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S. HRG. 114–532 

REVIEWING THE PROPOSED REVISIONS TO THE 

U.S. FISH AND WILDLIFE SERVICE MITIGATION 

POLICY 

HEARING 

BEFORE THE

SUBCOMMITTEE ON FISHERIES, 

WATER, AND WILDLIFE 

OF THE

COMMITTEE ON 

ENVIRONMENT AND PUBLIC WORKS 

UNITED STATES SENATE 

ONE HUNDRED FOURTEENTH CONGRESS 

SECOND SESSION 

SEPTEMBER 21, 2016 

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

( 

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

COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS 

ONE HUNDRED FOURTEENTH CONGRESS 

SECOND SESSION 

JAMES M. INHOFE, Oklahoma, Chairman 

DAVID VITTER, Louisiana 

JOHN BARRASSO, Wyoming 

SHELLEY MOORE CAPITO, West Virginia 

MIKE CRAPO, Idaho 

JOHN BOOZMAN, Arkansas 

JEFF SESSIONS, Alabama 

ROGER WICKER, Mississippi 

DEB FISCHER, Nebraska 

MIKE ROUNDS, South Dakota 

DAN SULLIVAN, Alaska 

BARBARA BOXER, California 

THOMAS R. CARPER, Delaware 

BENJAMIN L. CARDIN, Maryland 

BERNARD SANDERS, Vermont 

SHELDON WHITEHOUSE, Rhode Island 

JEFF MERKLEY, Oregon 

KIRSTEN GILLIBRAND, New York 

CORY A. BOOKER, New Jersey 

EDWARD J. MARKEY, Massachusetts 

RYAN JACKSON, Majority Staff Director 

BETTINA POIRIER, Democratic Staff Director 

SUBCOMMITTEE ON FISHERIES, WATER, AND WILDLIFE

DAN SULLIVAN, Alaska, Chairman 

JOHN BARRASSO, Wyoming 

SHELLEY MOORE CAPITO, West Virginia 

JOHN BOOZMAN, Arkansas 

JEFF SESSIONS, Alabama 

ROGER WICKER, Mississippi 

DEB FISCHER, Nebraska 

MIKE ROUNDS, South Dakota 

JAMES M. INHOFE, Oklahoma (ex officio) 

SHELDON WHITEHOUSE, Rhode Island 

THOMAS R. CARPER, Delaware 

BENJAMIN L. CARDIN, Maryland 

BERNARD SANDERS, Vermont 

KIRSTEN GILLIBRAND, New York 

CORY A. BOOKER, New Jersey 

EDWARD J. MARKEY, Massachusetts 

BARBARA BOXER, California (ex officio) 
(III) 

C O N T E N T S 

Page 

SEPTEMBER 21, 2016 

OPENING STATEMENTS 

Sullivan, Hon. Dan, U.S. Senator from the State of Alaska ................................ 1 

Whitehouse, Hon. Sheldon, U.S. Senator from the State of Rhode Island ......... 3 

WITNESSES 

Bean, Michael, Principal Deputy Assistant Secretary, Fish and Wildlife and 

Parks, U.S. Department of the Interior ............................................................. 4 

Prepared statement .......................................................................................... 7 

Responses to additional questions from: 

Senator Inhofe ........................................................................................... 15 

Senator Sullivan ........................................................................................ 17 

Senator Barrasso ....................................................................................... 20 

Kindred, Joshua M., Environmental Counsel, Alaska Oil and Gas Association 32 

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

Yates, Ryan, Chairman, National Endangered Species Act Reform Coalition ... 40 

Prepared statement .......................................................................................... 42 

Colburn, Jamison, Professor of Law, Penn State University ............................... 47 

Prepared statement .......................................................................................... 50 

(1) 

REVIEWING THE PROPOSED REVISIONS TO 

THE U.S. FISH AND WILDLIFE SERVICE 

MITIGATION POLICY 

WEDNESDAY, SEPTEMBER 21, 2016 

U.S. SENATE, 

COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS, 

SUBCOMMITTEE ON FISHERIES, WATER, AND WILDLIFE, 

Washington, DC. 

The Committee met, pursuant to notice, at 2:30 p.m. in room 

406, Dirksen Senate Office Building, Hon. Dan Sullivan (Chairman 

of the Subcommittee) presiding. 

Present: Senators Sullivan, Whitehouse, Barrasso, Boozman, 

Wicker, Fischer, Inhofe, Cardin, and Gillibrand. 

OPENING STATEMENT OF HON. DAN SULLIVAN, 

U.S. SENATOR FROM THE STATE OF ALASKA 

Senator SULLIVAN. The Subcommittee on Fisheries, Water, and 

Wildlife will now come to order. 

I first want to apologize to everybody. We are trying to schedule 

some votes, especially to my colleagues, that we are going to be voting at 2:15, but I guess we are pushing that back. So my apologies. 

I want to thank everybody for being here to discuss what I think 

is an exceptionally important issue, the Fish and Wildlife Service 

proposed revisions to its mitigation policies and the impacts these 

could have on projects, economic projects, across the United States, 

including in my home State of Alaska. 

I know some of you have had to come from far away and shuffle 

competing demands on your schedule on short notice, so I very 

much appreciate everybody being here at the hearing. 

And I want to begin by saying something I think is pretty obvious on this Committee, but it is important to mention at the outset. 

We all certainly want to protect our wildlife, our environment. In 

my State, that is something that is near and dear to everybody, 

and we certainly have a strong record of doing that in Alaska, but 

we also need to take care of our citizens with economic opportunity. 

So this hearing gives us a chance to review the Service’s broad 

proposal that has the potential to extend the scope of Federal review and consideration of infrastructure, energy, and private development and land use projects throughout the Nation. 

The Fish and Wildlife Service proposal, when added to the existing number of procedural and resource reviews for Federal actions 

and permits for private development, will increase costs, delay, or 

possibly paralyze projects, essentially withdraw lands, and discour-
2 

age needed investment in many States. In short, broadly crafted 

and poorly explained policy proposals like the Service’s proposed revisions may have significant economic impacts on economic growth 

and opportunity while doing little to protect the environment and 

the species. 

This is not some theoretical concern. For example, burdensome 

regulations and delays have created delay after delay on many 

large scale resource and economic development projects in our 

country. On average, right now it takes 5 to 6 years to permit a 

bridge. Just to permit a bridge in the United States. Permitting a 

highway project can often take twice as long, up to 10 years. Again, 

just for the Federal permits. 

More specifically we had a case of the airport runway expansion 

at Sea-Tac Airport in Seattle; testimony on the Commerce Committee. Fourteen years to get the Federal permits. In Alaska it took 

7 years, $7 billion to get an oil company to get one permit for an 

exploration well. Seven years. And we had a goldmine that took almost 20 years to go through Federal permitting. 

A recent report for the American Society of Civil Engineers found that there is an over $1.4 trillion funding gap for needs of infrastructure spending through 2025 for the United States. That is 

$1.4 trillion worth of roads, water, wastewater, basic utility, airport 

and port repairs, and investments that will be required to meet our 

Nation’s infrastructure needs in the next decade. 

We all want to do that. We all need to think through the important ways to do that. 

In some places these U.S. investments will rebuild crumbling 

bridges and roads. But in other places, like my State, there is no 

infrastructure, no roads, no water and sewer projects in communities; and these infrastructure projects are necessary for lower 

priced goods, medicine, electricity, and water. 

On top of all these investments, our Nation still needs to strategically explore and develop energy resources, all types of energy resources, whether renewables or oil and gas. 

Again, when projects like roads or power lines are delayed or not 

built, it is often the most economically disadvantaged of our citizens who are hurt the most. I see this on a very regular basis in 

Alaska. 

As drafted, the Service’s proposed revisions will add more complexity to the dizzying array of regulatory requirements, big and 

small, that all projects must face. The Fish and Wildlife Service is 

proposing to potentially veto projects by requiring a ‘‘no action’’ alternative in some cases. 

Let me be clear. The Fish and Wildlife Service has no authority 

under the law to veto an economic development project, period. 

There is none. 

Alaska’s unique situation also raises concerns under the Fish 

and Wildlife Service broad revisions. Alaska was recently recognized by the Supreme Court in the Sturgeon case is different from 

the rest of the country in regards to our lands. Eighty-eight percent 

of Alaska is public lands, with only 1 percent private sector ownership lands. Large proportions of these lands are undeveloped. Alaska contains more wetlands than the rest of the United States’ 

States combined. 
3 

Yet the proposed revisions are completely silent on the unique 

differences posed in Alaska or other States that have unique circumstances. 

Finally, as noted above, the scope of the authority asserted by 

the Service in its proposal is exceptionally broad and far from clear. 

The Service bases its authority to implement its new net gain or 

no net loss policy on no less than 26 statutes. It is a fundamental 

principle of administrative law that agencies must only exercise the 

authority delegated to them by Congress. It should cause us all 

concern, all my colleagues, that its own grant of authority from 

Congress to be implemented for policy revisions is so unclear at 

this stage of the proposal. 

I would like to conclude by just noting after the President’s 2015 

memo on mitigation, Federal agencies have been piling on additional regulatory requirements and served as so-called guidance 

and regulatory mandates. Such guidance must be authorized by 

Congress in Federal statute, and it must allow for not delay or prohibit economic opportunity that Americans so desperately need. 

I have serious doubts that this guidance meets either of these 

critical requirements and look forward to asking questions about 

these issues. Thank you. 

Senator Whitehouse. 

OPENING STATEMENT OF HON. SHELDON WHITEHOUSE, 

U.S. SENATOR FROM THE STATE OF RHODE ISLAND 

Senator WHITEHOUSE. Thank you, Chairman. 

We are here today to examine the Fish and Wildlife Service’s 

proposed revision to its mitigation policy. The Fish and Wildlife 

Service is the Federal Government’s lead agency for protecting the 

plants, fish, and wildlife held in trust for the public. The agency 

has statutory authority to make sure there is a mitigation plan to 

protect natural resources affected by any development performed or 

funded by the Federal Government or that requires a Federal permit. 

The Fish and Wildlife Service is still operating under a mitigation policy that hasn’t been updated since the first year of the 

Reagan administration. 

In the past 35 years we have made significant advances in the 

science of endangered species, habitat conservation, and climate 

change. For one thing, the Service is relying on a document that 

predates the first intergovernmental panel on climate change report by 9 years. We are now at the fifth iteration of that report. 

The revisions under review today are needed to bring the Fish 

and Wildlife Service into the 21st century and ensure that it provides consistent guidance on protecting America’s natural spaces 

and native wildlife from a multitude of dangers, including those 

from climate change. 

In my home State of Rhode Island, we have already seen winter 

surface water temperatures increase by around 4 degrees Fahrenheit since the 1960s. Sea level at the Newport Naval Station tide 

gauge is up almost 10 inches since the 1930s. In a State tied so 

closely to its oceans and coasts—in 2013, Rhode Island’s ocean 

economy generated $2.1 billion—these changes are serious. Rhode 
4 

Island is not alone in seeing climate change undermine its natural 

resources, wildlife, and economy. 

I appreciate the Service’s efforts to better incorporate the latest 

climate change science into its mitigation policy, and I encourage 

it to be more specific about accounting for climate change and resiliency in mitigation plans, some of which can cover decades of effort 

and monitoring. 

There is no question as to the Service’s authority to promulgate 

the proposed revisions to its mitigation policy. The Fish and Wildlife Service cites 20 separate laws, 7 executive orders, and a multitude of regulations and administrative guidance documents that 

support its proposal. 

In his presidential memorandum from November 2015, the President set clear expectations for the Department of Interior and other 

Federal agencies to ‘‘avoid and minimize harmful effects to land, 

water, wildlife, and other ecological resources caused by land and 

water disturbing events, and to ensure that any remaining harmful 

effects are effectively addressed consistent with existing missions 

and legal authorities.’’ 

The memorandum specifically calls for the use of landscape scale 

planning which coordinates mitigation projects on a larger scale to 

enhance conservation goals, and of policies to ‘‘establish a net benefit goal, or at minimum a no net loss goal for natural resources.’’ 

With these proposed revisions to its mitigation policy, the Fish 

and Wildlife Service has set high expectations for its review of 

mitigation projects. This long overdue update is necessary to bring 

the Service’s mitigation policy into the modern era and to provide 

increased consistency and transparency for non-Federal entities 

that work with the Fish and Wildlife Service and other Federal 

agencies. 

I thank our witnesses for being here today and look forward to 

the testimony. 

Thank you, Chairman. 

Senator SULLIVAN. Thank you, Senator Whitehouse. 

We do have two distinguished panels here today, and I want to 

thank, again, the witnesses for being here. 

I want to welcome our first witness, Mr. Michael Bean, who is 

the Principal Deputy Assistant Secretary for the Fish and Wildlife 

Service and Parks at the Department of Interior. 

Mr. Bean, you will have 5 minutes to deliver an oral statement, 

and a longer written statement will be included in the record. 

STATEMENT OF MICHAEL BEAN, PRINCIPAL DEPUTY ASSISTANT SECRETARY, FISH AND WILDLIFE AND PARKS, U.S. DEPARTMENT OF THE INTERIOR 

Mr. BEAN. Thank you, and good afternoon. 

Senator SULLIVAN. Excuse me, Mr. Bean. I apologize, but I think 

the vote has started, and as opposed to trying to cycle us through, 

if we can recess for a quick 10 minute recess, we will be back to 

hear your opening statement. Again, I apologize for the delay at 

the hearing. 

Thank you. 

[Recess.] 
5 

Senator SULLIVAN. OK, we will reconvene the Subcommittee on 

Fisheries, Water, and Wildlife. 

Again, thank you for your patience, everybody. Apologize for that 

recess. 

Mr. Bean, the floor is yours for 5 minutes. 

Mr. BEAN. Thank you, sir. 

Chairman Inhofe, Chairman Sullivan, Ranking Member 

Whitehouse, members of the Subcommittee, it is a pleasure to have 

the opportunity to testify before you today regarding the proposed 

mitigation policies of the U.S. Fish and Wildlife Service. I am Michael Bean, Principal Deputy Assistant Secretary for Fish and 

Wildlife and Parks at the Department of the Interior. 

Mitigation is an important and longstanding means of reconciling 

development activities with the conservation of fish and wildlife in 

their habitat. Mitigation encompasses a wide range of activities, including measures to avoid adverse impacts to wildlife, measures to 

minimize impacts that cannot practically be avoided, and measures 

to offset or compensate for those that remain. 

The Service generally plays one of two roles with respect to mitigation. In one it recommends to other agencies the mitigation 

measures that contribute to the achievement of priority conservation goals pursuant to a variety of statutory authorities. Examples 

are its recommendations pursuant to the Fish and Wildlife Coordination Act or the National Environmental Policy Act, NEPA. 

In other cases, the Service functions as a regulatory authority 

and requires mitigation measures of its permittees under various 

statutes that it administers. For example, permits issued under 

section 10 of the Endangered Species Act for take of listed species 

resulting from otherwise lawful development activities require applicants to minimize and mitigate the impacts of their projects to 

the maximum extent practicable. That is the statutory standard. 

Mitigation is not a new responsibility for the Service. The Service 

has been authorized by Congress to recommend measures to mitigate the impact of water resource development projects since the 

Fish and Wildlife Coordination Act of 1934, more than 80 years 

ago. Decades of experience with mitigation under the Coordination 

Act, NEPA, and other laws led the Service to formulate a general 

mitigation policy in 1981. 

Recently, the Service has proposed two major policy documents 

relating to mitigation. The first, published last March, is a comprehensive revision of its 1981 gentle mitigation policy. The second, 

published in early September, is a stepdown policy specific to compensatory mitigation under the Endangered Species Act. Both were 

published in the Federal Register for public review and comment. 

With respect to the revised general mitigation policy, the Service 

is now evaluating comments received. With respect to the ESA 

compensatory mitigation policy, the comment period will remain 

open through October 17. 

The Service’s two recent policy proposals were informed by its 

own practical experience and the evolution of mitigation science 

and policy since 1981. The goal of both policy proposals is to make 

mitigation recommendations and requirements more predictable, 

consistent, transparent, and effective. Neither policy proposal represents a radical departure from prior practice. 
6 

Several key principles guide both proposed policies. They reaffirm the importance of the longstanding mitigation hierarchy in 

which practicable measures to avoid impacts are taken first, followed by measures to minimize those impacts that cannot practically be avoided, and finally measures to compensate for remaining impacts, if any. 

They emphasize the benefits of compensatory mitigation being 

done in advance of impacts. The proposed policies urge a broader 

look at where in the relevant landscape compensatory mitigation 

can have the greatest benefit to the affected resource, broadening 

the frame beyond the impact site. 

Recognizing that there are a variety of mechanisms for compensatory mitigation, including permittee of responsible mitigation, 

conservation banks, in-lieu fee programs, and habitat exchanges, 

the proposed policies make clear that regardless of the mechanism 

chosen, equivalent standards must be applied, creating a level 

playing field where the market-based mechanisms can flourish. 

Finally, the proposed policies set a goal of improving, or at a 

minimum maintaining, the current status of important, scarce, or 

sensitive resources as allowed by applicable authority and consistent with the responsibilities of action proponents. 

It is vitally important that we get the greatest conservation 

value for each mitigation dollar expended. The proposed policies 

are intended to improve the effectiveness of mitigation investments 

while at the same time improving the consistency, predictability, 

and transparency of mitigation decisions and providing opportunity 

for market-based mitigation mechanisms to achieve their full potential. 

Thank you for this opportunity to testify on the Service’s proposed mitigation policies. We especially appreciate the opportunity 

to hear and discuss your interest in them. I would be glad to answer any questions you may have. 

Thank you. 

[The prepared statement of Mr. Bean follows:] 
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Senator SULLIVAN. Thank you, Mr. Bean. 

I am going to start with some questions just basically on some 

of the topics that I mentioned in my opening statement, and the 

one is the issue of delay. 

Do you think it is in the interest of the United States to have— 

it takes, on average, 6 years to permit a bridge—to get the Federal 

permitting requirements to permit a bridge? 

Mr. BEAN. No, sir. I think delay is a genuine problem, and indeed it is a problem that our proposals are intended to address. 

Senator SULLIVAN. I was going to give you a rundown of some 

of the delays. They’re outrageous, right? Fourteen years to permit 

a runway; 20 years to permit a goldmine; 7 years to get permission 

to drill one exploration in 100 feet of water. I mean, this is the 

sound of the economic decline of the country, in my view. 

So I am not going to run through those because you already stated that you don’t disagree that that is a problem, so thank you for 

that. 

Let me speak to what the Corps, another Federal agency, has 

said about your proposed regs, your proposed guidance. This is the 

Corps of Engineers. Knows a lot about projects, knows a lot about 

protecting the environment, knows a lot about, unfortunately, 

projects that take too long. This is their submitted comments on 

your proposed regulation: ‘‘Our experience is that the Fish and 

Wildlife staff are extraordinarily busy, to the point where handling 

existing requirements in a timely manner can be challenging.’’ Just 

what you got right now. ‘‘Therefore, requiring Fish and Wildlife 

staff to take the lead,’’ and that is what many people think you are 

trying to do here, take the lead, ‘‘in these types of determinations 

may only exacerbate the problem.’’ 

Again, this is your fellow brother-sister agency essentially saying 

this is going to create more delays. ‘‘We believe that it might be 

more efficient and effective for Fish and Wildlife staff to simply review materials for acceptability and consistency with the policy recommending any needed changes.’’ So your traditional role. 

So other Federal agencies in the Obama administration are worried that this rule is going to actually require more delays and 

have you guys take on too much work. What do you say in response 

to the Corps of Engineers, that knows a lot about these issues? 

Mr. BEAN. Yes, the Corps does, and we have learned a good deal 

about mitigation from the Corps’ own experience. Our view is that 

we believe, through our proposals, that we can be more efficient, 

more effective by being more transparent, more—— 

Senator SULLIVAN. So you think having another layer of Federal 

permitting requirements is going to make it more efficient to get 

projects done? The Corps of Engineers doesn’t believe that. They 

are trying to be polite, but it is very clear that they don’t believe 

that. 

Mr. BEAN. We are not creating another layer of review. 

Senator SULLIVAN. You are not? 

Mr. BEAN. No, we are not. 

Senator SULLIVAN. Explain how you are not creating another 

layer of review. 

Mr. BEAN. Well, when there is an existing requirement for input 

from the Fish and Wildlife Service to the Corps, for example, under 
24 

its Clean Water Act authority, section 404(m), I believe it is, gives 

the Fish and Wildlife Service the authority, and indeed the obligation, to recommend to the Corps its views with respect to mitigation. 

Senator SULLIVAN. Why do you think the Corps submitted these 

comments? It is pretty extraordinary, right? They obviously work 

with you guys closely. They don’t seem to be fans of your policy. 

Why do you think they submitted and know that you are already 

having a hard time keeping up with permitting projects on a timely 

basis right now? They are clearly indicating that this is going to 

make that worse. Why do you think they submitted those comments? 

Mr. BEAN. Well, our view is that this will not make that matter 

worse; it will make it better. 

Senator SULLIVAN. OK, they disagree. 

Mr. BEAN. They may disagree, but that is for them to say. 

Senator SULLIVAN. So you can you commit to me that this is not 

going to cause any additional layer of bureaucracy and any additional delay on these critical, critical economic projects that our 

country needs so desperately? We are not growing our economy, 

and a lot of the reason is it takes forever to permit anything. Can 

you commit to me that that is not going to happen with this new 

proposed regulation? 

Mr. BEAN. I believe it will not happen. I know that it is the intent to keep that from happening, and I believe it will be the case 

that we will be more efficient and more effective with these measures than we are today. 

Senator SULLIVAN. Another issue that I have a lot of concerns 

about is just the legal authority to where you are going on a number of your policy calls. The first and foremost is in the President’s 

memo, the no net loss net gain policy. That is a pretty big policy 

call, wouldn’t you say? 

Mr. BEAN. It is an important measure, but I think it has perhaps 

been misunderstood. I can give you an example from Senator 

Inhofe’s State. Oklahoma and four other States together put together a range-wide conservation strategy for the lesser prairiechicken, and that is basically a mitigation program, and as a key 

part of that program which functions by generating credits from activities that benefit that species, then making those credits available to offset impacts from oil and gas and other activities. What 

the States creatively have done is to provide that some portion of 

the credits generated will never be used to offset impacts, and thus, 

programmatically, they will achieve a net benefit, a net conservation benefit. 

Senator SULLIVAN. OK, well, I am going to get back to that because that is a big policy call; it is a role for the Congress to make 

that call. And when I follow up, I want to be respectful to the other 

members here, but I don’t believe that is laid out in any statute, 

any statute by which you get your authority, and that is a policy 

call that should be made by the Congress of the United States, not 

by a Federal agency that doesn’t have that authority. 

Senator Whitehouse. 

Senator WHITEHOUSE. Thanks, Chairman. 

Welcome, Director Bean. I appreciate you being here. 
25 

Let’s pick up on the no net loss policy. That is kind of a baseline 

to inform your efforts. Tell us in simple terms what it means, and 

tell us in simple terms whether it is a novelty under this new guidance. 

Mr. BEAN. It is not a novelty in general because the no net loss 

notion was first floated and embraced by President George H.W. 

Bush in 1988, who articulated that as his goal for mitigation under 

the Clean Water Act, and it has become established as the mitigation goal for the Clean Water Act in the ensuing 30 years. The Fish 

and Wildlife Service, in its 1981 policy, has a similar no net loss 

goal for important resources. 

Senator WHITEHOUSE. That would be 35 years ago in that case. 

Mr. BEAN. Yes, indeed. So it is not novel. But what is, I think, 

important is some of the ways in which we can accomplish that 

goal. I tried to give the example of lesser prairie-chicken as an illustration of how sometimes it is possible to do that relatively creatively and somewhat easily. 

Senator WHITEHOUSE. The concern that Senator Sullivan has for 

unnecessary delays and problems and bureaucracy, I think, is a 

very legitimate concern, and I hope that the Service will take that 

to heart in the way it implements the new policy or the new guidance. 

Mr. BEAN. Yes, sir. Let me just say that we were very much 

aware of the delays of the sort the Chairman described when we 

set out in this Administration to authorize various wind and solar 

projects on public lands in the west, and we were able to approve 

many of those projects relatively quickly, certainly by comparison 

to the statistics the Chairman gave. We did so in large measure by 

early coordination amongst several Federal agencies, Federal, 

State, and sometimes local agencies, all of whom have permitting 

responsibilities of one sort or another, and we found that by coordinating those efforts early on we could achieve some real efficiencies 

and time savings. 

Senator WHITEHOUSE. For what it is worth, it is in a different 

context, but we deployed very coordinated permitting in our Federal waters and as a result were the first State in the country to 

be able to build offshore wind. We shot by both Massachusetts and 

Delaware and other States because we had done a good job of coordinating the permitting into a much more convenient and singular process, and the private sector folks who invested in and 

built the offshore wind program are huge fans of that coordinated 

permitting. Again, it is a different area, but I think the process 

savings were evident in that as well. 

One other point. One of the chemical consequences of amping up 

the CO2 levels in our atmosphere to 400 parts per million and 

above has been the chemical reaction of the oceans, which is to 

acidify. They are measurably acidifying more rapidly than any time 

in human history that we can find. And that will have considerable 

effects on ocean creatures of various kinds, whether it is the 

terrapod that is the base of the food chain in Senator Sullivan’s 

side of the world or the corals that are so important to Florida’s 

economy, or the clams and oysters that Rhode Island grows so effectively. 
26 

Are you looking at the impact of ocean acidification on species as 

a question worth considering under the Endangered Species Act 

authorities? 

Mr. BEAN. Certainly, sir, it is a serious problem, apparently one 

that is growing in significance. We are looking at it, although I 

would note that the National Oceanic Atmospheric Administration 

has primary jurisdiction over marine creatures. The Fish and Wildlife Service has relatively limited authority over marine creatures, 

so it is primarily NOAA’s lead on this issue. But we certainly are 

aware of the problem and recognize that it is a problem, and when 

it does affect species or other resources for which we are responsible we need to take it into account as part of our overall sciencebased analysis of the problem and its solutions. 

Senator WHITEHOUSE. And in any event, when you are looking 

at a potentially multi-year plan like the prairie-chicken plan, you 

have to take the known facts of what is happening in that creature’s environment from climate change into account as part of the 

scientific baseline against which you make your determinations, 

correct? 

Mr. BEAN. Yes, we do need to do that, and the information to do 

that varies in quality, but where we have the information that we 

can rely upon we very definitely need to and do use that information. 

Senator WHITEHOUSE. Thank you. 

Senator SULLIVAN. Chairman Inhofe. 

Senator INHOFE. Thank you. 

Both Chairman Sullivan and Ranking Member Whitehouse are 

very well respected attorneys, and I am not a lawyer, so there 

might be a very simple answer to this, but your mitigation policy 

adopts a position that mitigation should take place in advance of 

project construction. Now, in section 906 of WRDA, that was the 

1986 WRDA, Congress authorized the Corps to do mitigation as a 

project is being built; and then again in 1999, section 119 of title 

23, that is the Highway Federal Code, the Federal law limits which 

mitigation can happen in advance of construction, even if the mitigation is voluntary. 

So the question I would have is by what authority would you 

have this mitigation in advance? 

Mr. BEAN. Well, let me begin by saying that the policy is a policy 

that does not purport to change statutory authority, so to the extent that there are statutory mandates or authorities that are in 

conflict with the policy, those prevail. What the policy articulates 

is where there is discretion as to the timing of mitigation, it is desirable, it is preferred to have it done in advance or contemporaneously with the impacting activities. 

It has been our experience over the years that when activities 

that impact the environment are done first and mitigation comes 

later, that often leads to problems. The mitigation sometimes fails, 

for example; and thus there are temporal losses for which you can 

never fully recover. But the policy is one that is designed to influence where we have the discretion as to the timing, the choice, in 

favor of early mitigation activities. 
27 

Senator INHOFE. And would you say that when it is done in advance that lengthens or shortens the time for ultimate consideration? 

Mr. BEAN. It actually shortens it quite considerably. A good example of that are the various mitigation banks, of which there are 

now over 1,000, I believe, under the Clean Water Act, these make 

it possible for Corps of Engineers permittees to quickly get permits 

and quickly fulfill their mitigation responsibilities by buying credits 

from established successful banks. 

Senator INHOFE. All right. 

Mr. Chairman, I am going to reserve some time because I need 

a little more time on the second panel. 

Senator SULLIVAN. OK. Thank you, Mr. Chairman. 

Senator Cardin. 

Senator CARDIN. Well, thank you, Mr. Chairman, for calling this 

hearing on the update of the mitigation policies of the Fish and 

Wildlife. 

Was 1981 the last time that we have looked at this? If my math 

is correct, the amount of developed acres in the lower 48 States 

since 1981 has increased by about 70 percent since that time, from 

about 70 million developed acres to about 120 million developed 

acres. That is a tremendous increase. 

Our knowledge of climate change and the impact of climate 

change has changed so dramatically in the last 35 years. Our expertise on how to deal with the impact of climate change has 

changed very dramatically over the last 35 years. 

I call to my colleagues’ attention that on Tuesday we will have 

the ribbon cutting in Queen Anne’s County, Maryland, of the living 

shoreline. It will be the first cobblestone and sand shingle beach 

project in the United States, and the Maryland Department of Natural Resources worked together with engineers to research and design this innovative shoreline stabilization project which aims to 

protect the beach from erosion by serving as a natural barrier to 

currents and tides, and increase the presence of marsh grasses that 

provide habitat for wildlife. 

We didn’t know what that was all about 35 years ago. That technology just wasn’t even thought to be possible. 

We have Smith Island, a habitable island in the Chesapeake Bay 

that I think 35 years ago they thought there was no way that we 

could preserve that land. Today people are still living on Smith Island, and I want to make sure they still have a place to live. And 

we have contributed to ways in which we can help the environment 

and help where people live. 

So I guess my question is what is the objective here? What are 

we trying to do by these revisions and plans? We know that diversity of species if critically important to our environment and to our 

future. We know habitats have been destroyed because of climate 

change and development. What is the objective that Fish and Wildlife is attempting to do by these revisions? 

Mr. BEAN. Thank you, Senator. The objective is to have a mitigation program that is more effective, more efficient, more predictable, and more transparent. You are correct that the 1981 policy, 

since that policy was promulgated, we have learned a good deal. 

The changes you have cited are real. I think the most important 
28 

aspect of this policy is its directive to make mitigation decisions in 

a landscape context, and what I mean by that is the following: in 

1981 and for many years thereafter there was an almost reflexive 

view that mitigation should take place as close to the point of impact being mitigated as possible. Under this policy we are asking 

people to take a step back and look at where the mitigation can do 

the most good, and that is a big change because what it will mean 

is that we won’t necessarily be tied to just mitigating at the point 

of impact if we can find a better place for the resource to do that 

mitigation. And I think that is really the most important aspect of 

this policy change. 

Senator CARDIN. I was listening to the Chairman and his desire 

to try to balance our protection of the environment with the need 

for economic growth. You said something that I think is very, very 

important that we all should be able to agree on, and that is we 

need a transparent process and a predictable conclusion so that a 

developer or government knows what to expect as they try to determine whether they want to make an investment or how they are 

going to deal with the realities of the challenges that they have. 

So I just really want to underscore that point about predictability 

and an open process. If I understand correctly, you are committed 

to the end result leading to predictable and understanding of what 

the requirements of mitigation are all about. 

Mr. BEAN. Yes, sir, that is the objective. Again, to cite the example of the lesser prairie-chicken, the participants at that program 

know exactly what it will cost based upon the development activities that they are planning, the acreage they will affect, and whether that acreage is in the highest priority or the middle priority or 

the lowest priority habitats. They can do a quick calculation of 

what it will cost and decide whether they want to proceed. So it 

is a very predictable scheme, and it is the sort of thing that we 

would like to do more broadly. 

Senator CARDIN. Thank you. 

Thank you, Mr. Chairman. 

Senator SULLIVAN. Senator Boozman. 

Senator BOOZMAN. Thank you, Mr. Chairman. 

And thank you for being with us today. The draft policy requires 

the Fish and Wildlife Service to use a valuation species for assessing required mitigation. More so, the draft policy requires the Service to identify habit values to support these evaluation species by 

designating them as high importance or high value. Habits of high 

importance are described as irreplaceable or difficult to replace. 

Has the Service made everyone aware of what makes a habitat 

irreplaceable? 

Mr. BEAN. I think the Service has tried to convey clearly what 

that concept means. There are certain examples, and I would give 

you an example from the west, peat habitats, wetland habitats that 

accumulate peat at a rate of about 1 foot per 1,000 years. Impacts 

to those habitats are, for all practical purposes in terms of our lifetimes and our grandchildren’s lifetimes, irreplaceable. So that is an 

example of several that I would try to convey. 

Senator BOOZMAN. And I appreciate the example, but have you 

got in writing someplace the principle of the example? 
29 

Mr. BEAN. I think so, sir. I think that the proposed policy makes 

clear that irreplaceable resource are those for which we either lack 

the means of recreating or restoring them, or the means are so 

time consumptive and resource consumptive as to be impractical. 

Senator BOOZMAN. So how do you mitigate something that is irreplaceable? 

Mr. BEAN. Well, the Fish and Wildlife Service’s view is that for 

an irreplaceable resource, the proper response is avoidance. Now, 

we recognize that maybe our recommendation, but the agency to 

whom we make the recommendation may not take that recommendation, in which case we would then strongly urge that 

agency to take whatever minimization measures are practical. 

Senator BOOZMAN. So once you deem something irreplaceable, it 

is very difficult, then, to mitigate? 

Mr. BEAN. Yes, it is very difficult to mitigate, and the Service 

recommendation would be to avoid impacts. 

Senator BOOZMAN. I think it would be good if we knew very 

clearly since you can’t mitigate it, I think it is important that you 

very clearly state what is deemed irreplaceable. 

Mr. BEAN. Sure. Let me emphasize one point. Mitigation is a 

term that encompasses a range of activities, including avoidance, 

minimization, and compensatory actions. So when you say something can’t be mitigated, I don’t want to leave the impression that 

you can’t do things to minimize impacts to it. That, too, is a form 

of mitigation. 

Senator BOOZMAN. Is there a possibility that irreplaceable could 

arbitrarily apply to other categories, such as minerals? 

Mr. BEAN. Such as what, sir? 

Senator BOOZMAN. Minerals. 

Mr. BEAN. Not under our policy. The resources to which our policies apply are wildlife and their habitats. 

Senator BOOZMAN. OK. Very good. 

Thank you, Mr. Chair. 

Senator SULLIVAN. Thank you, Senator Boozman. 

I am going to follow up just with a few questions. I think this 

topic on the legal authority, which is something that we have discussed a number of times in this Committee, which is a really important issue. 

So, Secretary Bean, you agree that the Fish and Wildlife Service 

does not have just unfettered discretion to make policy calls, right, 

without the regulatory, statutory authority from the Congress, correct? 

Mr. BEAN. The Fish and Wildlife Service is required by law and 

does follow the statutory mandates applicable to it, yes, sir. 

Senator SULLIVAN. So even when you cited whether it is President Obama’s memo or even you cited President George H. W. 

Bush, the two Presidents don’t have the ability to make statutory 

policy calls, do they? 

Mr. BEAN. Only Congress does that, sir. 

Senator SULLIVAN. So that is clear. Only Congress does. Whether 

you are citing the 2015 memo or a former President, if they are 

acting without statutory authority it doesn’t matter what they say, 

correct, or what their memos say? 
30 

Mr. BEAN. It doesn’t matter, although statutory authority is often 

granted in rather general terms, leaving them quite a bit of discretion. 

Senator SULLIVAN. Correct. But let me get back to this no net 

loss or net gain. That is a pretty major statutory policy call, isn’t 

it? 

Mr. BEAN. It is certainly a major policy call, yes, sir. 

Senator SULLIVAN. So what I would like you to do, and if you 

can’t do it here, of the 26 statutes that you cited, I would like to 

know exactly where that policy is laid out, in which statute. My 

team has looked, and we haven’t been able to find it at all, so my 

concern is, whether it is President Obama’s 2015 memo, you are 

making policy, major, major policy calls that are the realm of the 

Congress. So right now, for example, even section 10 of the ESA, 

which authorizes incidental take permits, does not require a net 

gain or no net loss. 

Again, we haven’t been able to find that anywhere, so can you 

just tell me where? And don’t give me 26 statutes. I want the statute, and I want the language in the statute that says it is the policy of the United States to have no net gain or no net loss. I mean, 

I am sorry, net gain or no net loss. 

Mr. BEAN. What you will find in all of those statutes, I believe, 

just as you find in the Endangered Species Act—— 

Senator SULLIVAN. Endangered Species Act doesn’t have it. The 

Migratory Bird Act doesn’t even talk about mitigation. 

Mr. BEAN. That is correct. But the Endangered Species Act does, 

and it requires, in the case of section 10 permits, that the impacts 

be mitigated and minimized to the maximum extent practical. 

Senator SULLIVAN. Right. That is not no net gain. That is not no 

net loss. That is a very different. That is the standard, you are exactly correct. 

Mr. BEAN. That is the statutory standard. 

Senator SULLIVAN. Correct. So how do you get from there to no 

net loss or gain? That is a very different standard. 

Mr. BEAN. If it is practicable, for example, to achieve no net loss, 

then that is entirely consistent with that goal. 

Senator SULLIVAN. No, but you are saying that the net policy is— 

the President’s memo says the new policy is no net loss, or indeed, 

net gain. And I am saying there is nowhere in any statute that we 

can find that lays out that policy. So you are making policy, whether it is the President or you. And you have no authority to do that. 

So what section of what statute gives you that—— 

Mr. BEAN. If you are asking, sir, do those precise words appear 

in the statute? 

Senator SULLIVAN. Correct. 

Mr. BEAN. The answer is no. Instead, what we have in all of 

those statutes, or nearly all of those statutes, is a directive and an 

authorization to mitigate. 

Senator SULLIVAN. Correct. 

Mr. BEAN. And the Service—— 

Senator SULLIVAN. I don’t disagree with that. Mitigate is very 

different than no net loss or a net gain. It is very different. That 

is what I am talking about. This is a major policy call that you are 

usurping the authority of the Congress on this issue. 
31 

Mr. BEAN. Well, I don’t think the Service views it that way, sir. 

I think the Service views that it has discretion authorized by Congress—— 

Senator SULLIVAN. It doesn’t have discretion to make new policy 

when the policy is stated in the law. 

Mr. BEAN. It has the discretion to interpret what Congress has 

said, and that is what it has tried to do. 

I would add one other thing which is important, which is both 

the Service policies and the President’s memo make clear that they 

do not override statutory restrictions. 

Senator SULLIVAN. Yes, but you can say that, but in practicality 

that is exactly what you are doing. You are essentially admitting 

it here. Mitigation under the ESA is very different. The standard 

you are citing, which I agree with, in the ESA is very different 

than a standard, a policy directive of no net loss or net gain. They 

are apples and oranges. And you are now saying that you have this 

authority, when we can’t find it anywhere in any statute. 

Mr. BEAN. Well, let me point you to one other provision of the 

Endangered Species Act, section 4(d), which authorizes the Secretary to have such regulations as are necessary and advisable for 

the conservation of a threatened species. It is a broadly worded authorization. If the Secretary were to find, as she did in the case of 

the lesser prairie-chicken, that it was necessary and advisable for 

the conservation of that species to have a regulation that required 

participation in the State generated plan which itself requires a net 

conservation gain, that is fully consistent with the language of the 

statute. 

Senator SULLIVAN. I would just, and maybe you can do it again, 

I don’t want to belabor the point, but if you can give us the statutes and the language that lay out the statutory mandates on that 

policy, I would like to see it, because I don’t think it exists. 

And let me ask one other one with regard to the veto. You do 

have a provision in here that allows you to recommend no action. 

Now, it is very vague, and I don’t exactly understand what you are 

trying to do in the new regs, but if you are trying to say somehow 

that you have authority to veto projects, when you are not even the 

lead on these projects, that again is way, way beyond your statutory authority. 

What are you trying to do with that no action provision in your 

new policy? 

Mr. BEAN. Our recommendations are just that, sir, recommendations. We have been very clear in this policy that where we have 

irreplaceable resources our recommendation will be to avoid impacts. That is the appropriate thing for the Fish and Wildlife Service to do in light of the responsibility that this Congress has given 

it, to be vigilant, if you will, in the conservation of wildlife. That 

is our role. 

The agencies to which we make those recommendations are free 

to make the ultimate decision, but they need to have that decision 

made based upon input from us as an agency charged by law with 

understanding in recommending what is best for wildlife. 

Senator SULLIVAN. Thank you. 

Senator Whitehouse. 
32 

Senator WHITEHOUSE. Director Bean, I don’t, frankly, think you 

need my help in this exchange, but I do want for the record to say 

that where the statute says that it is the goal and task conferred 

by Congress on the Fish and Wildlife Service to see to it that, 

where there is harm to wildlife or habitat, that that harm shall be 

mitigated to the extent practicable. That is a pretty clear statement 

to me, but it is also very general language. 

So, to me, for the Service to then say here is a standard that we 

believe would meet our responsibility to mitigate the harm to the 

species or habitat to the extent practicable, and that is that there 

is no net loss; that if you are going to harm it here, and you bring 

back the same amount there, that meets our standard. 

I think it is a question of trying to actually provide clarity to the 

original definition. So just from my perspective, I am completely 

comfortable that the no net loss standard is legitimate and clear 

regulatory implementation of a statute well within its terms, which 

is probably why Presidents since President Bush have stood by it. 

So I don’t mean to belabor this point any further, but at least 

from my point of view, I wanted to have my opinion on this in the 

record. So thank you. 

Senator SULLIVAN. Thank you, Senator Whitehouse. 

Director Bean, thank you for your testimony. Much appreciated. 

I am going to ask the second panel to come up to the dais here, 

and I want to welcome Mr. Joshua Kindred, who is the Environmental Counsel of the Alaska Oil and Gas Association; Mr. Ryan 

Yates, Chairman of the National Endangered Species Act Reform 

Coalition; and Mr. Jamison Colburn, Professor of Law at Penn 

State. 

You will each have 5 minutes to deliver your oral statement, and 

a longer written statement will be included in the record. 

Gentlemen, if you can please join us now. Thank you again for 

coming here. Sorry again about the delays in the hearing. 

Mr. Kindred, I would like to begin with you. You have 5 minutes 

to deliver your statement. Thanks again. 

STATEMENT OF JOSHUA M. KINDRED, ENVIRONMENTAL 

COUNSEL, ALASKA OIL AND GAS ASSOCIATION 

Mr. KINDRED. Thank you, and good afternoon, Chairman Sullivan, Ranking Member Whitehouse, and members of the Committee. My name is Josh Kindred. I serve as Environmental Counsel for the Alaska Oil and Gas Association, or AOGA. AOGA is a 

professional trade association whose mission is to foster long-term 

viability of the oil and gas industry to the benefit of all Alaskans. 

AOGA’s members have a long history of proven environmentally responsible oil and gas exploration development in Alaska, and we 

appreciate the opportunity to provide testimony today. 

In an effort to sort of avoid duplicative testimony, and I don’t 

know if I will succeed in that, I will proceed directly to the substantive issues and concerns that AOGA has, and they fall effectively in three categories: first, as Senator Sullivan pointed out, an 

inability to reconcile achieving a net benefit, or at minimum no net 

loss standard with the statutory sources available for the Service; 

second, issues and concerns regarding ambiguity and incompati-
33 

bility; and finally, how ill-suited the draft policy is for meaningful 

implementation. 

Now, according to the draft policy, under the memorandum, all 

Federal mitigation policies shall clearly set a net benefit goal, or 

at minimum a no net loss goal for natural resources wherever 

doing so is allowed by existing statutory authority and is consistent 

with agency mission and established natural resources objectives. 

The fundamental problem with the Service’s draft policy is that the 

primary sources of the Service’s authority provide no basis for and 

are irreconcilable with the imposition of a net benefit or no net loss 

mitigation standard. 

The fundamental flaw is particular evident when examined in 

the context of the Endangered Species Act. The ESA provides no 

authority for the Service to impose mitigation measures upon private applicants that will result in a net benefit or no net loss. For 

example, in the section 7 consultation, the Service is charged with 

ensuring that any federally approved action that may affect listed 

species is not likely to jeopardize the continued existence of a listed 

species or destroy or adversely modify their critical habitat. 

The Service prepares a biological opinion to explain it in document section 7 determinations for actions that are not likely to 

jeopardize listed species or cause adverse modification of critical 

habitat but that may, nonetheless, result in incidental take of a 

listed species, and the Service will include an incidental take statement in the biological opinion. 

Under these statutory and regulatory provisions, a non-jeopardizing action under ESA section 7 may have some impact on listed 

species and critical habitat and may result in incidental take of 

listed species. The Service’s authority in this context is simply to 

recommend measures that minimize the impact of the incidental 

take. These measures may only result in minor changes to the 

project. Neither the ESA nor its implementing regulations contain 

any authorization for the Service to require or recommend measures in a section 7 consultation to ensure that the Federal action 

results in a net gain or no net loss. 

Any action taken by the Service to recommend such measures 

would exceed the Service’s statutory authority under, and therefore 

violate, section 7 of the Endangered Species Act. 

Similarly, when the Service issues a permit under section 10 of 

the ESA, it must ensure that the permit applicant will, to the maximum extent practicable, minimize and mitigate the impacts of the 

incidental take authorized by the permit. These statutory provisions also give no authority to the Service to impose measures that 

will result in a net gain or no net loss. Rather the Service must 

ensure that the applicant minimizes and mitigates the impact on 

listed species to the maximum extent practicable. 

Nowhere in the draft policy does the Service grapple with the 

fact that the scope of its authority under section 7 and 10 of the 

ESA is irreconcilable with the net benefit, or at minimum no net 

loss standard policy adopted by the draft policy. 

The draft policy explains that it is intended to clarify the role of 

mitigation in dangerous species conservation but also notes that 

nothing herein replaces, supersedes, or substitutes for the ESA’s 

implementing regulations. 
34 

Respectfully, the Service’s acknowledgments of its obligations 

under the ESA, while correct, do little to address the fact that the 

draft policy nevertheless purports to apply a standard that is fundamentally incompatible with both the ESA and its implementing 

regulations. The Service’s competing positions that it will both 

apply a policy to ESA actions that is contrary to the ESA and that 

it will respect the authority of the ESA when implementing the 

draft policy cannot be rationalized. 

If Congress had intended to require that every impact to listed 

species be completely offset, it would have written such a requirement into the ESA. If the Service or the President desires such a 

result, Congress must first act by amending the ESA to provide the 

authority to the executive branch. 

The draft policy’s incompatibility with statutory authority is not 

unique to the ESA. Indeed, we are aware of no sources of statutory 

authority that authorizes the Service to require a net benefit mitigation for Federal actions undertaken by citizen applicants. 

For example, under section 101 of the Marine Mammal Protection Act, private citizens may obtain authorization to take small 

numbers of marine mammals incidental to lawful activity so long 

as the take has no more than a negligible impact on the affected 

marine mammal species or stock and will not have an unmitigable 

adverse impact on the availability of such species or stock for taking for subsistence uses. 

The Service has no authority under the MMPA to require recipients of incidental take authorizations to take actions to achieve a 

net benefit or no net loss to the affected marine mammal species 

or stock. 

Similarly, under the National Environmental Policy Act, or 

NEPA, agencies are required to identify appropriate mitigation 

measures in the discussion of alternatives and in an environmental 

impact statement. Such measures are not required to achieve a net 

benefit or no net loss. Moreover, the Supreme Court has established that NEPA provides no substantive authority to Federal 

agencies to require mitigation, nor does it impose a substantive 

duty to develop a complete mitigation plan and an EIS. 

Furthermore, one unintended consequence that the Service may 

not have contemplated is that the draft policy’s articulation of a net 

conservation gain mandate might result in regulatory takings. The 

U.S. Supreme Court has held that a regulatory taking occurs when 

the Government conditions approval of a land use permit on the 

dedication of property or money to the public unless a nexus or 

rough proportionality exists between the Government’s requirement and the impacts of the proposed land use. 

If the draft policy dictates that the Service will condition the approval of a land use permit on a net conservation gain standard, 

the amount of compensatory mitigation may lack the requisite 

nexus or rough proportionality to the impacts of the proposed land 

uses and thus result in a taking. 

Finally, the draft ESA policy does not, but should, take into account the fact that the ESA plays a much different role in Alaska 

than the lower 48 States. In the last 10 years there have been ESA 

listings of very abundant, presently healthy, and wide ranging spe-
35 

cies in Alaska based on protected habitat conditions at the end of 

the century. 

For example, the Arctic green seal population numbers in the 

millions and occupies a range far larger than any other listed species. As another example, almost 200,000 square miles of land in 

offshore waters in Alaska have been designated as polar bear critical habitat. 

Much of the resource development in Alaska occurs through a 

structured Federal process, while either Boehm or BLM in the oil 

and gas leasing process, that already take into account the avoidance, minimization, and mitigation of impacts to federally listed 

species. For example, Boehm has identified and conditioned offshore leases on related permits based in part on the presence of 

listed species. 

In addition, almost every project in Alaska falls under the jurisdiction of the Army Corps of Engineers, which already applies 

stringent compensatory mitigation measures under the Clean 

Water Act. Accordingly, aside from being beyond the scope of authority granted by the ESA, additional action by the Service to require or recommend compensatory mitigation through the ESA 

would unnecessarily complicate and duplicate a Federal project approval system in Alaska that already accounts for and mitigates 

impacts to listed species and their habitat. 

We understand that the President and the Department of Interior are motivated to broadly implement new policies to achieve net 

gains or no net loss of environmental values. But those policies, 

however well intended they may be, cannot be implemented without statutory authority. The draft policy is fundamentally flawed 

because it is entirely premised on achieving a standard that cannot 

be lawfully implemented by the Service under the Service’s existing 

sources of statutory authority. Because of this overarching flaw, the 

draft policy should be withdrawn and rewritten. 

Thank you. 

[The prepared statement of Mr. Kindred follows:] 
36 
37 
38 
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40 

Senator SULLIVAN. Thank you, Mr. Kindred. 

Mr. Yates. 

STATEMENT OF RYAN YATES, CHAIRMAN, NATIONAL 

ENDANGERED SPECIES ACT REFORM COALITION 

Mr. YATES. Chairman Sullivan, Ranking Member Whitehouse, 

members of the Subcommittee, my name is Ryan Yates. I currently 

serve as Chairman of the National Endangered Species Act Reform 

Coalition, also known as NESARC. I am pleased to provide testimony today on the Fish and Wildlife Service proposed revisions to 

its mitigation policy. 

NESARC is the country’s oldest broad-based national coalition 

dedicated solely to achieving improvements to the Endangered Species Act and its implementation. NESARC’s members represent a 

broad section of the American economy, which include agriculture, 

energy, real estate, forestry, water development, local governments, 

and other important industries. NESARC and its members are 

committed to promoting effective and balanced legislative and administrative improvements to the ESA. 

The business concerns and activities of NESARC’s members frequently require them to seek approval from Federal agencies for 

permitting and authorization decisions. Our members seek clear 

and consistent standards that are within the scope of the law and 

that will guide the implementation of mitigation for a particular 

permit or authorization. 

NESARC’s primary concern with the proposed mitigation policy 

and the Administration’s other recent policies addressing mitigation is that they exceed the scope of applicable statutory authority. 

While the Service proposed the mitigation policy in response to directives from the President and the Secretary of the Interior, these 

policies cannot supplant, expand, and allow deviations from the 

Service’s existing authorities and responsibilities and obligations. 

These responsibilities and obligations are grants from Congress 

and cannot be created by executive action. 

The ESA establishes specific standards and requirements for the 

scope and nature of any avoidance, minimization, and mitigation 

measures that may be imposed by the Service. Further, the ESA 

requires specific analysis and evaluation of impacts to listed species 

and designated critical habitat. The mitigation policy would 

impermissibly expand the scope of the ESA to rely upon landscape 

scale approaches, net conservation gains, and evaluation of species 

in a manner that is inconsistent with the requirements of ESA section 7 and section 10. These statutory requirements cannot be overridden or undermined by the application of a general agency policy. 

The central goal of the mitigation policy is to effectuate a net 

conservation gain, or at minimum no net loss in the status of affected resources. Under the ESA, there is no mandatory obligation 

to improve or maintain the current status of affected resources. On 

the contrary, the statute provides specific standards in section 7 

and section 10 regarding what may be required of a project proponent or a permit applicant. 

For example, the ESA section 7 requirements to avoid jeopardy 

or adverse modification and to minimize the impact of any take of 

listed species do not equate to the net conservation gain or no net 
41 

loss standard articulated in the mitigation policy. There is no statutory authority to impose such requirements in the section 7 consultation context. 

A further problem posed by the Service’s approach is that the 

term ‘‘conservation gain’’ is not easily defined and will likely evade 

consistent application in practice. Further complicating matters, if 

the Service uses this standard to require mitigation that is not 

commensurate with impacts to species or habitat the agency’s application of a net conservation gain requirement could result in a 

regulatory taking. 

Last, the Service’s landscape scale approach is overly expansive 

and fails to consider the role of States and local jurisdictions in 

species conservation. The Service cannot incorporate landscape 

scale mitigation into permitting decisions or authorizations without 

explicit statutory authority which requires such a broad ecological 

approach. For example, the Service cannot convert its limited scope 

of authority under section 7 and section 10, which focus on the impact of take of the species in a particular area, to an authorization 

to expand the minimization component to a landscape scale. 

Further, the agency’s new definition of landscape and its reliance 

on a landscape scale approach are not conducive to consistent application and would undermine the role of States and other local 

jurisdictions in the management of species and habitat. 

While NESARC recognizes that mitigation is a tool which can be 

required in the application and approval of certain Federal permits, 

the proposed mitigation policy is overly broad, lacks the requisite 

statutory authority for implementation. Unless revised and clarified, the mitigation policy will introduce uncertainty into project 

planning, impose significant additional costs, and delay or prevent 

the issuance of necessary permits and authorizations, and ultimately reduce incentives for participation in efforts that would conserve species and their habitat. 

Senator, thank you again or the opportunity to testify. I am 

happy to answer any questions you may have. 

[The prepared statement of Mr. Yates follows:] 
42 
43 
44 
45 
46 
47 

Senator SULLIVAN. Great. Thank you very much, Mr. Yates. 

Professor Colburn. 

STATEMENT OF JAMISON COLBURN, PROFESSOR OF LAW, 

PENN STATE UNIVERSITY 

Mr. COLBURN. I would like to thank Chairman Sullivan and 

Ranking Member Whitehouse, as well as the rest of the Committee, 

for the opportunity to testify today. It is an honor and a privilege 

to be here with you. 

My name is Jamie Colburn. I am a Professor of Law at Penn 

State. For the last 15 years I have conducted research on policies 

like this one and their importance and significance in our legal system. 

Before I left practice I went into teaching full-time. I spent 2 

years as assistant regional counsel for U.S. EPA, and I am here 

today to talk about the breadth of this policy and the challenge created by the many different statutory authorities the Fish and Wildlife Service has to discharge. 

I want to highlight a couple general points before I delve into 

specifics. 

First, I think it is important to point out that this is guidance 

to subordinate agency personnel; it is not binding on anybody outside of the agency. Certainly not binding on the Federal courts, and 

it is immediately repealable by executive action if a subsequent 

Presidential administration would choose to do so. 

I think in citing 11 different Federal statutes at the outset of the 

policy proposal, the agency tipped its hand, so to speak, about the 

scope of its challenge. The Fish and Wildlife Service is often called 

upon to enforce a very specific statutory standard, which is the 

case with Endangered Species Act section 10, maximum extent 

practicable determinations, but they are also called upon in many 

contexts to offer recommendations that really don’t have any force 

or effect at all; they are just the recommendation of an expert 

agency. 

And in the 15 years that I have been working on Endangered 

Species Act NEPA issues I have seen the scope of this practice of 

mitigation expand to an extreme degree, and it is my belief that 

what the agency was trying to do in offering a policy to its subordinates is to bring some coherent predictability and some transparency to mitigation at a broader scale. And if I may, I would just 

like to focus on a couple of specifics both from the Endangered Species Act and the NEPA context. 

When the agency is offering a specific interpretation of a statutory standard, as, for example, with the Endangered Species Act, 

it is often in everybody’s best interest, certainly with something as 

complicated as mitigation for purposes of a habitat conservation 

plan, that agency personnel know all of the factors that they have 

to balance and only the factors that they have to balance. And I 

say that it is in everybody’s best interest because of how litigious 

many of these issues have become. 

If agency personnel have to reinvent the wheel every time they 

make a necessarily discretionary judgment like this, it is going to 

compound the delay; it is going to reduce the transparency of those 

determinations to permittees in particular. And that is just the 
48 

case with respect to HCP and other determinations that the Service has to make. This compounds itself through section 7 consultations as well. 

A policy of this kind, though, which treats mitigation in full, isn’t 

just aiming at the Fish and Wildlife Service’s specific duties to interpret statutory standards and enforce them against individual 

parties; it also encompasses more passive actions that the Fish and 

Wildlife Service takes as a recommender of good practices. And 

that brings me to what mitigation means in the NEPA context. 

NEPA section 102(2)(C) specifically requires action agencies that 

are preparing its detailed statements to seek the input—really the 

expertise—of any agency with Federal jurisdiction involved with 

the action, that might be germane to the action; and Fish and 

Wildlife Service, having the broad remit that it does, almost more 

often than any other agency finds itself called upon to offer its recommendations with regard to fish, wildlife, and plant resources. 

And in that context this is an entirely passive act by the Fish 

and Wildlife Service. They don’t have any regulatory authority at 

all; what they are attempting to do is offer an expert opinion. But 

it has a lot of consequences for the action agency and oftentimes 

for the permittee behind that action agency if the Fish and Wildlife 

Service doesn’t understand the scope, the Fish and Wildlife Service 

personnel involved in that case don’t understand the scope of what 

mitigation should or ought to entail according to broader agency 

priorities. 

And as I lay out in my written testimony, this is a threshold 

problem both for whether or not to prepare a detailed statement 

under section 102(2)(C) of NEPA, but it is also a problem that 

arises a little bit further down the road when agencies are preparing what are known as Findings Of No Significant Impact, or 

FONSIs—environmental lawyers love acronyms—and the FONSI 

itself is predicated on the permittee or the action agency taking 

some kind of mitigating action. 

These mitigated FONSIs have grown in prevalence, and they 

have also grown in importance, which means that they often wind 

up in Federal court. They often become the subject of Federal court 

scrutiny. A policy of this kind, which communicates to other action 

agencies like the Corps of Engineers, as the Chairman was referencing, and their permittees what the Fish and Wildlife Service’s 

priorities will be when it comes to a mitigation opinion under a section 102(2)(C) detailed statement or a mitigation opinion in the 

mitigated FONSI context I think would have the potential actually 

to speed permitting processes along. And I think that is why you 

see Federal courts encouraging agencies to maintain policies like 

this. 

In my view you have gotten clear signals from our Supreme 

Court last year, in the Perez case, and from the D.C. Circuit in a 

variety of cases, where they want to interpret the Administrative 

Procedure Act really to encourage these kinds of policies in order 

to increase the transparency and in order to ensure that subordinate agency personnel are responding to broader priorities that the 

agency has and that the Administration has, and that everybody 

knows how they will be doing so ahead of time. I think that is 
49 

something that you can find from a number of lower Federal court 

opinions as well as from the Supreme Court. 

I see my time is about up, and I welcome any questions you may 

have. Thank you again. 

[The prepared statement of Mr. Colburn follows:] 
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Senator SULLIVAN. Great. 

Well, I again want to thank the panelists. You guys obviously are 

very knowledgeable on these issues, and you have thought about 

them, studied them in practice, been involved with them, so I appreciate you coming here and helping enlighten us. 

Let me just kind of start with the basics. 

We would all agree, and I will just ask each of you, that a permitting delay, and in Alaska, where it is notorious, for years and 

years and years of delays for important economic projects, but it is 

also throughout the country, would each of you agree that that is 

not in the national interest, nor is it what the statutes envisioned 

when they were passed, whether it was Endangered Species or any 

other provision? 

Would you agree, Mr. Kindred? 

Mr. KINDRED. I would agree. And it is difficult, and I don’t know 

if it is just the cynic in me, to imagine a scenario where adding another layer of policies is not going to result—— 

Senator SULLIVAN. Well, I am going to get to that. 

Mr. Yates, would you agree? The statutes weren’t designed for 8- 

year delays on a project, correct? 

Mr. YATES. Senator, I agree. 

Senator SULLIVAN. Professor Colburn. 

Mr. COLBURN. Absolutely, Mr. Chair. 

Senator SULLIVAN. So let me ask, and I am going to get to the 

issue. You guys were very, all three of you very articulate on the 

existing authorities, which, again, I believe are very dubious, and 

I know at least two of the witnesses also believe that. But we had 

Mr. Bean here essentially saying, hey, don’t worry, this is not an 

additional level of bureaucracy; this is not going to delay. Do you 

even remotely think that that is going to be the case? I am not saying he was being deceitful, but is there any conceivable way that 

a new issuance of this kind of guidance is going to make more efficient and timely the permitting decisions by the Federal agencies? 

Mr. Kindred. 

Mr. KINDRED. I don’t see how it could. I mean, just realistically. 

Senator SULLIVAN. Can you give just your experience and examples? 

Mr. KINDRED. Well, Alaska is unique in the sense that, and Mr. 

Bean referenced this idea; well, the Corps works well because they 

have these mitigation banks that afford the opportunity to put 

some this up front. There are no mitigation banks currently in 

Alaska. The fact of the matter is that right now there is a great 

deal of uncertainty just to get Corps-approved mitigation permits. 

So I find it highly unlikely—given how much of Alaska land is wetlands and critical habitat—how adding this additional layer won’t 

just result in greater delays and greater uncertainty. 

Senator SULLIVAN. Mr. Yates, do you see this as Mr. Bean testified, that this is not an additional layer of bureaucracy; that this 

is going to speed things up; it is not going to delay? In your experience, do you think he is correct? 

Mr. YATES. I would have to disagree. In my experience, I have 

yet to find a scenario where additional layers of bureaucracy and 

requirements from a Federal action agency have increased the effi-
64 

ciency and reduced time and delays and costs related to a project 

being permitted and authorized. 

Senator SULLIVAN. How about this issue of the Corps of Engineers, which obviously works very closely with Fish and Wildlife, 

coming out and essentially saying this is going to tax you guys too 

much; you are already overburdened? I mean, the sister agency is 

coming out and saying that this is going to delay projects. 

Have you ever seen that before? To me, that is relatively remarkable that the Corps is essentially saying you don’t need this, and 

it is going to delay things. The Corps of Engineers. This is not a 

Senator; this is a fellow agency. Have you ever seen anything like 

that in your practice, Mr. Yates, where the Corps has come out and 

said don’t do it, it is a bad idea; or Mr. Kindred? 

Mr. YATES. I think it is very telling when you have a sister agency or a land management agency criticize this type of a policy or 

rulemaking. I think their expertise and their thoughts should be 

weighed heavily by the authorizing committee here in Congress 

through this process of scrutinizing this type of Federal regulatory 

action. 

Senator SULLIVAN. Mr. Kindred. 

Mr. KINDRED. I agree. And I think probably another aspect of 

this is if I was working with the Corps I would be concerned about 

increasing the likelihood of litigation. 

Senator SULLIVAN. Yes. 

Mr. KINDRED. If you have the Corps coming to one conclusion on 

mitigation and a recommendation from the Fish and Wildlife Service that is adverse to that, how is that reconciled, and how does 

that result in greater litigation? 

Senator SULLIVAN. Professor Colburn, let me ask you. You had 

some very insightful testimony as well, and I appreciated that. 

Your two colleagues there on the panel were very dubious, as am 

I, about the legal authority that the Fish and Wildlife Service has 

with regard to promulgating this policy when it clearly seems to be 

expanding what is in the statutory provision. You mentioned that 

it is just guidance, but as you know guidance actually matters; it 

matters in litigation, it matters in what these Federal agencies are 

empowered to do. We have had examples, the CD5 case in Alaska 

that delayed a really important project for the State and the country by well over 3 years where at the very end the Corps was going 

to approve a bridge permit. At the very end the Fish and Wildlife 

Service put a letter into the file, and it delayed it for 3 years. 

So Mr. Bean was very nice about saying, hey, I am just giving 

advice; they don’t have to listen, but they have power, whether it 

is guidance, whether it is their objection letters that can delay 

projects for years. I have seen this. 

So can you talk to that a little bit? You ended your testimony 

with something that is really important. What can we do to make 

sure that we don’t have Federal agencies that are delaying and delaying and delaying projects? 

In my experience, most Federal agencies don’t want to delay. To 

be perfectly honest, some do. I think the Secretary of Interior and 

the rest of the leadership in the Department of Interior wanted to 

kill that Shell project off the coast of Alaska. That is why it took 

7 years, $7 billion to get permission to drill one exploration well 
65 

in 100 feet of water. Outrageous. They wanted to kill it. They were 

successful. But I don’t think that is the case most of the time. 

What can we do, in your experience, and you have a lot, to help 

not cut corners, we all want to protect the environment, but not to 

have a 20-year permitting process for a mine in Alaska? 

Mr. COLBURN. Mr. Chairman, I think that is the question here, 

and I think it is the question that the agency is trying to address; 

and it is obvious that opinions vary about how they did. 

Senator SULLIVAN. But do you think that the additional guidance 

is not going to add to the delay, like the two other witnesses? 

Mr. COLBURN. I think I would answer your question by pointing 

out that the delays in the examples you cite from Alaska are meeting at a single location, but they are beginning from many different 

sources, and if I were a general purpose agency like the Corps of 

Engineers, which under section 404 of the Clean Water Act is empowered to just make the ultimate determination on a permit, 

along with EPA, the reason I would take Fish and Wildlife Service’s opinions so seriously is because they have the biologists necessary to make the best call, thumbs up or thumbs down, on a lot 

of the trust resources. And if they ignore what the Fish and Wildlife Service says, they do at their peril because the Clean Water 

Act is, as you know, Mr. Chairman, is so good at empowering parties outside of the Government to sue in the event they disagree 

with any permitting decision by the Corps. 

So if we were to grease the skid, so to speak, at the early phases 

and take mitigation not so seriously, when it is actually a statutory 

factor that has to be considered and has to be weighed co-equal 

with the other factors, I think it would be speed that we are borrowing temporarily for a lot of these cases. It would ultimately contribute to legal uncertainty in one form or another. 

Now, the other thing that I just wanted to respond to very quickly, what could Congress do to fix this, I think one of the sources 

of delay within the Fish and Wildlife Service is the fact that they 

have so many responsibilities and so little personnel to discharge 

them. And I know you have a thousand people a day asking you 

for money, but it strikes me that, in my experience with complex 

permitting problems like the one you referenced, the overwhelming 

culprit is the fact that there just isn’t personnel, and there just 

aren’t resources needed to answer some of these really technical 

questions. 

Senator SULLIVAN. Great. Thank you; that is excellent testimony. 

Senator WHITEHOUSE. So, in a nutshell, agency guidance is capable of speeding up the administrative process by making it clearer 

to the applicants and clearer to the participants what is expected 

from the get-go. 

Mr. COLBURN. I agree, Senator Whitehouse. I think that especially for the Fish and Wildlife Service, an agency that is so often 

in the business of providing an expert opinion to another agency 

whose only process delays add to theirs, guidance of this kind, 

which is, after all, aimed only at subordinate Fish and Wildlife 

Service personnel, actually has a realistic chance of speeding things 

up. 

Senator WHITEHOUSE. Mr. Kindred, to use a colloquial phrase, 

Alaska is kind of getting whomped by climate change, compared to 
66 

more southern locations. Your concern about how climate change 

gets factored into the Fish and Wildlife policies is that there not 

be unwarranted reliance on predictive models and that there not 

be speculation, and that there should be a documented cause and 

effect relationship based on predictable, reliable data that connects 

the data that is out there to the problem before the agency. And 

your concern is that if that is not there, you risk making an error. 

Mr. KINDRED. That is part of my concern, yes. 

Senator WHITEHOUSE. Now, what is the default proposition for 

you? 

Mr. KINDRED. I guess I would like a little more clarity in the 

question. 

Senator WHITEHOUSE. Well, you may get it wrong if you look at 

climate change data and try to use that data to predict exactly 

what the influence is going to be over time. 

Mr. KINDRED. Right. 

Senator WHITEHOUSE. And that is your concern, that you may 

get it wrong. But if you ignore climate change data, then you know 

you are going to be wrong, right? So the problem that I have is if 

you are concerned that the climate change data isn’t secure enough 

for the agency to make a decision on, to me, that leaves you with 

the default proposition that you just ignore climate change. And 

particularly for somebody coming from Alaska that seems like a 

really implausible thing to ask the U.S. Fish and Wildlife Service 

to do based on the science. 

So my question is what is the default proposition here? What 

should be the kind of baseline from which the Fish and Wildlife 

Service makes these decisions that involve plugging climate change 

data into their determination? 

Mr. KINDRED. I think that may be an oversimplification of my position on this, and it is important to distinguish between what 

NMFS did in their listing of the bearded and ring seals, where they 

contradicted themselves and went from saying that century-long 

modeling wasn’t reliable to it was with the polar bear. And the 

polar bear species, I think, is a great example of some of the flaws 

with Fish and Wildlife Service’s approach. I don’t think any reasonable person can disagree that although polar bears are currently 

healthy and abundant, it is difficult to look at climate change modeling, no matter how much weight you want to give it, and not 

come to the conclusion that sooner or later the species will be imperiled. 

But part of the problem with Fish and Wildlife Service’s approach to this is they came out, and they, one, acknowledged, even 

in listing the polar bear species as endangered, they lacked any authority to do anything about the only threat to the species, which 

is climate change. 

More to my point, I guess my concern as an Alaskan is that Fish 

and Wildlife Service also acknowledges that there is nothing that 

is happening locally, whether it be industry or—— 

Senator WHITEHOUSE. Isn’t it appropriate for the Fish and Wildlife Service to take into account outside factors that are putting 

pressure on a particular species and evaluating what additional 

pressures it can take? I mean, that is a known that they should 

put into their calculus, which is, based on our information, there 
67 

is going to be a real wipeout in the polar bear population coming 

up, and therefore the population that is likely to remain is what 

we have to work with, and that is the data that we—that doesn’t 

seem to be unreasonable at all. 

Mr. KINDRED. That is not unreasonable, but when you look at 

what the effect is, the way people are being asked to pay a price 

for climate change as it relates to polar bear species, our Alaskans, 

have very little to do about the climate change threat. 

Now, if the Fish and Wildlife Service would have come out and 

said, you know what, we look at States with high populations like 

California, and we are going to regulate them and make them pay 

the price because they are actually far more responsible for the 

threat on polar bears than Alaska, I may come to a—— 

Senator WHITEHOUSE. But back to the question of climate 

change, your recommendation to the Fish and Wildlife Service 

would be get the best data you can, make the most reliable determination you can, not throw up your hands and do something you 

know is wrong unless there is a level of certainty. 

Mr. KINDRED. To be perfectly candid, my recommendation to the 

Fish and Wildlife Service as they were going through this process 

was to announce that we are going to impose no regulations on 

Alaska. Not because it is just advantageous to me as an Alaskan, 

but because it sends the message to people—— 

Senator WHITEHOUSE. That would make Senator Sullivan so 

happy. 

Mr. KINDRED. Well, no, but it sends the—— 

Senator WHITEHOUSE. I think we could end all these hearings if 

there could just be an Alaska exemption. He’d come home happy. 

Mr. KINDRED. But from an environmental standpoint, I think it 

is more important to announce to the citizens of the United States 

that simply listing a species, knowing that you can’t do anything 

to protect it, gives people the false sense that it is being protected. 

And that was my biggest problem. If they would have come out and 

said this is a problem for everybody, the citizens of the United 

States, the citizens of the world, and if they don’t take action, then 

we are going to have problems with the polar bear species. But to 

give people the false sense of security and not have them acknowledge their culpability in it, to me, is wrong. 

Senator WHITEHOUSE. Understood. But to put it simply, it is not 

your recommendation for the Fish and Wildlife Service to ignore 

climate change impacts. 

Mr. KINDRED. It isn’t. 

Senator WHITEHOUSE. Thank you. My time is over. 

Senator SULLIVAN. Chairman Inhofe. 

Senator INHOFE. Well, thank you. I am sorry I had to leave. I 

was kind of hoping this wouldn’t devolve into a climate committee, 

but I suspected it might. 

You know, you are oil and gas up in Alaska, right? And we are 

in my State of Oklahoma. And what I would like to get from you, 

Mr. Kindred, is how would the new policy impact my State insofar 

as oil and gas are considered? I have two other areas I will be asking about, too, but thoughts on that? 

Mr. KINDRED. Well, I apologize in advance; I don’t know how intelligently I can speak about how this will affect Oklahoma only 
68 

given that we have so many unique issues that cause delays and 

increase costs and kill projects. I mean, I think to the extent that 

there are areas that are designated as critical habitat in Oklahoma, I think changing the policy and changing Fish and Wildlife 

Service’s approach from effectively working and creating reasonable 

mitigation policies to this no net loss or net gain can only result 

in adverse impacts to industry. 

Now, there is a separate question, academically, if that is OK, 

but from just oil and gas’s perspective, it is hard for me to believe 

that this is going to be anything but increased costs, increased 

delays, and increased uncertainty. 

Senator INHOFE. I agree with that. 

Mr. Yates, you are also involved with the Farm Bureau, is that 

correct? 

Mr. YATES. Yes, sir. 

Senator INHOFE. And do you know Buchanan in Oklahoma? 

Mr. YATES. Yes, sir. 

Senator INHOFE. He talks about the things that affect adversely 

that farmers are concerned about, Tom Buchanan, not just in the 

State of Oklahoma, but throughout America, that it is the overregulation of the EPA. Then they single out as No. 1 within those 

regulations, WOTUS. That is the No. 1 concern that he has. And 

the second thing is some of the endangered species and what is 

happening there. 

Have you already addressed how this would affect farmers in 

terms of this new mitigation policy? 

Mr. YATES. No, but I will try to expand on that. I think generally 

speaking, from the ag sector’s perspective, be it if we are talking 

from additional regulatory requirements coming from the EPA concern to WOTUS, again, I think we have had a consistent dialog 

with this Committee about our concerns about that. But I think 

generally speaking we are trying to evaluate what these regulatory 

changes mean for ag producers not just in Oklahoma, but across 

the country. Generally speaking farmers are concerned with mitigation requirements which have ultimately led to the elimination 

of all ag use on these mitigated lands, and I think that is the general concern from the ag sector, is the reduction in use of these private lands for agriculture. 

And while this is a problem for agriculture in general, I would 

say especially a problem that we are seeing impact new beginning 

and young farmers and ranchers that are trying to get started in 

the industry. 

Last, I think the concern about loss of ag infrastructure when 

mitigation takes land out of production is continuing to provide 

concern, the lack of certainty for producers. This is what we hear 

that is keeping people up at night. 

So, again, be it from the EPA, be it from proposals like the mitigation policy, these new requirements that are being created from 

these executive branch agencies are troubling, and I think in my 

testimony we have had a conversation about this already, but I 

think the scope in which the Fish and Wildlife Service mitigation 

policy expands the regulatory reach of that agency as it pertains 

to landscape level conservation, and these new broad authorities 
69 

that are largely undefined in statute is troubling, and I think that 

is a role for you, Mr. Chairman, and this Committee. 

The Fish and Wildlife Service should have come to you. They 

should have said, we have a problem, we are seeking—we think 

that additional mitigation would be helpful for the agency to protect species. And if that is their position, they need to come up with 

a legislative proposal and work with Congress to make those 

changes and not go about it through executive fiat. I think that is 

the wrong approach, and we have a lot of concern with that. 

Senator INHOFE. Yes, we understand that. Also, my State has a 

lot of DOD activity there. We have, of course, highway projects; we 

have a lot of Corps activities. 

But what effect—any one of the three of you—would this have 

in terms of our Department of Defense facilities? We have five 

major ones in the State. Any comments, any thoughts about that? 

Are they mainly exempt from this? And what areas are they not? 

Are you conversant with that? 

Mr. YATES. Unfortunately, I would be happy to get back to you 

with that question. 

Senator INHOFE. OK. Thank you. 

Senator SULLIVAN. Well, thank you, Senator Inhofe. 

I am going to wrap up with just a few final questions. Again, I 

want to thank the panelists. You have been outstanding witnesses. 

Just so we are clear in terms of your testimony, Mr. Kindred, Mr. 

Yates, you don’t think that the no net loss net benefit policy that 

has been promulgated in the President’s 2015 memo and in these 

new regs, that that has a statutory basis for them to do that, is 

that correct? 

Mr. KINDRED. It does not. 

Senator SULLIVAN. So they are exceeding their authority quite 

clearly, in your view. 

Mr. KINDRED. Yes, Senator. 

Senator SULLIVAN. And you agree with that, Mr. Yates? 

Mr. YATES. In our opinion, they have gone well beyond their authority. 

Senator SULLIVAN. And Professor Colburn, you disagree with 

that, or you didn’t have an opinion on that? 

Mr. COLBURN. I disagree, Mr. Chairman. I think that if you were 

looking for statutory authority, and because you are dealing with 

very broad statutory authorities, the programs that they implement and that this policy touches are very broad. I would look at 

the purposes sections of those statutes. 

Senator SULLIVAN. But you are not troubled that the 26 statutes 

that they cite, there is nothing like that in the language they cite? 

Mr. COLBURN. To be honest, Mr. Chairman, I think of NEPA section 101, where it talks about the authority and the continuing responsibility of all agencies of the Federal Government. I think of 

the Endangered Species Act section 7(a)(1) that says utilize the secretary, utilize all of your authorities in pursuit of the purposes of 

the Act. I think that is where the no net loss impetus is coming 

from. 

Senator SULLIVAN. Just let me throw in a final question. Senator 

Cardin had mentioned the goals of transparent, more predictable 

and timeliness in terms of permitting. I agree with that. And Sen-
70 

ator Whitehouse talked about the importance of coordinating better 

among Federal agencies. 

Do you think that this policy is going to advance those goals? 

Mr. Kindred. 

Mr. KINDRED. I think it would represent the first time that a 

great deal was added to the regulatory rubric, and it resulted in 

more transparency and more efficiency. It will be the first time it 

has ever happened, in my experience. 

Senator SULLIVAN. So your answer is no? 

Mr. KINDRED. No. 

Senator SULLIVAN. OK. 

Mr. Yates. 

Mr. YATES. I will keep it simple. No, sir. 

Senator SULLIVAN. OK. 

Professor Colburn. 

Mr. COLBURN. I think the 1981 policy creates its own uncertainties, so my answer would be I think it has a realistic chance of improving clarity and transparency. 

Senator SULLIVAN. Well, thank you, gentlemen. Outstanding testimony. Very much appreciate you being here. 

This hearing is adjourned. 

[Whereupon, at 4:24 p.m. the Committee was adjourned.] 

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