. Implementation of ESA has been done in a manner that enhances

communication between communities and provides opportunities for voluntary compliance. However, again, implementation of ESA listings of Northwest salmon has

focused far too heavily on just two of the four H’s (Hatcheries and Harvest) while

virtually ignoring Hydro and kowtowing to the continued exploitation of Habitat.

For our part, Tribes have made consistent efforts to be at the table in voluntary

efforts to recover salmon, and we will continue to do so, because we see great value

in voluntary stewardship. But it is absolutely essential for the Federal Government

to have a well-enforced regulatory approach at the same time. There are simply too

many pressures to wipe out wetlands, estuaries, riparian areas and other critical

habitats to legitimize exclusive protection through voluntary means.

STATEMENT CORY GARDNER, COLORADO STATE REPRESENTATIVE

This morning’s hearing is a critical part of an ongoing national discussion that,

I hope, will lead to modernization of the Endangered Species Act, one of this country’s most powerful and far reaching laws.

As a member of the Colorado General Assembly, I represent House District 63,

which encompasses the majority of eastern Colorado—an area larger than the

States of Massachusetts and Connecticut combined. My constituents depend, directly or indirectly, on farming and ranching for their livelihoods. Because of the

district’s agrarian nature, property rights and land use is of paramount importance,

and the role of the Endangered Species Act in their lives has grown dramatically.

Over the 32 years since the Act’s passage, it has, more often than not, instilled fear

rather than trust and cooperation. Fear about the use and value of private land.

Fear over litigation and boutique lawsuits. Indeed, the fear of conservation by litigation has driven a wedge between resource users and many in the environmental

community.

The goal of recovering threatened and endangered species is a noble one. Witness

after witness has testified before this committee concerning the intent of the Endangered Species Act and expressed their belief that the principal goals of the Endangered Species Act are truly laudable. It is the Act’s implementation that stirs debate; advocacy for complete elimination is rare. Unfortunately, the Act as currently

written fails to provide the tools and means necessary to recover and delist species,

and instead results in permanent listing. The numbers speak for themselves. Of the

1,827 listed species, only 16 have been delisted as a result of recovery.1

Perhaps nothing demonstrates this point better than a cartoon I came across last

week while reading a local newspaper (attached). The cartoon shows two hippopotamus-like animals, one saying to the other, ‘‘The good news is that we’ve been

removed from the Endangered Species list. The bad news is that we’ve been removed from the Endangered Species list.’’ The cartoon illustrates the policy tug of

war, pitting those who would rather see a perpetual state of listing than changes

to the law of that actually result in the recovery and delisting of species. I believe

that Congress has an obligation to remove the fear, to update the Endangered Species Act and begin the process of recovery. And it must do so while respecting private property rights and giving equal statutory standing to the States.
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Modernization of the Endangered Species Act must start by making the State a

true partner and coequal. The State is not just another voice, but must statutorily

be made an equal partner of Federal Government.

While Colorado has enjoyed some tremendous successes in working cooperatively

with the U.S. Fish and Wildlife Service, we wholeheartedly support greater flexibility in the administration of section 6 of the Endangered Species Act.

Through section 6, the roles of the State and Federal agencies can be clarified and

delineated. A revamped section 6 should give greater flexibility to States, allowing

them, should they choose to do so, to take over pre-listing conservation, recovery

planning and implementation oversight, habitat agreements and Habitat Conservation Plan administration, delisting responsibilities, and post-delisting monitoring.

Even when States do not take the lead, their involvement should be co-equal with

the Federal agencies. States, along with landowners, must also be given more say

in the section 7 consultation process. Stronger emphasis should be placed on pilot

programs that delegate section 7 and section 9 authority to the States.

Further efficiencies can be gained by coordinating joint rulemaking and decisionmaking processes between the wildlife agencies and Federal Government for administrative and regulatory actions. Disagreements and stalemates could be resolved by

the respective Secretaries of Interior or Commerce.

Even though Colorado has had the foresight to put forward modest funding for

species conservation and recovery, States should be given the financial resources to

assume an expanded role in ESA administration and implementation. The cost

States incur as a result of assuming greater responsibilities could be offset by passing back the Federal savings achieved as a result of ESA updates and program delegation.

With the State as a coequal, the Secretary should give a presumption in favor of

State information and recommendations on listing. And, in accordance with the

views of the International Association of Fish and Wildlife Agencies, the Secretary

should be required to refute the State’s information through independent peer review if the Secretary disagrees with the State recommendation.

The State has a far better understanding of its species’ needs than the Federal

Government. In-State employee expertise should be embraced by the Endangered

Species Act, not rejected or downplayed. Federal biologists may not have the specific

expertise that a State specialist can offer. For example, in 2003, the Fish and Wildlife Service made an effort to list the black-tailed range rodent (also known as the

black-tailed prairie dog). Listing of the range rodent would have resulted in a significant portion of the eastern plains being designated as critical habitat. However,

the Fish and Wildlife Service’s preliminary habitat acreage estimates were refuted

by the State of Colorado, which carried out its own study—based on years of work

within the State by employees familiar with the issue—that showed range rodent

habitat acreage was actually seven times greater than that estimated by the Fish

and Wildlife Service.

Taxonomic and genetic uncertainties should be studied and independently peer reviewed prior to listing of a species, and the information threshold in listing petitions

should be raised. Perhaps nothing illustrates this better than the Preble’s Meadow

Jumping Mouse. In 1998, Federal officials based their decision to list the mouse as

threatened on a 50-year-old study. The 1950’s study—based on test results from 3

mice and the skins of 11 others—was the best science that had been done up until

the listing of the Preble’s mouse. The Endangered Species Act only requires that

species protection be based on the best available science—not the best possible

science.

Businesses and governments spent over $100 million to cope with the Preble’s

Meadow Jumping Mouse. Nearly 31,000 acres along streams in Colorado and Wyoming were designated critical mouse habitat, triggering rigorous land use restrictions. Ranchers were prohibited from clearing weeds out of their irrigation canals.

Grazing was restricted and regulated. Reservoir construction was halted in the middle of the worst drought in 300 years. Counties spent millions of dollars to build

‘‘mouse tunnels’’ under roads and reservoirs. A $5 million bridge was built in order

to avoid Preble’s habitat.

As the cost of living with the Preble’s Meadow Jumping Mouse increased, a Denver scientist completed a modern genetic study revealing that the Preble’s Meadow

Jumping Mouse was actually identical to the Bear Lodge Meadow Jumping Mouse.

In other words, the study revealed that the mouse did not exist.

To avoid mistakes like the Preble’s Meadow Jumping Mouse, the scientific bar

must be raised to embrace modern scientific techniques and independent peer review. While the Fish and Wildlife Service has submitted the mouse for delisting,

there remains concern that the Service will try to delay the delisting. I urge the
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members on this Committee to make sure the delisting process proceeds in a timely

fashion.

State agency expertise should also be recognized through greater flexibility to not

list a certain area or State if it is receiving adequate management within that portion of its range. Last year, the Fish and Wildlife Service entertained the listing of

the Mountain Plover, a shorebird that inhabits portions of the Colorado High Plains

(in fact, the Plover’s habitat is primarily in the district I represent). The decision

to list was being made, in part, on the mistaken assumption that agricultural practices negatively impacted the survival of the bird. Working with local farmers,

ranchers, Federal agencies and nongovernmental organizations, the State has forged

a new partnership to conserve the Mountain Plover. The ultimate product of this

partnership included agreements between individual landowners and the Department of Interior, wherein landowners agreed to put into place conservation measures to stave off the listing of the bird. (The centerpiece of this project included the

provision of an 800 number, which landowners could call to request nest flagging

on their property before plowing their fields). Had the Mountain Plover been listed,

this solution would not have been available—section 9 taking prohibitions and section 7 consultation requirements would have imposed restrictions that would have

stopped the agreement in its tracks. The experience also enabled the State to gain

a much greater scientific understanding of the plover that could guide in its recovery.

Significant changes should also be made to Critical Habitat designation. The State

and individual landowners should be equal partners with the Federal Government

during the designation process for Critical Habitat. Statutory timelines on Critical

Habitat designations should be eliminated, thereby providing State and Federal

Governments with greater flexibility to enter into private contracts and cooperative

agreements. Changes to Critical Habitat mesh well with the suggested changes to

section 6, section 7, and section 9.

In terms of recovery, the Fish and Wildlife Service should be statutorily required

to develop a quantifiable recovery plan at the time of the species listing. In Colorado, it took fourteen years to establish recovery goals for the Upper Colorado River

Fish Recovery Program. Under the Act as it stands today, recovery plans are not

binding but instead act more like general guidelines, adding little to the actual recovery of the species. Delays and unclear recovery goals are not acceptable. The recovery plan should identify key bench marks and measurable scientific data points

that will ultimately lead to the delisting of the species. The State should play a

major role in the development of the recovery plan and should have the option of

leading recovery planning.

This statement has highlighted several of the problems surrounding the Endangered Species Act, along with some important suggestions to improve it. Colorado

has also had some successes in spite of the current form of the ESA.

In 1999, Governor Bill Owens created an Office of Species Conservation and Recovery within the Executive Director’s Office of the State Department of Natural Resources. The Governor’s motivation was simple: common sense dictated that the

most efficient means of dealing with threatened and endangered species issues was

through that level of government which is closet to the problem, wherein we could

channel the necessary biological expertise and the dollars to effect recovery to atrisk species and species already listed. The Office is geared toward working to restore the health of at-risk species to preclude listing, and promote recovery for those

already on the list with an eye toward enhancing the possibilities of expediting

delisting whenever possible.

At the same time, my predecessors in the Colorado General Assembly created a

funding mechanism to allow Colorado’s participation in interstate species recovery

efforts and to promote conservation and recovery within our own borders. This

mechanism is known as the Native Species Conservation Trust Fund, and the General Assembly capitalized the Fund with $15 million over 2 years. Today the Fund

is allowing Colorado to achieve it’s cost-share obligations for recovery of the four

‘‘big river’’ fishes in the Upper Colorado and San Juan Rivers and gives the State

the opportunity to put resources on the ground to enhance recovery efforts for terrestrial and bird species.

Finally, Colorado has taken advantage of those portions of the Endangered Species Act which give States the flexibility and the lead in species protection and recovery. Section 6 of the Act, which allows States to undertake State-directed conservation agreements, has given the State the ability to take up projects with our

own recovery priorities and capabilities in the forefront.

So far, the results are dramatic. Colorado has taken up numerous species conservation projects with this new-found administrative and budgetary flexibility. The

following examples tell the story best:
39

• The State has used section 6 of the Act to put together a comprehensive conservation plan directed by the State to continue the Canada Lynx reintroduction in

Colorado while accommodating agricultural production interests. Furthermore, the

State is taking the lead on much of the science being generated which will ultimately cause lynx to be recovered throughout the United States.

• Currently the State Division of Wildlife is working with the U.S. Fish and Wildlife Service to implement a Candidate Conservation Agreement with Assurances

(CCAA) for landowners who have Gunnison Sage Grouse habitat on their properties.

Once implemented, this will be the largest CCAA of its kind, including hundreds

of landowners.

We have spent the last 32 years living under an Endangered Species Act that falls

short of accomplishing its goals. We know what works, what does not, and what protections must be made for the people impacted by the Act and the species we are

trying to recover. It is time to put aside the mistaken perception that any changes

made to the Endangered Species Act will result in a complete rollback of ESA protection. It is time instead to begin the work of recovering species. The protection

offered by the Endangered Species Act should not be status quo, but instead, a tool

of last resort. Earnest modernization will make this a reality.

Thank you, Mr. Chairman and committee, for accepting this statement for the

record. Please know that I stand ready to assist you as your work on the Endangered Species Act proceeds.

ATTACHMENT

10-Journal-Advocate, Sterling, Colorado, Wednesday, September 14, 2005

RESPONSES BY CORY GARDNER TO ADDITIONAL QUESTIONS FROM SENATOR CHAFEE

Question 1. The Upper Colorado Endangered Fish Recovery Program has been

pointed to as a collaborative partnership where a broad range of stakeholders have

come together to resolve problems associated with fish species recovery on the Colorado River. What lessons have been learned from this endeavor? Have the State of

Colorado’s experiences from this Recovery Program been easily translatable to other

recovery programs such as the Canadian lynx or reintroduction of wolves into the

state?

Response. Perhaps the greatest lesson learned from this endeavor is the extraordinary amount of time and patience which has been put forth to make these programs a success. Numerous partners, operating by consensus, spend long hours negotiating policy and management of the programs. According to program leaders,

the consensus element is extremely important—they believe that it drives the parties to work together to develop solutions to problems where each party needs to

ultimately give a little to reach a solution. The following provides further detail into

what I believe, and some of the program leaders believe, helped the most with the

success of the Upper Colorado Endangered Fish Recovery Program.

A. SCIENCE

i. The Upper Colorado Endangered Fish Recovery Program provided many valuable lessons, none more important than the realization that sounds science is an essential element of success under the act. Without reliable scientific data and analysis, we would not have been able to achieve the results that we have seen. Unfortunately, I do not believe that the same ‘‘sound science’’ mantra has been met across

the country. Some treat sound science as an event—I believe it is just the opposite.

It is a process of discovery and revelation.
40

ii. It is also important to highlight the essential need for peer review of most program activities. Peer review provides the scientific ‘‘footpath’’ necessary to provide

certainty under the act. Debates over science can occur, and are healthy, but a consensus needs to be reached by scientists representing diverse interests in the Program. The issue is always, ‘‘How to move forward.’’

B. LEADERSHIP AND PARTNERSHIP

i. Parties to the program are partners in the program. While this seems obvious,

it can often be overlooked in planning and forgotten (or trampled upon) in execution.

On program issues, all of the partners in the program have an equal voice.

ii. It is important to note that no one gave up legal rights by joining the program.

iii. All Interests critical to the success of the program are at the table, including

Federal agencies, states, water users, power users, environmentalists, and in the

case of the San Juan River basin, the tribes. Without this type of ‘‘inclusion’’ programs would have a difficult time meeting with success. While there are competing

interests, as is evident, all of the interests have a strong, invested interest in the

success of the program. All recognize that they cannot have everything they want,

and are willing to cooperate and compromise in order to ensure the success of the

program. The values of all parties are respected, though not necessarily shared; no

one should expect anything more or less.

iv. Inclusion and partnership also means that we had open communication on all

technical, management and financial issues.

C. FINANCIAL

i. All parties contributing to the program have met their financial obligations to

the program, including the Federal Government, states, power users and water

users. ii. Program cost sharing has been worked out on a mutually agreeable basis.

iii. The application of financial resources emphasizes and maximizes putting

measures on-the-ground that benefit the species at the earliest possible date.

D. IMPLEMENTATION OF THE ENDANGERED SPECIES ACT

i. Section 7 consultations cannot contribute materially to the recovery of species,

and therefore, fall short of the primary goal of recovering species. If recovery is to

be achieved, it must be through collaborative efforts involving Federal agencies,

states, tribes, and resource interests, including landowners and water users. The

state’s statutory role must also be expanded.

ii. Innovative methods of Endangered Species Act compliance can be achieved

through collaborative programs. The Upper Basin and San Juan programs provide

Endangered Species Act compliance for more than 800 water projects while pursuing recovery of the species. The Endangered Species Act compliance vehicle is a

substantial incentive for states and resource users to participate in and support the

program.

iii. Success depends on resolution of conflicts with State water law and State wildlife law. Conflict must be avoided. State water law and State wildlife law can be

used to support recovery and provide water for endangered species and to control

non-native predators, a threat to endangered fish, with the cooperation of the states.

Going outside of State law and resorting to Federal supremacy thwarts the effort

to draw collaborative relationships.

iv. Once threats to property rights, including water rights are removed, cooperation by a wide variety of water users is feasible to enhance conditions for endangered species.

v. Findings by the Fish and Wildlife Serve that program actions can provide Endangered Species Act compliance (reasonable and prudent alternatives and measures) for water projects must be legally defensible. No litigation has been filed on

Endangered Species Act consultations on water projects in the Upper Colorado and

San Juan River basins on more than 800 consultations.

vi. The program also shows that innovative approaches to Endangered Species Act

compliance can work. These approaches provide far more benefits to endangered

species than can be achieved under normal section 7 consultation processes.

vii. Through collaboration, program implementation is consistent with other Federal laws and State laws, avoiding litigation, and with no taking of property.

The process which can be attributed to the Upper Colorado Program is similar

to ongoing meetings with stakeholders affected by the lynx reintroduction. Colorado

meets often with agricultural operators in order to assure that the lynx reintroduction program does not cause undue burden on their legitimate predator control activity. Colorado also maintains close contact with the ski industry to assure appro-
41

priate data-sharing on lynx usage on the landscape. Finally, Colorado maintains a

close working relationship with the U.S. Forest Service to assure they can use appropriate lynx data for management decisions. Colorado, in fact, was a cooperating

agency with the Forest Service drafting the lynx amendments to all Federal forests

in the Southern Rockies region.

The Colorado Division of Wildlife engaged the Meridian Institute to facilitate the

wolf working group which met through a good portion of 2004. The group was

charged with producing a wolf management plan to accommodate wolves migrating

south from Wyoming. Once again, this was a group which struggled with the competing interests represented by ranchers, sportsmen, wolf advocates, and biologists

to achieve a comprehensive strategy for wolf management once the species start arriving in Colorado. The working group process was comprehensive and thorough in

its process, debating and fighting over some very deeply held values by members

of the group. All members ultimately seemed satisfied as to the slow and deliberate

process which ultimately yielded a plan which all parties could live with and abide

by.

Question 2. What is the capacity of the Colorado Division of Wildlife in terms of

staffing and budget for federally listed species conservation?

Response. See attached chart for breakdown by species.
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43
44

Question 3. Of the state-listed species in Colorado, how many have been recovered

and withdrawn from the State threatened and endangered lists?

Response. Delisted: White Pelican (1985); Greater Prairie Chicken (late 1990’s);

Peregrine Falcon; Wood Frog; and Greater Sandhill Crane. (These last three species

have been delisted recently, although we are not sure if the delisting occurred within the last 10 years).

Downlisted: River Otter (2004).

Question 4. What has the State of Colorado’s commitment been to habitat protection efforts for fish, wildlife and plant species, particularly in as State such as your

where one of the leading reasons for species decline is loss of habitat?

Response. Extensive documentation regarding habitat protection has been gathered by the Colorado Division of Wildlife, and is compiled herewith.

Specific, funded projects and associated species:

California Park: Joint venture for boreal toad conservation with the U.S. Forest

Service.

Gunnison Basin: Wetland restoration to benefit the Gunnison Sage Grouse.

Carpenter Ranch: Bald eagle habitat enhancement (In conjunction with The Nature Conservancy).

Fox Ranch and Arickaree River: General habitat improvements, benefiting the

brassy minnow and darters. (In conjunction with The Nature Conservancy).

Park County: Various conservation easements, benefiting the mountain plover.

San Luis Valley: Conservation easements and wetland restoration projects benefiting the southwestern willow flycatcher, the whooping crane and the long-billed

curlew.

San Miguel River: Wetland restoration and tamarisk control benefiting the peregrine falcon and bald eagle. (Conducted in conjunction with The Nature Conservancy).

RESPONSES BY CORY GARDNER TO ADDITIONAL QUESTIONS FROM SENATOR INHOFE

Question 1. In Colorado’s experience with the ESA, what have been the most effective and the least effective parts of the Act?

Response. In terms of the focus of the committee hearing—the Endangered Species Act and the States—I believe that section 6 of the Act is far and away the most

effective part of the Act inasmuch as it gives us a fair amount of latitude in directing conservation programs. Colorado has been able to obtain small amounts of incidental take authority in connection with the conservation measures we undertake

through this section. In my testimony I stressed the importance of further delegation to the states through section 6. I would stress this idea once again.

It is my opinion that designation of critical habitat is not effective for Colorado

because it does little to enhance the conservation value to any particular species

other than serving as an additional trigger for section 7 consultation. Colorado has

tried to bypass critical habitat by putting in effectively managed habitat conservation plans which really serve as a substitute to critical habitat. Of course, much

more than anything else, critical habitat is a drain on the Fish and Wildlife Service

because it is a section of the Act which is fraught with litigation.

States should look to some of the opportunities afforded them in the rules and

regulations promulgated by the Fish and Wildlife Service. In particular, the ‘‘PECE’’

Policy (Policy to Evaluate Conservation Efforts) gives a State the ability to influence

a listing decision simply by putting conservation projects and expenditures in place

and presenting those projects to the Service in catalogue form. Having such a document in hand is an enormous help to the Service as they evaluate the health of a

species and the work being done on the species’ behalf.

Candidate Conservation Agreements with Assurances (‘‘CCAA’’) are an effective

tool, promulgated by regulation, which give landowners an opportunity to participate in self-initiated conservation efforts while being held harmless from future regulatory restriction on their land should the particular candidate species be listed.

Colorado is currently putting together the largest CCAA in Western Colorado to conserve the Gunnison Sage Grouse, a Federal candidate species.

Question 2. How could more State involvement decrease the chances of repeating

the ‘‘Prebles Meadow Jumping Mouse’’ situation?

Response. If nothing else is done to improve the Endangered Species Act, the one

factor which should be statutorily reviewed because of the Preble’s situation is the

Endangered Species Act standard of ‘‘best available scientific and commercial data’’.

A listing decision based on 50-year-old science is unacceptable. It is the ‘‘best’’ and

it is also ‘‘available’’ and those two factors often do not lead to the best result. A
45

review of the listing decision renders too much latitude for non-scientific speculation

(i.e.—although rapid growth and development was occurring in the range of the

Preble’s, we now know that there was no definitive threat to the species based on

the expansion of the range due to subsequent trapping and the sheer numbers of

mice trapped in new areas.)

Leaders in both government and business in Colorado had not ‘‘given in’’ to listing

of the Preble’s as an inevitability. Still, there was intense frustration that challenges based on ongoing conservation efforts and biology would go unheard due to

the strictness of the ESA and the applicable case law. This frustration can best be

summarized as follows: after eight years and enormous expenditure of money and

labor, not one regional habitat conservation plan is yet in place. Douglas County,

just south of Denver, has spent over $1 million on consultants and lawyers to write

and qualify their HCP, and not one shred of conservation has been put on the

ground since the mouse was listed in 1998. Imagine the good which could have been

done with that $1 million if it had been left up to this very conservation-minded

county commission to pay for habitat, open space, and parks, which would go a long

way toward preserving and revitalizing the mouse.

One individual who has worked on a Preble’s HCP for the last eight years stated

the frustration clearly, ‘‘The mentality of the ESA is that it does not encourage conservation unless you get credit for it.’’ The ESA seems to bypass a very strong conservation ethic we have in Colorado and the west, and the species suffer for it. More

than anything else, those who have been involved with Preble’s conservation cannot

comprehend why the Service does not acknowledge work which is already happening

on the ground.

The State could provide its own ‘‘peer review’’ of data from the Fish and Wildlife,

serving as a check on that agencies information gathering and scientific processes.

As I mentioned in my testimony, the state’s data should be given a presumption of

credibility. With the State as a coequal, the Secretary should give a presumption

in favor of State information and recommendations on listing. And, in accordance

with the views of the International Association of Fish and Wildlife Agencies, the

Secretary should be required to refute the State’s information through independent

peer review if the Secretary disagrees with the State recommendation.

The State has a far better understanding of its species’ needs than the Federal

Government. In-State employee expertise should be embraced by the Endangered

Species Act, not rejected or downplayed. Federal biologists may not have the specific

expertise that a State specialist can offer. For example, in 2003, the Fish and Wildlife Service made an effort to list the black-tailed range rodent (also known as the

black-tailed prairie dog). Listing of the range rodent would have resulted in a significant portion of the eastern plains being designated as critical habitat. However,

the Fish and Wildlife Service’s preliminary habitat acreage estimates were refuted

by the State of Colorado, which carried out its own study—based on years of work

within the State by employees familiar with the issue—that showed range rodent

habitat acreage was actually seven times greater than that estimated by the Fish

and Wildlife Service.

Question 3. What is preventing states from doing more pre-listing conservation,

such as with the mountain plover; and, is there anything hindering more large scale

Candidate Conservation Agreements with Assurances (CCAA) like the one Colorado

is working on right now?

Response. There is some skepticism as to how much effort should be expended on

pre-listing conservation efforts and/or CCAA if listing is ultimately inevitable, and

perhaps a hesitation on the part of State and local governments based on the perception that the Fish and Wildlife Service will not ultimately believe in the local

and State efforts or that local and State agencies can indeed do conservation ‘‘right’’.

This also relates to the need for statutory presumption of State information.

Regarding Candidate Conservation Agreements with Assurances, Colorado’s

greatest hindrance is the CCAA’s lack of predictability and how much faith landowners can put in those ‘‘assurances’’. Without sounding like we promote litigation,

the problem with CCAAs is that they are not court-tested, and landowners are loath

to place their faith in such a relatively new mechanism that has not been ‘‘court

approved’’.

Colorado has acknowledged this skepticism but has also acknowledged that the

Fish and Wildlife Service is daily more consumed with lawsuits which take their

staff away from their mission of species conservation and recovery. The Fish and

Wildlife Service regional and State offices have welcomed Colorado’s participation

as a full partner in conservation. Colorado has worked hard to cultivate relationships in the Department of Interior, and with the Senate and the House, to assure

support for this effort. The Colorado Division of Wildlife and Department of Natural
46

Resources also work tirelessly with the State General Assembly to accomplish species conservation and recovery goals.

RESPONSES BY CORY GARDNER TO ADDITIONAL QUESTIONS FROM SENATOR JEFFORDS

Question 1. With successful section 6 projects for the Canada lynx and Gunnison

sage grouse, does Colorado have plans for additional cooperative agreements?

Response. Actually, the Gunnison Sage Grouse is not currently under a section

6 agreement, but conservation measures are being conducted under a rangewide

plan which Colorado and Utah entered together and the master Candidate Conservation Agreement with Assurances, which is being entered into by the Colorado

Division of Wildlife; landowners take part by certificates of participation.

Colorado is trying to find a way to use section 6 to accomplish defensible space

projects on State forestland and adjacent private lands.

We are intrigued by Arizona’s comprehensive multi-species section 6 agreement,

which they have with the U.S. Fish, and Wildlife Service and we may pursue a similar model.

Question 2. Your testimony states that Colorado has established an Office of Species Conservation and Recovery. What is the relationship of this agency to other

Federal, State and local stakeholders and can you elaborate on some of its successes?

Response. Governor Bill Owens by Executive Order created the Office in 1999 to

do exactly what its’ title suggests: conserve and recover species. The mission is simple: to marshal State resources toward recovery of candidate species so there is no

need for those species to go on the Federal list, and to marshal those same resources

to assist in the recovery and delisting of federally listed species. The Office is

housed in the Executive Director’s Office of the Department of Natural Resources

and is staffed by one of the Department’s Assistant Directors to focus exclusively

on threatened and endangered species recovery.

The Office’s Director has established strong relationships with other Federal,

State and local stakeholders and joins those other stakeholders as members of various recovery teams and similar such undertakings. The Office serves as a clearinghouse for all stakeholders to gain information, influence conservation decisions and

assist with recovery efforts. The Office and staff are empowered to work across

agency lines in State government to assure that agencies at all levels are talking

to one another and working together.

Some of the successes of the Office are as follows:

• Negotiated recovery goals with the U.S. Fish and Wildlife Service for the Upper

Colorado and San Juan Endangered Fish Recovery Programs (2002). This served as

a milestone for these two programs, which had functioned without recovery goals

since 1988 and 1992 respectively.

• Worked with the Colorado Division of Wildlife to develop the best available scientific data to determine acreage of Black-tailed Prairie Dog species in eastern Colorado, accomplished by flying transects across the entire eastern plains of the State.

New acreage figures caused the U.S. Fish and Wildlife Service to remove the species

from the status of a ‘‘warranted but precluded’’ candidate for listing. (2004)

• Assisted in setting up peer-review panel through the Colorado Division of Wildlife to review genetic data which ultimately lead the U.S. Fish and Wildlife Service

to promulgate a preliminary rule to de-list the Preble’s Meadow Jumping Mouse.

(2004)

• Assisted with negotiations of an ESA section 6 state-directed conservation

agreement to provide for conservation measures for the Canada Lynx, which allowed

Colorado to re-initiate its program to release lynx into the wild. (2002). Since this

agreement went into place, almost 100 lynx kittens have been born in the wild

(2003–2005).

• In cooperation with the Colorado Division of Wildlife, joined in with 10 other

western States to develop a comprehensive status assessment of the Greater Sage

Grouse through the Western Area Fish and Wildlife Association and the Western

Governor’s Association. The U.S. Fish and Wildlife Service analyzed the assessment

under its ‘‘PECE’’ Policy (Policy to Evaluate Conservation Efforts) and determined

that the Greater Sage Grouse did not warrant listing. (2004).

• Assisted with reintroduction efforts of the Black-footed Ferret in Northwestern

Colorado. This species has been brought back from the brink of extinction since the

last population was found in Wyoming in the late 1970’s.

• Conservation efforts for the Mountain Plover were well underway when the Office was established in 1999. The Colorado Department of Natural Resources joined
47

in with providing funding and assisting with the collaboration between numerous

parties to help effect the Service’s decision not to list the species. (2003).

• The Office is taking the lead in preparing a catalogue of conservation efforts

underway on the Gunnison Sage Grouse to provide to the Service as they conduct

their analysis on the Grouse in a potential listing decision. (2005).

• The Office, with the direct involvement of Governor Bill Owens, assisted in urging the Service to substitute the draft Habitat Conservation Plan for the Southwestern Willow Flycatcher for critical habitat in southern Colorado’s San Luis Valley. The Service determined that the draft Plan was a sufficient substitute and designated no critical habitat in the State. (2005).

STATEMENT OF MICHAEL A. PASTERIS, EXECUTIVE DIRECTOR, FOREST PRESERVE

DISTRICT OF WILL COUNTY, IL, NATIONAL ASSOCIATION OF COUNTIES

Chairman Chafee, Senator Clinton and distinguished members of the Subcommittee, I thank you for holding today’s hearing on the roles of states, tribes and

local governments in implementing the Endangered Species Act (ESA).

I am the Executive Director of the Forest Preserve District of Will County, Illinois. In that capacity I represent the National Association of County Parks and

Recreation Officials on the Board of Directors of the National Association of Counties (NACo), on whose behalf I am appearing today.

Will County is located in northeastern Illinois, south of Cook County. The county

seat is in Joliet, which is located approximately 40 miles southwest of Chicago on

the Des Plaines River. Forest Preserve Districts are special units of county government in Illinois. Our statutory mandate is to preserve natural and cultural resources within the county for the education and recreation of the public. The Forest

Preserve District of Will County currently owns or leases approximately 18,000

acres—7,000 of which are actively managed to conserve natural resources. These include the habitats of—or known populations of—7 threatened and 13 endangered

species listed under the ESA. We also provide habitat for dozens of species listed

as threatened or endangered under Illinois law.

As you know, the ESA was enacted in 1973 with the promise that we can do a

better job of protecting and conserving our nation’s resident species and the ecosystems that support them. Today, over thirty years later, on behalf of the Nation’s

3,066 counties, I bring that same message back to this subcommittee—we can, and

must, do better. We have learned many lessons over the past three decades about

how and what can be done to protect endangered and threatened species and it is

time to update and improve the ESA to reflect those lessons.

NACo has identified several key elements that should be considered as Congress

considers legislation to update and improve the ESA:

First, counties should be full partners in all aspects of implementing the ESA.

Our experience in Will County bears this out. For the last several years we have

been actively engaged in efforts to preserve the habitat of the endangered Hines

Emerald Dragonfly which is found in only two counties nationwide—one of which

is Will County. In our county its habitat is the thin soil on top of bedrock supported

by groundwater seeps along the bluffs of the Des Plaines River. County Forest Preserve staff were part of the team formed to develop the Hines Emerald Dragonfly

recovery plan. Because of our close connection to the local communities we have

been able to facilitate effective communication strategies with adjacent private landowners and municipalities about the habitat needs of the dragonfly. Our efforts have

led a number of them to reduce their groundwater use voluntarily and to adopt

‘‘best management practices’’ for storm water management within the watershed.

Similarly, we have been invited to serve on the team developing a recovery plan for

the Eastern Massasauga Rattlesnake, a species listed as threatened under the ESA

and which is in decline. In Will County the rattlesnake is found in the open wet

woodlands along Plum Creek, on Forest Preserve District land. Even while the recovery plan is in development the District has been acting to improve the rattlesnake’s habitat using section 6 funds from Illinois Department of Natural Resources

and discretionary funds from the Fish and Wildlife Service. This model of cooperative conservation partnership is an important key, we believe, to setting threatened

and endangered species on the path to recovery. Unfortunately, it is a model that

is not always emulated. We believe that the ESA’s provisions for Federal, State and

local communication, cooperation and collaboration could be strengthened so that

the positive partnerships currently benefiting the Hines Emerald Dragonfly, the

Eastern Massasauga Rattlesnake and the citizens of Will County can be reproduced

around the country.
48

Sonoma County, California provides another example of how local participation in

ESA decision making has aided efforts to recover threatened and endangered species. With the final listing of the California tiger salamander in March 2003,

Sonoma County was jolted by the realization that, given the location of salamander

habitat, much of the county’s entire economic future was in serious jeopardy. This

is because much of the salamander habitat is within a voter approved urban growth

boundary. The listing had the potential to affect affordable housing, critical transportation infrastructure, expansion of one of the city’s main sewage lines which already was approaching capacity, and the sub regional water recycling system.

Because the U.S. Fish and Wildlife Service was short of personnel, consultation

on individual projects, as well as field survey requirements were lengthy and, at

times, inconsistent. The Service recognized that, in order to deal with Sonoma County’s unique challenges relating to the salamander, a different and more collaborative

approach was required. This led to the creation of the Santa Rosa Plain Conservation Strategy Team in March 2004.

In 17 months, this collaborative team made up of affected public and private

stakeholders has developed a cooperative conservation plan that will lead to conservation and recovery of the California tiger salamander and at the same time a

consistent process for the approval of projects that are important to the economy

of Sonoma County. It provides identified mitigation requirements that will address

the biology of the species, and provides certainty for stakeholders to move forward

with their projects.

The willingness of the Fish and Wildlife Service to engage in a cooperative conservation plan that supports the President’s Executive Order on cooperative conservation issued in August of 2004 has resulted in a successful partnership that is

directly benefiting the welfare of the salamander while preventing serious financial

detriment to Sonoma County.

Both Will and Sonoma Counties’ experience demonstrates the great potential for

a new collaborative locally-driven approach to the conservation of endangered species. We believe that provisions for to encourage it—and to remove barriers to it—

should be built into the ESA.

Second, NACo believes that science must be used more effectively in all aspects

of implementing the ESA. I recounted for you the initial success of our effort to encourage Will County private property owners and municipalities to reduce their

pumping of groundwater in order to improve the Hines Emerald Dragonfly’s habitat

along the Des Plaines River. This effort was made possible by the fact that we had

in our hands the results of a unique hydrological study which traced the map of the

aquifer which feeds the habitat. This information enabled us to persuade groundwater users to voluntarily reduce pumping in ways that will improve the habitat.

However, we were only able to afford the study because the U.S. Army Corps of Engineers happened to have money available from penalties paid by a local party in

violation of section 404 of the Clean Water Act. Obviously, essential information

should not be available only to those communities ‘‘lucky’’ enough to have large

Clean Water Act violations in the neighborhood. We know, by our own experience,

that local governments and their citizens want to do the right thing to protect

threatened and endangered species, but we need to take action based on good information. Too often, actions are prescribed by the Federal Government on the basis

of a scientific record that is incomplete and unpersuasive to all the stakeholders.

We believe that a major investment needs to be made in gathering and interpreting

data in a way that is open and transparent so that it can withstand the scrutiny

of both the scientific community and can command the respect of the public.

Third, NACo believes that the ESA could be strengthened and improved by creating more opportunities for states and local governments to encourage and facilitate conservation measures. Again, we believe that local people want to do the right

thing, but more often than not they lack the tools to get the work done on the

ground. There is so much more that Will County could do to protect and enhance

the habitat, and thereby the populations, of threatened and endangered species and

species of concern, if we only had funding available. If the goals of the ESA are indeed a national priority then the burden of meeting them rests with Congress.

Counties stand ready to implement sensible strategies at the ground level, but it

is simply unjust to expect all the costs to be borne by our local property tax payers.

Ultimately NACo believes that environmental values must be balanced with socioeconomic values to achieve a policy which results in a high degree of environmental

protection while also preserving and enhancing local community sustainability.

County officials and their constituents are as keenly aware of the historical, economic and aesthetic values of their local environment as they are certain of the need

to prepare for a sustainable future to assure the viability of their communities. We
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look forward to being your partners ‘‘on the ground’’ as we work toward these common goals.

RESPONSES BY MICHAEL A. PASTERIS TO ADDITIONAL QUESTIONS

FROM SENATOR CHAFEE

Question 1. What areas of the ESA could be strengthened to improve collaboration

and communication between local governments and State and Federal agencies?

Response. Recovery actions are identified as part of recovery plans. Stakeholders

(public, private and not-for-profit) are identified that could have a potential role in

implementing recovery actions, however, there is no formal buy-in to that implementation so key recovery actions may never be realized. Once recovery plans are

completed, there is no communication or follow-up between the Fish & Wildlife

Service (FWS) and local agencies or other stakeholders to determine if actions have

been undertaken or if so, determine their status. Here is what can improve the ESA.

Expand section 4 of the ESA to allow stakeholders the opportunity to participate

in recovery planning. Local agencies can provide good technical information about

the local threats to species or habitats, and potentially could be involved in identifying critical habitat. A more open and transparent process could result in more active participation by all stakeholders in recovery actions.

A formal mechanism should be included in section 6 of the ESA that empowers

the FWS to enter into formal agreements with individual stakeholders, for example

cooperative conservation or management agreements, at the time of the recovery

plan adoption or shortly thereafter. The agreement can identify roles and responsibilities, management actions and schedules, monitoring and reporting on the status of the listed species populations, and could be the venue through which Federal

financial and/or technical assistance is made available to stakeholders. This would

allow State and Federal agencies to better track and modify management actions

as appropriate to benefit the listed species.

A formal mechanism should be included in section 6 of the ESA that allows the

FWS to enter into agreements with local government agencies, not just with State

agencies, allowing funding to become available for specific initiatives such as scientific research or land acquisition by the local agency.

Expand section 7 of the ESA to allow for more formal collaboration with local

agencies in endangered species consultations, specifically in identifying mitigating

actions in instances of takings or loss of critical habitat. Local agencies can provide

technical input, and in our case as a conservation agency, offer opportunities for

public land to be used as mitigation for recovery or restoration work.

Expand section 7 of the ESA to formalize and allow the FWS a more active role

in facilitating and funding Habitat Conservation Planning. This can involve a variety of stakeholders (public, private, and not-for-profit) working collaboratively to effect conservation initiatives for listed species and their habitat.

Question 2. How have the efforts to protect and recover listed species in your Forest Preserve District been primarily funded? Have significant amounts of State and

local funds gone into the effort?

Response. With some minor exceptions through the local Chicago Office of the

FWS, nearly all the funding is provided by the Forest Preserve District (FPD). The

FPD is a special unit of county government funded through local real estate taxes.

Large capital projects such as land acquisition and land management/restoration

have been funded through voter approval of special referenda. In our case, Will

County voters approved a $70 million referendum in 1999, of which $50 million was

for land acquisition and approximately $5 million for restoration/land management.

In April 2005 Will County voters approved a $95 million referendum, of which $82

million is for land acquisition.

These funding initiatives address a wide spectrum of FPD goals and priorities, of

which endangered and threatened species gain indirect not direct benefits; for example, we may protect suitable habitat or land that can be restored to suitable habitat,

but very little FPD funding is going toward species specific management actions

that directly relate to recovery actions.

Question 3. How do local land use decisions and planning laws come into play as

your District works to recover endangered and threatened species?

Response. The FPD is not a regulatory agency with respect to land use/zoning

laws or planning decisions. Some local agencies or municipalities provide the FPD

an opportunity to review proposals, most do not except when the proposal is immediately adjacent to FPD land. In this case our role is reactive rather than proactive

by providing information to other local agencies that do have that authority. In most
50

cases local economic interests take precedent over species or habitat protection but

in some cases the FPD may influence local agencies or the developer to agree to redesign to minimize impacts.

The sole exception is in regard to the development and implementation of the

county’s Land Resource Plan. FPD assisted the County of Will in development of

this plan by identifying and quantifying unique remnant natural resources with the

county. The plan is used by the county to regulate growth in unincorporated parts

of the county. However, even in this case the FPD is only advisory and we have

no regular authority.

Question 4. What has been your experience in working with the Federal Government in cooperative conservation partnerships for species conservation and recovery

in your region?

Response. The FPD has a very good working relationship with the Chicago Office

of the FWS. They have been responsive, provide technical expertise and want to

partner with us to affect conservation initiatives. Efforts, however, are very limited.

Much more could be accomplished at the local level if more funding were made

available to local agencies like the FPD.

RESPONSE BY MICHAEL A. PASTERIS TO AN ADDITIONAL QUESTION

FROM SENATOR INHOFE

Question. What steps can Congress take to ensure that consideration of local conditions is paramount during the ESA process? Should Congress consider ways to encourage or require the FWS to actively solicit the input of local governments and

landowners in the regulatory process? Where should this occur? In data gathering?

At listing? During the critical habitat consideration?

Response. I believe the ESA process should be balanced, open and transparent.

It should consider local interests and conditions on par with other regional or national interests, along with the best scientific data available. The FWS should be

required to actively solicit potential stakeholders, including local governments and

landowners, to participate in the recovery planning process. This participation

should occur when data are gathered, at the time of listing, and in the identification

of critical habitat. Local government conservation agencies like the FPD can play

a key role by providing technical information about species distribution, status, critical habitat and recovery actions needed; knowledge of local threats and issues; and

can identify other local stakeholders and contacts that the FWS should include in

the ESA process.

RESPONSES BY MICHAEL A. PASTERIS TO ADDITIONAL QUESTIONS

FROM SENATOR JEFFORDS

Question 1. Please describe the specific tools that you feel State and local governments need to encourage private individuals to protect listed species?

Response. Maintain or expand fiscal support to the Private Land Stewardship and

to the Safe Harbor Agreement Programs. These provide the opportunities for the

FWS to partner with landowners that want to implement listed species and habitat

conservation initiatives. Additional financial support to these programs could be provided to landowners participating in formal agreements with the FWS that achieve

identified recovery actions—such as tax incentives or incentives for entering into

conservation easements that in turn have tax benefits. Easements can be flexible

and structured to allow the landowner to continue with a variety of sustainable uses

of their property.

Also formalize and expand the FWS role in habitat conservation planning (see responses to questions from Senators Chafee and Inhofe for more detail).

Question 2. What changes are needed under the ESA to improve partnerships between Federal, State and local participants?

Response. Expand sections of the ESA that allow for a more formal partnership

between local governments and the FWS for recovery planning, implementation of

recovery actions or assessment of reasonable prudent alternatives or mitigating actions for takings or loss of critical habitat (sections 4, 6 and 7 of the ESA, see responses to questions from Senators Chafee and Inhofe for more detail).

Partnerships can be formalized though written agreements, such as cooperative

conservation or management agreements, which allow for funding to flow to local

units of government to acquire land or implement other actions directly addressing

species recovery efforts.
51

STATEMENT OF DWAYNE SHAW, EXECUTIVE DIRECTOR, DOWNEAST SALMON

FEDERATION/DOWNEAST RIVERS LAND TRUST

Dear Senators and Senate Staff Members, I welcome the opportunity to stand before you this morning and I appreciate the tremendous commitment you have made

to bring forth information to your colleagues in Congress regarding the status of the

fisheries, wildlife and waters of the United States and beyond.

The tremendous bounty and natural beauty of our environment is a gift that has

been bestowed upon us and has co-evolved with us over many millennia. Stewardship of and respect for our fellow inhabitants on this planet is a responsibility which

was delivered to each of us by previous generations and which we have a responsibility to pass on to the next generations. In this regard, the Endangered Species Act

is perhaps our most enlightened of all laws and exemplifies our commitment to protect and restore the most vulnerable of all creatures and their habitats.

After 32 years, the Act remains among the most popular and effective environmental laws of our country. I believe the public support for this law exists because

it is viewed as a strong response to an unacceptable and most often an entirely

avoidable loss of a species.

I come to you from the Northeastern most hinterlands of our country, Washington

County, ‘‘The Sunrise County’’ of Maine. This is a hardscrabble Yankee region now,

most known for lobsters, lumber and leisure (for the tourists and summer people

‘‘from away’’)—but is also known as the home to five of the eight remaining rivers

in the United States with wild populations of Endangered Atlantic salmon.

Three other wild Atlantic salmon rivers in the United States designated under the

ESA are also in Maine, though historically the Atlantic salmon ranged throughout

most of New England in numbers plentiful enough to have been, at one time, a

source of fertilizer for farmers fields and even up until very recently a great recreational and economic resource in our very poor region.

The wild Atlantic salmon is often referred to as ‘‘the King of Freshwater Game

fish’’ and its loss to our region has meant the loss of millions of dollars in tourist

and fisheries revenues. The Atlantic salmon is a fabled species that the European

settlers were pleased to find in abundance upon arriving on this continent. In fact

the earliest documented stone pictographs found throughout the British Isles are ornate carvings of Atlantic salmon. It is clear that both the Europeans and First Nation peoples of this continent possessed great reverence and placed high value upon

salmon as a food source and symbol of life, vitality, abundance and perseverance.

This reverence and symbolism persists, despite the atrocities dealt by our ignorance

upon our fisheries and waters. The ESA and it’s implications for the restoration of

this species—and many, many other species—illustrates that current generations

understand the need to protect our heritage and our interconnectedness with the

environment of our ancestors and of generations yet unborn.

And is the ESA protecting salmon? From direct experience on the ground working

to protect and restore Atlantic salmon in Washington County and beyond for the

past 22 years, I can tell you that the positive implications under the ESA for our

salmon have been the difference between night and day in Sunrise County.

In 2000 the Atlantic Salmon ‘‘Distinct Population Segment’’, encompassing at first

seven and later eight rivers in Maine was granted emergency Endangered Status

under the ESA. Unfortunately, this designation was granted only after a lawsuit

was threatened by several conservation organizations including Trout Unlimited

and the Atlantic Salmon Federation—with whom my organization is affiliated. The

bottom line at that time was that the State of Maine, under then Independent Governor Angus King, sought to circumvent the listing via implementation of a ‘‘State

Recovery Plan’’ sanctioned and approved under the ESA 4–D rules. This approach

was widely encouraged and endorsed by industry and economic development forces

in the state. Many angler groups and other conservationists were drawn into the

‘‘state plan’’ because it promised a much greater level of industry cooperation and

government interest and investment than the preceding decades—during which very

little attention was paid to serious population enhancement efforts and habitat protection. However, when it became apparent that Governor King and his Salmon

Task Force were more interested in maintaining the status quo than seriously retooling and applying needed resources to the situation, it was very fortunate that

the Federal services were standing by to pick up the pieces.

Provisions under ESA allowing for the states to manage species recovery under

the 4–D rules should be examined very closely by your committee, particularly within the context of the Maine Atlantic salmon case study. Many believe that valuable

time was lost for the Atlantic salmon while the State reacted to the interests of a

few influential user groups.
52

Over two decades ago, our organization—the Downeast Salmon Federation—was

formed by five separate ‘‘salmon clubs’’ in the eastern region now encompassed

under the ESA salmon plan. In 1982 these clubs, representing several hundred

members, recognized the problems facing the populations at risk and, in part, created the Federation to advocate for better management. Despite the fact that fishing

for salmon is no longer allowed and to the surprise of many, our total number of

supporters remains nearly the same or greater—even though it is no longer possible

to buy a salmon license or to find a well stocked fly shop in our small towns.

The listing of the species and the greater attention drawn to the situation has,

in the end, brought together the community and helped to build new local partnerships. This, combined with the additional funds and resources provided under the

moderately heightened Federal salmon programs, gives new hope that a dire situation will improve. This hope and optimism is what draws the private sector into the

greater effort—again, despite the fact that fishing was ended several years ago.

Federal funds directed toward salmon recovery through ‘‘challenge grants’’ issued

by the National Fish and Wildlife Foundation are particularly effective in sustaining

public investment and interest. In just the past three years, our organization has

brought in an estimated 2 million dollars worth of private investment into salmon

recovery in the poorest county in our State and one of the poorest in the nation.

These numbers are phenomenal and have been largely attributable to small Federal

‘‘seed’’ investments in our outreach efforts and all made possible because of the listing. While the numbers themselves are impressive, what is more impressive is the

impact that a well orchestrated education and outreach effort can have on the

‘‘hearts and minds’’ of the communities in which an endangered species lives. Again,

as in most situations, prevention is the most cost effective method of dealing with

environmental degradation. By working closely with landowners and communities

we have, at the very least, helped to prevent many habitat impacts and in reality

also restored many sites that had been neglected or remained unidentified.

So are all things rosy with the implementation of the ESA in ME? Not quite. Let’s

look at a few of the obstacles starting with the hearts and minds issue.

Any effort of the scale and magnitude of prevention of loss of a species—even one

as widely charismatic as the salmon—requires a solid understanding on behalf of

the public of the issues (preventable problems) affecting the declines of the species

and a greater patience and compassion for the overall effort.

In my experience outreach to stakeholders requires a consistent message or series

of messages delivered face to face, neighbor to neighbor or peer to peer at the local

level. This can be best achieved by a local group, with a passion for the effort and

with a true connection to the community(ies) involved. This cannot however, always

be accomplished without Federal investment. In the case of Atlantic salmon, Federal

dollars in the form of challenge grants or direct dedicated funding remains the single greatest source of support for our watershed councils and other local efforts. The

community must be involved in a true partnership or ‘‘co-management’’ sense. In

Maine, as in the Pacific Northwest, a local ‘‘watershed council’’ approach to achieving ‘‘buy in’’ for salmon restoration projects remains an enlightened and successful

method of protecting and beginning recovery of endangered fisheries. Federal investments in local outreach initiatives must be an integral—and not an optional—part

of the Act in years to come.

And finally, if I am to avoid being brined for lobster bait by my friends and colleagues back home, I will end with two points of common concern to so many involved in the Atlantic salmon restoration program:

First, of course, is the need for additional Federal resources. A more equitable and

consistent funding mechanism needs to be developed for all ESA listed species. The

discrepancy between funding levels between Atlantic salmon and Pacific salmon

should be addressed. The delays and uncertainties that developers struggle with

under the ESA are the same conditions that stall our recovery actions. A well funded program will float all boats.

Lastly, in Maine, the Atlantic salmon listing has been a ‘‘Joint Listing’’ with

USF&WS and NOAA both equally responsible. While there may be advantages in

bringing the resources of the two agencies to bear upon the situation, this dual leadership can mean that action planning moves slowly with poor coordination. An examination of the provisions under the ESA that allow for this situation should be

reviewed with a mind toward streamlining the bureaucracy without creating a net

loss of Federal resources.

I appreciate the time provided to me before you today and I thank you for your

invitation.
53

RESPONSES BY DWAYNE SHAW TO ADDITIONAL QUESTIONS FROM SENATOR CHAFEE

Question 1. Your testimony refers to the problems associated with the initial push

for a ‘‘State Recovery Plan’’ for listed Atlantic salmon populations in Maine. For

what reason would this plan have been detrimental to salmon populations in your

state.

Response. The State of Maine initiated a State conservation plan for Atlantic

salmon after a citizen petition to list the species was filed. The State plan was initially accepted by the Federal services and as a result delayed the full protection

of the species and it’s habitat for approximately three years—until such time as a

lawsuit was threatened by several environmental groups including Trout Unlimited

and the Atlantic Salmon Federation. So, the provisions under which a ‘‘state plan’’

was allowed—even when it had been previously determined that the species deserved Federal protection—assured that industry and State government interests in

maintaining status quo efforts and protections would prevail. The period of time

when the ‘‘state plan’’ was supposedly being implemented saw threats to salmon

populations actually increase. These threats included irrigation, cranberry development in wetlands with resulting siltation of spawning beds, clearing of riparian forests for expansion of blueberry irrigation, increased use of pesticides in the riparian

zone and very likely an increased drift of those chemicals to the rivers in question,

increased logging ‘‘liquidation harvesting’’ resulting in the lowest standing stock of

forested areas within these watersheds in history. The bureaucratic smoke screen

the State created to try to prevent the listing ultimately resulted in a State lawsuit

against the Federal Government that claimed the genetic information used to support listing was flawed.

Question 2. What resources has the State of Maine invested in Atlantic salmon

recovery efforts? Is there a Recovery Plan in place for Atlantic salmon in Maine?

Response. It is my estimate that the greatest single financial investment made

by the State of Maine with regards to endangered salmon in recent years were paying the attorney fees and staff time associated with suing the Federal Government

to prevent the listing and adequate protection of the species.

While some of this may sound pessimistic or cynical I feel that this is a fair and

accurate account of the situation. I have been very close to the whole process during

the past decade and it is with some regret that I feel compelled to tell it as I see

it.

I do not want to leave the impression that all state/industry recovery efforts are

hollow, but in the case of Atlantic salmon and the Maine experience there were—

and continue to be significant problems. Currently there is a draft Federal recovery

plan in place and the species is listed as endangered. As was stated many times

during the pre-listing and State plan era, industry cooperation and investment did

diminish, post listing. The reality however is that the industries involved in developing the State plan had little intention of actually implementing the plan and the

State largely followed their lead.

Question 3. I enjoyed the line in your statement that AA well funded program will

float all boats. What are the current difficulties with existing funding streams for

Atlantic salmon conservation and recovery efforts?

Response. I can say the greatest difficulty with existing funding streams for salmon (and other threatened fishes/eries) is that we do not have a powerful ‘‘champion’’

in Congress who can assure adequate investment of Federal dollars. This is a major

problem or vacuum that perhaps Senator Chafee could help to resolve. We need a

champion and this is evidenced by the vast differences in investment being made

in the Pacific NW vs. New England—particularly with regards to salmon.

On the State side of things, we have a State that is largely controlled by timber

and business interests who are threatened by the science that supports adequate

protection of water quality. As a result very, very little State money is available for

protection of the last American stocks of the ‘‘King of Freshwater Gamefish’’. Many

of our State financial problems stem from over exploitation of natural resource

wealth such as in our fisheries and timber lands. The fox is often not a good ‘‘team

player’’ when it comes to protecting the chickens.

Our State agencies and Federal fisheries agencies as so far behind in their ability

to adequately manage migratory fisheries such as salmon, eel, alewives and shad,

that reports and plans from the 1800’s are still yet to be implemented. I say this

with a straight face and with evidence in hand.

Our tiny conservation group located here in one of the poorest counties in the

Eastern United States has worked for years to document fisheries declines and in

doing so have unearthed a number of interesting findings. Take for instance the

1870 era State fisheries report that highlighted the technical breakthrough of fish
54

ladders. The first fish ladders were being demonstrated on the East Machias and

Orange Rivers at the time. They were a resounding success and were supposed to

have harkened in a new era. The Orange R has been dammed up without a fishway

in place for the last twenty years because no State or Federal agency has had the

resources to really pay attention, so a demonstrated fisheries success in the 1800’s

is now a major impediment to fisheries in the year 2005. This is just one example,

but illustrates the backward movement that we are facing in some circumstances.

This is absolutely horrible and inexcusable in this day and age.

My statement that adequate funding would float all boats is I think a truism.

Whether seeking permits for development or restoration the current level of staffing

and staff expertise in State and Federal fisheries and resource agencies is lacking.

Likewise, funds are lacking for the implementation of a successful recovery program

thereby ensuring that the salmon will remain endangered or move further toward

extinction. All ‘‘boaters’’ would like to see the salmon moved off the list and viable

populations recovered. This will cost money, but the investment made will save

money (and maybe the species) in the long run.

RESPONSES BY DWAYNE SHAW TO ADDITIONAL QUESTIONS FROM SENATOR JEFFORDS

Question 1. Please describe how you would like the 4–D rules dealing with states

management of species recovery to be implemented?

Response. The 4–D rules need to be strictly implemented under full ESA obligations to recovery. The experience in Maine with Atlantic salmon suggests to me that

states—under pressure from industry—can abuse the ‘‘freedoms’’ allowed under 4–

D. The State of Maine Atlantic Salmon Conservation Plan did affect a very slight

incremental upward emphasis on salmon protection, but the positive effects were

greatly surpassed by additive development pressures and resource exploitation during that same period.

Question 2. Your testimony states that prevention is the most cost-effective method of dealing with environmental degradation. How can the Endangered Species Act

be improved to increase the incentives for prevention?

Response. I believe that the ESA can be improved to prevent species declines

through very serious investments in outreach and education as soon as a species

is known to be imperiled or becomes what is referred to as a ‘‘candidate species’’.

The ESA should also not be viewed as a stand alone law. There are many other

environmental laws that need to be better enforced as a means of preventing habitat

and species loss. For instance, my organization monitors water quality. The storms

this fall have brought the pH in the Pleasant River (one of the listed salmon rivers)

down to pH 4.4! At this rate, we will end up with salmon extinction and endangered

populations of other aquatic species. The Clean Air Act needs to be implemented

better. We are now looking at liming our rivers—as the Nova Scotians are beginning

to do at exorbitant cost—in order to prevent further declines. This is a pay now or

pay even more, later scenario. Liming rivers is expensive. We must only ask the

Norwegians what they expend each year to lime their rivers.

Prevention costs money, but it is the cheapest alternative. The health of our ecosystems is like the health of our bodies—everyone knows that prevention of problems is best. We are not implementing what we know will prevent problems for us

in the future. Please see my response above to Senator Chafee regarding implementation of government fisheries recommendations from the 1800’s that are still common and recurring problems today (i.e., dam on Orange R.).

Question 3. Please give your perspective on the cultural and historical importance

of the salmon economy to your people and the region?

Response. The salmon are a cultural icon for the people of this region—representing all that is good about the vitality of our environment. The salmon embody

the determination to succeed that is so much a part of the psyche of the Yankee

and native spirit. The loss of the salmon erodes the heritage and the historical as

well as economic ties to yet another important wild fishery. Maine, New England

and America cannot afford to lose another thread from the cloth of which we are

made.

From a strictly economic perspective, salmon were an important commercial species up until the mid 1940’s. They have also long been an important gamefish species that attracted many thousands of tourist anglers annually to ME. In the case

of our particular situation in Washington County where five of the eight ESA listed

salmon rivers occur, a fishable population of salmon would bring in hundreds of

thousands of dollars annually to a region that is among the poorest in the United

States. Fisheries are serious business here and there is great resentment that yet
55

another fishery is moving closer and closer toward it’s final chapter. Many of the

people of this region stand ready to help in whatever way possible, but there needs

to be solid leadership and support from the powers that be.

STATEMENT OF ROBERT P. DAVISON, WILDLIFE MANAGEMENT INSTITUTE

Mr. Chairman, Members of the Subcommittee, I am Robert P. Davison, Field Representative in the Northwest office of the Wildlife Management Institute (WMI),

Corvallis, Oregon. WMI was established in 1911 and is staffed by professional wildlife scientists and managers. Its purpose is to promote the restoration and improved

management of wildlife in North America. I appreciate this opportunity to provide

the views of WMI on the role of States, Tribes, and local governments in implementation of the Endangered Species Act (ESA).

In addition, as the Chair of The Wildlife Society’s Technical Review Committee

on the ESA, I will present those portions of the Committee’s report, ‘‘Practical Solutions To Improve The Effectiveness Of The Endangered Species Act For Wildlife

Conservation,’’ that address the issues before the Subcommittee today. The Wildlife

Society is an international, non-profit scientific and educational organization serving

and representing wildlife professionals in all areas of wildlife conservation and resource management. The ESA Technical Review Committee was appointed by the

President of The Wildlife Society to ‘‘identify problems limiting the successful implementation of the Endangered Species Act and recommend practical solutions for improving its effectiveness for wildlife conservation.’’ Unlike other Wildlife Society

technical reviews of scientific literature, the committee was charged specifically with

identifying policy problems and potential solutions for the following aspects of the

ESA: (1) listing, (2) critical habitat designation, (3) conservation on private land, (4)

involving State fish and wildlife agencies, (5) species recovery, (6) interagency section 7 consultation, (7) consideration of distinct population segments, and (8) ensuring sound decisions. The role of States and Tribes is addressed in each of these aspects of the ESA. The technical review paper presents the views of the appointed

committee members, but not necessarily the views of their employers or The Wildlife Society. If the Society decides to develop a position statement based on the review paper, a preliminary version of that statement will be published for comment

by Society members. Following the comment period, revision, and Council’s approval, the statements are published as official positions of The Wildlife Society.

SECTION 6 COOPERATIVE AGREEMENTS

Under the ESA, States and the U.S. Fish and Wildlife Service and NOAA-Fisheries (Services) share jurisdictional authority for listed species. When the ESA was

passed in 1973, Congress stated, ‘‘the successful development of an endangered species program will ultimately depend upon a good working arrangement between the

Federal agencies, which have broad policy perspective and authority, and the State

agencies, which have the physical facilities and the personnel to see that State and

Federal endangered species policies are properly executed.’’ Section 6 requires the

Services to cooperate to the maximum extent practicable with the States in carrying

out the program authorized by the ESA.

Cooperative agreements between the Services and the States under section 6 of

the ESA are the means by which the Services certify that States have established

and maintain adequate and active programs for the conservation of listed species.

Currently, States and Territories have entered into 89 section 6(c) cooperative

agreements with the Interior Department. Eight States and two Territories have entered into cooperative agreements with the Commerce Department that encompass

15 listed species under the jurisdiction of NOAA Fisheries. All States and six Territories have at least one cooperative agreement for some species of fish and wildlife

or plants. Many States have multiple agreements. The State of Oregon, for example,

has three cooperative agreements that cover vertebrate fish and wildlife, plants, and

invertebrate species. For those States that have entered into cooperative agreements, the grant program established under section 6 provides funds to State fish

and wildlife agencies to cooperate in efforts to maintain and recover listed species

and to monitor the status of candidate species and recently recovered, delisted species.

Issues of Concern

1. Implementation of the ESA would be improved by greater partnerships with

State fish and wildlife agencies in carrying out the ESA.

2. State fish and wildlife agencies are not being provided adequate and stable

funding from the section 6 Cooperative Endangered Species Conservation Fund to
56

fulfill State roles in the conservation of endangered and threatened species. Eighteen years ago, the Senate Environment and Public Works Committee expressed the

concern that ‘‘current Federal/State cooperative efforts to protect endangered species

also are inadequate and are in danger of disintegrating altogether.’’ The Committee

noted that the amount of money appropriated in fiscal year 1988 for matching

grants to States under section 6 was roughly the same as it was in 1977, yet there

were four times as many cooperative agreements in 1987 as there were a decade

earlier. Matters only have gotten worse. By the start of fiscal year 2006, there are

1,264 listed U.S. species—more than 6 times the 194 U.S. species listed in 1977—

yet the $9.9 million appropriated in State grants under section 6 for this coming

fiscal year has only somewhat more than one-third as much buying power as the

$4.3 million provided in 1977.

3. State expertise, data, personnel, and working relationships with others still are

not sufficiently utilized in ESA decisions and actions.

4. Too often, too little is done too late to make listing unnecessary. To a significant extent, a factor contributing to this problem is that there are insufficient financial incentives and regulatory assurances to facilitate actions by States that would

make listing unnecessary.

5. Day-to-day cooperation between the State fish and wildlife agencies and the

Services in administration of the ESA continues to be hindered by the Federal Advisory Committee Act (FACA).

Potential Solutions

Funding Options

The Administration should request and the Congress should appropriate adequate

funding under section 6(i) of the ESA to assist States in building a strong partnership for conservation of candidate, threatened, and endangered species and monitoring of recovered, delisted species.

Administrative or Legislative Options

1. The States, where they have the fiscal resources, expertise, staff, and political

support to do so, should play a much greater role in administration of the ESA.

2. State fish and wildlife agencies should have a clearer and more significant role

in efforts to prevent species from becoming candidates and in listing decisions, critical habitat designations, development of recovery strategies, and management and

recovery of listed species.

3. The section 6 cooperative agreement provisions should be redesigned to function as a true partnership agreement requiring close collaboration and coordination

between and among the States and the Services. The section 6 agreement can be

the vehicle to identify the respective roles of the States and the Services. It should

provide the flexibility to allow States that so choose to assume the lead for prelisting

conservation, recovery planning and implementation oversight, administration of

safe harbor agreements (SHA) and habitat conservation plans (HCP), and postdelisting monitoring.

4. The section 6 Cooperative Endangered Species Conservation Fund should be restored to its original intended purpose of providing adequate and stable funding to

State fish and wildlife agencies to fulfill State responsibilities under the ESA.

Grants related to HCP planning assistance and HCP and recovery land acquisitions,

which currently are inappropriately utilizing the authorization provided by the

Fund, should be authorized separately under section 15 of the ESA.

5. Amounts deposited to the Cooperative Endangered Species Conservation Fund

should be made available to the States without further appropriation to make it possible for State fish and wildlife agencies to assume the lead for prelisting conservation, recovery planning and implementation oversight, SHA and HCP administration, and post-delisting monitoring.

A recent agreement between the Arizona Game and Fish Department (AZGFD)

and USFWS Region 2, entitled ‘‘State Wildlife Agency Participation in Implementing the Endangered Species Act: State of Arizona,’’ is one example of a new

direction for States in ESA administration that has promise if accompanied by sufficient funding support (which can be downloaded from http://www.fws.gov/arizonaes/

threatened.htm). The agreement describes the roles and responsibilities of AZGFD

and USFWS for candidate species assessments, prelisting recovery activities, petition management, listing (including reclassification), critical habitat designation,

special rules for candidate and listed wildlife, 5-year status reviews, recovery plan

development and implementation, monitoring of de-listed wildlife species, land and

water acquisition and management, section 7 consultation, law enforcement, habitat

conservation planning, and experimental populations. The AZGFD and USFWS mutually agree that the ESA and section 6(c) cooperative agreement language stating
57

that the Secretary ‘‘shall cooperate to the maximum extent practicable’’ with the

States, ‘‘shall be taken to mean that Region 2 of the Service has offered the Department an opportunity to participate in developing and implementing each recommendation formulated and each action undertaken within this Region pursuant

to the authorities of the [ESA].’’ As part of its section 6(c) requirement to maintain

an adequate and active program for conservation of endangered and threatened

wildlife, the AZGFD agrees to develop ‘‘species-specific or ecosystem-specific conservation strategies for all species of wildlife that are listed, proposed for listing,

candidates for listing, or which may benefit from proactive efforts to preclude the

need for listing pursuant to the Act.’’ Thus, the agreement between the AZGFD and

USFWS brings much greater specificity and sense of partnership to relative Federal

and State roles and responsibilities than previously forged section 6(c) cooperative

agreements or the 1994 USFWS national policy on the subject. Lack of funding to

support the agreement, however, has limited its effectiveness and the likelihood that

it will be replicated by other States.

LISTING AND CRITICAL HABITAT DESIGNATION

The ESA’s section 4 requires consideration of efforts by States in making listing

or critical habitat determinations. Actual notice of proposals must be given to conservation agencies in affected States. If a final regulation is issued that conflicts

with State agency comments, or a regulation is not adopted in response to a Statepetitioned action, a written justification must be provided for ‘‘failure to adopt regulations consistent with the agency’s comments or petition.’’ These requirements generally were incorporated into regulations in 1984 (50 CFR 424). Some of the current

issues concerning listing and critical habitat designation are related to this quite

limited role for States under section 4.

Issues of Concern

1. Implementation of the ESA would be improved by greater partnerships with

State fish and wildlife agencies in the efforts to prevent the need to list species.

2. Too often, too little is done too late to make listing unnecessary. To a significant extent, a factor contributing to this problem is that there are insufficient financial incentives and regulatory assurances to facilitate actions by States that would

make listing unnecessary.

3. The ESA does not require explicitly soliciting information held by States, sharing information with States, or involving States in listing and critical habitat designation decisions. While not required explicitly by the ESA, the Services have a policy to carry out this kind of coordination. In some instances, however, information

from State wildlife agencies may not be sufficiently sought, used, or considered in

listing decisions.

4. State expertise, data, personnel, and working relationships with others still are

not sufficiently utilized in ESA listing and critical habitat decisions and actions.

Potential Solutions

Funding Options

Federal funding should be provided to the States to conduct monitoring and evaluation of species at risk (e.g., species on the candidate list, and those on each State’s

heritage program list of C1 and C2 species, sensitive species list or the equivalent).

Administrative or Legislative Options

1. State fish and wildlife agencies should have a clearer and more significant role

in efforts to prevent species from becoming candidates and in listing decisions, critical habitat designations, development of recovery strategies, and management and

recovery of listed species.

2. State fish and wildlife agencies should be more involved early and throughout

the listing process, including in down-listing decisions. This involvement will facilitate States providing necessary information and help States formulate management

decisions and communicate with the public. Similar efforts should be made with Native American Tribes.

3. Encourage the Services to work with interested State fish and wildlife agencies

in development of a memorandum of agreement (MOA) under section 6 of the ESA

to provide greater certainty and specificity with regard to coordination and collaboration on activities under section 4 of the ESA. The AZGFD–USFWS agreement

may serve as a good template.

4. Encourage the Services to utilize State fish and wildlife agency and Native

American Tribal expertise in conducting population status inventories and geographic distribution surveys by contracting with the States or Native American

Tribes for data collection, review, and analyses.
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5. Involve State fish and wildlife agencies in development of guidance on how to

identify, quantify, and map critical habitat, assess the economic and other impacts

of designation, and balance the benefits of designating any specific area in comparison to the benefits of not designating.

6. Involve State fish and wildlife agencies in identifying and designating critical

habitat.

7. Categorically exempt State fish and wildlife agencies from FACA restrictions

so that these agencies are able to participate as equal conservation partners, not

as public stakeholders, in freely sharing information and contributing expertise to

the listing and critical habitat designation processes. This exemption would help ensure that the Services have the best available information; the States would not

have to react to Service proposals at public hearings where it would be a greater

advantage to have State and Federal agencies in agreement about resources within

their authorities; and the States could help their publics know the reasons and impacts of listing decisions.

RECOVERY

The purpose of the ESA is to prevent species extinctions and then provide measures to help bring species back to the point at which the measures provided by the

law are no longer necessary. Recovery of species is one metric by which the success

of the ESA may be evaluated, but it must be used with care because halting or reversing declines that in some instances have developed over 200 years requires long

periods of time and a strong commitment to fund and implement actions that will

lead to recovery. Currently, recovery efforts are inadequate for most, if not for nearly all, listed species. More effective efforts to recover species requires not only increased spending, but also coordinated undertakings by a broad array of landowners, public agencies, and stakeholders. These efforts also require better and

user-friendlier incentives to private landowners who often are willing to undertake

efforts to protect and recover endangered and threatened species.

Once species have been recovered and delisted, section 4(g) requires the Secretary

to ‘‘implement a system in cooperation with the States to monitor effectively for not

less than five years the status’’ of those species. The USFWS has addressed this requirement through adoption of species-specific monitoring plans developed in cooperation with States, recovery teams, and public input.

Issues of Concern

1. Recovery is established under the ESA as the responsibility of all agencies, in

partnership with the States. In reality, given the importance of non-Federal lands

to conservation of listed species, partnerships with Native American Tribes, local

governments, NGOs, and private parties also are essential to recovery of many listed species. However, recovery, unlike listing or consultation, has not evolved as a

mandatory duty of any party. It is largely a voluntary endeavor driven by enlightened self-interest. As a result, there has been great disparity among species receiving recovery attention, and many species do not have sufficient funding or attention

devoted to them to achieve significant recovery progress. (The most recent report to

Congress on State and government expenditures for implementing the ESA, covering fiscal year 2002, showed that 50 percent of the funding was focused on only

17 species [1.3 percent of all those listed under the ESA]. While general [i.e., nonland acquisition-related] expenditures were ≥$1 million for 87 species, the median

expenditure for all species was only $14,100.)

2. Recovery plans are needed to establish a roadmap for recovery activities, but

the Services have been hard pressed to produce in timely fashion recovery plans

that reflect a good understanding of species recovery needs and a reasonable consensus among species experts and affected publics. There is inherent tension between the competing demands for appropriate scientific certainty about threats and

the effectiveness of conservation measures, the involvement of stakeholders in the

recovery planning process, and rapid production of a recovery plan with reasonable

consensus of the recovery team. As a result, recovery plans often take significant

time and firnding to produce, are not revised and updated as frequently as they

should be, and are not sufficiently integrated with other, regional, State, and local

efforts.

3. Recovery plan implementation usually involves commitment of staff time or

funding, both of which are often in short supply. Much has been accomplished in

the last 30 years through altruistic action and cooperation, but the overall need for

recovery action far exceeds the level of effort that has been applied to date.

4. Implementation of the ESA would be improved by greater partnerships with

State fish and wildlife agencies and Tribes in efforts to recover species.
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5. The Services lack comprehensive policy and procedural guidance on how to

comply with the statutory requirement to monitor the status of species that have

recovered and been removed from the lists of threatened or endangered species.

Such guidance needs to be developed in conjunction with State fish and wildlife

agencies to ensure that effective post-delisting monitoring plans are produced in

timely fashion and in cooperation with the States that will be assuming management responsibility for the species post-delisting.

Potential Solutions

Administrative Options

1. Recovery plans should:

(i) assess risk and focus on amelioration of threats to species;

(ii) be developed by teams that are of manageable size and sufficiently diverse

so as to include needed expertise and representation of entities responsible for

management of the species or its habitats, including State fish and wildlife

agencies, Federal land management agencies, and others essential to recovery

implementation; and

(iii) include provisions for regular monitoring and reporting to make possible

evaluation of plan effectiveness.

2. The Service should develop, in cooperation with the States, comprehensive policy, and procedural guidance on preparation of post-delisting monitoring plans.

3. State fish and wildlife agencies and Native American Tribes should be provided

with the opportunity to be involved in development, implementation, and monitoring

of recovery plans and plan activities.

4. Native American Tribes should participate in the recovery planning process to

assist in developing measures and monitoring capable of being adopted in Tribal

land-use plans.

SECTION 7 CONSULTATION

Section 7(a)(2) of the ESA reiterates the provisions of section 4 by emphasizing

that critical habitat may be designated by the Secretary only ‘‘after consultation as

appropriated with the affected States,’’ but otherwise makes no reference to cooperation with States in the interagency consultation process. The section 7 regulations

similarly are silent on cooperation with States (50 CFR 402.01–402.48).

Issues of Concern

1. In recent years there have been approximately 70,000 actions/year that have

triggered some form of consultation. On average, >95 percent are resolved through

informal consultation procedures, but even informal consultations can take time and

involve substantial project modifications. Thirty years after passage of the ESA, and

despite the variety of other environmental laws that require consideration of fish

and wildlife conservation (e.g., Clean Water Act, FIFRA, National Environmental

Policy Act, Federal Power Act, National Forest Management Act, and Federal Land

Policy and Management Act), Federal agencies do not often incorporate effective

measures to avoid or minimize the impacts of their actions on listed species until

‘‘forced to’’ by a section 7 consultation.

2. There is rarely perfect information available to establish the effects of an action

on listed species. Once consultation is initiated, the Services must proceed with

issuing a biological opinion based on the best available information, even when that

information leaves many relevant questions unanswered. The Services do an admirable job of producing scientifically sound and defensible opinions in the face of such

uncertainty. The National Research Council review of the biological opinions issued

by the Services for the Klamath Irrigation Project has led some to question the adequacy of the existing consultation process in the face of a high level of uncertainty.

3. The funding and staffing of the Services to carry out their consultation responsibilities have not kept pace with the growth in consultation workload As a result,

Federal agencies and affected third parties are faced with project delays and increased transaction costs. Funding for the BLM, Forest Service, and other agencies

has been inadequate to complete consultation and monitoring work.

Potential Solutions

Administrative Options

1. Federal agencies should be required to work with the Services, State fish and

wildlife agencies, and other experts from the scientific community to resolve areas

of scientific disagreement or uncertainty, to the extent that they can be resolved,

during development of the biological assessments, and then to design their action
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conservatively when faced with scientific uncertainty about project impacts or the

adequacy of offsetting measures.

2. In order to produce timely delivery of section 7 products and decisions and to

minimise transaction costs, the Services should continue and expand their efforts

to work cooperatively with State fish and wildlife agencies during consultations.

3. The Services, in cooperation with State fish and wildlife agencies and other

Federal agencies, should develop methodologies to reduce the times required to comply with section 7 for actions involving incidental take that would have low impacts

or produce net benefits to listed species.

4. Interagency support should be provided and interagency guidelines established

to encourage greater collaborative efforts among State and Federal agency scientists

and managers.

CONSERVATION ON PRIVATE LANDS UNDER SECTION 10

Section 10 of the ESA makes no mention of cooperation with States. In particular,

both the provisions of the law and the associated regulations provide no explicit role

for States in habitat conservation planning. There is a certain irony to this silence

given the increasingly large role played by States and local governments in carrying

out HCPs and other agreements for listed and candidate species under section 10.

State Involvement in Habitat Conservation Planning

During the 1990s, administration of the ESA extended its reach at a great rate

into incidental take activities that previously had received relatively little attention.

From 1982 when section 10 of the ESA was amended to authorize HCPs as a means

of permitting, minimizing, and mitigating incidental take of listed species caused by

non-Federal activities until 1992, only 14 HCPs had been approved. By the end of

2004, however, the USFWS had approved 472 HCPs covering approximately 30 million acres of non-Federal lands and protecting 200 endangered or threatened species. As the number of HCPs has grown, there also has been an increase in the complexity of the plans, the number of covered species, and the size of the areas. In

the evolution of habitat conservation planning from a process adopted primarily to

address single projects to broad-based, landscape-level planning, the role of States

and local governments has become far more prominent. For example, the HCP approved in 2003 for western Riverside County, California resulted from an application by the County of Riverside, Riverside County Flood Control and Water Conservation District, Riverside County Transportation Commission, Riverside County

Parks and Open Space District, Riverside County Waste Department, California Department of Transportation, California Department of Parks and Recreation, and 14

western Riverside County cities. It was developed as both a HCP and a sub regional

plan under the State Natural Community Conservation Planning Act (NCCP),

which is administered by the California Department of Fish and Game. It covers

146 species and more than 1.2 million acres. In 2002, a HCP Land Acquisition

Grant provided $9 million from the section 6 Cooperative Endangered Species Conservation Fund to acquire key core habitats for the threatened coastal California

gnatcatcher and endangered least Bell’s vireo and Stephens’ kangaroo rat.

As the USFWS greatly expanded the use of HCPs in the last decade, State and

local governments increasingly drove their development. Approximately 30 percent

of all approved HCPs resulted from applications by local governments or State agencies or both. The statewide HCP developed for the Karner blue butterfly by the Wisconsin Department of Natural Resources (WDNR) provides an interesting model for

States to regain primary management responsibility for listed species. The WDNR

is responsible for compliance with the conditions of the Federal incidental take permit and HCP implementation. The State HCP and permit serve as an umbrella that

provides incidental take authority to 26 other partner entities that have developed

individual conservation agreements with the WDNR. Under this arrangement, the

resident ESA-listed species remain under the jurisdiction of the State fish and wildlife agency, which is most knowledgeable about the species, its status, and its existence in the State. Unfortunately, this promising approach so far has not been replicated by other States.

State Involvement in Safe Harbor and Candidate Conservation Agreements

State agencies and local governments have played a larger role in the innovative

use of authority under section 10 of the ESA to enhance the survival of endangered,

threatened and candidate species through use of SHAs and candidate conservation

agreements. State wildlife agencies in Georgia, Alabama, Texas, Louisiana, and

South Carolina all have received Federal funding through section 6 to develop statewide programmatic SHAs for red-cockaded woodpeckers. The States of Texas, South

Carolina, and Georgia entered into early SHAs and received incidental take permits
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under the HCP authority of section 10(a)(1)(B) to promote recovery of red-cockaded

woodpeckers. More recently, States such as Louisiana have entered into these agreements under section 10(a)(1)(A) and received enhancement of survival permits. In

either case, the USFWS issues an umbrella permit to the State wildlife agency, as

opposed to individual permits to each participating landowner. Once overall baseline

responsibilities are identified in the umbrella permits, private landowners, with assistance if necessary by State agencies, are able to fill out a relatively simple evaluation form that documents background information, the baseline, habitat maintenance and enhancement activities, expected net conservation benefits and implementation schedule. Having the State wildlife agency as the delivery system for

statewide red-cockaded woodpecker safe harbor programs reportedly has worked

very efficiently and has been well received by landowners. The lead State role under

SHA umbrella permits is a successful model because it minimizes regulatory agency

transaction costs and bureaucratic burdens to landowners. One-third of all approved

SHAs are with States or local governments.

In 1999, in conjunction with establishment of SHAs, the USFWS further enlarged

the role of section 10(a)(1)(A) of the ESA to enhance the survival of candidate species. Candidate Conservation Agreements with Assurances (CCAAs) offer regulatory

assurances as an incentive for private and other non-Federal property owners to implement conservation measures. States more actively participate in section 10 candidate conservation agreements and CCAAs and than they do in SHAs or HCPs,

which is not surprising given the primacy of State jurisdiction over most of these

un-listed species. To date, eight CCAAs have been approved by the USFWS. Of

these, four are agreements with State wildlife or natural resource agency partners.

A similarly large State involvement exists in candidate conservation agreements approved by the USFWS without any regulatory assurances under section 10 of the

ESA. More than half (61) of these 112 approved agreements are with State agencies.

A recent example demonstrating the likely future role of States in candidate species

conservation is the CCAA obtained by the Montana Department of Fish, Wildlife

and Parks in May 2004. The CCAA is an umbrella style agreement under which

voluntary conservation activities will be implemented to benefit Westslope cutthroat

trout. In conjunction with the CCAA, a permit has been issued for the future take

of the species in conjunction with its recovery in Montana.

Issues of Concern

1. Too many private landowners continue to distrust and fear any application of

the ESA to their lands or activities. These private landowners may actively work

to ensure that listed or candidate species are not attracted to their lands or that

those species already present do not remain. At the very least, they may be unwilling or reluctant to undertake actions that would benefit listed or candidate species.

2. The various landowner incentive programs now available (e.g., financial, regulatory) have not been sufficient to allay fears completely, build trust, and encourage

landowners to conserve listed or candidate species.

3. Conservation of listed species on private lands would be improved by greater

involvement of State fish and wildlife agencies in carrying out the provisions of section 10 of the ESA concerning HCPs and enhancement of survival permits (SHAs

and CCAAs).

4. Implementation of the ESA would be improved by greater partnerships with

State fish and wildlife agencies and Tribes in carrying out conservation efforts on

private and other non-Federal lands.

Potential Solutions

Administrative Options

1. State and Federal land-management financial and technical assistance should

be expanded to assist landowners who undertake actions that contribute to recovery,

and Farm bill conservation programs should be targeted to support landowner actions contributing to recovery of listed species or conservation of species that are

candidates for listing.

2. State fish and wildlife agencies and the Services should establish mechanisms

that make HCPs, SHAs, and CCAAs more accessible to small landowners.

3. Through expanded use of section 6 agreements and other mechanisms, State

fish and wildlife agencies should be allowed and encouraged to assume the lead for

administration of SHA, CCAA, and HCP administration.

CONCLUSIONS

The ESA has been successful in achieving its primary goal of preventing extinction, and the firm statutory duties and strong substantive standards imposed by the
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current law to prevent extinctions and recover species should be maintained. However, the effectiveness of threatened and endangered species conservation should be

increased through improvements to the statute and its funding and implementation.

Greater resources and effort need to be committed to the purposes of the ESA, particularly to the recovery of listed species. Federal spending in support of State programs over the history of the ESA has been extremely low and in decline relative

to spending for Federal efforts. Support and encouragement of complementary State,

Tribal, and private conservation efforts through funding, policies, and statutory provisions are essential to establish and maintain the partnerships that are required

to prevent extinction and recover imperiled species. Existing State and Federal resources should be utilized more efficiently by amending the ESA to lower transaction costs in listing decisions and critical habitat designations. Federal decisionmakers should solicit and use the expertise of State fish and wildlife agencies and

others in a consistent and open manner. Decisions under the ESA should be transparent, replicable, and based on robust scientific analyses of the best available information.

Although the ESA provides clear direction to Federal agencies to work cooperatively with the States to administer the ESA to the ‘‘maximum extent practicable,’’

States are not included as full partners by Federal agencies. Recent attempts by the

USFWS to establish management and cooperative agreements with individual

States have met with some success but the great majority of States have but minimal working relationships with the USFWS with respect to threatened or endangered species.

Federal agencies should coordinate with State fish and wildlife agencies to address landscape conservation issues related to candidate, threatened, or endangered

species. The increasing number of instances in which States have sought and obtained umbrella-style ESA section 10 permits to effectively assume responsibility for

minimizing and mitigating non-Federal incidental take activities and promoting

non-Federal habitat conservation are innovations that should receive greater support. In similar fashion, with adequate funding, the innovation of the AZGFD and

USFWS agreement regarding State participation in administration of the ESA

serves as a possible model for a new type of agreement. Revised, funded agreements

could either augment or replace existing section 6(c) cooperative agreements with

ones in which State and Federal roles are more clearly delineated and directed toward building a more effective partnership on behalf of imperiled species.

Comprehensive State wildlife conservation strategies and the State wildlife grants

are an excellent starting point for cooperative efforts and promise a new era of State

involvement in conservation of at-risk species that will continue to shape and enlarge the role of States in administration of the ESA. At a minimum, the resulting

increased ability of States to collect, synthesize, and easily retrieve data on species

and their habitats will increasingly make them key sources of information and expertise in virtually every ESA decision. Increasingly common efforts by States to

work together to address rangewide conservation of at-risk species, such as the efforts in behalf of black-tailed prairie dogs and greater sage-grouse, also portend far

greater State roles in this arena in the future. However, if the Federal Government

expects State agencies to work cooperatively on these efforts, the Federal Government must provide substantial funding for capacity development, operations, and

maintenance at the Federal and, most particularly, State agency level.
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RESPONSES BY ROBERT P. DAVISON TO ADDITIONAL QUESTIONS

FROM SENATOR CHAFEE

Question 1. In order to improve implementation of the ESA, you focus on the need

to provide adequate and stable funding for section 6 Cooperative Agreements with

the States. Do you have a recommendation for where Congress should look to provide more funding for the section 6 programs?

Response. I don’t have specific recommendations on sources of funding. Additional

funding to States is needed to improve implementation of the ESA. If more effective

endangered and threatened species conservation is a high priority for Congress,

then funding State programs to carry out the ESA must be an equally high priority.

I recognize that Congress has to determine how to allocate funds among the many,

many worthwhile programs competing for limited funding. Whether that funding

should come from other programs within the Departments of the Interior and Commerce or from other Federal agencies, I leave to Congress to resolve. The issue is

important enough, however, that consideration should be given to allocating a percentage of increased total ESA funding to State wildlife agency programs in support

of the Act.

Question 2. The State of Arizona recently signed a Memorandum of Understanding with Region 2 of the U.S. Fish and Wildlife Service based on section 6 authority. Will the Arizona model be easily translatable to other states interested in

developing MOU’s with the Service?

Response. As I understand it, the Arizona MOU is based on a model developed

by the International Association of Fish and Wildlife Agencies. It reflects the particular abilities and needs of the Arizona Game and Fish Department and Region

2 of the U.S. Fish and Wildlife Service. I believe that the MOU is easily translatable. However, to my knowledge, no other State wildlife agency has entered into

such a MOU with the Service. So, it would seem that other States either have not

been interested in developing such an MOU or they have not found the model to

be easily translatable. My sense is that the former explanation is the correct one,

and that the lack of interest is due in large part to the absence of supporting Federal matching funds.

Question 3. With regard to providing an increased role for State fish and wildlife

agencies and Tribal governments in listing decisions, as well as activities that keep

species from becoming candidates in the first place, how much of this could be accomplished through Administrative regulatory and policy changes rather than specifically making statutory changes to the ESA?

Response. Much, if not all, of the measures to increase the role for State fish and

wildlife agencies and Tribal governments in listing decisions and in efforts to keep

species from becoming candidates for listing could and should be accomplished by

regulatory and policy changes.

RESPONSES BY ROBERT P. DAVISON TO ADDITIONAL QUESTIONS

FROM SENATOR JEFFORDS

Question 1. You have a long history of involvement with the Endangered Species

Act, not only were you at the Department of the Interior in the Clinton administration, but also as a staff member of the Environment and Public Works Committee

for Senator George Mitchell. What is your opinion of how section 6 was envisioned

to be implemented? Was it expected to be funding for projects or for State programs?

Response. I believe that section 6 has been implemented more narrowly than the

Congress envisioned. State agency programs with authority for listed species within

a State should be allowed to assume responsibility for enforcement of take prohibitions if the Secretary of the Interior or Commerce has determined that the State

authority is as restrictive and comprehensive (e.g., includes incidental take due to

habitat modification) as the ESA. In my judgment, section 6 was intended to fund

development and implementation of such State programs for conservation of threatened and endangered species. As it evolved, however, section 6 instead became a

tool to fund specific, federally approved State projects, much like the manner in

which projects are approved and funded under the Federal Aid in Wildlife and Sport

Fish Restoration Acts. In addition, Federal spending in support of State projects

over the history of the ESA has been extremely low and in sharp decline relative

to spending for Federal efforts.

Question 2. In your discussion of Habitat Conservation Plans, you note that approximately 30 percent of all approved HCPs resulted from applications by local governments or State agencies or both, and you cite the Karner blue butterfly HCP in
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Wisconsin as a model of state-led management of listed species. What factors have

driven the development of HCPs from the State level and how is the Wisconsin HCP

monitored to ensure that gains are made towards recovery and de-listing?

Response. It’s my understanding that development of the Karner blue butterfly

HCP was driven by a Wisconsin Department of Natural Resources (WDNR) desire

to conserve this resident species and by an understanding that successful conservation of the species depended on the involvement of many public and private landowners. The State agency recognized, I believe, that it had the most thorough

knowledge of the status of this resident species and its conservation needs. In addition, the entities supporting a conservation initiative for this species made a special

point of expressing its desire to work with and through the WDNR, rather than the

Fish and Wildlife Service. They expressed a lack of confidence and trust in Federal

agencies in addressing endangered and threatened species issues, and wanted to

work with a State agency.

Question 3. How would administration of Habitat Conservation Plans, Safe Harbor Agreements and Candidate Conservation Agreements at the State-level help to

encourage land owners to cooperate in the conservation of listed or candidate species?

Response. State agency personnel often are more familiar to landowners and more

trusted by them than Federal agency personnel. In addition, the State agency often

is in a position to view the issues from both the perspective of the Federal agency

and the landowner conservation partners. The State agency may be perceived by

plan and agreement participants as more of a facilitator than regulator, which further encourages landowner cooperation. The State agency also can serve as a buffer

between the Federal regulatory agency and the landowners or users engaged in the

conservation plan. State-level administration of HCPs, Safe Harbor Agreements,

and CCAAs can encourage landowner cooperation by minimizing transaction costs

and bureaucratic burdens to the landowners. Finally, many of these plans and

agreements require involvement, decisions, and actions by local governments, and

State agencies have well-developed working and legal relationships with these governments that are important to successful conservation.

STATEMENT OF BILL BURNHAM, PRESIDENT, THE PEREGRINE FUND

The Peregrine Fund is among the most experienced nongovernmental organizations in hands-on restoration of endangered vertebrate species in the United States.

Our group began working toward restoration of the peregrine falcon a few years before the enactment of the Endangered Species Act of 1973 (ESA) and has since

played an important role in progress toward recovery of the endangered northern

aplomado falcon, California condor, many endemic avian Hawaiian species, and several foreign species that are listed as endangered under the ESA, in particular the

Mauritius kestrel and harpy eagle. We have also been involved in using section 10(j)

experimental populations for releases of California condors in Arizona and Safe Harbor permits with the northern aplomado falcon restoration in Texas.

We have cooperated with private citizens and organizations, particularly private

landowners, at all levels of government including local communities and counties,

31 State wildlife agencies, Tribes, most Federal land management agencies, and the

U.S. Fish and Wildlife Service (FWS). Given the breadth of our experience, we feel

that we are well situated to comment on the ESA and enhancing the roles of states,

Tribes, and local governments. We believe, however, for these comments to be understood and the most useful, they need to be placed within the context of our

broader recommendations for the ESA. We begin by briefly reviewing the recovery

programs in which The Peregrine Fund has participated.

Peregrine Falcon.—The peregrine restoration effort was the largest species recovery program ever accomplished, extending throughout much of North America, lasting more than three decades, and even including collaboration with Europeans. The

primary cause for the peregrine decline was DDT/DDE-induced eggshell thinning

and reproductive failure (Cade et al. 1971). The use of DDT was banned in Canada

in 1969 and in the United States in 1972 (Cade and Burnham 2003a). With the ban

of DDT and the resultant decrease in environmental levels of the DDT-type compounds, where adequate populations of peregrines continued to exist numbers increased without assistance. Where the peregrine had been completely extirpated or

greatly reduced (80–90 percent), release of captive-raised falcons re-established populations throughout most of its former range. The American peregrine falcon was

removed from the endangered species list in 1999.
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The Peregrine Fund expended an estimated $13.4 million toward peregrine restoration with about half from public and half from private sources. At the height

of the restoration effort we annually expended about $800,000.

Why did Peregrine restoration succeed? First and foremost, the cause of decline

of the species (DDT) was greatly reduced in the environment. Second, about 7,000

falcons were released to the wild where peregrine populations were extirpated or

greatly reduced (Burnham and Cade 2003b). This was facilitated by widespread cooperation and support led by a core group of dedicated peregrine enthusiasts, mostly

falconers, who possessed considerable knowledge about the species. Peregrine restoration was largely a privately led enterprise. Third, State wildlife departments

and Federal land management agencies contributed importantly to the recovery program (Burnham and Cade 2003a). Species restoration became local initiatives.

Fourth, although restoration of the peregrine would have occurred even if the

ESA had not existed, it is unlikely to have achieved the same level of success. The

ESA provided a platform for cooperation, particularly among government agencies,

and added a new source of funding, although much of it was consumed by government bureaucracy and not used for actual recovery implementation. The section 6

funding to the states may have been the most important financial aspect for overall

recovery. An annual appropriation earmarked by Congress for The Peregrine Fund

for a number of years was also very important and enhanced our level of participation (Cade 2003). Finally, despite the FWS having the authority for implementing

the ESA, and a number of their biologists contributing importantly to the recovery

program, as an agency the FWS had a limited role, and its law enforcement division, which was in charge of issuing permits as well as enforcing regulations, was

regularly an obstacle to recovery actions (Burnham and Cade 2003b). Peregrine restoration could not just happen because of a Federal Government mandate.

Northern Aplomado Falcon.—The FWS listed the northern aplomado falcon as endangered in 1986. The species had been lost from the United States as a breeding

species by the early 1950s. It had previously occurred in the southwestern states

of Texas, New Mexico, and Arizona. Although present in portions of southern Mexico, the aplomado falcon had declined throughout much of its range in northern

Mexico. The disappearance of the aplomado falcon was likely the result of changing

land management practices which reduced both the quantity and quality of the favored grassland habitat. The widespread use of DDT and other persistent pesticides

may have prevented re-colonization. Improved land management and re-emergence

of suitable habitat created a potential opportunity for species restoration.

The Peregrine Fund began to experiment with captive breeding of this species in

1978 patterned after the successful peregrine propagation effort. In cooperation with

the Mexican government, 25 nestling aplomado falcons were collected from the wild

and a captive-breeding population was established. This program has produced

1,269 young, of which 1,142 have been released to the wild (Jenny et al. 2004). Following an experimental release project (1984–1989), a full-scale restoration program

began in 1990. The first breeding pair resulting from these releases was discovered

in 1995, and in 2005 at least 44 territorial pairs had become established. Based on

observations of unbanded birds and the difficulty of locating nests, many undiscovered pairs must exist. This new population is known to have successfully fledged

more than 242 young. The recovery plan suggests that the aplomado falcon be

downlisted to ‘‘threatened’’ status when 60 breeding pairs have been established

(USFWS 1990). We are also monitoring and conducting research on small extant

populations in Chihuahua, Mexico (Montoya et al. 1997).

Safe Harbors have been critical to our success in Texas where more than 97 percent of the land is privately owned. This conservation tool represents the ‘‘carrot,’’

rather than the ‘‘stick’’ approach to species recovery. Most landowners value wildlife

but are concerned about land-use restrictions that could arise as a result of the

ESA. The Safe Harbor program for this falcon now includes 57 counties in Texas

and has more than 1.8 million acres of habitat enrolled. It has provided access to

suitable habitat for the recovery of the aplomado falcon while protecting landowners

from restrictions associated with the ESA through an incidental take permit (Jenny

2003).

The mechanics of a Safe Harbor are, however, difficult to explain to landowners,

and agreements are primarily negotiated as a result of personal trust developed between the landowner and field personnel of The Peregrine Fund. Key to the success

of this effort is that The Peregrine Fund, rather than the government, is the broker

for these agreements.

Efforts are also underway to establish an aplomado falcon restoration program in

New Mexico and Arizona. Unlike Texas, these states have large areas of public

lands on which the Safe Harbor cannot be legally applied. A proposal to allow for

the establishment of a ‘‘nonessential experimental population’’ designation (see ex-
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planation below) is being processed to facilitate development of a restoration program in those states. Both State wildlife agencies and the FWS support the concept,

but some environmental groups oppose the proposed designation and are threatening litigation to stop its potential use. As an ESA-listed species, the falcon is seen

by some as a convenient tool to restrict activities such as grazing, energy development, and recreation on public land through a ‘‘critical habitat designation’’ for the

falcon.

The Peregrine Fund has accomplished all aspects of this hands-on recovery, and

our involvement has been 91 percent privately funded. We anticipate having raised

and expended more than $9.8 million on this project through fiscal year 2005 with

annual expenditures now over $1.2 million. In addition, $700,000 of privately funded facilities have been constructed.

Why is this program succeeding in Texas? First, the probable causes of the

aplomado falcon’s decline may no longer exist and suitable habitat is again present,

e.g., a well managed cattle ranch provides excellent aplomado falcon habitat. Like

the successful peregrine restoration, there has been almost universal cooperation.

The program is largely a privately led endeavor implemented by a highly motivated

and dedicated core group of people, the State wildlife agency is supportive, considerable private funding is being contributed, and private and public land managers are

engaged. Lastly, the Safe Harbor program allows for the vital participation of private landowners by reducing concerns associated with the ESA. The recovery is a

local, county by country, community by community, landowner by landowner, person

to person project.

California Condor.—Only 27 condors existed in 1987 when all wild condors were

brought into captivity. In November 2003, the first successful reproduction occurred

in the wild when condors released by The Peregrine Fund in Arizona bred and

fledged a chick, the first California condor flying in nature untouched by human

hands in over two decades.

The probable causes for the condor decline were a reduced food base (loss of the

large mammals during the Pleistocene compressing their range to the Pacific Coast

from southern Canada to Baja California, Mexico), human persecution, probable

DDT/DDE-caused eggshell thinning during the 1950s and 1960s, and lead poisoning

(Kiff et al. 1979; Pattee et al. 1990). Lead poisoning remains an unresolved problem

(Cade et al. 2004).

At the request of the FWS and California Condor Recovery Team, The Peregrine

Fund agreed in 1993 to develop a captive-breeding facility and a release program

in northern Arizona. In August 2005, we hold 60 condors (20 nestlings and 40 adults

and subadults) in the captive flock and manage 65 condors in Arizona, of which 50

are free flying; two wild-hatched nestlings have not yet fledged and the remaining

13 are in holding facilities awaiting release. These birds represented 45 percent of

the total world population.

The release of condors in Arizona was made possible through use of section 10(j)

of the ESA as a ‘‘nonessential experimental population.’’ This allows for the establishment of a population of a listed species with fewer ESA restrictions than would

otherwise be imposed on land use and other human activities in the area. By using

this exemption, and after the FWS signed an agreement saying the condors would

be removed if the special status was changed, many of the fears expressed by the

local communities and landowners were reduced. Meetings with The Peregrine Fund

(see below) provided further assurances to the point communities agreed to support,

or at least not to oppose, condor releases. Since then we have enjoyed excellent local

government and private sector support and cooperation. Federal land management

agencies, Tribes, State agencies, and other cooperators have developed a further

agreement to further enhance cooperation.

The Peregrine Fund’s participation in the condor program is funded by a mixture

of public and private funding. We anticipate expending $9.4 million (55 percent private donations) from fiscal year 1993 through fiscal year 2005 with annual expenditures now exceeding $1.3 million. There has also been $1.75 million in facility construction costs.

Why is the program succeeding in Arizona? With the exception of mortality from

ingesting animals shot with lead pellets and bullets, the natural environment in

northern Arizona and southern Utah is well suited for condors (Cade et al. 2004).

By using the 10(j) exemption within the ESA, the local people and communities are

supportive, as are the Arizona and Utah State wildlife departments. The Arizona

Game and Fish Department has even implemented a program where sportsmen

drawing deer hunting permits for northern Arizona are offered, free of charge, nonlead ammunition by the department, which hunters are overwhelmingly accepting.

Condor recovery is a local, highly cooperative project.
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Endangered Hawaiian Birds.—Hawaii has more threatened and endangered species than the total of the other states. The causes of decline of avian species and

extinctions are attributed primarily to three factors—loss of habitat, introduced disease (malaria and pox) and their vectors, and introduced predators (rats, cats, and

mongoose). At the request of the FWS, in 1993 The Peregrine Fund agreed to establish a release program for the endangered ‘alala or Hawaiian crow on the island of

Hawaii. This followed litigation by environmental groups against the FWS and the

landowner upon whose land the last wild crows persisted. The landowner kept people out, believing proposed government actions would result in the extinction of the

crow. The legal settlement resulted in (1) the landowner allowing access to the property and (2) the implementation of a FWS-managed restoration program for the

crow.

Following the initial successful release in the wild of captive-raised crows

(Kuehler et al. 1994, 1995), FWS requested The Peregrine Fund assume a larger

role in the recovery effort for endangered Hawaiian birds. Working with FWS, the

State of Hawaii, the Hawaiian Congressional delegation, and others, Federal funding was secured, and we constructed a captive-breeding facility near Hawaii Volcanoes National Park on the Big Island, assumed management of and renovated a

state-owned facility on Maui (Olinda), and began working with the other endangered Hawaiian birds. From 1993 to 2003, the program hatched and raised 518

chicks of 14 endemic taxa, eight of which are listed as endangered (Kuehler et al.

1996, 2001). Three endangered species have been released to the wild, totaling 97

individuals—60 puaiohi (Kuehler et al. 2000), 27 ‘alala (Kuehler et al. 1995), and

10 palila (Lieberman and Hayes 2004). Released individuals of the puaiohi are confirmed breeding in the wild (Tweed et al. 2003). We transferred the entire program

(facilities, staff, etc.) to the Zoological Society of San Diego (ZSSD) after completing

the construction and renovation of the propagation facilities, developing technology

for management, breeding, and release of a host of species, and having developed

a competent staff.

The Peregrine Fund expended approximately $3.5 million for construction during

its involvement, of which most were public funds. Annual operating expenses are

now approximately $920,000 less overhead costs which are not charged by the ZSSD

(pers. comm. Alan Lieberman).

Despite continued successes at the captive-breeding facilities, many of the released Hawaiian crows have died. All of the released crows that survived have been

brought back into captivity to protect the remaining genetic diversity. The continued

survival of the last two known wild crows remains in doubt, and as a species the

Hawaiian crow is possibly extinct in the wild. In 2004 the last known individual

died of the po‘ouli, a short-tailed, stocky ‘‘creeper.’’ That was the only known living

individual of the entire genus of Melamprosops.

Why has avian species restoration in Hawaii not experienced the success of the

other programs? First and foremost, the reasons for decline and extinction of species

have not been successfully reduced or eliminated. Captive flocks and breeding may

prolong the existence of these species but do nothing for their preservation in nature. Although there has been some progress on several fronts (Division of Forestry

and Wildlife 2004), not enough progress has been made in Hawaii to change significantly the long-term prognosis for most native Hawaiian avifauna. There must be

a serious commitment to landscape-wide habitat management measures if success

is to be achieved (Scott et al. 2002). Species can be saved and success is possible,

but only with a commitment of effective action commensurate in scope and effort

to the reasons for the declines and extinctions.

Although there is interest in Hawaii to save species, cooperation and agreement

among individuals and organizations as to what and how this should be done is generally insufficient to result in meaningful effective population-level actions. Litigation through the ESA, or at least its threat, is prevalent, and private landowners

are reluctant to participate or even allow biologists access to their properties on the

off-chance they may discover a threatened or endangered species. During our involvement certain FWS staff were combative to the point of discouraging participation and cooperation of others. The Federal Government, much more than the state,

is responsible for species recovery projects, to include implementation.

DISCUSSION

Most people agree with the importance of saving species from extinction. Problems

arise in defining what that means and how to achieve that objective. This is particularly true when legal requirements for preserving threatened and endangered species are in conflict or competition with human needs and desires for resources. We

have been fortunate in our ability to limit the conflict associated with our recovery
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efforts. An important reason is we work cooperatively, collaboratively, and locally

to prevent extinction and restore viable wild populations for those species on which

we are focused (Burnham 1997).

Most endangered species depend significantly on habitats found on private lands;

and some only occur on such lands (Bean and Wilcove 1997). Hawaii (225 listed species) and Texas (70 listed species) have only 16 percent and 1 percent, respectively,

of Federal land (Wilcove et al. 1996). Use of Safe Harbor and experimental non-essential population status reduce concerns of private landowners and users of Federal lands, thus making it easier to work on ESA-listed species. Creating private

landowner incentives is critical to endangered species recovery in many cases (Brook

et al. 2003). Although this can be implemented at State and local levels, the authority and funding must come from the Congress and Federal Government.

The designation of critical habitat may be most useful and justified when it is applied to special, localized habitats that are critical to species survival, such as nest

sites that limit the number of breeders (e.g., peregrine falcons) or springs that serve

as the entire distribution area for a species (e.g., Bruneau hot springs snail). However, when it is applied to major habitat units on a wide scale encompassing millions of acres (e.g., old growth forest for the spotted owl or the proposed designation

of major reaches of the Chihuahuan Desert in southern New Mexico for the largely

non-existent aplomado falcon), then its use becomes questionable, even though protection of such large areas may be justified in a broader, more inclusive environmental context. Critical habitat conveys little additional protection to a listed species that is not covered under other provisions of the ESA. Considering the high

costs involved in designating critical habitat and defending against lawsuits associated with it, the benefits of designating critical habitat for the conservation of listed

species appear to be problematic, even unjustified.

LESSONS

What can be learned from our experience about species restoration and the ESA?

Of primary importance is that successful species restoration cannot occur unless the

initial reasons for population declines and extinctions are significantly reduced or

mitigated. For those species with which we have had experience, conservation actions under the ESA have NOT importantly affected the causes of population declines. Use of DDT was banned prior to the ESA of 1973 and the peregrine was otherwise already protected by State and Federal law. Before passage of the ESA, the

California condor was protected against human persecution by the State of California and the Migratory Bird Treaty Act (MBTA); habitat protection was never an

important issue, but no actions to reduce the presence of lead have been taken.

Changes in ranching and land management practices allowing for possible aplomado

falcon restoration in Texas occurred before the falcon was listed under the ESA.

There have yet to be any measurable effects on the causes for declines and

extinctions of endemic Hawaiian species resulting from the ESA. Therefore, the additional direct and indirect (habitat) protection provided by the ESA has not enhanced recovery of those species with which we have worked, although in Hawaii

it may yet have a positive effect if the right corrective actions are taken to improve

habitats at biologically significant scales (removal of exotic herbivores and predators).

Has listing a species as endangered benefited restoration? For the peregrine it

probably did by attracting attention, accelerating and enhancing its restoration, although the eventual recovery was likely to have occurred irrespective of the ESA

(Burnham and Cade 2003a). Having the peregrine falcon listed as an endangered

species increased support.

The role of the ESA in the recovery of other species with which we have worked

is less certain. Restoration actions for the California condor in Arizona and

aplomado falcon in Texas are being accomplished using tools that essentially remove

most protective restrictions imposed by the ESA. Without these tools it is unlikely

that either program would have been possible—certainly not at the current level.

The successful expansion of the aplomado falcon restoration program into New Mexico and Arizona will also be aided by the nonessential experimental population designation being applied there.

In species restoration efforts in Hawaii, the ESA has facilitated the expansion of

funding from the FWS to build facilities for the captive propagation, as well as

transferring funds to the State via section 6 allocation, but it has done little to correct the root causes of species endangerment.

Just the threat of listing can cause both benefits and problems for a species. Prior

to the anticipated passage of the ESA in 1973, several private individuals took peregrines from the wild; they later became the foundation for the captive population
88

and restoration program. People knew such taking would become impossible after

the ESA was passed and the peregrine became listed (Burnham 2003). The threat

of listing has caused State wildlife departments and Federal land management

agencies to develop plans to address concerns and benefit species such as the greater sage-grouse. Even without the ESA and listing, however, people concerned about

the peregrine and grouse would have worked for their conservation. On the negative

side, it is common knowledge that the petition for listing the black-tailed prairie dog

resulted in large-scale poisoning of their colonies by landowners who feared intrusion on their property by the FWS. Other examples included the Preble’s meadow

jumping mouse and red-cockaded woodpecker (Brook et al. 2003, Pickrell 2003).

Brook et al. (2003) found that listing did not enhance the prospect of survival for

listed species on private property.

Once a species is listed, its delisting from the ESA is far more difficult, even when

it no longer meets the criteria for ‘‘threatened’’ or ‘‘endangered.’’ So few species have

been delisted as a result of the ESA that procedures are largely unfamiliar. To

delist the Arctic peregrine from threatened status took about 31⁄2 years from the

publication of the delisting proposal to the final Federal Register notice. The American peregrine falcon delisting process required 4 years and 3 months. First was a

Federal Register notice considering delisting, then 3 years later a notice of the proposed delisting, and a year later the actual delisting (Burnham and Cade 2003b).

Opposition to delisting of the American peregrine falcon occurred largely from organizations that commonly use litigation to further their environmental agenda and

individuals who had made a career working on peregrine restoration. Still to be

delisted is the bald eagle which has not met the ESA criteria for ‘‘threatened’’ or

‘‘endangered’’ for many years. Originally proposed by FWS for delisting over 10

years ago, action has been held up by those who are concerned about the adequacy

of habitat protection after the eagle is removed from the list—a misapplied application of the ‘‘precautionary principle.’’ The Hawaiian Hawk is another example. In

1997 a FWS established panel of raptor experts reviewed the species’ status and recommending delisting, but nothing has happened. The review was accomplished because of hawk predation on the truly endangered Hawaiian crow.

Do recovery teams contribute to species restoration? Following enactment of the

ESA four regional recovery teams were established for the peregrine falcon to write

(and update) recovery plans and to advise the FWS. Although there were multiple

recovery teams for the peregrine, they were of manageable size and were largely

made up of peregrine experts and others appointed to expedite recovery within

agencies. They advised only on strategic programmatic issues as requested by the

FWS. In large part they did the jobs requested of them and their contributions facilitated restoration. They functioned under the 1974 guidelines developed by the

head of the FWS Office of Endangered Species, Keith Schreiner, ‘‘What a recovery

team is and is not—What a recovery team does and does not.’’

The FWS contracted to have a recovery plan written for the aplomado falcon

(USFWS 1990) but no recovery team was created, nor was one needed. Effective coordination has been accomplished through regular communication among municipal,

State, Federal, and private cooperators and most aplomado falcon experts are actively involved in recovery actions. Also, the recovery program is fairly straightforward.

The function and composition of the California condor recovery team has changed

over time from a small group of experts focusing on strategic issues to a large group

of stakeholders attempting to micro manage restoration actions. The value of the

team to implementation of restoration program diminished with those changes. In

Hawaii, where the conservation issues are nearly overwhelming, recovery teams required over 10 years of discussion just to update and draft two recovery plan revisions (‘alala and Hawaiian forest birds) that are still not finalized.

A secondary, and many times more important level of organization than recovery

teams, are what have come to be called ‘‘working groups.’’ Largely through the leadership of State wildlife departments, working groups were formed in many states

to coordinate and expedite peregrine recovery actions (Burnham and Cade 2003b).

These were largely informal groups of cooperators, usually within a single state,

that gathered as needed to make plans to facilitate and help fund recovery actions.

Participants were from State wildlife departments, who usually helped organize the

meetings with The Peregrine Fund or other leading private organizations, Federal

land agencies, and private property owners where peregrines were to be or were

being released. These were congenial gatherings frequently followed by everyone adjourning to a local bar to have a few beers together. This arrangement still largely

applies to the aplomado falcon. In the case of the California condor in Arizona, the

working group was formalized by the FWS and went from a small group of cooperators to a large, formal, growing body of mostly agency people led by the FWS. As
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with the condor recovery team its function then transformed from program facilitation to micro-management. Fortunately, recognizing the problem the FWS transferred leadership to the State wildlife agencies and a functional balance was restored.

Recovery plans written for the peregrine by the teams comprised four different

original documents and later a couple of updated revisions, one of which was never

finalized before the falcon was delisted. The four documents varied in length and

detail, as did their ultimate value to the recovery efforts (for more detail see Cade

and Burnham 2003b). The recovery plan for the aplomado falcon, written by a single

author, provides a good review of the falcon’s biology and explicit suggestions for

recovery along with criteria for downlisting. A recovery plan for the California condor program was first approved in 1975 and revised, then re-approved in 1996. The

revised California condor plan provides a list of potential recovery actions but was

written prior to when condor releases began and is now outdated. There is no apparent value for revision.

Who has been involved in species restoration programs? A currently popular term

is ‘‘stakeholder.’’ We interpret this term to mean those individuals and organizations

that have a stake in, or could be affected by, restoration actions. Although national

and even international cooperation and coordination have been needed to implement

restoration programs, working with stakeholders, including local people, landowners, and communities where actions are to occur, has been critical to the successful projects in which we have been involved. Species restoration programs require trust to succeed. Having the buy-in and trust of those people and communities

was critical to implementation and the long-term success of the program. People

often do not trust governments; they do tend to trust other people. Trust cannot be

legislated; it only develops over time and through experiences with others.

In Arizona, early opposition to California condor releases resulted largely from restrictions imposed on timber harvest and resultant job losses after petitions for listing the northern goshawk were filed, even though the goshawk was never listed. An

early public hearing on the proposed condor release had uniformed, armed law enforcement officers present. After a private meeting between the Arizona governor

and The Peregrine Fund, arranged by a supportive local rancher, and a final public

meeting in which we stated we would not participate in this project without the support of the local communities, public trust developed, agreements were prepared and

endorsed, and the project moved forward.

Involvement of State wildlife agencies in species restoration has been important.

Even if the states did not have hands-on roles, their involvement was important to

facilitate and support recovery efforts. With the peregrine program the roles of

states varied greatly, but, where a successful program existed, the State wildlife department was supportive and involved (Oakleaf and Craig 2003). This remains true

for the current efforts with the aplomado falcon in Texas, the California condor in

Arizona and California, and the forest birds in Hawaii.

Successful restoration programs with which we have been involved have also enjoyed extensive participation by the private sector. The private sector had the leadership role in peregrine restoration, but State wildlife departments and Federal land

management agencies were also integral. A similar situation exists for the aplomado

falcon in Texas and California condor in Arizona. In Hawaii, in addition to the participation by ZSSD, leaders in restoration programs within the private sector have

been The Nature Conservancy, Kamehameha Schools, the Silversword Foundation,

and public-private partnerships such as the Olaa-Kilauea Partnership (pers. comm.

Alan Lieberman).

What biological knowledge and type of science is needed for recovery? Knowledge

of species in jeopardy is very important, including information on basic biology and

ecology and, in particular, knowing why populations have declined and what are the

primary limiting factors (e.g., winter habitat, food during breeding, etc.). Fortunately for the peregrine falcon, before populations declined considerable knowledge

existed about the species from research and publication and through centuries of its

use in falconry. Further research was then accomplished documenting the level of

population declines and trends and to determine the cause (Newton 2003). All of

this information ultimately benefited recovery. Also accomplished, but at considerable expense and of no useful value for recovery, were habitat evaluations and other

‘‘research,’’ mostly funded by Federal land management agencies and many times

accomplished by individuals with limited knowledge and experience about raptors

in general and peregrines in particular. Resulting reports were rarely used or even

opened by biologists accomplishing actual recovery actions. Much of this work consisted of due-diligence studies agencies believed necessary to comply with requirements of the ESA and the National Environmental Policy Act. Agencies also expended funds to accomplish surveys of peregrines in areas where they were known
90

not to exist and in some cases never had existed. A similar situation has developed

with aplomado falcon restoration in New Mexico. Prioritizing expenditure of the limited ESA funds for information gathering is very important but has often been done

without careful consideration.

Use of ‘‘the best available science’’ to guide species recovery is touted, but although the scientific method is pure, scientists, lawyers, other professionals are subjective humans. Common sense and honesty cannot be legislated, and one cannot

remove personal opinions, bias, conflicts of interest, and agendas from endangered

species issues. Particularly for scientists, the public values and appreciates honesty

(including admitting errors), accuracy (stating clearly what is known and not

known), and integrity (not allowing results to be misrepresented or used in an unprofessional manner) (Burnham and Cade 1995). The need to keep objective, unbiased science, however relevant to societal problems, free from political alliances is

critical (Brussard et al. 1994). Unfortunately many times this is not the case (White

and Kiff 1998).

How much funding is needed for species recovery? We provide approximate dollar

amounts expended for U.S. restoration projects in which we have been involved. The

amounts reflect only those aspects of a restoration program which we accomplished

and not the total amount expended by all involved. For hands-on restoration in the

United States, The Peregrine Fund probably expended over half of all moneys for

the peregrine and nearly all spent so far for the aplomado falcon. Hands-on restoration programs are expensive and every effort should be made to prevent species

from declining to a level requiring such action to cause recovery or to prevent extinction. Expense for recovery increases 10,000-fold when one moves from management where the species exists as part of functional ecosystem maintenance to highly

focused hands-on restoration (Conway 1986).

Hands-on restoration can also require long-term actions. Restoration of the peregrine took about three decades, aplomado falcon restoration will likely require two

decades, California condor restoration may extend a half century or more, and Hawaiian bird restoration many not have an end point. Obtaining sufficiently longterm funding for such projects is very difficult as the private sector and government

both tire in their support of such projects.

Annually the FWS expresses a need for additional dollars for endangered species,

and most years the Congress responds favorably, although they are criticized by

many environmental organizations for not doing enough. Annual appropriations

have never approached the limits authorized by Congress, in particular endangered

species funding has to compete with other overall budgets set by the Office of Management and Budget. Increases provided to the FWS do not necessarily mean more

dollars for actual recovery actions, as developing and maintaining the bureaucracy

for implementing the complex regulations associated with the ESA are expensive.

Although public funds are critical and appropriate for species recovery programs, we

believe that programs in which individuals and private organizations are willing to

assist financially, demonstrating their support, are more likely to succeed than if

they are supported only by government funding. Dollars contributed in support of

restoration actions for a species reflect the buy-in and commitment of the public,

and even the nation. Obviously, some species are more appealing than others and

less difficult for which to find support, but it should be possible to develop a constituency for most species with enhanced private sector goodwill and involvement.

How does permitting action affect species recovery? The ESA and its implementing regulations are extensive and complex, especially in regard to ESA permits

(Burnham and Cade 1995). Permits and the permitting process have discouraged

species conservation actions and hindered research and recovery actions. Although

the FWS is trying to simplify the permitting process, the existing regulations and

other related acts (MBTA, Wild Bird Conservation Act, etc.) limit what can be accomplished without legislative changes.

RECOMMENDATION

Although the actual changes to the ESA over the years have been few, through

litigation, regulation, and the attitude of some FWS staff, it has evolved from having the appearance of an incentive-based to a punitive-based law. In recent years,

there has been an attempt to change the appearance to one of incentive by development of the 10(j) and Safe Harbor programs, although their effectiveness is diminished through increased bureaucratic complexities being imposed by FWS staff

(Bean et al. 2001). Reversing this trend through simplification and modification of

associated regulations, if not changing the ESA itself, is necessary. The attitude and

approach of FWS staff, by and large, must also change.
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We provide the following specific recommendations relative to the ESA. With

each, as appropriate, we provide specific reference to applicability for involvement

of state, Tribes, and local governments. Our general overriding recommendation is

refocusing the act on incentives versus punitive actions related to endangered species conservation and restoration. This should be emphasized in relation to private

property, State authority, and to greatly reduced litigation.

Listing and Delisting Species Under the ESA.—Petitions for listing should only

be accepted from established experts on the species under consideration. The emphasis by the FWS has been on listing species under the ESA. Although we understand the importance of listing species that are truly in jeopardy, delisting should

also be a priority, even if for no other reason than proof of results and success; but

delistings are often held up for a variety of reasons. The bald eagle and Hawaiian

hawk are examples (see above). It would be better to transfer all ESA decision making about species status, listing, and delisting to an independent panel of experts

on each species, appointed by the National Research Council of the National Academy of Sciences (see Cade 1998). This is not an authority that should be transferred

to states, Tribes, or local communities although their comment and recommendations would be appropriate based on individual and collective factual knowledge and

information.

Recovery Teams.—Recovery teams should NOT be implementing bodies for species recovery, and members should understand they serve at the pleasure of the

FWS and are only advisory. Teams should be comprised of a small group of biologists, no more than seven to nine individuals selected on the basis of their scientific

understanding of the species and its threats. State, tribal, and community biologists

should be included only if they are experts. When individuals are included to represent agencies, etc., all organizations (particularly governmental) wish representation on the team, resulting in very large teams that become inefficient, expensive,

and difficult to manage. Teams should not be led by or have FWS participation unless a FWS staff person happens to be a leading expert on the species. When FWS

staff are placed in leadership roles with recovery teams they can attempt to dictate

policy and make unilateral decisions, circumventing the team’s value and purpose.

FWS staff affiliation with teams should be only for facilitation of team activities.

Recovery team membership should be carefully screened to avoid conflicts of interest. This precaution is especially important when recovery team recommendations

could result in the awarding of contracts to recovery team members or their organizations. Also, teams should have the choice to meet privately (without FWS) or to

invite others, including the general public, to meetings. If all meetings are public,

however, meaningful discussion by team members can be impaired. The primary

function of a recovery team is to write a recovery plan and submit it to the FWS

for approval. After that it may be disbanded, or at the discretion of FWS it may

continue to serve in an advisory capacity, annually reviewing overall strategic

issues.

Recovery Plans.—The recovery planning process has the greatest value when

there has been limited consideration for a species’ recovery. The process tends to

help organize thoughts and actions and set goals. The actual plan, we believe,

should be brief—only a few pages stating the problem and providing general recommendations and direction to reach stated recovery goals for downlisting and

delisting. Long detailed documents requiring years to write with a long approval

process usually result in plans that are outdated even before they are finished and

of limited value (Burnham and Cade 2003b). Shorter plans help simplify revision

and updating based on new and better information as recovery programs progress.

They are also easier to understand. Plans should not be detailed budgetary documents with dollar amounts, as their projections may be unrealistic, and no one active in the recovery pays any attention to them.

Implementation Agreement.—We recommend that after the above-described species recovery plan is developed by the biological experts of the recovery team, stakeholders should meet and discuss the implementation for a species’ recovery. This

provides an excellent opportunity to include and engage states, Tribes, and local

communities. Public meetings should occur much as they do for implementation of

a ‘‘nonessential experimental population’’ and Safe Harbor. It should be at this level

that input, needs, recommendations, and involvement of stakeholders occur. From

these discussions an implementation agreement can be developed between the FWS,

local communities, and other interested parties, much as habitat conservation plans

are accomplished. These meetings and the agreement should result in stakeholder

buy-in. Although total agreement among all involved may not be possible, if people

know where they stand and what is to happen the potential for collaboration is

much more likely. For both the California condor releases in Arizona and aplomado

falcon restoration in Texas, agreements were developed for implementation of recov-
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ery actions as part of the 10(j) and Safe Harbor. By allowing the biological experts

(recovery team) and the recovery plan to focus on what is necessary for species recovery and not to become entangled in the desires, political interests, etc., of stakeholders, a better plan would result and a more functional recovery team would exist

to advise on strategic biological recovery issues. Working groups should then help

facilitate recovery implementation, to be accomplished by the most qualified and appropriate individuals and organizations.

Working Groups.—The working group is a useful organization to facilitate recovery if participants are limited to those actually contributing to the restoration effort.

Working groups function best when led by the organizations/individuals actually accomplishing most of the recovery action and in cooperation with appropriate State

wildlife agencies. FWS leadership is unnecessary unless its staff are actually involved in the restoration project. For many projects, tribal and local community participation may also be appropriate.

Federal Agencies.—The role of the FWS should strictly be oversight and facilitation, not implementation of restoration projects/programs. The attitude of FWS administrators should change from that of ESA enforcers to endangered species recovery facilitators. They should try to find ways to make species recovery possible rather than using the ESA as a vehicle to control actions of other agencies and the private sector. Land-holding agencies should be primarily engaged in support of recovery implementation. The ESA states that all departments and agencies should use

their authorization in furtherance of the ESA.

States.—State governments and wildlife agencies should be given an increased responsibility for ESA species recovery implementation. In the long term, much of

what the FWS is attempting to accomplish should be transferred to qualified State

agencies, along with related funding. Conservation of endangered species needs to

become a local desire and project. Local people are more likely to trust State wildlife

agencies and governments which are usually more readily accessible and sensitive

to their concerns than the Federal Government. States better understand local situations and are more likely to work locally and to cooperate with the private sector.

Restoration Implementation.—Actual implementation of recovery actions should

be accomplished by those best qualified in the private sector, State wildlife agencies,

and Federal agencies. Depending upon the needed actions, Tribes and even local

community participation may be appropriate. As much as possible, private landowners should also be included and compensated for their participation in actual recovery efforts.

Research and Recovery.—Having the best possible information is important to

guide recovery actions for species, but research should not usurp or be perceived as

recovery action. The primary value of research is to (1) define the reason(s) for the

species’ decline, (2) determine the factors limiting populations, and (3) help support

and guide restoration, as appropriate. A part of recovery should be to monitor recovering populations to help evaluate the success or failure of restoration actions. Monitoring should primarily be focused on the actual species, not habitat or other factors.

Federal land management agencies should carefully evaluate use of ESA funding

and support actual recovery actions first and research secondarily. Research should

be left to those whose function is research.

Regulations and Permitting.—Regulations related to the ESA are extensive and

complex and overlap with those for other laws and treaties. This is especially true

for permitting (Burnham and Cade 1995). Regulations should be reduced, streamlined, and simplified. Included in this should be removal of all extra-limital species

from the ESA. A comprehensive permit (inclusive of all applicable laws) for qualified

organizations should be developed eliminating the need for multiple permits, applications, and reports. Individuals outside of government should be engaged to help

find solutions and promote change. Every effort should be made to increase the

flexibility, efficiency, and effectiveness of the ESA.

Funding.—Future increases in ESA funding appropriated for the FWS and other

Federal agencies should be focused primarily on implementation of recovery actions

and be designated to qualified State wildlife agencies and for private sector initiatives. An audit of how current funding has been and is being used by the FWS and

other Federal Government agencies should be accomplished as a first step to find

ways to reduce bureaucracy and move more dollars to accomplish effective action

for species restoration.

Biome Conservation.—Unless the ESA is modified or until the nation has a law

focused on habitat and biome conservation, endangered species will continue to suffer from lack of private sector, land owner support, resulting from conflicts over designation of ‘‘critical habitat,’’ ‘‘take,’’ and other punitive measures, and litigation will

continue to stymie recovery and consume dollars critically needed for recovery actions. The Administration and Congress should consider passage of a new law deal-
93

ing with habitat and biome conservation. A first step would be to inventory all public lands, non-profit conservation holdings, and private land with conservation easements to determine the potential to conserve the various ecoregions and associated

species. Key to this inventory would be use of Gap Analysis where habitats and the

known and potential distribution of species are mapped (Scott et al. 1988).

To achieve ecoregion conservation and management we must realize that although

sustainable multiple use of public lands is possible, it is frequently not practical in

situations where economic uses conflict with non-consumptive uses. Identifying a

priority use or uses is important. It is unrealistic to think that one area of land can

be managed to benefit equally every potential use or user. Some land is better suited for livestock grazing or more important for mineral development, while other

areas may be most important for the winter range of deer or elk. Activities do not

necessarily have to be mutually exclusive, but prioritization is needed most of the

time. A law focused on ecoregion conservation and management where habitat debate and resolution could occur would make it possible to re-focus the ESA on endangered species, which was its original intent.

ESA.—Consideration should be given to altering and to creating objective definitions for ‘‘endangered’’ species to emphasize their level of jeopardy and urgency

(Cade 1998). Many species listed as endangered or threatened have different levels

of threat and need for immediate action to prevent extinctions. The ‘‘threatened’’

category is too vaguely defined and should be eliminated.

The Safe Harbor is not specifically permitted by the ESA now; it is a concept of

policy largely based on the 10(j). The Safe Harbor should be included as an integral

part of the ESA and the 10(j) should be amplified and clarified by including the

‘‘open-minded’’ Safe Harbor concept for application in a mixed land status of Federal, State, tribal, and private properties. Section 10(j) rules may be too rigid to

really engender cooperation by private, tribal, community, and even some Federal

(Department of Defense) landowners for restoration projects.

The overlapping meanings and functions of ‘‘harm’’ and ‘‘critical habitat’’ need to

be reexamined. Presently the definition for ‘‘take’’ varies among FWS offices. At one

office an endangered species permit is required to conduct even a ‘‘hands off’’ survey

for aplomado falcons. We recommend that the definition and provision of ‘‘critical

habitat’’ established by the 1978 Congressional amendment be rescinded and that

the definition of ‘‘take’’ and ‘‘harm’’ be suitably modified to encompass all needs for

protection of essential habitat of listed species. Where essential habitat needs protection on private lands, owners should be compensated through a system of purchase, leasing, easements, or other economic incentives.

The ESA addresses cooperation between the Federal Government and the states.

It would be a better law if it included local communities, conservation and research

organizations, universities, and private landowners as cooperators. We believe the

ultimate success or failure for conservation of all species will not be dictated or accomplished by government alone. The participation of State governments and local

communities are critical. Opportunities for Tribes may exist depending upon species

range. Private sector involvement, commitment, cooperation, and leadership are crucial and will ultimately determine the success or failure of saving many endangered

species (Burnham and Cade 2003b).

LITERATURE CITED

Bean, M.J., J.P. Jenny, and B. van Eerden. 2001. Safe Harbor agreements: carving out a new role for NGOs. Conser. Biol. in Prac. 2(2):9–16.

Bean, M.J. and D.S. Wilcove. 1997. The private-land problem. Cons. Biol. 11:1–

2.

Brook, A., M. Zint, and R.D. Young. 2003. Landowners’ responses to an Endangered Species Act listing and implications for encouraging conservation. Cons. Biol.

17:1638–1649.

Brussard, P.F., D.D. Murphy, and C.R. Tracy. 1994. Cattle and conservation biology—another view. Conserv. Biol. 8:919–921.

Burnham, W.A. 1997. A fascination with falcons. Hancock House, Blaine, WA.

Burnham, W. 2003. Peregrine falcon restoration in the Rocky Mountains/Northwest. Pages 127–154 in Return of the peregrine, a North American saga of tenacity

and teamwork (T. J. Cade and W. Burnham, Eds). The Peregrine Fund, Boise, ID.

Burnham, W.A. and T.J. Cade. 1995. Raptor populations: the basis for their management. Transactions of the 60th North American Wildlife and Natural Resources

Conference. 60:115–130.

Burnham, W. and T.J. Cade. 2003a. Conclusions. Pages 261–278 in Return of the

peregrine, a North American saga of tenacity and teamwork. (T.J. Cade and W.

Burnham, Eds). The Peregrine Fund, Boise, ID.
94

Burnham, W. and T.J. Cade. 2003b. The Endangered Species Act, the U.S. Fish

and Wildlife Service, and peregrine falcon restoration. Pages 261–278 in Return of

the peregrine, a North American saga of tenacity and teamwork (T.J. Cade and W.

Burnham, Eds). The Peregrine Fund, Boise, ID.

Cade, T.J. 1998. Delisting the peregrine falcon: management and mismanagement

under the Endangered Species Act. Trans. 63rd North Amer. Wildl. And Natur.

Resourc. Conf. 63:475–485.

Cade, T.J. 2003. Starting The Peregrine Fund at Cornell University and eastern

reintroduction. Pages 73–104 in Return of the peregrine, a North American saga of

tenacity and teamwork (T.J. Cade and W. Burnham, Eds). The Peregrine Fund,

Boise, ID.

Cade, T.J. and W. Burnham. 2003a. Introduction: the Madison Peregrine Conference and the struggle to ban DDT. Pages 13–22 in Return of the peregrine, a

North American saga of tenacity and teamwork. (T.J. Cade and W. Burnham, Eds).

The Peregrine Fund, Boise, ID.

Cade, T.J. and W. Burnham, eds. 2003b. Return of the peregrine, a North American saga of tenacity and teamwork. The Peregrine Fund, Boise, ID.

Cade, T.J., J.L. Lincer, C.M. White, D.G. Roseneau, and L.G. Swartz. 1971. DDE

residues and eggshell changes in Alaska falcons and hawks. Science. 172:955–957.

Cade, T.J., S.A.H. Osborn, W.R. Hunt, and C.P. Woods. 2004. Commentary on released California condors in Arizona. Pp—in Worldwide Raptors edited by R.D.

Chancellor & B.U. Meyburg (eds.), Proceedings Conference VI of the World Working

Group on Birds of Prey and Owls, Budapest, Hungary, May 2003.

Conway, W. 1986. The practical difficulties and financial implications of endangered species breeding programs. Intl. Zoo Yearbook. 24/25:210–219.

Division of Forestry and Wildlife, 2004. Draft implementation plans for

‘akiapola‘au, puaiohi, poouli, Oahu ‘elepaio, Maui parrotbill. http://www.dofaw.net/

fbrp/projects.php?id=00060.

Jenny, J.P. 2003. Turning away from extinction. Privatization Watch. 319:4–5.

Jenny, J.P., W. Heinrich, A. Montoya, B. Mutch, C. Sandfort, and G. Hunt. 2004.

Progress in restoring the aplomado falcon to southern Texas. Wildl. Soc. Bull.

32(1):276–285.

Kiff, L.F., D.B. Peakall, and S.R. Wilbur. 1979. Recent changes in California condor eggshells. Condor. 81:166–172.

Kuehler, C., M. Kuhn, B. McIlraith, and G. Campbell. 1994. Artificial incubation

and hand-rearing of ‘alala (Corvus hawaiiensis) eggs removed from the wild. Zoo Biology. 13:3.

Kuehler, C., P. Harrity, A. Lieberman, and M. Kuhn. 1995 Reintroduction of

hand-reared ‘alala (Corvus hawaiiensis) in Hawaii. Oryx. 29(4):261–255.

Kuehler, C., M. Kuhn, J. Kuhn, A. Lieberman, N. Harvey, and B. Rideout. 1996.

Artificial incubation, hand-rearing, behavior and release of common amakihi

(Hemignathus virens virens): Surrogate research for restoration of endangered Hawaiian forest birds. Zoo Biology. 15:541–553.

Kuehler, C., A. Lieberman, P. Oesterle, T. Powers, M. Kuhn, J. Kuhn, J.Y. Nelson,

T. Snetsinger, C. Herrman, P. Harrity, E. Tweed, S. Fancy, B. Woodworth, and T.

Telfer. 2000. Development of restoration techniques for Hawaiian thrushes: collection of wild eggs, artificial incubation, hand-rearing, captive-breeding and reintroduction to the wild. Zoo Biology. 19:263–277.

Kuehler, C., A. Lieberman, P. Harrity, M. Kuhn, J. Kuhn, B. McIlraith, and J.

Turner. 2001. Restoration techniques for Hawaiian forest birds: collection of eggs,

artificial incubation and hand-rearing of chicks, and release to the wild. Studies in

Avian Biology. 22:354–358.

Lieberman, A. and B. Hayes. 2004. The palila: honeycreeper of Hawaiian highlands. Zoonooz. 77(6):16–19.

Montoya, A.B., P.J. Zwank, and M. Cardenas. 1997. Breeding biology of aplomado

falcons in desert grasslands of Chihuahua, Mexico. J. Field Ornith. 68:135–143.

Newton, I. 2003. The contribution of Peregrine research and restoration to a better understanding of peregrines and other raptors. Pages 335–348 in Return of the

peregrine, a North American saga of tenacity and teamwork (T.J. Cade and W.

Burnham, Eds). The Peregrine Fund, Boise, ID.

Oakleaf, R. and G.R. Craig. 2003. Peregrine falcon restoration from a State biologist’s perspective. Pages 297–312 in Return of the peregrine, a North American saga

of tenacity and teamwork (T.J. Cade and W. Burnham, Eds). The Peregrine Fund,

Boise, ID.

Pattee, O.H., P.H. Bloom, J.M. Scott, and M.R. Smith. 1990. Lead hazards within

the range of the California condor. Condor. 1990. 92:931–937.
95

Pickrell, J. 2003. Are U.S. landowners killing rare species to avoid regulation?

Natl. Geo. News. http://news.nationalgeopgraphic.com/news/2003/12/1224—031229—

jumpingmouse.html.

Scott, J.M., B. Csuti, J.D. Jacobi, and J.E. Estes. 1988. Species richness: a geographic approach to protecting future biological diversity. Bioscience 37:782–788.

Scott, J.M., S. Conant, and C. van Riper. 2002. Evolutions, ecology, conservation,

and management of Hawaiian birds: a vanishing avifauna. Studies in Avian Biology

No. 22. Cooper Ornithological Society.

Tweed, E.J., J.T. Foster, B.L. Woodworth, P. Oesterle, C. Kuehler, A.A.

Lieberman, A.T. Powers, K. Whitaker, W.B. Monacan, J. Kellerman, and T. Telfer.

2003. Survival, dispersal and home-range establishment of reintroduced captivebred puaiohi, Myadestes palmeri. Biol. Cons. 111: 1–9.

U.S. Fish and Wildlife Service. 1990. Northern aplomado falcon recovery plan.

U.S. Fish and Wildlife Service. Albuquerque, New Mexico.

White, C.M. and L.F. Kiff. 1998. Language use and misapplied, selective science;

their roles in swaying public opinion and policy as shown with two North American

raptors. Pages 547–560 in Holarctic birds of prey (R.D. Chancellor, B.U. Meyburg,

and J.J. Ferreo, Eds), World Working Group on Birds of Prey and Owls, Berlin.

Wilcove, D.S., M.J. Bean, R. Bonnie, and M. McMillan. 1996. Rebuilding the ark:

toward a more effective Endangered Species Act for private land. Environmental Defense Fund, Washington, D.C.

RESPONSES BY BILL BURNHAM TO ADDITIONAL QUESTIONS FROM SENATOR CHAFEE

Question 1. What are the benefits of establishing a nonessential experimental population for species such as the aplomado falcon and the peregrine?

Response. The benefit of establishing a nonessential experimental (NEP) population designation for a species as allowed by section 10(j) of the ESA is species recovery can occur where otherwise it would be extremely difficult. Most of the ESA

is designed to prevent harm; 10(j) is one of the few provisions intended to promote

benefits. With a 10(j) the restrictions imposed by the ESA are removed, such as designating critical habitat, section 7 consultations, etc. By removing the restrictions

the private sector (including landowners), local communities, State governments,

and even Federal land management agencies are far more supportive of species recovery actions. In short, by removing the additional protection offered by the ESA

for a species, recovery actions can occur. A further benefit from an NEP designation

is added flexibility for recovery actions and species management. The 10(j) authorizes custom regulations composed specifically to restore the population.

California Condor.—The Peregrine Fund worked with the USFWS and State of

Arizona to establish an NEP designation for the California condor releases/recovery

in northern Arizona. Without this special status the support would not have existed

to allow for introduction of condors. The restoration program is by far the most successful for this species and offers the best chance of establishing a large self-sustaining wild condor population.

Aplomado Falcon.—The Peregrine Fund is working with the USFWS and the

states of New Mexico and Arizona to establish an NEP designation for this species

throughout New Mexico and Arizona. Public hearings occurred last week and a decision should be reached by the USFWS in the next few weeks. Supporting the designation are States, Federal land management agencies, the Department of Defense,

agro-business organizations, private landowners, and many more. Against the designation are those groups who wish to use the endangered aplomado falcon to stop

energy development, grazing, and other activities, particularly on public land. Without the NEP designation it is very unlikely recovery and delisting of the aplomado

falcon will occur in our lifetime or our even that of our children.

Peregrine Falcon.—Although the peregrine falcon would have been a suitable species to have been designated an NEP throughout much of its range, particularly the

Eastern United States, it was unnecessary for restoration to occur because it was

largely accomplished prior to the spotted owl/old growth forest controversy and litigation. Peregrine recovery was a highly cooperative endeavor where all involved

worked toward a mutually agreed upon objective—recovery and delisting.

Question 2a. In order to recover the peregrine falcon, four regional recovery teams

were established to develop and update a recovery plan and advise the U.S. Fish

and Wildlife Service. In your opinion, are recovery teams an integral part of restoring species?

Response. The value of a recovery team to species recovery depends upon (1) the

cause for jeopardy of the species, (2) the species’ biological needs, (3) needed actions/

guidance, if any, to cause a recovery, (4) the team’s direction from USFWS, composi-
96

tion, size, and leadership, and (5) whether the USFWS pays any attention to the

team’s recommendations and if there is follow-up.

For the peregrine, the recovery teams were formed to write recovery plans and

otherwise advise the USFWS as requested and each functioned somewhat differently and only once met as a group. The team for the Eastern United States annually met until the species was delisted, while the Rocky Mountain Northwestern

team wrote a long, detailed plan (which was outdated before it was approved), then

seldom met again.

Every endangered species does not need a recovery team to write a plan or advise

the USFWS. For example, the USFWS contracted with a single individual to write

a recovery plan for the aplomado falcon. The plan was then reviewed by others and

eventually approved. No recovery team was ever formed or has one been needed.

The species’ recovery is progressing well without a team.

Toward the other extreme, and as presented in my written testimony, in Hawaii,

to merely update the recovery plans for the Hawaiian crow and endangered Hawaiian forest birds it has taken the two different recovery teams over 10 years and as

far as I know the plans are still not approved and under review. In the meantime,

the Hawaiian crow has become extinct in the wild (although a captive population

remains) and the last known individual of one species/genus of forest birds, the

Po‘ouli, has died and most likely the species/genus is now extinct. What value have

the teams or plans so far provided?

A further example is the endangered ‘Io or Hawaiian hawk. In 1997 the USFWS

appointed an ‘Io Working Group to review the status of that species. In their report

they recommended the USFWS immediately delist the species. A year later, out of

frustration one of the team members wrote, ‘‘The leadership in FWS should read

the report and act to delist the bird without delay. More studies and more meetings

will not change things—someone will have to take the responsibility to see the hawk

gets delisted.’’ Still today the Hawaiian hawk remains on the list of endangered species. Of what value was this team if their recommendations were ignored?

Question 2b. What would an ideal recovery team look like?

Response. A recovery team should be comprised of fewer than ten biologists and

selected on their scientific understanding of the species and its threats. They should

NOT be implementing bodies for recovery and the members should clearly understand their role. Unless a USFWS employee happens to be an expert he or she

should not be a team member and should function only to facilitate the team’s activities and may be excluded from meetings, depending upon the team’s desires. The

recovery team is NOT the body or place for input and representation of stakeholders. Stakeholders’ participation should occur as part of a separate implementation agreement process I recommended in my written testimony (Implementation

Agreement). Such agreements are already being developed in association with Safe

Harbors and nonessential experimental populations. The recovery team should develop a brief, few-page long plan stating the problem and providing general recommendations and direction to reach stated recovery goals for downlisting and

delisting. Long detailed recovery plans benefit no one or the species about which

they are written.

Question 3a. We have heard a great deal about the importance of a robust scientific process and peer review for threatened and endangered species conservation.

What has the role of science been in the recovery efforts for the peregrine falcon

and other bird species of focus for your organization?

Response. It is difficult to know what people mean when they speak of science

related to species recovery, and the definitions may considerably vary. As someone

trained in the use of the scientific method, research, scientific writing and publishing, etc., my interpretation may be much different from other people who have

a different background. Equally, when peer review is mentioned I think of scientists

at similar levels of education, accomplishment, and knowledge commenting on a

subject as might occur when a legal question is referred to several judges of equal

rank. In other words, not all individuals with a background in science are equal

when it comes to providing review and comment. Also, opinions of scientists, like

other professionals and non-professionals, can vary greatly. Only the scientific method is pure. The best chance of obtaining a non-biased scientific opinion is if an organization like the National Research Council of the National Academy of Science appoints an independent panel of experts to provide a review and offer an opinion. I

have witnessed the USFWS staff choose a panel of peer reviewers with known uniform biases toward a particular issue/question. I cannot say whether it was by

chance or intentional.

The use of the scientific method and comment and discussion among scientific

peers was employed throughout the peregrine falcon recovery program. Prior to the
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existence of the ESA of 1973 scientific research was accomplished to determine the

cause for the species’ decline in North America and Europe. A National Science

Foundation grant then helped begin the research to determine how to propagate

peregrines. Various issues related to the recovery, e.g., subspecies use for restoration in the Eastern United States, were debated among and commented on by scientists (see Return of the Peregrine, a North American Saga of Tenacity and Teamwork, 2003). Throughout the life of the recovery program many advanced degrees

were obtained focusing on different aspects of the recovery, and probably hundreds

of technical papers were published. Still today, even after delisting of the species

has occurred, review and comment by scientists help guide decisions being made by

the USFWS related to peregrines.

Scientific research is also integral to both the aplomado falcon and California condor restoration projects in which we are involved. We use a scientific approach to

monitor the established wild population and to help guide recovery actions. Certainly some recovery processes and procedures are based on trial and error but even

for those the information gained is evaluated using a scientific approach and most

results are regularly published in peer-reviewed journals.

Question 3b. Have models and other non-empirical data been used to determine

future ranges and appropriate habitat types for these species?

Response. During the peregrine recovery probably millions of dollars were spent,

by land management agencies in particular, to study habitat in the absence of peregrines. Similar studies have been conducted associated with the aplomado falcon

recovery. Based on our experience, the information from these studies were seldom,

if ever, used and provided no obvious value and certainly nowhere near what they

cost to accomplish. On the other hand, research on habitat (precipitation, vegetation,

and prey) occupied by aplomado falcons in Mexico has provided insight for aplomado

falcon recovery in the United States (see Auk 121:1081–1093). In summary, research and monitoring should primarily focus on the actual species, not habitat or

other factors.

Question 3c. What scientific research is needed for recovery? (I added this question here.)

Response. Research should not usurp or be perceived as recovery action. The primary value of research is to (1) define the reason(s) for the species’ decline, (2) determine the factors limiting populations, and (3) help support and guide restoration.

A part of research should be to monitor the recovering populations to help evaluate

success or failure of restoration actions.

Question 4a. You recommend that the definition and provision of a ‘‘critical habitat’’ established by the 1978 Amendments to the Endangered Species Act be rescinded, and the definitions of a take and a harm appropriately modified to account

for all essential habitat needs of listed species.

Response. The 1978 provision for designating critical habitat has been one of the

more contentious aspects of administering the ESA. Both the USFWS administrators and outside environmental groups have often interpreted this provision in ways

that lead to disruptive and costly litigation against the USFWS by those who support and those who oppose specific critical habitat designations.

The definition of ‘‘take’’ in the ESA includes the word ‘‘harm.’’ Harm has been defined by USFWS rule-making to ‘‘include significant habitat modification or degradation when it actually kills or injures wildlife by significantly impairing essential

behavioral patterns, including breeding, feeding, or sheltering.’’ Thus, upon listing

a species its entire habitat effectively becomes protected whether it has been officially designated as ‘‘critical habitat’’ or not. As long as the definition of ‘‘harm’’ remains operative, the designation of critical habitat is largely duplicative and unnecessary.

Further, designation of critical habitat has fundamental flaws associated with

long-term habitat preservation. Once a species is delisted, any critical habitat associated with it is declassified and no longer protected under the ESA. Thus, for those

activist groups that choose to use endangered species as pawns for protecting habitat from deleterious human activities, there is a strong disincentive to support actions that would recover species and lead to their removal from the list of endangered species. Some commentators have concluded that recovery of species will

never be the primary function of the ESA; instead, its main utility is to prevent the

extinction of species by holding them in a state of perpetual endangerment and

thereby preserving critical habitat.

An alternative to critical habitat is the ‘‘Integrated Natural Resource Management Plan’’ that is being fostered on military reservations. It is an attempt to manage the resources of an installation in a manner that conserves all the species

present as a functional ecosystem while allowing for necessary military operations,
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some of which are quite obtrusive on the landscape. It is too soon to know how successful this concept will be for nature preservation. There is more experience with

Habitat Conservation Plans. Expansion of this approach should also be considered.

Certainly a more holistic approach to habitat conservation is needed. Something

like an Endangered Habitat and Ecoregion Act indicates the needed scale of attention to this problem. Such an act should provide for a system of protection and restoration for habitat units ranging up to and including ecoregions and biomes that

have been critically reduced in size or severely degraded as a result of human actions. The ESA could then focus more on the specific needs of survival and recovery

of critically endangered species.

Question 4b. Further, you recommend that owners should be compensated

through a system of purchase, leasing, easements, or other economic activities for

habitat protection on private lands. What types of funding streams should be utilized for providing incentives for private landowners for restoration projects?

Response. Although the ESA asserts that one of its purposes is to provide a means

whereby the ecosystems upon which endangered species and threatened species depend may be conserved, it is poorly designed to accomplish that purpose. Section

5 of the Act does address land acquisition for endangered species, directing the Secretary of the Interior to utilize authorizations under other statutes for that purpose,

but this potentially important provision has not been used to any significant extent

to preserve habitat for listed species. This may be one opportunity for funding.

It is impossible to determine the cost to the Federal Government for litigation associated with the ESA (cost of litigation, attorney’s fees to litigants, and cost of compliance with settlement agreements and court orders). Direct inquires to the Department of the Interior’s Office of the Solicitor, the USFWS, and the General Accounting Office revealed that this cost has never been calculated by these agencies. However, the current litigation load requires the time of three attorneys for section 4

litigation, two for section 7 cases, another for Habitat Conservation issues, and the

assistance of several others wherever needed. Across the county, perhaps another

100 people in regional offices of the Solicitor of the Department of the Interior work

on ESA-related litigation. In the USFWS, three full-time coordinators do nothing

but litigation focused on listing of species, and many other USFWS staff in the national and regional offices do ESA litigation support work. Over the past few years,

the litigation focus has shifted from mostly species listing cases to Critical Habitat

designation. Legal defense cost associated with the ESA litigation continues to grow

(Ellen Paul, pers. comm. following personal interviews/survey I requested). Substantially reducing ESA-associated litigation should provide funds to support actual recovery, including funding incentives to private landowners.

RESPONSE BY BILL BURNHAM TO AN ADDITIONAL QUESTION FROM SENATOR INHOFE

Question. You suggest that State input would be beneficial to the section 7 consultation process and you note that the statute does not specifically require solicitation of State input. Do you have specific recommendations for how to formally incorporate the states into the section 7 process and generally across the ESA regulatory

structure?

Response. As stated in my testimony, I do not believe endangered species recovery

will be successful just because of a Congressional or Federal Agency mandate to

make it so. We have found that accomplishment of successful recovery actions must

be at local levels and be based on trust. That can be very difficult to achieve at the

Federal Government level. Many Federal employees involved with the ESA seem to

see themselves as ESA enforcers, not recovery facilitators. Incorporating State government and the private sector more is very important. I would recommend the

Congress try to incorporate the participation of State governments wherever possible in future potential revisions to the ESA.

RESPONSES BY BILL BURNHAM TO ADDITIONAL QUESTIONS FROM SENATOR JEFFORDS

Question 1. Your testimony states that recovery plans should be brief to help simplify revision and updating. Is there an example of such an existing plan?

Response. Unfortunately, that I am aware, there are no existing recovery plans

as per my recommendation. Existing plans are long documents taking many months

and years to prepare which are outdated before they are approved. The Northern

Rockies Wolf Recovery Plan comes closer than most to being concise. Species recovery is not a static, but rather a dynamic process with continually changing needs

based on new information and results or lack of them. The long detailed recovery
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plans do not meaningfully contribute, but hinder species recovery by usurping ESA

money, wasting time, and potentially slowing or even preventing needed recovery

actions. Plans should state the problem(s) facing the species and provide general

recommendations and direction to reach stated recovery goals for downlisting and

delisting. The details for recovery actions can then be resolved and modified as necessary in working groups.

Question 2. Your testimony states that restoration actions for the California condor in Arizona and the aplomado falcon in Texas are being accomplished using tools

that essentially remove most protective restrictions imposed by the ESA and that

without these tools it is unlikely that either program would have been possible. Yet,

you are using the nonessential experimental population designation of the Endangered Species Act in these programs. Can you please explain the statement?’

Response. Section 10(j) of the ESA allows species recovery to occur where otherwise it would be extremely difficult. Most of the ESA is designed to prevent harm;

10(j) is one of the few provisions intended to promote benefits. For establishment

of experimental populations of endangered species as authorized under section 10(j)

they must be within a defined geographic area. For this to occur a naturally occurring population cannot already exist there and the establishment of the experimental population must benefit the listed species. The experimental populations can

be designated as essential or nonessential. The nonessential experimental population (NEP) designation means the population to be established is not essential for

the survival of the listed species. Except on National Parks and Recreation Areas

where the NEP is managed as a threatened species, elsewhere within the defined

geographic area section 7 consultation is not required or other ESA-related constraints placed on government and the private sector. Punitive measures under the

ESA would only be applied if individuals of the NEP are intentionally injured or

killed. The California condor is being released/recovered in northern Arizona and

southern Utah as an NEP. As I stated in my testimony, it is my opinion, and that

of many others, that the release of condors would have been impossible there without this special status authorizing custom regulations composed specifically to restore the population. We are recommending, as are the states of New Mexico and

Arizona, the same NEP status be given to the aplomado falcons we hope to establish

as breeding populations in those states.

In Texas, for recovery of the aplomado falcon we are using a Safe Harbor permit.

The Safe Harbor is not specifically permitted by the ESA now; it is a concept in

policy largely based on section 10(j) of the ESA. The Safe Harbor is only useful on

private property and does not apply to public lands, nor is it useful where a mixture

of private and public property exists. Texas has very little public property and is

therefore a suitable geographic area for use of Safe Harbor. A total of 58 counties

in Texas have been designated for use of Safe Harbor for aplomado falcon recovery.

Within that geographic area The Peregrine Fund, which has a 99-year permit, can

enroll private property owners as subpermittees.

Before we began release of aplomado falcons there, no naturally occurring wild

population existed. Therefore, when we surveyed the private property for aplomado

falcons prior to recovery actions we established the number of existing pairs (base)

for which the landowners have responsibility. Since there were no aplomado falcons

the property owners’ responsibility for aplomado falcons is zero. Because of recovery

actions/releases all aplomado falcons established represent a net gain to the species.

By the private landowners participating they gave up no legal rights nor gained

added restrictions from government by cooperating in establishment of an ESA-listed species on their property. Participating landowners, and their neighbors who are

protected even if they are not a permittee, continue to manage their property as if

the species did not exist. We presently have almost 1.9 million acres enrolled in

Texas for aplomado falcon recovery.

STATEMENT OF JOHN BAUGHMAN, EXECUTIVE VICE PRESIDENT, INTERNATIONAL

ASSOCIATION OF FISH AND WILDLIFE AGENCIES

Thank you, Mr. Chairman, for the opportunity to appear before you today to share

the perspectives of the International Association of Fish and Wildlife Agencies

(IAFWA) on the Endangered Species Act, particularly the role of the State fish and

wildlife agencies in implementing the Act. I am John Baughman, Executive Vice

President of the Association and a former Director of the Wyoming Game and Fish

Department, which gives me a personal perspective on ESA issues in the Western

United States.

The International Association of Fish and Wildlife Agencies was founded in 1902

as a quasi-governmental organization of public agencies charged with the protection
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and management of North America’s fish and wildlife resources. The Association’s

governmental members include the fish and wildlife agencies of the states, provinces, and the Federal Governments of the United States, Canada, and Mexico. All

50 States are members. The Association has been a key organization in promoting

sound resource management and strengthening Federal, State, and private cooperation in protecting and managing fish and wildlife and their habitat in the public interest. Implementation and improvement of the ESA has been a priority issue of

ours for the past 15 years.

The Association affirms that the Endangered Species Act has been and must continue to be a vital conservation tool for protecting and restoring threatened and endangered species and their habitats. However, the Association recognizes that improvements are needed in the design and statutory basis of the Act, in its implementation and administration. Since passage of the ESA, the State Fish and Wildlife agencies have identified what works and what does not work in meeting the

goals of the Act, and have through extensive discussion and dialogue, arrived at a

set of recommendations for necessary statutory amendment or reform through policy

or regulation. These recommendations (‘‘IAFWA Reauthorization and Reform of the

Endangered Species Act: General Principles September 30, 2004’’) are included as

an appendix to my testimony. Simply stated, the ESA must be streamlined for efficiency, amended to ensure increased authority and responsibility for States, and reformed to provide increased certainty and technical assistance for landowners and

water users.

The State fish and wildlife agencies’ objectives are very straightforward: (1) to

successfully carry out our public trust responsibilities to ensure the vitality of our

fish and wildlife resources for present and future generations; and (2) to encourage,

facilitate and enhance the opportunities, means and methods available to all citizens and especially landowners in our states to contribute to meeting this conservation objective in cooperation with our agencies and our Federal counterparts. Much

of this involves solving problems and reconciling differences, and we believe that

any ESA bill should provide new and useful tools, opportunities and direction to

achieve both of these objectives.

Before I share with you a summary of our ESA reauthorization principles, let me

describe for you our engagement in this issue over the last 15 years. Starting in

the early 1990s, IAFWA worked closely with the Western Governors Association

(WGA) to coordinate a dialogue with interests on all sides of the endangered species

issue that we hoped would result in a set of broad principles for reauthorization that

could engender wide support. The dialogue was the basis for both our principles

(first adopted in 1993) and WGA policy, both of which have been appropriately revised over time. The IAFWA general principles and WGA policy always were and

continue to be very consistent and compatible.

From the IAFWA General Principles and WGA policy, our respective staffs over

the next 2–3 years worked with interest groups, the Administration, and bipartisan

staff of Congress to arrive at a set of WGA legislative recommendations which were

sent to the Hill in 1996. Many of these recommendations became the foundation for

S. 1180, a comprehensive reauthorization bill in the 105th Congress from Senator

Chafee (RI), Senator Kempthorne (ID), Senator Baucus (MT) and Senator Reid (NV).

IAFWA strongly supported this bill, which was successfully reported out of the Environmental and Public Works Committee in 1997 but never brought up on the Senate floor for consideration. This was the last major ESA reauthorization effort by

Congress and even bills subsequently introduced that treated incremental changes

and/or a discrete part of ESA, such as designation of critical habitat, failed to make

significant legislative progress.

Let me now briefly summarize our five specific recommendations that we believe

any ESA bill should embrace:

1. Restore Congressional intent that reflects and respects the authorities, role and

responsibilities of the State fish and wildlife agencies in fish and wildlife conservation in general, and listed species in particular, through the section 6 language

which says that ‘‘In carrying out the program authorized by this Act, the Secretary

shall cooperate to the maximum extent practicable with the States’’. We firmly believe that reaffirming the role of the State fish and wildlife agencies in all aspects

of the ESA reflecting our concurrent jurisdiction over listed species sets the stage

for more efficient and effective administration of endangered species programs. The

State fish and wildlife agencies have broad statutory responsibility for the conservation of fish and wildlife resources within their border, including on most Federal

public lands. The states are thus legal trustees of these public resources with a responsibility to ensure their vitality and sustainability for present and future citizens

of their States. State authority for fish and resident wildlife remains the comprehensive backdrop applicable in the absence of specific, overriding Federal law. State fish
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and wildlife agencies must be given the opportunities to be fully involved in every

aspect of the Act, from consideration of listing petitions to de-listing through meaningful recovery plans. With appropriate and adequate funding, states are in the best

position, exercising their expertise and relationships with landowners, other governments, etc., to more fully engage in implementation of the Act.

2. Make Recovery Plans meaningful and non-discretionary, with both incentives

and obligations for all parties to the plan. Meaningful recovery plans that are appropriately funded and implemented should be the blueprint for conservation of listed

species, i.e., delivering on the ground what is necessary to bring those species to a

point where the provisions under the ESA are no longer necessary. The quid pro

quo for the commitment to conservation by government agencies, the regulated community and private landowners should be certainty regarding the fate and future

of their management actions and minimization of ESA process allowing those actions as long as they are consistent with the approved recovery plan. We strongly

believe recovery plans must have a trigger to initiate the down or de-listing process

once population/habitat recovery objective are met, and further, the process to down

or de-list needs to be expedited, which requires a statutory change. The post de-listing monitoring obligations/process also needs revision—it is too onerous and subject

to too much Federal agency discretion. The states believe that biological recovery

objectives for grizzly bear have long been satisfied but the USFWS has never settled

on a post de-listing monitoring plan and thus until very recently, held up a delisting

proposal for this species. That is simply unacceptable and needs to be changed.

Creating and implementing meaningful recovery plans will require both Congressional action in amending the ESA and as importantly, in appropriating adequate

funding. We also recognize that it will require a significant shift in the program

focus and workload of the USFWS and NOAA Fisheries in implementing the recovery plans, and changing their budget focus from listing species and designating critical habitat to recovery emphasis. State Fish and Wildlife agencies are expected to

play a significant role in drafting and implementing recovery plans, and adequate

funds will need to be made available for that purpose to the States.

3. Restore Congressional intent in creating the statutory distinction between

‘‘threatened’’ and ‘‘endangered’’ status. The Executive branch agencies have blurred

this distinction to a point where there is de facto no difference. Congress intended

the distinction, prescribed different statutory obligations and liberties, and the flexibility of this distinction needs to be restored as a tool for appropriate use by the

resource agencies. A careful reading of section 6 of the ESA and its legislative history will conclude, we believe, that Congress originally intended the states to be the

lead in threatened species recovery, as long as they qualified under an approved section 6 cooperative agreement. However, an ill advised USDI Solicitor’s opinion regarding section 6, combined with a blanket rule (50 CFR17.31) promulgated by the

FWS that presumptively extends the take prohibition to threatened species unless

a less restrictive specific 4(d) rule is developed, minimizes the utility of the threatened status and the potential for State lead in threatened species conservation. The

originally intended distinction between endangered and threatened status needs to

be restored.

4. A full portfolio of incentives for private landowners and also other government

agencies and industry needs to be statutorily institutionalized. Monetary incentives,

technical assistance, and regulatory certainty all need to be included. Actions contributing to conservation of the fish and wildlife species is the quid pro quo for the

incentives. Since the subcommittee has already held a hearing on the issue of landowners incentives, I won’t address this in detail. However, I would refer you to both

our treatment of incentives in the General Principles appended to this statement,

and ‘‘State Conservation Agreements: Creating Effective Partnerships for Proactive

Conservation’’ available on our website at (www.iafwa.org). This latter document is

a product of a 2-year national dialogue with interested parties on this issue.

5. Congressional recognition of the need for preventative conservation, including assured and dedicated funding, to preclude the need to list species through conservation actions that protect and restore declining species and their habitats before they

reach a point where listing is compelled. The State fish and wildlife agencies are

in the best position to lead in the implementation of these efforts when funding is

made available. The effort initiated in 1995 by our western State fish and wildlife

agencies to address the decline of the sage grouse and sage brush habitat is a great

illustration of what can be accomplished. This effort brought Federal agencies, private landowners, industry and others together at the local level in every sage grouse

range State to discuss and conclude actions that were necessary to sustain this species. Although on the ground efforts in implementing action plans need to be intensified, the USFWS earlier this year concluded that a petition to list the sage grouse
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1 Adopted by the Association at the March 1993 meeting in Washington, D.C.; revised, modernized and approved at the September 1995 meeting in Branson, MO; and updated and adopted at the September 2004 meeting in Atlantic City, New Jersey. This position paper is an evolving work, reflecting the best information available at the time of adoption, but subject to change

as new issues and information arise. Although adopted by the International Association of Fish

and Wildlife Agencies, and endorsed by Regional Associations, each State reserves the prerogative to take its own position on issues of concern.

was ‘‘not warranted’’. Proactive conservation, we believe, is better for both the species and for our citizens.

Finally, the Association reemphasizes that it is vitally important to secure funding (separate from ESA) for the States to provide conservation for all species and

their habitats in order to prevent species from becoming threatened or endangered.

This preventive management makes good biological and economic sense.

The Association’s Teaming With Wildlife initiative, and other wildlife diversity

funding programs that build on the tremendously successful Pittman-Robertson and

Wallop-Breaux user pay-user benefit program for wildlife and sportfish, would provide new reliable sources of funding for State programs. These funds should be allocated to the States for conservation, recreation and education programs relating to

fish and wildlife and their habitats. If we can address the limiting factors causing

a species decline before they reach a stage where the ESA is the only protection

against extinction, we can employ a series of voluntary, non-regulatory approaches

that provide more flexibility and creativity for conservation programs with private

landowners and other jurisdictional entities.

We continue to urge Congress to look favorably on the dedication of funds from

various potential sources (Outer Continental Shelf gas and oil royalties and leases;

gas and oil royalties and leases from exploration and development on Federal public

lands; or other sources) to fund these state-based preventative conservation programs.

It is only through dedicated and assured Federal funding combined with State

and private dollars that we can get out ahead of the curve of endangered species

listing.

Thank you for the opportunity to share our perspectives and I would be pleased

to answer any questions.

INTERNATIONAL ASSOCIATION OF FISH AND WILDLIFE AGENCIES

REAUTHORIZATION AND REFORM OF THE ENDANGERED SPECIES ACT: GENERAL

PRINCIPLES

SEPTEMBER 30, 20041

INTRODUCTION

The Association affirms that the Endangered Species Act (ESA or Act) has been

and must continue to be a vital conservation tool for protecting threatened and endangered species and their habitats. However, the Association recognizes that improvements are needed in the design and statutory basis of the Act, and in implementation and administration of the ESA.

In 30 plus years of experience with the ESA, the State Fish and Wildlife agencies

have identified what works and what does not work in meeting the goals of the Act,

and herein provide recommendations for necessary amendment or other reform

through policy or regulation. Significant reform could free up human and financial

resources to serve more species, put more money on the ground, and allow more people to interact positively with rare or declining species. The ESA must be streamlined for efficiency, amended to ensure increased authority and responsibility for the

States, and reformed to provide increased certainty and technical assistance for

landowners and water users, for example:

a. The Association concludes, from member agency involvement in the application

of the Act, that the Act provides some degree of discretionary flexibility. However,

administration of the Act often results in regulatory approaches and judicial challenges that are forced upon the Federal agencies by special interest groups and

which alienate local communities and result in the courts deciding how the Act is

applied.

b. The Association opines that this era of ‘‘conservation through conflict’’ has been

beneficial to neither the health of the species and habitats the Act seeks to protect,

nor the Act itself. In fact, it erodes rather than builds public support essential to

achieving the admirable goals of the Act. Recent Federal agency movement toward
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increased State and public participation in recovery planning should be enhanced,

but must recognize and respect State authorities and responsibilities for planning

on-the-ground delivery of collaborative conservation programs. The States are not

just another voice to be heard in the public process; they have a primary responsibility for wildlife conservation.

c. The Association opines that Federal agencies have not recognized or applied the

statutory distinction provided for between the classifications of ‘‘threatened’’ and

‘‘endangered’’ or fully embraced the role of the states in threatened and endangered

species recovery. This has compromised effectiveness of the Act.

d. Similarly, the lack of consistent definitions of recovery (e.g. in terms of population size and distribution), ‘‘significant portion’’ of a species range, and what constitutes historical range and constituent elements of critical habitat has lead also

to compromised effectiveness of the Act, and unnecessarily prolonged debate as to

which conservation actions will be given priority for funding and implementation.

e. The Association advocates and supports efforts to take ecosystem and broader

(e.g. regional) approaches to management and recovery, and to apply the Act to

‘‘clusters’’ or ‘‘guilds’’ of species, as already allowed for under the Act. These approaches greatly enhance the utility of the Act, and improve both the efficiency and

efficacy of the listing, critical habitat designation, and recovery processes. Listed

and imperiled species sharing a common habitat often require compatible protection

and recovery actions. Therefore, the agencies should, where appropriate, more frequently employ this means of conservation.

f. The Association appreciates recent changes by the Administration to provide incentives to State and private landowners through new funding programs; to provide

regulatory protections for landowners that voluntarily do good deeds to aid endangered species under safe harbor, candidate conservation and State conservation

agreements; and to provide certainty of protections under the ‘‘no surprises’’ and

‘‘PECE’’ policies and enhancement of survival permits. These changes improve the

effectiveness of the Act, and the Association advocates that, along with the changes

recommended in this document, these policies be established in law.

GUIDING PRINCIPLES AND RECOMMENDATIONS FOR REFORM

I. Preventive and Restorative Management

The Association reaffirms its commitment to prudent, proactive conservation of

fish, wildlife, and the natural communities on which they depend, so the need to

impose the rigors of the ESA for common species is minimized and to ensure that

species in greatest conservation need are restored. We do not advocate avoiding application of the Act; rather, we advocate addressing species and habitat declines by

cooperative prevention strategies before a crisis situation is reached, and benefiting

multiple species by taking a coordinated, comprehensive, management approach

once species are listed. Federal and State agencies and their partners must, where

possible, anticipate impacts on species and habitats, and address those factors comprehensively (where feasible) and proactively, rather than by reacting to them. We

must design remedies that restore the few, and benefit the many.

The ESA should and does play a crucial role as the necessary tool of last resort

for protecting against extinction, but it also must work in concert with, and not

against, other management actions. In concert with preventive management actions,

the ESA could not only restore species undergoing precipitous declines, but also ensure that they persist and never need the protections of the Act again.

Federal and State conservation agencies must cooperate fully in coordinating application of the many existing Federal statutes relating to public lands management

(NFMA, FLPMA, etc.), habitat conservation (HCPs, SHAs, CCAAs, SCAs, Critical

Habitat), and project impact review (ESA section 7, NEPA, etc.); comparable State

laws (nongame and endangered species laws; habitat protection laws; and environmental review statutes and programs); and county and local land-use planning ordinances and programs. A more comprehensive integration of the relevant statutes at

all levels would enhance their utility for conservation of fish and wildlife and their

habitats, ensure sustainability of ecological communities, restoration of species at

risk, and preclude the need to list other species.

Further, there needs to be a major thrust to adequately fund endangered species

recovery efforts and (distinct from ESA reauthorization) to fund broader State/Federal programs for conservation of the vast majority of non-game fish and wildlife

species that are currently receiving far less than adequate attention, and thereby

providing the means to prevent species from becoming endangered. Based programmatically on the highly successful Sportfish and Wildlife Restoration Programs

under the Wallop-Breaux and Pittman-Robertson Acts, the fish and wildlife diversity funding initiatives of the past several years, which have been supported by
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IAFWA, all 56 fish and wildlife agencies among the States, and by a large and stillgrowing grass-roots coalition across the country, are intended to secure permanent,

dedicated funding to provide among other things, for prevention of species imperilment, through development of comprehensive wildlife conservation strategies and

provision of routine fish and wildlife management practices by the States and their

conservation partners.

Finally, the Association encourages use of both legally binding State Conservation

Agreements and inter- and intra-governmental agreements for candidate species

and species of concern in lieu of listing them as candidate, threatened or endangered, where management actions specified under such Agreements can remove the

threat(s) to the species. Broad, non-regulatory, landscape scale, comprehensive habitat-based agreements must also be encouraged. Clarification of the Endangered Species Act to recognize and support such cooperative agreements is required. Affirmation of State authority for non-listed species must be legislatively assured and the

role of the State fish and wildlife agencies in this process must be institutionalized.

By requiring the Secretary to concur with State-led conservation agreements involving affected jurisdictional entities and private landowners (where appropriate) that

are determined by the Secretary to be adequate to address the needs of and recovery

of declining or at-risk species, the Secretary will be legally shielded from a requirement to impose certain regulatory implications through suspension of the consequences of listing. Private landowners should be given legal assurances that, once

they commit to certain responsibilities under such agreements, no additional liabilities will be imposed on them, unless by mutual agreement. The incentive for Federal agencies to participate is that they would incur no liability under section 7 if

actions to recover declining species were taken prior to listing.

II. The Role of State Fish and Wildlife Agencies

The Association advocates legislative assurance of the co-equal role of the State

fish and wildlife agencies under the Act. Under the ESA, States share jurisdictional

authority for listed species, which is executed through a cooperative agreement

(ESA section 6) with the U.S. Fish and Wildlife Service (USFWS) or the National

Oceanic and Atmospheric Administration Fisheries (NOAA Fisheries). And yet, the

State fish and wildlife agencies are often not adequately included in the implementation of the Act. The States, where they have the fiscal resources, expertise, staff,

and political support to do so, should play a much greater role in administration

of the Act with the USFWS and NOAA Fisheries. The section 6 Cooperative Agreement should be redesigned to function as a true partnership agreement between and

among the States, USFWS, and NOAA Fisheries, requiring close collaboration, coordination, and mutual agreement on implementation of all aspects of the Act. The

section 6 agreement can be the vehicle to identify the respective roles of the States

and Federal agencies. It should provide the flexibility to allow States that so chose

to assume the lead for, or total assumption of, aspects such as pre-listing conservation, recovery planning and implementation oversight, SHA and HCP administration, delisting responsibilities, and post-delisting monitoring. Even when States do

not take the lead, their involvement should be co-equal with the Federal agencies.

States should also be given the financial resources to assume an expanded role in

ESA administration and implementation.

There should be coordinated joint rulemaking and decisionmaking processes between and among the USFWS, NOAA Fisheries, and the State fish and wildlife

agencies for administrative and regulatory actions. In the rare cases where the

States, USFWS, and NOAA Fisheries cannot reach agreement on administrative,

regulatory, and implementation actions, the respective Secretaries of Interior or

Commerce should have the final decision to resolve disagreements.

The role of the State fish and wildlife agencies in coordination/co-administration

of the Act with the Federal agencies must not be subject to the Federal Advisory

Committee Act (FACA), since the States share jurisdictional authority with USFWS

and NOAA Fisheries for listed species. It is simply not appropriate for the day-today cooperation between the States and Federal agencies to be subject to FACA.

Thus, the ESA must be amended to ensure that FACA does not apply to any aspect

of State participation in all aspects of the ESA.

III. Listing

The Association contends that other features of the Act, such as the recovery plan

process, should provide sufficient latitude for balancing or harmonizing the needs

(socio-economic) of mankind, without changing the listing process itself to embrace

those issues. Listing should be decided based solely on biology, and States should

be equal partners with the Federal agencies in petition evaluation, data review,

rule-making and decisionmaking for all listing, downlisting and delisting actions.
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The State fish and wildlife agencies can and should be fully empowered and authorized to facilitate the listing process. Areas of reform include:

a. Prelisting Data Collection and Reviews: State agencies have expertise in conducting population status inventories and geographic distribution surveys to facilitate review of which species should be advanced to the official proposed stage for

listing consideration. The USFWS and NOAA Fisheries can and should avail themselves of this expertise by contracting with (or by use of other means) the States

to provide these data and analyses.

b. Reliance on Sound Science: The threshold of what constitutes substantial information provided in a listing petition to warrant further consideration must be

raised. The petitioner should be required to provide the data on which they are relying in the petition. The Services need broad flexibility to reject petitions lacking scientific basis.

c. Adequate Time Frames for Listing Decisions: The statutory time frames allowed

for listing decisions are too short to provide for adequate information to be collected

and analyzed. This causes a flawed decision making process precipitated by legal

action. The Services should have flexibility to delay decisions, especially on species

where there is little information with which to make a decision or in cases where

major scientific studies are underway that will provide information for decision

making.

d. Presumption for State Information: If a determination is made that substantial

information is submitted with a listing petition, the Secretary should be required

to provide all listing petitions to the appropriate State fish and wildlife agency or

agencies for review. There should be a rebuttable presumption in favor of State information and recommendations on listing, which the Secretary should be required

to refute through peer review if the Secretary disagreed with the State recommendation.

e. Exclusions of a State or Geographic Area in the Listing Process: The Act should

provide greater flexibility to not list a distinct geographic area or State within the

range of a species if it is receiving adequate management within that portion of its

range. Providing geographic exclusions will ensure that States that have adequate

management programs for rare species are not penalized for lack of effort or result

elsewhere, and would provide an incentive for States to provide adequate management. Similarly, there should be greater flexibility to delist a distinct geographic

area or State within the range of a species where ESA protections are no longer

needed.

f. Joint Rule-Making and Decision Making Between the USFWS, NOAA Fisheries

and the State Fish and Wildlife Agencies: State agencies have jurisdictional authority for species prior to listing, and share jurisdiction for species when listed and during post-delisting monitoring stage. Because of this co-equal role with the Federal

agencies, State agencies should be given the choice to participate fully in petition

evaluation, data review and rule-making processes, and be given an equal say in

listing decisions. Decisions should be made on a consensus basis, whenever possible,

by the State agencies, USFWS, and NOAA Fisheries. If the partners cannot agree

on a listing decision, the respective Secretary of Interior and Commerce should

make the final decision.

IV. De-Listing

Efforts to recover listed species must receive enhanced attention, at least concomitant with the attention given to listing. The Association suggests that additional

focus and attention on recovery planning and achievement will lead to species population status commensurate with down- or de-listing. Legislative criteria linking the

process to initiate down- or de-listing action to meeting objectives in approved recovery plans should be mandated. Incremental down- or de-listing by State or geographic population should proceed with much greater priority than it now receives.

De-listing must be maintained and activated based solely on biology. To emphasize

the importance of the de-listing process, funding for de-listing actions should be increased and receive a specific-line item within the appropriations provided for listing actions. Until the USFWS catches up with the backlog of listing proposals, delisting actions too often get relegated to a low priority because of the process pressures and legal challenges with many listing petitions. This approach does not recognize the importance of acknowledging and rewarding accomplishments under the

Act to building public support for the Act and the conservation programs carried out

under it.

The Association advocates that the States be authorized to design and develop

monitoring programs on de-listed species, with recognized (by the Federal agencies)

full legal responsibility for species conservation, and report annually to the Sec-
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retary during the 5-year period on the status of the monitored species. Funds must

also be provided to the States to conduct these monitoring and evaluation efforts.

V. Critical Habitat Designation

The Association advocates that critical habitat designation should occur concurrently with recovery planning, except when there is an urgent eminent threat to a

significant amount of occupied habitat that would warrant designation at the time

of listing. The Secretary should retain discretionary authority over when and whether or not to designate critical habitat, and not be under a statutory mandate to always designate critical habitat. State agencies should be equal partners with the

Federal agencies in evaluating the need, planning, identifying areas, rule-making,

and decision making processes for all critical habitat designations.

State fish and wildlife agencies have expertise, knowledge and data regarding a

species extant and historic ranges, where it may now be extirpated, and which habitats might have the potential to facilitate species recovery. Habitats for recovery

may include those that were historically occupied, if they are still capable of supporting the species; in the absence of such areas, non-occupied but potential habitat

should be identified for recovery. Whether either or both kinds should be identified

as ‘‘critical habitat’’ must be decided on a species-by-species basis. The Association

recommends clarifying the regulatory implications of what constitutes ‘‘adverse

modification of critical habitat’’ (discussed in the section on Prohibited Acts).

The Association recognizes the value of voluntary non-regulatory efforts of many

landowners to protect, manage and restore habitats needed for recovery. Many landowners have implemented or are willing to commit to implement management programs that equal the biological protections of critical habitat. Providing these conscientious landowners with protections from the regulatory implications of critical

habitat designations rewards their good acts and provides incentive for other landowners to do likewise. The Act provides that the Secretary has discretion to exclude

areas for critical habitat designation, if the benefits of exclusion outweigh the benefits of designation. The Association recommends expanding the types and use of exclusions and institutionalizing them in policy and statute, including:

a. exclusion of all lands covered by a HCP, SCA, SHA, or other approved conservation plan from critical habitat designations;

b. exclusion of State lands that have protection equivalent to that provided by designation of critical habitat; which provide a net benefit to the species through protection and management of the land; and which have an effective management program;

c. exclusion of county and private lands under a cooperative management agreement between the State and the Service, another Federal agency, or private conservation organization or partnership that has protection equivalent to that provided by designation of critical habitat; provides a net benefit to the species through

protection and management of the land; and which provides an effective management program;

d. exclusion for important Military training areas that have adequate Integrated

Natural Resource Management Plans;

e. provide a stewardship incentive exclusion for state, county and private lands

that would be voluntarily entered into conservation partnerships or some other form

of management agreement;

f. automatic removal of critical habitat designations for all future HCPs, SCAs,

and SHAs when approved by the Service according to standards that the plans or

agreements achieve a net conservation benefit and have undergone public review.

VI. Recovery Plans/Recovery Teams

Once a species is listed, States must make every effort to address the factors that

will result in recovery of the species and its ultimate delisting. The intent of the

Act is to recover species, not just list them. The States can and must play a major

role in recovery planning and implementation. State fish and wildlife agencies

should always be given the opportunity to take the lead on recovery planning, or

in the absence of an appointed recovery team or appropriate surrogate, to provide

professional review of draft recovery plans prepared by a FWS or NOAA Fisheries

staff or contractor. The utility of a team approach not only provides for application

of a broad base of knowledge and perspectives, but also better intergovernmental

coordination regarding biological, social, economic and environmental factors. State

fish and wildlife agency participation brings management expertise, practicality,

and experience in working with both private landowners and local land use regulatory agencies (county Planning & Zoning agencies, for example), both of which are

vital to success of recovery programs.
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Recovery plans should present a number of recovery options that are technically

feasible and will lead to species recovery and delisting. Different recovery options

may have significantly different social, economic and environmental consequences.

Statutory deadlines should be imposed on the agencies to produce a draft recovery

plan no later than 2 years after listing, a final recovery plan not later than 3 years

after listing, and a revision every 10 years. Recovery plans should:

a. identify jurisdictional responsibilities through implementation agreements;

b. provide multiple recovery approaches that are technically feasible, as options

for agencies to use to best meet social, economic, and environmental needs;

c. have the flexibility to provide short-term interim management strategies for

those species for which there is little information with which to develop a full recovery plan or when interim recovery strategies are the best approach to stabilize populations;

d. identify specific (i.e. quantified, measurable) population and habitat objectives

that, when attained, trigger down or delisting;

e. include appropriately documented and credible justification for all goals, objectives, and implementation approaches;

f. identify habitat important for recovery of the species, designate (if appropriate)

critical habitat for regulatory purposes; and provide an indication of important habitat factors necessary for the species—i.e., simple protection may not be the best

course of action—recovery and maintenance may require habitat changes such as

openings, diversity, early successional stages, etc.;

g. provide pro forma section 7 approval for Federal agency and State agency actions that are consistent with recovery plans;

h. provide ‘‘short form’’ HCPs for private landowners for certain activities, and

(where appropriate) exemption from section 9 and 10 restrictions for others;

i. provide certainty to cooperating landowners regarding their fate under the ESA;

j. be exempt from NEPA, if comparable State process is satisfied; and

k. satisfy plan amendment requirements for ESA under NFMA, FLMPA and other

Federal land management acts, if the proposed actions are consistent with the appropriate recovery plan.

VII. Distinction between Threatened and Endangered

The ESA distinguishes between ‘‘threatened’’ and ‘‘endangered’’ species, with the

status of ‘‘endangered’’ being subject to more protective regimes than ‘‘threatened’’.

Clearly, two separate categories were legislatively provided for in the Act for very

definite and distinct purposes. Although threatened species are imperiled and at

risk of becoming endangered, there is greater leeway for management flexibility and

protections provided. The USFWS and NOAA Fisheries apply rules for protecting

endangered species to threatened species as well, regardless of whether additional

protections are warranted. The agencies or Congress must reassert the distinction

between these classifications in the Act, including greater application and involvement by the States in development of section 4(d) rules allowing for management

flexibility.

VIII. State Conservation Agreements, Candidate Conservation Agreements, Safe Harbor Agreements and Habitat Conservation Plans

The Association supports the use of State conservation agreements, candidate conservation agreements, safe harbor agreements, and habitat conservation plans. The

State fish and wildlife agencies can provide contacts, expertise, and knowledge to

contribute toward successful use of these tools in conserving listed species and their

habitats. The use and applications of these tools should be more fully clarified and

understood by all agencies. State Conservation Agreements, Candidate Conservation

Agreements, and Safe Harbor Agreements provide incentives to states and private

landowners to invest in conserving rare species and in recovering species that are

listed. They can remove the threat of future regulatory restrictions that are too

often associated with listed species. Habitat Conservation Plans, in their limited application thus far, have already been used effectively to bring together affected and

interested parties, to examine and agree on short-term objectives and long-term

goals, and provide certainty to the recovery process while minimizing impacts on

private lands and meeting the recovery needs of affected species. The Act should be

amended to specifically include these as recovery tools.

IX. Certainty and Incentives for Private Landowners

Private landowners can play a major positive role in species recovery, if they are

involved in the process early, given appropriate information on what they can and

cannot do, and have certainty about the fate of their own land management practices under ESA. Most landowners want to be good stewards of their land. Most will

work with fish and wildlife resources agencies, if they are approached with courtesy
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and respect, and sensitivity to their interests and plans. Federal agencies and

States must do a better job of matching existing incentives (under several programs

at all government levels, such as Farm bill programs, the Landowner Incentives

Program, and Private Lands Stewardship Program, etc.) with landowners who are

interested in conservation. In return, Federal and State agencies need to assure

landowners that, if they agree to certain habitat conservation measures, we will not

require any more of them. This certainty must be assured for prelisting State Conservation Agreements, Safe Harbor Agreements, and Habitat Conservation Plans.

Several areas are ripe for providing additional monetary conservation incentives

for private landowners including changes to inheritance tax law to remove the disincentive that forces the breaking up of large tracts of land to pay taxes; and establishment of a permanent statutory basis for the Landowner Incentive Program for

fish and wildlife habitat conservation on private lands.

X. Prohibited Acts

The Association advocates that the USFWS and NOAA Fisheries clarify the

standards they will apply in making a determination if alteration to habitat constitutes harm, and thus a ‘‘take’’ under section 9 of the Act. Not all habitat actions

lead to species decline; some disturbance, in fact, may be vital to recovery of species

dependent on early successional stages.

The Act should be amended to affirm the current regulatory standard for prohibiting ‘‘destruction or adverse modification of critical habitat’’ for Federal actions

under the section 7 process. The prohibition now applies if the ‘‘destruction or adverse modification of critical habitat’’ would jeopardize the continued existence of a

listed or proposed species. The Association is concerned that a more restrictive

standard, i.e. one that would prohibit any minor loss or adverse modification of critical habitat, would establish quasi-sanctuaries on State and private land and create

regulatory grid-lock for many Federal actions including those funding State programs. The Act needs to provide both adequate protection and flexibility to manage

the quantity, quality and location of critical habitat for species recovery. The Association believes that as long as adequate mitigation is required in the section 7 process to offset any minor loss or adverse modification of critical habitat, than the current ‘‘jeopardy’’ regulatory standard is appropriate.

XI. Funding

The Association supports enhanced appropriated funding for all aspects of the

ESA. We realize the challenges faced by Congress in meeting all national needs.

However, we strongly urge a re-focus of appropriated dollars so that section 6 funding can be significantly increased, if necessary by reallocating non-traditional section 6 granting funds. The amount available in recent fiscal years to States is both

grossly inadequate, and not at all proportionate to the responsibility of the State

fish and wildlife agencies for listed species. The amount of funding provided under

the program has not grown in relation to increases in the number of listed species.

In 1977, Congress provided $4.2 million for assistance to states to deal with 194 listed species. In 2002, the number of listed species (1,263) was more than six times

as large, yet Congress provided just $7.52 million for assistance to States. This represents a decline in real support for this program, when adjusted for inflation. We

also suggest that as States assume a greater lead in administering the ESA, Congress should redirect other Federal appropriations now going to USFWS and NOAA

Fisheries to the States for funding implementation of the Act.

At the same time, we believe that existing funding must be more effectively spent,

and alternative-funding sources should be fully explored. The Association suggests

that continuing to spend substantial money on species that are essentially recovered, at least in part of their range (such as the bald eagle), should be from sources

other than those available under the ESA. The USFWS, NOAA Fisheries, and State

fish and wildlife agencies all need to explore processes for assigning funding to listed species to ensure that those in the most significant need of recovery attention

(and not just those that are the most charismatic) are addressed first.

Finally, the Association reemphasizes that it is vitally important to secure funding (separate from ESA) for the States to provide support for conservation programs

for nongame fish, wildlife and their habitats in order to facilitate a conservation

safety net before it is necessary to impose the ESA to prevent species extinction. This

preventive management makes good biological and economic sense.

The Association’s Teaming With Wildlife initiative, and other wildlife diversity

funding programs that build on the tremendously successful Pittman-Robertson and

Wallop-Breaux user pay-user benefit programs for wildlife and sportfish, would provide new reliable sources of funding for State programs. These funds should be allocated to the States for conservation, recreation and education programs relating to
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fish and wildlife and their habitats. If we can address the limiting factors causing

a species decline before they reach a stage where the ESA is the only protection

against extinction, we can employ a series of voluntary, non-regulatory approaches

that provide more flexibility and creativity for conservation programs with private

landowners and other jurisdictional entities.

RESPONSES BY JOHN BAUGHMAN TO ADDITIONAL QUESTIONS FROM SENATOR CHAFEE

Question 1. In order to receive Federal funds through the State Wildlife Grants

program, Congress charged each State and territory with developing a State Comprehensive Wildlife Conservation Strategy due by October 2005. How will these

State strategies be used to better coordinate species protection at the State level?

Response. Under the State Wildlife Grants (SWG) program and Wildlife Conservation and Restoration Program (WCRP), every State and territory has prepared

a Comprehensive Wildlife Conservation Strategy. These strategies are built to address the needs of those fish and wildlife species in each State that are in decline

and need conservation attention. At the direction of Congress, the strategies identify

declining fish and wildlife species, evaluate their habitat needs, assess the problems

they face, and outline the actions that need to be taken to conserve them over the

long term.

The focus of the State Comprehensive Wildlife Conservation Strategies is on preventing wildlife from becoming endangered. The strategies identify conservation actions that need to be taken to help the hundreds of species of fish and wildlife that

are in decline but are not yet subject to the Endangered Species Act. This preventive approach to conservation makes better sense from a biological standpoint, because it is much easier to take action to conserve and manage fish and wildlife before they reach critically imperiled populations. Early intervention also saves taxpayer dollars, gives managers greater flexibility to pursue innovative approaches,

and reduces conflict over endangered species conservation and land use.

Although the Comprehensive Wildlife Conservation Strategies were written in

order to fulfill the requirements of SWG and WCRP, their full scope goes well beyond the use of funding from these programs. Early in the planning process, the

State fish and wildlife agencies decided that the strategies would outline what needed to be done for all of the state’s wildlife and not just what the agency intended

to do with SWG or WCRP dollars. The strategies encompass a broad range of conservation actions, and they are already being integrated into broader conservation

activities by State wildlife agencies and their conservation partners. The strategies

were developed through extensive consultation with other agencies, conservation

groups, and the public, in a process designed to draw together all the best thinking

on wildlife conservation. As a result, the Comprehensive Wildlife Conservation

Strategies provide, in many cases for the first time, a sweeping platform for comprehensive wildlife conservation in every state.

While the Comprehensive Wildlife Conservation Strategies are focused on preventing wildlife from becoming endangered, they integrate the actions that need to

be taken to address the needs of threatened and endangered species. Because the

strategies include endangered species in the larger context of all declining wildlife

species, they identify many opportunities for achieving conservation success for endangered species along with other fish and wildlife through habitat conservation

and other broad-based approaches. This integrated, landscape scale approach to conservation ultimately means better outcomes for wildlife and taxpayers.

Question 2a. To what extent have states shown the initiative and desire to take

on the burden of recovering species?

Response. Once a species is listed, States must make every effort to address the

factors that will result in recovery of the species and its ultimate delisting. States

can and must play a major role in recovery planning and implementation. States

agencies should always be given the opportunity to take the lead on recovery planning. State agency participation brings management expertise, practicality, and experience in working with both private landowners and local land use regulatory

agencies, which are vital to the success of any recovery programs.

States have already played a significant role in the recovery of endangered species, such as bald eagles and peregrine falcons. The States ability to do so is limited

largely to funding.

Question 2b. Do states have the resources necessary to implement recovery plans

for federally listed species?

Response. States do not have the resources necessary to implement recovery plans

for federally listed species. If State wildlife agency responsibilities for ESA imple-
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mentation were increased as a result of reauthorization, whether on the regulatory

side or on the proactive conservation side, the resultant financial burden would

cause even worse regulatory gridlock than occurs now due to USFWS inability to

move compliance and recovery issues forward at the pace they require. Additional

State funding for implementing ESA is critical.

Furthermore, there needs to be a major thrust to adequately fund endangered

species recovery efforts (distinct from ESA reauthorization) and to fund broader

State/Federal programs for conservation of the vast majority of non-game fish and

wildlife species that are currently receiving far less than adequate attention, and

thereby providing the means to prevent species from becoming endangered.

Question 3. In your testimony, you focus on the original intent of Congress for

states to be the lead in threatened species recovery, as long as an approved section

6 cooperative agreement exists. How should Congress go about restoring this original intent to pass authority on to the States? At what point, if a State threatened

species recovery plan is failing, should the Federal agencies step in to address the

situation?

Response. The USFWS has effectively precluded a greater role for the states in

threatened species conservation by passing a regulation which preemptively applies

the same section 9 take prohibitions to threatened species as the law applies to endangered species, unless FWS promulgates a less restrictive 4(d) rule for that species. Congress could express further its intent that those are decisions to be left to

those states that have an approved section 6 ‘‘full authorities’’ cooperative agreement by adding at the end of section 4(d) the following language: ‘‘When such a cooperative agreement exists, the State may issue regulations for regulated takings

of threatened species within their borders.’’

The FWS is mandated to annually review section 6 cooperative agreements for

sufficiency and compliance with the law’s standards. If the state’s conservation program for a threatened species is insufficient or out of compliance, the FWS can direct corrective action or take over the program.

Question 4. The Sage Grouse Conservation Plan in the 11 Western States with

sage grouse populations has been a testament to the important role of partnerships

between the Federal Government, the State and local governments, private landowners, businesses and non-profit organizations. How can the Sage Grouse plan be

used as a model for other species conservation efforts across the country?

Response. Now that all 50 State Comprehensive Wildlife Conservation Strategies

have been completed and submitted to the FWS, the next step is for the states to

look collectively at species of greatest conservation need across the several states

and identify those of the highest regional or ecosystem priority so that a concerted

effort can be directed to conservation of those species. Then, using collaboration affected between State-Federal-local governments on information regarding species,

habitat and land use, engage private landowners, industry and public land managers in solutions to conserve the habitats necessary to support the species. The

Sage Grouse effort success is predicated on collegial information sharing, and engendering conservation action from the ground up.

Question 5. The State of Arizona has signed a Memorandum of Understanding

with the U.S. Fish and Wildlife Service to spell out more clearly the duties and responsibilities of the State and the Federal Government with regard to protection

and recovery of listed species within Arizona. What lessons can be learned from the

successes of the MOU?

Response. The ‘‘success’’ of the Arizona MOU with USFWS is restricted to Arizona. No other State has chosen to enter into a similar MOU even though they are

all aware of the model. Arizona through the MOU is assuming a great deal of the

Secretary of the Interior’s responsibilities for ESA implementation without receiving

Federal funds to carry out those responsibilities. Arizona has done that because they

believe it advances species conservation on the ground. The lesson here is that Federal funding will be absolutely necessary to facilitate greater State engagement in

ESA implementation.

RESPONSES BY JOHN BAUGHMAN TO ADDITIONAL QUESTIONS

FROM SENATOR INHOFE

Question 1. You provided an example, the grizzly bear, about how the lack of a

Federal de-listing monitoring plan has held up the species’ removal from the endangered species list. Is the monitoring plan something that the states could develop

and implement and would that delegation of responsibility speed up the de-listing

process? What are other ways to speed up this process?
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Response. The ESA envisioned cooperation and collaboration between the states

and the Federal Government in recovery and management of threatened and endangered species. While the Secretary cannot legally delegate ‘‘responsibility’’ for many

facets of ESA administration, she can delegate ‘‘authority’’ to the states for review

of listing decisions, recovery planning, development of management and monitoring

protocols, and on-the-ground management and monitoring of threatened and endangered species. The Secretary would still retain oversight and approval without the

need for duplication of effort and redundancy of resources. The states already have

scientific expertise, dedicated personnel and resources, and, and in many cases, established programs to accomplish these functions. ESA administration would be well

served to examine and build upon the successful model of state-Federal cooperation

found between the EPA and State departments of environmental quality in administration of water quality discharge permits. Another way to speed up the process

would be to automatically de-list when recovery goals are met, rather than having

to wait for an under-funded, bureaucratic process to be completed.

Question 2. In your testimony, you state that ‘‘State fish and wildlife agencies

must be given the opportunities to be fully involved in every aspect of the Act, from

consideration of listing petitions to de-listing through meaningful recovery plans.’’

Could you provide us some specifics about where in the regulatory process you think

the State should play a role and how strong a role they should play?

Response. As agencies sharing jurisdictional authority over listed species, the

State fish and wildlife agencies should have a meaningful role in the construct of

regulatory application of the ESA. However, we acknowledge that the final decision

making authority should, under Federal law, remain with the Secretary. We suggest

some sort of a ‘‘collaborative rule making’’ role for the states with the Secretary

where the Secretary would give great weight to the states’ recommendations but the

Secretary would retain final decision-making authority.

Question 3. You mentioned the State agencies expertise in both pre-listing conservation and ability to gather data on listing petitions, what makes the states more

efficient than the feds at this process and how could states be more effective at prelisting conservation, in hopes of preventing listing.

Response. The efficiency of using the states on species that are being considered

for listing, or that have been petitioned for listing, lies in the fact that states often

possess the best, and sometimes only, information on the species. Thus, the states

are in the best position to assess the merits of listing considerations based on the

data they have collected and interpreted.

States can be more effective in conservation efforts to preclude the need to list

species by having the funds necessary to address the life needs and habitat requirements of those species before they decline to a point where listing is compelled

under ESA.

RESPONSES BY JOHN BAUGHMAN TO ADDITIONAL QUESTIONS

FROM SENATOR JEFFORDS

Question 1. Your testimony states that your association would support using funding outside of the Endangered Species Act, such as Outer Continental Shelf gas and

oil royalties, to support State endangered Species efforts. Could you elaborate on

how you think those funds could be used and suggest other innovative funding

ideas?

Response. A dedicated funding source for State endangered species efforts and

preventative conservation efforts, such as from Outer Continental Shelf (OCS) gas

and oil royalties, is critical to the success of any national recovery program for wildlife. State fish and wildlife agencies strongly believe the single most important thing

you can do for endangered species is prevent them from becoming endangered. A

preventive approach to wildlife conservation makes sense biologically, economically,

and politically.

Current annual appropriations for the State Wildlife Grants program have had

substantial benefits for fish and wildlife. However, the variable nature of these

funds impairs the ability of wildlife managers to implement the long-term, on-theground conservation programs that are truly needed to achieve large-scale results

for wildlife. Unlike the infrastructure or equipment needs that characterize transportation, defense, or other policy areas, the restoration and management of degraded habitats and critically low wildlife populations requires sustained attention

over time. The uncertainty inherent in the annual appropriations process limits the

ability of wildlife agencies to take effective action.
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Congress recognized the need for dedicated funding for preventive conservation

with the passage of the Fish and Wildlife Conservation Act in 1980, under the leadership of Senator John Chafee. Since that time, the State fish and wildlife agencies

have worked steadily with Congress and the Administration to build support for

wildlife conservation funding, especially in the 1990’s with the efforts under the

Conservation and Reinvestment Act. Title III of that bill proposed the creation of

the Wildlife and Conservation Restoration Program (WCRP) as an account under

the Pittman-Robertson Wildlife Restoration Act, aimed specifically at declining and

nongame wildlife species. Although CARA did not pass, the WCRP was created

through a separate measure in 2000. However, the WCRP is currently not funded.

Securing a dedicated funding source for the WCRP would realize Congress’ long deferred intent to fund preventive action to advance the national interest in keeping

species from endangered.

The Comprehensive Wildlife Conservation Strategies recently completed by every

State and territory outline how additional Federal wildlife conservation funds could

be used in partnership with State funds to conserve endangered species along with

hundreds of other declining fish and wildlife species. This landscape-scale approach

to conservation represents the most effective way to conserve fish and wildlife nationwide, and continues the very successful model of Federal-State partnership in

wildlife conservation.

Funds from OCS oil and gas receipts are appropriate sources of funding for wildlife conservation for several reasons. We have reviewed and considered many other

sources of funds such as adding additional user fees through excise taxes on outdoor

gear beyond hunting and fishing gear, cap and fence appropriations, damage fees

from other extractive industries, or dedicating a portion of the existing coal reclamation fund. The dedication of a percent of off-shore receipts from oil and gas production is most appropriate due to the impact that these activities have on wildlife and

habitat. These dollars can act in essence as ‘‘mitigation funds’’ for oil and gas development activities. As revenue to the Federal Treasury, it makes sense to dedicate

these dollars to the pressing national interest in conserving fish and wildlife resources. Additionally, there is a precedent with the use of the off-shore oil receipts

since it is used for the Land and Water Conservation Fund.

In addition to off-shore oil and gas receipts, we believe that the royalties from onshore receipts are a promising source of funds for preventive wildlife conservation.

On-shore drilling royalties are now deposited into the general Treasury without any

dedication to ‘‘mitigation’’ purposes as is the case with off-shore royalties. Production in these areas is increasing dramatically and with it increased revenues coming

into the Treasury. In addition to the value of using a portion of this revenue to advance the pressing national interest in wildlife conservation, on-shore production

causes direct impacts to wildlife and habitat on the ground in each State that call

for appropriate conservation actions. Our nation should have a ‘‘reinvestment’’ fund

based on on-shore production just as the off-shore oil and gas does.

State fish and wildlife agencies are strongly in favor of dedicating Federal funding

for proactive State efforts to address the national interest in preventing wildlife

from becoming endangered. We urge the Senate to consider such a program by including in any ESA or related legislation a dedicated funding source to fund the

Wildlife and Conservation Restoration Program. This program outlines that the

funds should be used for conservation, recreation and education. The State wildlife

conservation strategies, now done for each State and territory in the nation, will

guide this funding for the species and habitats in greatest conservation need ensuring the funds are directed towards preventing wildlife from becoming endangered.

Question 2. Your testimony states that the distinction between threatened and endangered status for species needs to be restored. How do you think that can be

done?

Response. The USFWS has effectively precluded a greater role for the states in

threatened species conservation by passing a regulation which preemptively applies

the same section 9 take prohibitions to threatened species as the law applies to endangered species, unless FWS promulgates a less restrictive 4(d) rule for that species. Congress could express further its intent that those are decisions to be left to

those states that have an approved section 6 ‘‘full authorities’’ cooperative agreement by adding at the end section 4(d) the following language: ‘‘When such a cooperative agreement exists, the State may issue regulations for regulated takings of

threatened species within their borders.’’

Question 3. Your testimony states that in the 1990s your association worked with

the Western Governors’ Association on Endangered Species Act legislative recommendations. Are you familiar with the goals the Western Governors have proposed this year? Does your association support these goals?
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Response. Yes, we are very familiar with WGA’s proposed goals and are very supportive of those goals.

Question 4. Do most State Fish and Wildlife Agencies have access to qualified personnel needed if states were to take on increased responsibility to carry out the Endangered Species Act?

Response. Yes, but most states would need enhanced funding to support the staff

necessary to more actively engage in ESA implementation.

STATEMENT OF KAREN SCARBOROUGH, UNDERSECRETARY, STATE OF CALIFORNIA

RESOURCES AGENCY

Good morning, Mr. Chairman and Members of the Subcommittee, I appreciate the

opportunity to testify today regarding the Endangered Species Act (ESA). Since January 2004, I’ve had the honor of serving as Undersecretary of the California Resources Agency. Under the leadership of Governor Arnold Schwarzenegger, the

State has made great progress to protect the environment and California’s natural

resources. California has a strong tradition of environmental protection. We have led the nation in adopting strict standards for air and water quality, supporting zero-emission

technologies, and promoting renewable sources of energy.

Governor Schwarzenegger is continuing this tradition through his bold Hydrogen

Highway Initiative which calls for 250 hydrogen fueling stations and 20-thousand

hydrogen vehicles on California’s highways, his One-Million Solar Roof Initiative,

and recently signing an executive order launching the Green Building Initiative to

make State office buildings more energy efficient.

In June, the Governor set new greenhouse gas emission targets that by 2050 will

reduce emissions by 80 percent below 1990 levels. Already, many major California

companies are voluntarily joining this effort.

The Governor’s natural resource management achievements are equally as bold.

The preservation of more than 80,000 acres of open space and 13 miles of the majestic central California coastline at the famed the Hearst Ranch is a new model of

public-private cooperation. The creation of the 25-million-acre Sierra Nevada Conservancy also sets a new standard for multi-faceted resource stewardship planned

and to be carried out cooperatively by more than a dozen Federal and State agencies, 22 counties and several hundred local government entities and districts. The

Conservancy boundary encompasses an area approximately 35–80 miles wide that

if super-imposed on a map starting from the Dome of the U.S. Capitol would reach

beyond Atlanta to the South, beyond Chicago to the West or beyond Boston to the

North.

At the Resources Agency, we work to find methods to simultaneously conserve

California’s unique natural resources and foster thoughtful/sustainable development

and economic growth. The Natural Community’s Conservation Program and planning process accomplishes this efficiently and effectively. Implementation of the

NCCP, which began in 1991, has been an unprecedented effort by the State of California to collaborate with numerous public agencies, utilities and private groups to

craft a broad-based ecosystem approach to planning for the protection and perpetuation of biological diversity in the state, while accommodating compatible growth and

appropriate economic development. This balance is the NCCPs greatest benefit as

well as its greatest challenge.

The NCCP was modeled after the Habitat Conservation Plan (HCP) process within section 10 of the Endangered Species Act (ESA). However, the NCCP was intended to promote more comprehensive actions to overcome perceived shortcomings

of the Federal HCP program. In fact, the conservation standard in the NCCP Act

goes beyond the mitigation standard of ESA. Each NCCP comprises a bundle of recovery actions. Notwithstanding the different standards, the NCCP Act and ESA

can be blended together almost seamlessly. They complement each other so well

that every NCCP permitted to date has also been an HCP. As a result, California’s

combined NCCP/HCP’s have the highest standards for regional conservation plans

in the nation.

The NCCP initially targeted some of the highest-priced real estate in the world

in southern California and its coastal sage scrub community, an area with more listed species than anywhere but Hawaii. California’s Floristic Province, a zone of Mediterranean-type climate with a high amount of endemic plants, has been identified

by several organizations as one of the world’s top ‘‘biological hot spots’’. The first

plan was completed in 1995, and since then, seven regional plans have been approved, protecting hundreds of thousands of acres of wildlife habitat in southern

California counties alone. Statewide, 11 counties and numerous cities are currently
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participating in NCCP planning and implementation, as well as electric, gas and

water utilities and a private timber company. There are 31 active NCCP’s of varying

scope and complexity.

San Diego’s Multiple Species Conservation Plan (MSCP), is a recognized NCCP

and HCP through a signed planning agreement. The MSCP started at the same

time as the NCCP but from a different angle. A large scale mitigation plan was required by the U.S. Fish & Wildlife Service (USF&WS) to resolve a Federal lawsuit

on San Diego’s sewage treatment system. San Diego’s plan was focused on 93 species and its’ study area encompassed 585,000 acres in the southwest corner of the

county.

Political leadership was instrumental to the success of San Diego’s MSCP. Then

Mayor of San Diego, Susan Golding, championed the MSCP on behalf of the participating local governments and affected stakeholders. Her involvement in the process

was essential to gaining broad-based support for the program and the engagement

of other local governments and stakeholder groups. She also provided the foresight

and strength to continue with the plan even after the Federal lawsuit that instigated the plan was settled.

My involvement with this program started in 1991 as the appointed Chair of the

MSCP Working Group, a 32-member group that met every third Wednesday for almost 7 years. I later joined Mayor Golding’s staff, and helped move the plan to its

ultimate passage at the City Council in 1997. Setting a table at which all interested

stakeholders are invited, at the outset of the process, is critical. Working Group discussions were predicated on ‘‘win-win’’ scenarios for all who sat around the table

and participated in the plan development. Consensus was the principle used at all

meetings. It enabled moving through the process to arrive at outcomes, from disputes to certainty.

The MSCP was predicated on a partnership between Federal, State, local and private representatives. It linked Federal policy to local government (where most land

use authority resides), to local needs (e.g., for open space, quality of life, and balanced development), and to local stakeholders (who could help with implementation

and build political support). More was accomplished through these links than the

ESA could have accomplished on its own. The MSCP shifted local planning from

dysfunctional, piecemeal project-by-project mitigation and a single species focus to

large scale, comprehensive, ecosystem plans.

The main attributes/elements of the MSCP (and NCCP’s in general) are that it:

• Sets up a partnership with the State and Federal wildlife agencies • Requires the participation of affected stakeholders • Provides a legitimate biological basis for assurances through the use of sound

science from the outset and adaptive management throughout • Approaches species planning at an ecosystem level • Covers future as well as currently listed species

• Meets the conservation standard

• Provides a vehicle for eliminating critical habitat where the plan is in place

• Provides a one-stop-shop for local developments and is an off-the-shelf framework for mitigation required by State or local laws, e.g., CEQA

• Provided a template for other, even larger efforts, such as the Western Riverside County Multiple Species Habitat Conservation Plan

• Requires an ongoing funding stream

• Needs leadership by an elected official

The MSCP planning process was an experience of trust building I will never forget. The lessons learned are now integral to the foundation upon which I have continued to pursue the same balance for the State and Governor. Many of the Working

Group members remain my closest and dearest professional colleagues.

Utility rights-of-way can be important backbone linkages in a preserve plan. The

special needs of utilities are recognized in the state’s NCCP legislation, thus encouraging their participation. Infrastructure providers face the same challenges raised

by potentially severe endangered species listings constraints as do developers yet 85

percent of their work is for maintenance and operations. Endangered species listings

affect essential maintenance and operation activities as well as making planning for

new facilities and transmission even more difficult. To maintain safe and reliable

energy supply, as well as ensuring needed water for agriculture, homes and businesses, a new way of managing rare species is required. The NCCP program offers

a solution. SDG&E, a large energy services company, saw the potential and crafted

the first NCCP/HCP that has allowed for both new construction and operations and

maintenance to proceed. Since 1995, SDG&E has used its permit over 2,500 times.

Statewide, plan implementation has been underway for almost 10 years. Local,

state, and Federal Government have cooperated with environmental interests and

landowners to ensure the plans are implemented as approved. In San Diego County
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alone, voters in 2004 approved almost $900 million for wildlife protection and habitat acquisition. Since 1991, more than $24 million in Federal funds has been provided for NCCP planning in the five southern California counties. Those funds, plus

matching investments from the state, have leveraged private preserve dedications

valued in the billions of dollars. From 2001–2004, the Resources Agency’s Department of Fish and Game (DFG) successfully competed for $5.6 million for regional

conservation planning in the northern areas of the state. Even with these successes,

funding remains a serious challenge to successful implementation, but with matching or assistance from USFWS/DFG, local government has been able to persuade

voters to help pay for the costs of assembling and running the preserve.

The original NCCP legislation has been updated and strengthened to increase

public participation and improve the scientific underpinnings for future plans. The

quality of the plans is uniformly high, but we continue to be vigilant to improve

upon them.

A large part of the success of the NCCP approach in California is our having had

a strong Federal counterpart interested in similar conservation outcomes. The ESA

and NCCP Act complement each other such that blending them together into a single conservation planning process makes an excellent case for robust conservation.

Even so, we believe we can improve. Achieving ESA/NCCP consistency at the Federal level and policy consistency between Federal and State endangered species regulation and law is a worthy goal.

After our nearly 10 years of experience working in this arena, we have a several

observations and continuing challenges for your consideration:

Assurances/Certainty.—The main reason we have been able to attract local jurisdictions, landowners, and utilities to participate in the NCCP process is the assurance that in the event steps need to be taken to correct a problem with a covered

species, for whatever the reason, that those costs will not be passed on to the participating landowners. Utilizing the Congressional intent expressed in the Endangered Species legislative record of 25 years ago, a strong No Surprises policy is critical this need. This No Surprises policy has been a resounding success. To my

knowledge, it has not been invoked to date and we continue to interest local government in habitat conservation. NCCP/HCP’s have contingency plans built into them,

and adaptive management over time has always been a hallmark of a successful

landscape level habitat conservation plan. Given the amount of confusion about

what the policy means, a discussion about codifying No Surprises seems in order,

and could possibly lead to changes that could remove a cloud of uncertainty over

the long-term viability of NCCP/HCP’s.

Critical Habitat.—We have found that the designation of critical habitat remains

controversial. It is not clear, especially given recent court decisions in different parts

of the country, what the regulatory implications of critical habitat designation are.

Litigation has increased the confusion. Our plans already meet a recovery standard

because the NCCP Act requires a conservation standard, which entails recovery,

and all NCCP/HCP’s meet both State and Federal standards. Arguably, the time

and money spent on critical habitat matters, including responding to litigation,

might better be spent working on the actual species recovery effort. Looking at solutions which would reconcile sections 7 and 10 of the Act might be helpful. All the

parties would benefit from this clarification.

Off-Site Mitigation.—Since NCCP/HCP’s cover vast swaths of natural lands, the

ability for plan participants to offset impacts elsewhere within the planned preserve

has been very useful in assembling the preserve. In some ways, these plans are like

puzzles, with pieces being placed as they become available and according to the

plan. In San Diego, some local governments have assembled almost their entire preserves, way ahead of schedule; offsite mitigation has been a crucial part of the success of the approach. Many of the participating landowners are also limited by factors such as topography, utility availability and cost when attempting to preserve

essential habitat. Providing legislative clarity on the use of offsite mitigation land

in HCP planning seems to be an important objective.

Clarification of Public Utility Uses.—There is inadequate consideration in Federal

law of the differences between their operations and traditional development. Any review of the law should consider policy differentiating between the very small impacts associated with repeated maintenance and operations activities and those of

traditional land consumptive activities.

Funding for Planning.—Local governments do not typically have the significant

amounts of money necessary to complete an NCCP plan, estimated from $3-6 million depending on complexity and the length of time it takes. This problem is exacerbated in difficult State budget times, when State funds to local governments are

often reduced. Grants for conservation planning are essential to maintaining mo-
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mentum in NCCPs. The FWS’ HCP Assistance grant program has enabled many jurisdictions to initiate and make significant progress on their plans.

Implementation Commitments: Land Acquisition.—The higher conservation standard of NCCP includes the concept and Legislative intent that the public shares in

the responsibility to pay for a portion of the conservation. In all NCCPs approved

to date, the State and Federal Governments have agreed to contribute acres to the

reserve system and assist with management and monitoring. For example, the State

and Federal agencies agreed to contribute 13,500 acres to the San Diego MSCP reserve system, and 50,000 acres to the Western Riverside MSHCP reserve system.

The demand for Federal HCP land acquisition grants is rising, yet the Federal funding has declined significantly [over the past 2 years (2002–$61.3M, 2004–$49.4M)].

It is hoped that the State and Federal funding streams for land acquisition (typically State bonds and Federal grants) will continue at levels sufficient to meet the

needs of these and future plans to be approved in [northern] California.

Implementation Commitments: Institutional Capacity.—Inherent in commitments,

are the wildlife agency staff positions that will be needed for ongoing planning and

implementation. Wildlife agency staff need to support the concept as well as continue to be involved in the land use planning process, coordination with local partners on plan implementation, monitoring program compliance, assessing land acquisition priorities, applying for grant funds, and participating in biological monitoring

and adaptive management and do so constructively. There are currently no State

bond funds or Federal grants that can provide the necessary monitoring and management funding for the wildlife agencies to carry out their commitments. New

funding sources must be found that will allow the wildlife agencies to uphold their

public trust responsibilities to these plans.

In conclusion, proactive planning of our natural resources from a landscape level

has been the way California has found to deal with the fact that we are both a ‘‘biological hot spot’’ and a great place to live. The technical products of this labor are

only part of the reward. The relationships and trust that is generated through the

process transcends the plans and is invaluable.

Mr. Chairman, I thank you for the opportunity to share our experience with habitat planning. I would be pleased to respond to any questions you might have.
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RESPONSES BY KAREN SCARBOROUGH TO ADDITIONAL QUESTIONS

FROM SENATOR CHAFEE

Question 1. What ESA changes could help provide State and local governments

with the tools necessary for assisting in species recovery?

Response. For California to meet ESA’s objectives without severe economic hardships, our best hope is to expand NCCP planning, which would benefit from the continuation of the local assistance grants that have helped fund the NCCP planning

efforts over the last 10 years. These grants are a very efficient use of public money,

based on the statistics provided by local government plan participants. State and

Federal funding has been matched many times over by local government exactions

and private land dedications. For example, in San Diego County, the Federal Government contributed $35 million to the NCCP from 1997–2004. In the same period,

that funding leveraged dedications of private land valued at $486 million, and the

expenditure of $36 million in County general funds. State investment in the same

period totaled $80 million. These grants have been administered under strict oversight, generally at the multi-jurisdictional level. All grants are requested yearly and

progress reports required.

We applaud the performance analysis the Office of Management and Budget has

been preparing, because it will show that these large plans provide economies of

scale. Cooperative planning agreements were signed between the United States Fish

and Wildlife Service (USFWS), California Department of Fish and Game (CDFG)

and local governments that spell out responsibilities and provide for funding assistance through the Cooperative Endangered Species Fund (Section 6) and other local

assistance sources.

Some additional suggested ways for ESA to better support NCCPs are provided

in the answer to Senator Chafee’s next question.

Question 2. Are there aspects of the NCCP that could be incorporated into legislation to encourage HCP focus on both mitigation and recovery?

Response. Acting under the assumption that the NCCP concept is the best path,

there are several congressional actions that could be taken to improve the plans.

First is to codify the ‘‘No Surprises’’ assurances policy. No Surprises was developed for the southern California NCCP pilot program, to motivate landowners and

local jurisdictions to participate, and has been very effective. Many landowners have

told us that without these assurances, they would not participate in the NCCP process and would pursue other remedies which frankly would not promote the largescale solutions of the NCCPs.

The second NCCP-based action would be to employ the California ESA’s conservation standard for covered species, to ensure that recovery actions become integral

to carrying out NCCPs.

A third essential element of NCCP success is the ability to employ offsite mitigation for impacts to species. Since NCCPs are done at a landscape level, mitigation

is often the only way to ‘‘complete the puzzle’’ of a preserve plan. We understand

that for some regulated industries, offsite mitigation may be detrimental, so its use

should be voluntary.

Fourth, the State NCCP program provides a mechanism for utilities to obtain

take authorizations for the rare instances when their operations and maintenance

activities may lead to impacts to protected species. The Federal Government has an

opportunity to improve on the way infrastructure providers can assure safe and reliable service by expanding and codifying a safe harbor policy for water, electric, and

natural gas providers. It is likely this change could benefit Southern States recovering from recent hurricanes, and California’s efforts to achieve levee stabilization.

Fifth, the use of the low impact HCP approach should be expanded. These special

HCPs provide a way for applicants such as local governments, water districts, flood

control districts, utilities and Indian tribes to undertake necessary, ongoing maintenance activities. No one should have to mitigate for impacts more than once.

Sixth, we support the elimination of the critical habitat provisions of the ESA in

favor of a more useful approach The designation of critical habitat appears to provide no benefit to the NCCP process; in practice, the process diverts scarce USFWS

staff and funding away from the much more productive NCCP conservation effort,

and can be a disincentive to voluntary participation in NCCPs by private landowners. Since NCCPs inherently address recovery actions, critical habitat and the

associated obligatory recovery plans become redundant in NCCP planning areas.

Question 3. With ‘‘No Surprises’’ staying intact, would you support creating a fund

to pay for monitoring and adaptive management?

Response. Yes, but should the Senate consider such a fund, its members should

realize that the fund could be matched by local or State funds and could apply only
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to NCCP-type HCPs. Many confuse the meaning of ‘‘No Surprises.’’ It is simply a

tool that allows participants to bracket their financial exposure before committing

to NCCPs long-term stewardship obligations. Even public utilities with low impact

activities benefit from the business planning stability that the ‘‘No Surprises’’ policy

provides. The ‘‘Changed Circumstances’’ provisions in today’s NCCPs and HCPs protect the CDFG and USFWS from the costs associated with such predictable events

like drought, fire, floods and even pestilence.

RESPONSES BY KAREN SCARBOROUGH TO ADDITIONAL QUESTIONS

FROM SENATOR INHOFE

Question 1. What steps can be taken to ensure HCPs are meaningful and binding

management documents for both State and Federal entities?

Response. Since NCCPs are prepared jointly by State and Federal Governments,

they have the same Covered Species list, thereby eliminating the problem cited in

the question. The plans are binding under the existing State and Federal legal

frameworks and compliance and enforcement have not been an issue. California has

a provision in its Fish and Game code that provides that a permit obtained from

the U.S. Fish and Wildlife Service to take species also applies to the state. Each

State should have a similar reciprocity provision in its regulations.

Question 2. What additional steps can states take to ensure that the State or local

entities are adequately involved in the process where any new listing, recovery or

delisting decisions are made by the Federal Government? Should the Federal Government be required to seek local input when considering listing, recovery and

delisting actions?

Response. Because local governments are usually the holders of the take permits

from the California Department of Fish and Game, their involvement is essential

to the success of NCCPs. Landowners get their permits to take State or federally

listed species as part of their local land use approvals: in effect, ‘‘one-stop shopping’’

is created.

Federal listing, recovery and delisting decisions should always be made in the context of local and State actions that support, are neutral, or jeopardize rare species.

The public review process for such actions can be a venue for input. As a result of

our NCCPs, California has been able to prevent the listing of species that are already being treated and protected as if they were listed. These species benefit from

the recovery actions that are inherent in the NCCPs.

Your question did not specifically address public involvement, but it may be helpful to point out that California’s NCCP Act mandates a public involvement process

to allow all interested parties to provide input. Public input is also solicited for

NCCP-mandated planning agreements, that bind the parties to a defined process.

The public process and providing the basis for collaboration is the real secret of

NCCP success—the parties start working together early in the planning process, so

major issues can be addressed before they can threaten successful completion. For

example, in San Diego, it became clear well before the mapping and preserve design

process was finalized that an assurances policy was going to be needed to buttress

landowner and local government cooperation. From that collaboration, a strong consensus of support emerged and helped lead to the formulation of ‘‘No Surprises’’ assurances.

Question 3. What incentives are needed and how can the ESA be amended to engage small landowners in habitat protection?

Response. This question should be expanded to include all parties affected by

habitat protection issues. A number of incentives that lead to beneficial effects for

species are available to improve landowner participation, including safe harbors and

working landscape policies and, of course, NCCPs. The existing safe harbor policy

and nascent working landscape policies should be expanded and better codified to

provide assurances that ongoing activities, if conducted according to agreed-upon

protocols, are not deleterious to rare species.

As an example of how partnering with landowners can work, we have discovered

that modest changes to work practices frequently can have significant beneficial results. For example, rice farmers in the Sacramento Delta, instead of burning chaff

yearly, can leave the stubble in the fields, flood them, and thereby provide critical

forage and stopover territory for migratory waterfowl. The waterfowl eat the chaff

and their waste fertilizes the soil for next year’s crop. Air pollution is cut and also

water for the rice crop is put to wildlife use.

We also have found that utility rights of way and access roads can serve as important linkages for wildlife preserve planning. By coordinating road grading, tree trim-
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ming and other maintenance practices, utilities can eliminate most of the potential

negative effects on rare species: in fact, intermittent scheduled maintenance activities, such as on levees and other types of infrastructure, can have the effect of enhancing habitat for rare species like the Quino checkerspot butterfly that require

periodic habitat disturbance.

As a way to build support for regional habitat conservation planning, special

treatment for low effect, albeit frequent, impacts from infrastructure providers

should be included in the tools available to State and local governments. Not only

can rights of way be valuable as preserve connections, many times, large capital

projects provide opportunities for mitigation packages which can help establish a regional wildlife preserve. For example, the expansion of a water reservoir can lead

to the set aside of compensatory habitat in large blocks elsewhere, while allowing

jurisdictions to meet their obligations to provide a safe and reliable water supply.

In NCCPs, a public participation process is required and can be used to engage

small property owners. Many public meetings and mailers to landowners preceded

the adoption of southern California’s NCCPs. In those meetings, the benefits of the

CDFG and USFWS delegation of permitting authorities were explained and the

economies of scale demonstrated. In essence, by combining forces, local governments

are able to leverage their land use authority to simplify the Federal and State permitting processes and incorporate the needs of species in local general plans.

Question 4. What role do/should State and local governments have in the decisionmaking process for endangered species protection? Would it produce a better result

if the Federal Government worked with local and State interests on a plan that benefits the species and the community while staying consistent with project goals?

Should the ESA decisionmaking process be open to the public?

Response. The Federal Government’s expertise clearly is needed in ESA decisionmaking, but the NCCP program shows the benefits of Federal, State and local jurisdictions working together to achieve successful large-scale habitat conservation

planning. To the extent ESA can be reformed to encourage this sort of cooperative

effort, other states may benefit as California has.

Using the best available scientific information should always be the standard. Unfortunately, it doesn’t always happen, as the Klamath and other cases of abuse of

discretion or scientific method have demonstrated. A more transparent scientific

process that draws on State and local expertise can help improve the scientific process, as could the establishment by the Secretary of Interior of clear and enforceable

standards for the scientific decisionmaking process to be used with ESA.

The Federal Government can also assist State and local jurisdictions by supporting peer review efforts. When decisions are made without peer review, costly

mistakes can occur. However, for the approved plans in southern California, a paid,

locally-established scientific advisory panel provided a forum for careful scrutiny of

the conservation planning principles under consideration. The scientists on the

panel were drawn from regional universities and were known for their expertise.

Having a panel of professional equals minimized the ability of anyone agenda to

sway a discussion. The scientific bases of the NCCP in southern California have not

been challenged.

The scientific underpinning of NCCPs is ongoing. Monitoring programs are carried

out under strict protocols that monitor habitat health, species populations and other

factors, so management practices can be adjusted to improve outcomes. Local governments and arguably, State governments, do not have funding available for such

rigorous scientific oversight. The Federal Government may wish to consider supporting a locally-generated scientific review process in return for a jurisdictions, participation in NCCP-type landscape level habitat conservation plans.

Qualified local participants should have a say in listing decisions and all information used in making such decisions needs to be available for review by any and all

interested parties. One reason the NCCPs are successful is the transparency of the

program.

STATEMENT OF BILL OWENS, GOVERNOR OF COLORADO AND DAVE FREUDENTHAL,

GOVERNOR OF WYOMING ON BEHALF OF THE WESTERN GOVERNORS’ ASSOCIATION

Chairman Chafee, Senator Clinton, Members of the Subcommittee. We present

this written testimony today on behalf of the Western Governors’ Association

(WGA). The Western Governors’ Association is a bipartisan, independent, nonprofit

organization representing the governors of 18 states and three U.S. Flag islands in

the Pacific. Through our Association, the Western Governors identify and address

key policy and governance issues in natural resources, the environment, human

services, economic development, international relations and public management. We
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appreciate the opportunity to share with you the Western Governors’ perspectives

on the Endangered Species Act (ESA).

Western Governors commend you for taking up this very important, but admittedly difficult issue. Our states and communities must deal with the impacts of proposals to list species and management decisions made under the ESA on a daily

basis. That is why the Western Governors have long advocated that Congress review

and update the Act as well as provide sustained levels of funding for the program.

We strongly believe in the principles and goals of the ESA. The intent of the ESA

remains a laudable goal. Yet the tools authorized by the current Act have become

outdated and are incomplete. We, therefore, appreciate the opportunity to work with

the Committee to help you build a bipartisan consensus for a few targeted, commonsense enhancements to the Act.

Let us reiterate that last point—we strongly believe that the ESA can only be reauthorized through legislation developed in a consensus fashion that results in

broad bipartisan support. Our predecessors, and in some cases our predecessors’

predecessors recognized this simple fact in the early 1990s when the Western Governor’s Association (WGA) and others embarked on a collaborative process to find

common ground on this issue among a diverse set of stakeholders. The debate was

so acrimonious in the beginning that it had to be temporarily called off. Soon however the parties were back at the table and negotiations began to bear fruit. Senators Dirk Kempthorne and John Chafee embraced this process and introduced comprehensive reauthorization legislation (S. 1180) based upon these proposals. At the

time, WGA strongly supported S. 1180 and actively sought its passage.

Reauthorization of the ESA continues to be a high priority of the Western Governors. In continuation of the collaborative efforts of the past the WGA hosted an

Endangered Species Act Summit in December 2004 at which we brought together

a very diverse set of stakeholders to discuss ways in which the Act could be improved. We quickly realized that finding common ground on a comprehensive reauthorization of the Act would be difficult and elusive. However, it also became fairly

obvious that we had the beginnings of a consensus around four broad principles

which, with some further discussion and effort, might form the basis of a deal to

improve species conservation. We submitted these proposals in a letter to the Committee this past February. The four proposals were: • Require recovery goals for listed species.—Western Governors believe that recovery and, ultimately delisting of species covered by the ESA should be the highest

priority of the Act. Federal funding for ESA activities should be prioritized to reflect

this priority. We believe that the best way to accomplish this goal is to require the

Fish and Wildlife Service and NOAA-Fisheries to publish quantifiable recovery

goals, in consultation with the affected state(s), for threatened or endangered species at the time of the listing decision to provide for objective recovery criteria that

both State and Federal agencies may work toward in the recovery process. In cases

where quantification of recovery goals is not initially feasible, the services should

be required to publish a plan, including a timeline, describing the steps the Federal

agencies will take in identifying measurable goals.

• Enhance the role of State governments in recovering species.—The Endangered

Species Act can effectively be implemented only through a full partnership between

the states and the Federal Government. One way to accomplish this partnership

would be to authorize the delegation of authority for the development of conservation plans on a voluntary basis to states that choose to accept such delegation, and

agree with the appropriate Secretary(s) to perform them in accordance with specified standards. Authority should also be given to the appropriate Secretary to provide grants for the additional administrative costs to the state.

• Ensure the use of good science in ESA decisions.—Given the broad implications

that may arise when ESA actions are taken, significant decisions must be made

using objective, peer-reviewed science. Peer review of listing, recovery and de-listing

decisions by acknowledged independent experts is important to ensure the public

that decisions are well-reasoned and scientifically based. Peer review committees

should be agreed upon by the Fish and Wildlife Service, NOAA-Fisheries and the

state. State agencies also have expertise and other institutional resources such. as

mapping capabilities, biological inventories and other important data that should be

employed in developing endangered species listing and recovery decisions.

• Incentives for conservation are essential.—Western Governors believe that providing economic incentives for landowners to participate in conservation efforts is

likely to achieve more efficient and cost-effective results and may lead to more rapid

conservation.

These are, admittedly, limited and modest goals. Certainly, there are other potential improvements to the Act that Congress could and should consider. However, the

Western Governors not only believe these four to be the most critical, but we also
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strongly believe them to be achievable. As a nation, we need to change the paradigm

we are currently under and we need to do it soon. The Act has become too contentious; the parties too litigious; there is too little collaboration and trust between

stakeholders; and conservation efforts have suffered as a result. Public confidence

can be restored only through successful, constructive actions that result in the recovery of species. In other words we believe that, if adopted, these four principles

could be the proverbial mustard seed that paves the way for possible future enhancements to the Act that build upon that success.

ENHANCING THE STATE ROLE IN SPECIES CONSERVATION

Preventative conservation is at the heart of our recommendations and that is why

our states are actively engaged in developing State and multiple State conservation

plans to restore declining species like the sage grouse before they need the protections of the Act. States have broad trustee and police powers over fish and wildlife,

including those species found on Federal lands within their borders. States also

have significant scientific expertise and resources at our disposal that could be better utilized to meet our common species conservation goals.

The ESA is premised on a strong Federal-State partnership, but Congress and the

agencies need to provide expanded and more meaningful opportunities for states to

comment, participate, or take the lead on many of the decisions required under the

Act. In addition, the Federal agencies responsible for enforcing the ESA are straining under the weight of an ever increasing number of listed species, and they are

failing to recover species to the point at which they can be de-listed. Unless massive

new resources are allocated to them, soon the Federal agencies will be so overwhelmed as to be completely ineffective (some might argue that we have already

reached that point). Reaching out to states and other stakeholders in a collaborative

and cooperative manner is possibly the only alternative to dramatically expanding

the size and resources available to those agencies. It follows, therefore, that the Act

can be effectively implemented only through a full partnership between the states

and the Federal Government. We stand ready, willing and able to take on a greater

role and responsibility for this effort. We are committed to success and expect to

be held accountable, but we must be given the proper tools and resources to do the

job.

FOCUS ON THE RECOVERY OF SPECIES

We acknowledge that the Act has been relatively successful in keeping species

from going extinct. That in itself is a laudable achievement. However, staving off

total disaster is simply not enough. It may be, as Winston Churchill once remarked

‘‘the end of the beginning’’ but it is not nearly ‘‘the beginning of the end.’’ The central focus of the Act must be the recovery of species. We believe that the best way

to achieve this goal is to require the Fish and Wildlife Service and NOAA-Fisheries

to publish quantifiable recovery goals at the time of the listing decision. This would

give the Federal agencies, states and other stakeholders objective recovery criteria

that all may work towards during the recovery process. We fully appreciate the fact

that our understanding of a particular species and its recovery needs may change

over time. However, it is unrealistic to expect states and private entities to engage

in good faith collaborative conservation efforts if the Federal agencies are continually and unexpectedly raising the bar on them. A trusting and mutually beneficial

relationship must be established before collaborative conservation efforts can truly

bear fruit. Therefore, we must give Federal agencies, states and private landowners

a relatively hard recovery target in order to ensure their active participation and

to focus their efforts.

USE OF SCIENCE

Bad decisions undermine public confidence in, and support for the Act. They also

direct resources away from other more urgent conservation efforts. That is why we

support peer review of the most critical decisions required by the Act. Peer review

is standard practice in academia, even before publication of a scholarly article in

the most obscure journal. We fail to see why some oppose even a cursory attempt

to seek peer review before major Federal decisions, which often have profound effects on land use and other economic activities, are made. We believe that peer review, undertaken in an expeditious and transparent manner, would help enhance

public confidence in the process and will better ensure that resources are directed

to those species that have the greatest need. However, we also understand that it

may not be necessary to pass legislation requiring a formal peer review process. If

this process can be enhanced through rulemaking or another administrative means

we would be supportive of that effort.
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LANDOWNER INCENTIVES AND FUNDING

Lastly, we cannot overlook the importance of private landowners in the cause of

species conservation and protection. The good news is that numerous private landowners across the country are already engaged in voluntary conservation activities.

In exchange for their trust and commitment we must ensure that they receive the

economic assistance and incentives they need to continue these important efforts.

Congress can play an enormous role in this matter by properly funding the various

conservation programs, like those contained in the Farm bill, for instance; and ensuring that these programs are administered smoothly and reliably. Other incentives Congress may want to address further is to encourage the use of conservation

easements. Or, perhaps Congress may choose to examine ways to provide regulatory

certainty to landowners who engage in voluntary conservation activities. While economic assistance is needed and greatly appreciated, the most important incentive

that private landowners desire in exchange for willingly participating in conservation efforts is the removal of, or prevention of land use restrictions.

CONCLUSION

In closing, Mr. Chairman and Ranking Member, the Western Governors appreciate having the opportunity to present this testimony. We firmly believe in the

goals of the ESA, and appreciate the opportunity to work with the Committee to

help you build a bipartisan consensus for a few targeted, common-sense enhancements to the Act.

THE STATE OF WYOMING, OFFICE OF THE GOVERNOR, STATE CAPITOL,

Cheyenne, WY, September 20, 2005.

Senator LINCOLN CHAFEE, Chairman,

Senator HILLARY RODHAM CLINTON,

Senate Fisheries, Wildlife and Water Subcommittee,

Senate Environment and Public Works Committee,

Washington, DC.

DEAR HON. SUBCOMMITTEE: In addition to the support the State of Wyoming lends

to the perspectives presented today by the Western Governor’s Association regarding potential reform of the Endangered Species Act (ESA), I would like to take this

opportunity to propose a separate and distinct approach to ESA reform.

While I am generally supportive of the statutory reform efforts currently underway in Congress, together with those outlined in the Western Governor’s Association testimony, I believe that there may be a solution that would not require Congress to tread on the very controversial ground of amending the ESA. To this end,

I believe that the door is open to make some relatively simple regulatory and budgetary changes that could have a significant and immediate impact on the administration of the ESA.

Following please find a descriptive list of what I feel are a few very attainable

and practical regulatory and budgetary reforms. These reforms are focused on species security, local conservation, habitat preservation and rehabilitation, the need

for adequate funding, impartial peer review and better cooperation between the parties in interest.

LISTINGS MUST BE DRAWN IN SUCH A WAY SO AS TO ACCOUNT

FOR LOCAL CONSERVATION

Currently an endangered or threatened species listing can apply to a species, subspecies or a Distinct Population Segment (DPS). While species and subspecies are

defined rather narrowly through science, the DPS is a regulatorily defined designation. To make the ESA operate more effectively, the DPS policy should be re-crafted

to consider geopolitical lines in listing and de-listing decisions. Simply put, if a species is eligible for listing in most of its range, but Oregon for example, can show

that the species is doing well and is secure in Oregon because of regulations, habitat

conditions or otherwise, Oregon should not be looped into the listing. Similarly, and

by way of another example, if Florida can show, through the de-listing process, that

the species no longer qualifies as an endangered or threatened species in Florida,

at a minimum, the Florida population should no longer be subject to ESA constraints, while the larger population might remain listed. Tautologically, if the entire population does not warrant ESA protection, the entire population should not

receive Federal protection.

As a possible procedural consideration during the comment period on listing and

de-listing decisions, the states could be given the opportunity to request that the
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ESA listing factors be evaluated within each ‘‘requesting state’’ to determine the applicability of each factor to that population of the species residing within that state’s

boundaries (no smaller subdivision of land or government should be considered). If

the listing factors are not met within a state’s geopolitical border, the ESA’s intent

of preserving species is already being met in that state, and a listing in that State

would be precluded or discontinued (in the case of an already listed population). Regardless, incentives should be built in to encourage states not part of the listing to

conserve the species and its habitat.

By finally recognizing that the ‘‘species’’ within each State are ‘‘distinct’’ as a function of where they happen to be located on a map (different states have differing

degrees of habitat functionality, regulatory protections, etc.), science, and for that

matter reality, is ultimately served. In the end, the states are the laboratories of

species management and they should be given every benefit, opportunity and incentive to demonstrate the effectiveness of their individual efforts—as it is their individual effort that will protect the species.

HABITAT AND HABITAT FUNCTION ARE CRITICAL IN THE PROTECTION OF ANY SPECIES,

NO LESS ENDANGERED SPECIES

Habitat degradation is currently recognized as the leading cause of species loss

in the world. With the importance of the vast expanses of Federal land to species

viability, particularly in the West, and the current state of Federal lands and the

notion that we could do more to bolster the quality of such lands, habitat improvement is a necessary consideration. Thus, a minute portion of Federal mineral royalties, collected from Federal lands within each state, should be set aside to conserve

and improve habitats on Federal lands. In my view, the funds should be allocated

roughly as follows: Thirty percent to the State where the royalty was generated, 40

percent to be divided—pro rata—based on total Federal land ownership and 30 percent to be divided among all States evenly. While not purely regulatory, this effort

would not require ESA statutory reform and would have a lasting impact on the

landscape for all species.

WITHOUT FUNDING, WE ESSENTIALLY ASK THE SERVICE TO DO MORE WITH LESS

As states, we remain frustrated by the lack of action on petitions, the lack of

science, the lack of response to our inquiries and the lack of true recovery efforts.

We also rail against the lack of Federal dollars to help recover those species that

the Federal Government lists within our boundaries. One simple catalyst to move

the process along is money, as money is the main lever available to control the

power of the agencies charged with enforcing the ESA.

President Bush separated the Services’ funding into particular streams. This separation has given some control to those that appropriate funds to define the course

and priorities of the Services. In short, Congress can allocate different funds to each

account to effectuate a particular end. Wyoming’s view is that the bulk of funds

should be allocated to the recovery and de-listing budgets. Certainly, the listing of

truly endangered and threatened species should not be ignored. However, pressure

must be brought to finally and effectively recover and de-list our existing listed species. The three decade history of grizzly bears and bald eagles indicates as much.

Additionally, as our effort with sage grouse illustrated, states can help deal with

species of concern prior to invoking the full authority of ESA. Truly, State involvement is the most efficient way of achieving the stated intent of ESA. The old wives

tale of: ‘‘an ounce of prevention is worth a pound of cure’’ is instructive. Prevention

is much cheaper, more effective, and an easier conservation path than the route of

listing/delisting, as is evidenced by the difference between sage grouse and grizzlies

in Wyoming. A mechanism for providing prevention funding is available under section 10 of ESA, and simply awaits proper funding and administration. Funding incentives can be used to entice private landowners (who own a great deal of the habitat) to affect proactive conservation, instead of the current method of listing and

then trying to force them, through regulation, to do something beneficial, which only

leads to backlash and distrust.

PEER REVIEW

A very recent and stinging reminder of ESA difficulties is associated with scientific peer review. The problem with the Preble’s meadow jumping mouse was not

that the peer review was done, but that it was done by interested parties with a

vested interest in the listing process. Current guidance strongly discourages interested persons from participating in peer review. Regardless, in the case of the

Preble’s, the Colorado Division of Wildlife, in conjunction with the Service, ap-
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pointed a peer review panel that was by no means impartial to review the science

that was ultimately relied upon to arrive at a decision to de-list the mouse.

Peer review in the ESA is functionally a tiered system. There is the first line of

Service-selected review and a second line which consists of a very expensive and

time consuming National Academy of Sciences review. The problem with the first

tier is that there is no sure way to safeguard it from conflicts of interest, bias, etc.

The problem with the second is cost and time. Wyoming’s view is that the initial

peer review group be selected, two each, by (1) the FWS director; and (2) the Game

and Fish Director(s) from the states affected by the decision. Regardless, the selection of peer reviewers should neither be absolutely discretionary nor, as is the case

now, subject to a singular point of discretion.

I would further suggest this peer review system be used for all major decisions

for ESA (listings, delistings, 4(d) rules, recovery planning). This is only reasonable,

as states and particularly State wildlife agencies have more management expertise

and are relied on to implement the action items resulting from these decisions. It

only makes sense that State managers should lend their expertise in planning those

action items that they are expected to implement.

PERSONNEL CONCERNS

A real ESA problem lies with the mid-level bureaucrat that, for all intents and

purposes, can derail the process of listing or de-listing of a species. While this may

be a necessary outcrop of specialization, the Services must ensure that careers are

not perpetuated by a lack of action or movement that, in the end, has a negative

effect on true species recovery. In a related area of concern, the Services must also

guard against what essentially rises to the level of doctoring a record to meet individual missions, as opposed to that of the ESA—species recovery and preservation.

To remedy this concern, the States should be given the opportunity to directly participate in and oversee the day-to-day operations of the Services in achieving recovery, listings and de-listings, in a system akin to Cooperating Agency Status. Such

could be accomplished with a Director’s Order at this juncture. By opening the doors

and files of the Services to the truth-checking of states, the record can be protected

from undue insertions and the bureaucrat’s motives can be checked.

In my view, true movement and true reform of an issue occur in the margins.

While certain laws are intrinsically flawed, I do not believe the ESA to be one of

them. Each of us can honestly agree today, as Congress did in 1973, that protecting

endangered and threatened plants and animals is a salutary public purpose. The

ESA, in and of itself, does little to detract from this point of commonality, Unfortunately, the ESA has taken the singular form of a hammer, with only nails in sight.

For sure, the ESA has become a hammer to control land use patterns, attract funding and propel egos. While harsh, reality must find our current discussion at some

point. By recognizing that land use control, funding and egos motivate many ESA

processes, we can start to get to the true heart of reform.

Thank you for considering my thoughts. Please accept my best wishes in your endeavors to bring a reasoned dialogue, and hopefully reform, to a very important

issue to the people of Wyoming and the United States.

Best regards,

DAVE FREUDENTHAL,

Governor.

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