U.S. GOVERNMENT PUBLISHING OFFICE

WASHINGTON : 

For sale by the Superintendent of Documents, U.S. Government Publishing Office

Internet: bookstore.gpo.gov Phone: toll free (866) 512–1800; DC area (202) 512–1800

Fax: (202) 512–2104 Mail: Stop IDCC, Washington, DC 20402–0001

24–598 PDF 2017

S. HRG. 115–5 

OVERSIGHT: MODERNIZATION OF 

THE ENDANGERED SPECIES ACT 

HEARING 

BEFORE THE

COMMITTEE ON 

ENVIRONMENT AND PUBLIC WORKS 

UNITED STATES SENATE 

ONE HUNDRED FIFTEENTH CONGRESS 

FIRST SESSION 

FEBRUARY 15, 2017 

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

( 

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

COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS 

ONE HUNDRED FIFTEENTH CONGRESS 

FIRST SESSION 

JOHN BARRASSO, Wyoming, Chairman 

JAMES M. INHOFE, Oklahoma 

SHELLEY MOORE CAPITO, West Virginia 

JOHN BOOZMAN, Arkansas 

ROGER WICKER, Mississippi 

DEB FISCHER, Nebraska 

JERRY MORAN, Kansas 

MIKE ROUNDS, South Dakota 

JONI ERNST, Iowa 

DAN SULLIVAN, Alaska 

RICHARD SHELBY, Alabama 

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 

TAMMY DUCKWORTH, Illinois 

KAMALA HARRIS, California 

RICHARD M. RUSSELL, Majority Staff Director 

GABRIELLE BATKIN, Minority Staff Director 
(III) 

C O N T E N T S 

Page 

FEBRUARY 15, 2017 

OPENING STATEMENTS 

Barrasso, Hon. John, U.S. Senator from the State of Wyoming .......................... 1 

Carper, Hon. Thomas R., U.S. Senator from the State of Delaware ................... 3 

Johnson, Hon. Ron, U.S. Senator from the State of Wisconsin, prepared 

statement .............................................................................................................. 207 

WITNESSES 

Freudenthal, David D., former Governor, State of Wyoming .............................. 8 

Prepared statement .......................................................................................... 11 

Response to an additional question from Senator Barrasso ......................... 36 

Responses to additional questions from: 

Senator Carper .......................................................................................... 37 

Senator Capito ........................................................................................... 38 

Response to an additional question from Senator Wicker ............................ 42 

Myers, Gordon S., Executive Director, North Carolina Wildlife Resources 

Commission; President, the Southeastern Association of Fish and Wildlife 

Agencies ................................................................................................................ 44 

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

Responses to additional questions from: 

Senator Barrasso ....................................................................................... 55 

Senator Carper .......................................................................................... 56 

Senator Capito ........................................................................................... 57 

Holte, James, President, Wisconsin Farm Bureau Federation ............................ 63 

Prepared statement .......................................................................................... 65 

Responses to additional questions from Senator Carper .............................. 117 

Response to an additional question from Senator Wicker ............................ 118 

Rappaport Clark, Jamie, President and CEO, Defenders of Wildlife .................. 119 

Prepared statement .......................................................................................... 121 

Responses to additional questions from Senator Carper .............................. 131 

Response to an additional question from Senator Wicker ............................ 132 

Ashe, Dan M., President and CEO, Association of Zoos and Aquariums ........... 134 

Prepared statement .......................................................................................... 136 

Response to an additional question from Senator Barrasso ......................... 141 

Response to additional questions from Senator Carper ................................ 142 

ADDITIONAL MATERIAL 

Statement from the National Endangered Species Act Reform Coalition .......... 208 

Statement from the American Road & Transportation Builders Association .... 214 

(1) 

OVERSIGHT: MODERNIZATION OF THE 

ENDANGERED SPECIES ACT 

WEDNESDAY, FEBRUARY 15, 2017 

U.S. SENATE, 

COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS, 

Washington, DC. 

The Committee met, pursuant to notice, at 10:06 a.m. in room 

406, Dirksen Senate Building, Hon. John Barrasso (Chairman of 

the Committee) presiding. 

Present: Senators Barrasso, Inhofe, Capito, Boozman, Fischer, 

Moran, Rounds, Ernst, Sullivan, Shelby, Carper, Booker, and Harris. 

OPENING STATEMENT OF HON. JOHN BARRASSO, 

U.S. SENATOR FROM THE STATE OF WYOMING 

Senator BARRASSO. I will call this hearing to order. 

I would like to start by welcoming the newest member of the 

committee, Senator Richard Shelby from Alabama, who has been 

appointed to the Committee with the confirmation of Jeff Sessions 

from this Committee to be the Attorney General. 

Welcome, Senator Shelby. 

Senator SHELBY. Thank you. Mr. Chairman, I am here to support 

you and do some good things for the environment, right? 

Senator BARRASSO. Yes, sir. 

Senator SHELBY. And for jobs. 

Senator BARRASSO. Then you are on the right committee. Appreciate you being here. 

Senator SHELBY. No. 1, support the Chairman, right? 

Senator BARRASSO. As we discussed before and as Governor 

Freudenthal can attest, I do not need your support when I am 

right. 

Senator SHELBY. I know. We understand. I will be with you when 

you are right. 

Senator BARRASSO. Thank you, so much. Welcome to the Committee. 

I call this hearing to order. 

The Endangered Species Act, which is the topic of this discussion, was enacted to conserve species identified as endangered or 

threatened with extinction and to conserve ecosystems upon which 

those species depend. 

Those of us from Wyoming know the important role the Endangered Species Act plays in responsible environmental stewardship. 

Wyoming is one of the most beautiful States in the Nation. We are 
2 

home to Yellowstone and Grand Teton National Parks, numerous 

national forests, pristine lakes, and scenic waterways. 

Our wildlife is diverse and abundant. We have thriving populations of grizzly bears, wolves, elk, and bison, to name a few. People travel from around the world to come to Wyoming because our 

State’s natural resources are spectacular. 

We in Wyoming are not alone in our natural bounty or in our resolve to conserve species within our borders. Every State in our 

Nation works hard and invests heavily to protect the unique species of that State. 

States throughout the west are collaborating tirelessly with 

stakeholders to conserve species like the sage grouse throughout 

the west, the Arctic grayling fish in Montana, the El Segundo blue 

butterfly in California, and the Columbian white-tailed deer in the 

Pacific Northwest. 

The Great Lakes region—like the west—grapples with the gray 

wolf. In the southeast, specifically in North Carolina, it is the red 

wolf; in the Great Plains, the lesser prairie-chicken; in the south 

and elsewhere, the northern long-eared bat; and in the Northeast 

and Midwest, the rusty patched bumblebee. 

99.4 percent of counties in the United States are home to at least 

one species listed as endangered. That is according to a recent 

analysis of Fish and Wildlife Service data done by the National Association of Counties. 

Here is the problem. The Endangered Species Act is not working 

today. We should all be concerned when the Endangered Species 

Act fails to work. 

States, counties, wildlife managers, home builders, construction 

companies, farmers, ranchers, and other stakeholders are all making it clear that the Endangered Species Act is not working today. 

A major goal of the Endangered Species Act is the recovery of 

species to the point that protection under the statute is no longer 

necessary. Of 1,652 species of animals and plants in the United 

States listed as either endangered or threatened since the law was 

passed in 1973, only 47 species have been delisted due to recovery 

of the species. 

In other words, the Fish and Wildlife Service has concluded that 

less than 3 percent of species in the United States under the protection of the Endangered Species Act have recovered sufficiently 

to no longer necessitate the protection of the statute. As a doctor, 

if I admit 100 patients to the hospital and only 3 recover enough 

under my treatment to be discharged, I would deserve to lose my 

medical license. 

The Western Governors’ Association, the Association of Fish and 

Wildlife Agencies, and other stakeholder groups have been working 

to identify challenges with the Endangered Species Act and opportunities to make the statute work better. The Bipartisan Association of Western Governors has taken on this cause because the Endangered Species Act has not been updated in any significant way 

for almost 30 years. Wyoming’s current Governor, Matt Mead, has 

played an especially important role by leading the WGA’s Species 

Conservation and Endangered Species Act Initiative. 

Governor Mead has worked with other western States to develop 

an Endangered Species Act policy for the WGA, including specific 
3 

recommendations for improvements to species conservation and to 

the Endangered Species Act. The western Governors unanimously 

adopted the Endangered Species Act policy at the WGA meeting 

last June. 

This year, the Western Governors’ Association continues to lead 

efforts to identify consensus-based solutions to modernize statutes, 

regulations, and policies to make the Endangered Species Act work 

better for wildlife and for people. 

As our Committee explores the need to modernize the Endangered Species Act, I hope we can emulate the bipartisanship leadership that we had here on this Committee and that the WGA has 

demonstrated in this Act. 

When I talk about the bipartisanship in this Committee, I hope 

we can replicate last year’s bipartisan success when the entire 

Committee joined together—Republican and Democrat—to modernize the Toxic Substances Control Act, achieving the first major 

environmental reform in that area in roughly 40 years. 

With that, I would like to turn to the Ranking Member, Senator 

Carper, for his testimony. 

OPENING STATEMENT OF HON. THOMAS R. CARPER, 

U.S. SENATOR FROM THE STATE OF DELAWARE 

Senator CARPER. Thank you, Mr. Chairman. 

It is great to be with all of you this morning. To the current Governors and other special guests, thank you for joining us from 

across the country. 

I have a statement I am going to read in just a minute, but I 

want to preface it by saying this. Unfortunately, on the Democratic 

side, we have some emergency meetings that have been called, and 

we will be in and out of the hearing. 

I apologize for that. It is not something we had planned, but we 

value your testimony and are going to participate as much as we 

can. 

Coming in, I spoke with the Governor and with Matt who works 

for our Chairman, behind me is Christophe Tulou who when I was 

Governor was our Secretary of Natural Resources and Environmental Control, someone I worked with for many years. We have 

some very smart people at the desk, Dan and Jamie and our other 

guests. 

A question I would like us to ask is why do we have the ESA? 

Why do we have the Endangered Species Act? Why did we create 

it all those years ago? Do we still need it? Is it perfect? Is it written 

in stone? 

I have been reading through the Old Testament, and they talk 

about tablets and stone. Well, it is not in stone. 

Everything I do I know I can do better. I think that is true for 

all of us. It is probably true for most statutes, but I want to make 

sure that at the end of the day the original purpose for the Endangered Species Act to preserve the species that the good Lord put 

on this planet to share this planet with us, that we have done them 

no harm. 

At the same time, going back to our new member, Richard Shelby, just a kid here, welcome aboard. 
4 

To make sure that while we make some improvements to the Endangered Species Act, we do so in a way that is true to the original 

intent of the law. 

I am also always interested in how we create a more nurturing 

environment for job creation and job preservation. I know he is, 

too. All of us are. I hope we will be true to that, too. 

Here is my statement. 

According to the International Union for the Conservation of Nature, better known as IUCN, almost one-third of all known species 

of plants and animals, 22,784 species, are currently at risk of extinction. 

According to Harvard conservation biologist E.O. Wilson, one of 

the world’s preeminent scholars on biodiversity, if we continue on 

our current path half of all species worldwide are likely to go extinct in the next century. 

That is a troublesome warning that if allowed to become reality 

would have tremendously detrimental implications for our global 

ecosystem. 

There is much talk in the halls of Congress these days about 

‘‘modernizing’’ the Endangered Species Act and a host of other environmental protections. In each case we need to be very thoughtful 

about what modernization means, the proposals we review, and the 

consequences they would inflict. 

Nowhere is that exercise of wisdom and humility more appropriate than when we explore changes to the Endangered Species 

Act, a lifeline that Congress first extended in 1973 to species struggling to adapt to a world forever altered by the presence of one species in particular—us, human beings. 

The House Committee on Merchant Marine and Fisheries, on 

which I once served a long time ago when Richard and I were in 

the House together, soberly noted in its report to accompany the 

original Endangered Species legislation: ‘‘If the blue whale, the 

largest animal in the history of this world, were to disappear, it 

would not be possible to replace it, it would simply be gone, 

irretrievably forever.’’ 

The value of this law, however, is not just the inherent value of 

the animals and plants that share this planet with us but also the 

benefits we gain from protecting the places where they live and 

thrive. 

The National Fish and Wildlife Foundation estimate that the 

natural habitats we have protected in the lower 48 States alone 

provide a total roughly of $1.6 trillion per year in benefits. I had 

to look twice at that number, $1.6 trillion per year in benefits. 

It comes as little surprise, then, that the Endangered Species Act 

passed Congress in the 1970s nearly unanimously. While much has 

changed over the past 40-plus years, apparently our desire for 

thriving species and healthy habitats has not. 

As we consider our witnesses’ views on the need to modernize the 

Act, we should also keep in mind its purpose: to prevent the extinction of species and to do our best to restore those at risk. I, for one, 

am reluctant to do anything to compromise the successes we have 

achieved. 

Another observation is: it has been a long time since we in Congress last reauthorized the Endangered Species Act. What I find in-
5 

teresting is that given the opportunity to make changes, the compulsion over time was not to weaken but rather to strengthen the 

law, to make it more effective in protecting species in peril. 

For example, Congress adopted an amendment to address the position of the Reagan administration and ensure that listing decisions were based solely on biological and scientific factors, not economic calculations. That was in the Reagan administration. 

At that same time Congress also saw fit to set deadlines to ensure that Federal agencies made responsive and timely determinations in response to the listing petitions they received. 

As a former Governor I will be especially interested in our witnesses’ perspectives on the proper role and the success of States in 

managing species so they do not end up on threatened and endangered species lists. 

Along those lines I am particularly curious whether all of our 

government agencies at all levels have the resources they need to 

protect species and help them recover if they end up in peril. 

I have a unanimous consent request, Mr. Chairman, that the rest 

of my statement be entered for the record. I ask unanimous consent to also offer for the record a letter we received from 31 conservation organizations highlighting their support for the Endangered Species Act. 

Chairman BARRASSO. Without objection, they are entered into 

the record. 

[The prepared statement of Senator Carper was not received at 

time of print. The referenced letter follows:] 
6 

Alaska Wilderness League *American Bird Conservancy *American Rivers 

Born Free USA* Center for Biological Diversity* Clean Water Action 

Conservation Northwest* Defenders of Wildlife * Earthjustice 

Endangered Species Coalition * Environment America *Friends of the Earth 

Howling for Wolves* International Fund for Animal Welfare 

League of Conservation Voters *National Parks Conservation Association 

National Wolfwatcher Coalition* Native Plant Conservation Campaign 

Natural Resources Defense Council* Oceana Oregon Wild* Rocky Mountain Wild 

Sierra Club *The Humane Society Legislative Fund* The Humane Society of the United 

States *The Wilderness Society* Turtle Island Restoration Network* WildEarth 

Guardians *Wild Virginia *World Wildlife Fund *Wyoming Untrapped 

February 15, 2017 

The Honorable John Barrasso 

Chairman 

Environment and Public Works Committee 

United States Senate 

Washington, DC 20510 

Dear Chairman Barrasso and Ranking Member Carper: 

The Honorable Tom Carper 

Ranking Member 

Environment and Public Works Committee 

United States Senate 

Washington, DC 20510 

The Senate Environment and Public Works committee meets today for an oversight hearing to 

discuss the "modernization" of the Endangered Species Act (ESA). Given that the ESA has proven 

highly effective at both saving species from extinction and recovering those that have rebounded as 

a result of their protection under the law, we strongly believe this is nothing more than a thinly 

veiled attempt to weaken or perhaps gut one of America's most popular and effective conservation 

laws. With this in mind, and for the multitude of reasons outlined below, the undersigned 

organizations write on behalf of our millions of members and activists to express strong opposition 

to legislating on the ESA. 

To assert that d1e ESA is in need of ".reform" or "modernization" is to overlook the fact that the 

law has a near-perfect record of success in protecting wildlife in danger of extinction. By U.S. Fish 

and Wildlife Service's (FWS) own statistics, the ESA has saved more than 99 percent of listed 

species from going extinct. In addition, numerous species have been brought back from the brink of 

extinction and their recovery and delisting has been celebrated as they have moved from the ESA's 

protection back to state-led stewardship. Given this incredible success, it should come as no surprise 

that the ESA is also extremely popular, earning the support of 90 percent of voters. The American 

public expects that our rich biological heritage will be preserved for future generations to enjoy and 

the ESA ensures that the nation meets that expectation. 

Yet despite the ESA's proven record of success and immense popularity, members of Congress have 

repeatedly tried to weaken or gut the law under the guise of reform. In the 11.4'h Congress alone, we 

saw more than 130 individual legislative attacks on the ESA, both to remove protections for specific 

species and to undermine the law itself. These attacks are often made in the name of corporate 
7 

interests, placing short-term economic gain above long-term conservation efforts and demanding 

changes that would create significant barriers to species protection. 

Moreover, industry opponents to the ESA frequently site statistics that are wholly misrepresentative 

not only of the law's effectiveness, but of the science behind species recovery. Recovery within a 

relatively few years is simply inaccurate as a metric for success. Furthermore, species are often only 

listed under the ESA after decades of decline, and only once they have reached "emergency room 

status." The ESA saves species by preventing extinction and setting them on the long road to 

recovery. That is the measure of the law's profound success. 

The ESA contains immense flexibility including incidental take permits for land use and other 

otherwise prohibited activities; cooperative agreements to encourage collaboration and to provide 

assistance to states for conservation projects; and candidate conservation agreements to avoid the 

need for a formal ESA listing. This flexibility has repeatedly served to reconcile the imperative to 

save species from extinction and industry concerns. Further, the framework of the law is flexible 

enough to make improvements administratively, as has been done numerous times over the years. 

Recognizing the proven success, immense popularity, and flexibility provided under the law, there is 

simply no justifiable explanation for legislative changes to the Endangered Species Act. Thank you 

for your attention. 

Sincerely, 

Alaska Wilderness League 

American Bird Conservancy 

American Rivers 

Born Free USA 

Center for Biological Diversity 

Clean Water Action 

Conservation Northwest 

Defenders of Wildlife 

Earth justice 

Endangered Species Coalition 

Environment America 

Friends of the Earth 

Howling for Wolves 

International Fund for Animal Welfare 

League of Conservation Voters 

National Parks Conservation Association 

National Wolfwatcher Coalition 

Native Plant Conservation Campaign 

Natural Resources Defense Council 

Oceana 

Oregon Wild 

Rocky Mountain Wild 

Sierra Club 

The Humane Society Legislative Fund 

The Humane Society of the United States 

The Wilderness Society 

Turtle Island Restoration Network 

WildEarth Guardians 

Wild Virginia 

World Wildlife Fund 

Wyoming Untrapped 
8 

Senator CARPER. With that, I say thank you all, and welcome. 

Senator BARRASSO. As Senator Carper mentioned, there are some 

additional meetings that members may have to get to, and there 

are two roll call votes. Members may be coming and going throughout the testimony, but I want to thank all the witnesses for being 

here today. 

As you know, your entire statement will be included in the 

record. We ask that you try to keep your statements to 5 minutes 

so that we may have time for questions. 

I would like to start by first introducing the first guest, Hon. 

David Freudenthal, who served as the Democratic Governor of Wyoming from 2003–2011. Governor Freudenthal served as U.S. Attorney for Wyoming from 1994 to 2001 and before that as an attorney in private practice. 

Governor Freudenthal has returned to his roots and currently 

serves as an attorney providing legal counsel on domestic and 

international environmental and natural resource issues. 

In each of his positions, Governor Freudenthal has accumulated 

a wealth of experience with the Endangered Species Act. I hope 

that Governor Freudenthal will tell us about his extensive leadership in balancing stakeholder interests from across the political 

spectrum to effectively and efficiently address challenges posed by 

the grizzly bear, the wolf, the sage grouse and other species. 

Governor Freudenthal, it is a distinct honor to welcome you here 

today as a witness before the Environment and Public Works Committee so that we might benefit from your years of experience and 

your insight on this important topic. 

As a Democrat, your presence underscores the bipartisan opportunity that we have to modernize the Endangered Species Act. 

Thank you for traveling to Washington today. We look forward 

to hearing your testimony. 

Senator CARPER. Mr. Chairman, may I just add, how does a 

Democrat with a name like Freudenthal get elected Governor of 

Wyoming? I was hoping you would address that in your opening remarks. 

Senator BARRASSO. We can start with his overall strength—his 

wife, Nancy; his talent; the upbringing he had in Thermopolis, Wyoming, where my wife is from as well. 

Senator CARPER. I have heard a lot of good things about 

Thermopolis. 

Senator BARRASSO. It is Hot Springs County down to the roots. 

Senator CARPER. That explains it. 

Senator BARRASSO. He is a beloved figure and many say the best 

Governor in the history of the State of Wyoming. 

Senator CARPER. Are you going to sit there and take that? 

STATEMENT OF DAVID D. FREUDENTHAL, 

FORMER GOVERNOR, STATE OF WYOMING 

Mr. FREUDENTHAL. Mr. Chairman, Ranking Member, and members of the Committee, thanks for the opportunity to appear. 

It really does offer a tempting rebuttal but in the interest of the 

economy of time, I will move on to the substance of the matter. 

However, he is correct that his best asset and mine are our 

spouses. As you know, politics is a team sport. 
9 

When I was younger, in law school I wrote a Law Review article 

extremely critical of the ESA. This would have been about the time 

of TVA v. Hill, one of the early acts, the snail darter. 

Over time, I have significantly changed my view in that I think 

we need a statement about the preservation of species. I think it 

is important that we do it, but it is equally important that we do 

it in a way that functions properly. 

You read the goals, and they are very noble, and the language 

is very noble, yet Congress gave an incredibly broad grant of authority which has been sort of used and abused over the period of 

time by different Administrations and by court decisions. 

Now we have this mechanism that by and large has sand in the 

gears, I think, in terms of making it work. As much as a member 

of the executive branch, it offends me to have to ask for legislative 

action; I actually believe that we have to amend it in a way that 

protects the original goals but makes it so that it functions. 

As you can tell from my testimony I have war stories as long as 

my arm, but I want to summarize the basic points I think need to 

be looked at. 

First of all, I think the listing process has to be disciplined. One 

of the reasons that the system does not work is it is just too flooded. The gate for getting in is too low. We do not require enough 

information from somebody filing a petition to invoke the power of 

the Federal Government. 

It not only affects the species, but it affects the rights of a lot 

of other people, both property rights and personal rights. That 

threshold for invoking the power of the Federal Government should 

be raised. 

I do not mean that it should be raised that it becomes prohibitive, but it needs to be more than what occurs now. I give Mr. Ashe 

credit. They have offered some rules which were pretty strong, but 

by the time they were adopted by their own response and the comments it essentially said, this is the status quo. 

They inserted some things that I think are valuable, one species 

per petition, but they lost a lot of the ground they had in terms 

of the nature of the requirements of a petition, in part because a 

lot of that is not defined in the statute and the case law has been 

fairly fluid. 

They also abandoned what I thought were some of the best components of the original rewrite of the listing process which was to 

empower the States because even though all wisdom resides in DC, 

all knowledge resides in the field. 

The local game and fish people not only know the biology and the 

species, but they know the ground. That gives them a different perspective. It is not perspective as anybody who has been Governor 

can tell you, game and fish agencies are not stooges for economic 

development. They are advocates for those interests; you appoint 

people to those agencies because they believe in that mission. 

Yet somehow that gets discounted as it works its way through 

the system and the decisionmaking is centralized in DC. 

I also think that this vagueness in the statute leads to what I 

call moving the goalpost. We went through it on wolves; we went 

through it on grizzly bears; and we went through it on the sage 

grouse. You think everything is done and is fine, and then here 
10 

comes somebody with a new theory, and Fish and Wildlife moves 

the goalpost. 

As you can tell from my testimony, we have been at bears forever, and we have been at wolves forever. The sage grouse, I will 

tell you, while they ended up not listing it, by the time they were 

through integrating it into the Federal land plans we may have 

been better off with the listing because at least the rules were 

clear. You knew what you could do under section 7 and section 10 

of the statute. 

I am hopeful that it will work out, but there are days—both 

when I was Governor and since then in private practice—that you 

wonder whether or not at least with listing you had some kind of 

a framework. 

I also think that you need to rethink warranted but precluded 

which has to do with this kind of I call it wildlife purgatory. You 

are either listed, or you are not, so you are just hanging out there. 

What happens then, particularly for public land States because 

remember public land States are hit most severely by this because 

of the interaction of NEPA, ESA and all of the land planning because nearly everything involves Federal action which triggers the 

application of the statute. 

What happens is that the Land Management Agency has essentially become a species management agency by virtue of—for the 

Forest Service it is called species of concern, and for BLM it is 

called the sensitive species. They, in effect, impose listing standards on the management of those species because there are candidate species. 

The other thing is I have come to believe, particularly when I 

was Governor, we required mitigation for a couple of large, significant oil and gas developments where the spacing was such and 

some of that stuff was on 5-acre spacing. That clearly has an impact on the habitat. 

The mistake we made, not that I made many mistakes when I 

was Governor, I made a lot, but one of them was that we allowed 

the resource to be dissipated into what I call postage stamp 

chunks. We did not think about the species life cycle to make sure 

it was preserved so mitigation became kind of watered down. 

I have become a big believer that mitigation that is the preservation of the very best of the habitat and the very best of the species 

on a genetically diverse basis is really important. It will only occur 

if you guys amend this statute to place some kind of discipline in 

what it is going to be. 

Our course I cannot leave as a former Governor without endorsing the work of the Western Governors’ Association. Remember 

that is a group made up of both coastal States and inland States. 

It deserves serious consideration as you move forward on bipartisan basis, particularly on the funding aspect because there is no 

free lunch. ESA is as large an unfunded mandate as you have out 

there. 

We learned that both as Governor and then again as a member 

of the blue ribbon panel which I reference in my testimony. 

With that, I look forward to the dialogue and the questions. 

[The prepared statement of Mr. Freudenthal follows:] 
11 

MODERNIZATION OF THE ENDANGERED SPECIES ACT 

TESTIMONY BEFORE THE SENATE COMMITTEE ON ENVIRONMENT & 

PUBLIC WORKS 

Dave Freudenthal 

February 15,2017 

Chairman Barrasso, Ranking Member Carper, Members of the Committee 

Thank you for the opportunity to provide comments on the difficult task of 

modernizing the Endangered Species Act (ESA). I do not need to highlight the 

difficulty of the task you have undertaken. The ESA is as controversial as it is 

important. There have been several prior attempts to modernize the ESA. All 

have fallen victim to the inability of the various interests to reach common sense 

compromises in the interest of the public well-being. The ESA contributes much 

to America, but we now have 40 years of experience to guide thoughtful updates to 

the statutory framework. 

My comments are more practical than academic. They are informed by 

decades oflegal practice, nearly 8 years as United States Attorney under President 

Clinton, 8 years as Governor of Wyoming and ongoing private practice working 

with clients in Wyoming and other parts of the United States. Obviously, this time 

period has included both Republican and Democrat administrations in Washington, 
12 

D.C. I have found the people involved, even those with which I deeply disagreed, 

to be good and decent individuals. 

My current practice is generally natural resource based clients including 

wind, oil and gas, coal and the largest Habitat Conservation Bank in the United 

States, a greater sage-grouse habitat bank encompassing more than 500,000 acres. 

I have been asked to discuss a few of my experiences in actually trying to work 

with, and sometimes around, the ESA. While I share "fly-over country's" general 

unease with the federal government, protection of endangered or threatened 

species is an appropriate and necessary role for the federal government. 

As a former member of the federal executive branch and Governor, I 

naturally favor executive branch action as opposed to legislative action. But in this 

case, legislative action is needed to affect mid-course corrections to focus the ESA 

on its original objectives and to improve its operation in our current circumstance. 

The original, groundbreaking legislation granted broad authority to the executive 

branch. Over time, the mix of regulations, court decisions, policy guidance and 

individual agency actions by Presidential administrations of differing but still well 

intentioned views have created a nearly unworkable system. 

I would commend to the Committee the excellent work of the Western 

Governors Association. The wonderful Governor of Wyoming, Matt Mead, 

undertook a serious, bi-partisan effort to engage stakeholders and formulate a 

2 
13 

series of thoughtful, experience based recommendations for improving the 

implementation of the ESA. The recommendations reflect a growing consensus 

about areas to be addressed within ESA modernization. I hope the Committee will 

take seriously the good work of Governor Mead and his colleagues. I would 

reference particularly the discussion of the regulatory insertion of the 

precautionary principle and the discussion of state/federal cooperation. 

However, my comments are strictly my own and should not prejudice your 

view of the Western Governors Association efforts. 

LISTING PROCESS 

A higher content threshold should be established, in statute, for 

consideration of petitions to list. I am aware of the recent USFWS rule making, 

effective October 27, 2016 clarifying the petition process (50 CFR Part 424.14). 

Nothing in the clarifying rules suggests the examples I cite could not happen again. 

The final rule is more a codification of current practice than groundbreaking. The 

rule as first proposed was more ambitious and significantly enhanced the role of 

the states in the petition process. These provisions were largely abandoned in the 

Final Rule. Much has been made of the USFWS providing a definition of 

"substantial information". A term, which is not, but should be, defmed in the ESA. 

The Final Rule states: 

3 
14 

"For purposes of this section, 'substantial scientific or commercial 

information" refers to credible scientific or commercial information in 

support of the petition's claims such that a reasonable person conducting an 

impartial scientific review would conclude that the action proposed in the 

petition is warranted .... " ( 42 CFR 424.14(h)(1 )(i). 

As the USFWS notes in the response to Comments, this simply represents the 

longstanding state of the law. 

"These concepts are in no way new to the Services' practice; this is how we 

have and must evaluate petitions." Federal Register Vol. 81, No.l87; page 66473. 

In general, the USFWS Response to Comments preceding final adoption makes 

clear that nothing has actually changed. (See: Federal Register Vol. 81, No. 187 

September 27, 2016, pp. 66462-66484.) 

Currently there is no meaningful screening of petitions and what is required 

only involves the best credible scientific and commercial data that is "available". 

See 16 U.S.C. § 1533(b)(1)(a). A higher threshold of reliable data and species 

specific knowledge, including a mandate to deploy the most current advancements 

in genetic and other scientific thinking, does not seem too much to ask of someone 

seeking to invoke the power of the federal government. Especially when the 

logical results of the exercise of such federal power impacts the personal and 

property rights of so many other people. 

4 
15 

By way of example, an individual found a single Narrow-foot Hygrotus diving 

beetle (Hygrotus diversipes) by a highway bridge in Wyoming in 1964. Little data 

was collected in the intervening 40 years, save several field collection efforts. 

Despite admonitions from scientists in Wyoming that more data should be 

collected before jumping to any conclusions about the beetle, a petition was filed 

to list the species under the ESA. The petition itself noted the lack of important 

data related to the beetle, but none-the-less called on the federal government to list 

the species based on "available science." 1 USFWS continues to kick the 

proverbial can down the road to this day to buy time to collect more data to 

determine if the species should be listed- an effort that should have been 

undertaken by and required of the petitioner before engaging us all in a wildbeetle-chase. To date, Wyoming has spent almost $110,000 in state funds, funds 

that could have been directed to on-the-ground habitat work to conserve mule deer, 

bighorn sheep and other wildlife, to complete the inadequate homework of the 

petitioner. Given the absence of a viable threshold, the burden of proof seems to 

1 With regard to the beetle, an important historical footnote is that the species was targeted by 

activists for the express purpose of slowing oil and gas development in northeast Wyoming. The 

state received copies of correspondence between certain environmental groups wherein they 

discussed the need to find an obscure species in the area of known oil and gas development for 

the specific purpose of hobbling such development. Hugh Leech's discovery and publication 

related to the Narrow-foot Hygrotus diving beetle in 1964 remains that obscure species today. 

5 
16 

immediately shift to those who could be impacted by the potential listing, 

especially considering the tremendous, negative economic implications of a listing. 

A second, but certainly related factor at play in this context is the 

"precautionary principle," which encourages movement towards listing based on 

the absence of data. Again, the person or business impacted by a potential listing 

bears the burden of proving a negative-that is proving the species should not be 

listed. A higher threshold would also prevent USFWS and other from spending 

time on ill conceived petitions. In Wyoming, there was an attempt to list a snail, 

named the Black Hills mountain snail by the petitioners (proposed Oreohelix 

cooperi) based on the shape of the male snail's reproductive organs. I use the 

terms "named by the petitioners" and "proposed" because, prior to the filing of the 

petition, neither "Black Hills Mountain snail" nor "Oreohelix cooper!" were used 

to describe a distinct species of snail. The "cooperi" was previously considered to 

be a subspecies of another type of snail. It was only through the petition that this 

"new" species was announced to the world. There was no peer reviewed literature 

or other scientific study presented to support such an assertion of a new species, 

other than the musings of the environmentalist petitioners in the petition. 

Functionally, the species was created out of whole cloth by the petitioners. 

Ultimately, we were forced to spend over $60,000 on genetics studies to sort out 

the petitioners' knotted science- a task that should have been required of them 

6 
17 

before the petition was accepted by USFWS. Again, the burden ofprooffell to 

those potentially impacted by a listing instead of being required, in the first 

instance, of the petitioner. 

The availability and accessibility of incredible scientific tools has changed 

drastically since the ESA was drafted. Genetic study is readily available, unlike in 

the dark ages of 1973. Perhaps the day has come to require that petitioners do 

more than simply recount what is "available" and impose an expectation that they 

meet a modem standard of science in their listing requests, especially when they 

are "doing science on the fly" as was the case with the Black Hills snail. 

Beyond the petitioning process, recovery efforts would be enhanced by 

requiring a listing decision to include the specific conditions necessary to achieve a 

de-listing. The listing process is intended to encourage public and private actions 

to preserve and recover a particular species or subspecies. However, the current 

process does not establish the necessary conditions to meet these objectives. 

Public and private actions to preserve or recover the species would be more 

focused and effective if the statutes required the listing notice, which is a formal 

rulemaking under the Administrative Procedure Act, to also include the conditions 

necessary to achieve a delisting.2 Public and private actions are more likely to be 

2 By extension, then, any changes to the recovery criteria would have to be accompanied by full, 

notice and comment rulemaking. 

7 
18 

forthcoming if specific objectives are identified at the outset. Ifthe agency 

possesses sufficient knowledge of the threats to a species to list, it should also 

possess sufficient knowledge to define the requirements to delist at the same time. 

You will hear from numerous people about the problems created by the 90 

day and one-year timeframes for review and decision-making. Those problems are 

real and need to be resolved. As noted, significant part of the solution should be 

the imposition of a higher content threshold for consideration of a petition. In 

effect, this is a form of triage for the multitude of petitions received by the agency. 

Defacto triage occurs within the agency by the simple decision of what to focus on 

each day. A higher content threshold would help ensure effective triage given 

limited resources. 

The flip-side of the listing process is de-listing. De-listing has not been a 

priority for USFWS. For instance, there appears to be substantial agreement, 

including from USFWS, that the Utes' Ladies Tresses (a plant) should be de-listed 

but such action is not a priority for the agency. Manpower is usually cited as the 

reason for delay but the process could be simplified by specifying, at the time of 

listing, the requirements to de list and adhering to them absent a rulemaking or new 

petition that presents information to suggest that delisting is not warranted. 

SECTION 6 "COOPERATION WITH THE STATES" 

8 
19 

Section 6 is, perhaps, the most under-utilized provision of the ESA. Within 

the ESA, there is much discussion about Cooperative Federalism and State/Federal 

Partnership. In reality, the states are at best limited partners and at worst viewed as 

adversaries. States expend resources but lack decision-making authority. There is 

a healthy, and intended, tension built into our federal system. States and the 

federal agencies often possess different views about issues, and even how to 

achieve shared goals. But, USFWS understands the ultimate authority rests with 

them and, absent statutory direction from Congress, shared information and 

decision-making remains the exception and not the rule. A few examples illustrate 

the issue. 

GRIZZLY BEARS 

Grizzly bear management remains controversial to this day. Grizzly bears 

are magnificent animals and a species truly worthy of preservation. The current 

controversy started in 1973 with, the then controversial, closing of open pit 

garbage dumps in Yellowstone National Park. The Interagency Grizzly Bear 

Study Team was created the same year. Wyoming suspended grizzly bear hunting 

in 1974 and the bear was listed as threatened in 1975. In 1982, USFWS published 

the Grizzly Bear Recovery Plan. It was revised in 1991, 2007, and 2011. Each 

time the geographic area encompassed by various requirements was expanded and 

the population numbers and management prescriptions were expanded. These 

9 
20 

requirements, as a practical matter, applied to both private and governmental 

activities. At the same time, the number of grizzly/man encounters grew. The 

State of Wyoming was required to spend tax and hunter license fee dollars to 

support this federal activity. Wyoming's Game and Fish Department has spent 

more than $43 million on Grizzly Bear management since 1980. Each time we 

neared de-listing, the goal posts for recovery were moved, the USFWS cited 

" ... best available science and commercial data." This term is guided by some 

USFWS guidance, but remains largely subject to USFWS interpretation, even 

when the state game and fish agencies actually have as much knowledge as their 

federal counterparts and more on the ground experience. Congressional guidance 

in this area would be appropriate. 

Through litigation and administration changes, the grizzly bear management 

and delisting process became more contentious and difficult at each tum. Even 

when USFWS sought to de list in 2007, successful litigants stalled the process 

based on speculative threats, which may or may not be related to the original basis 

for listing and have since been discounted through peer reviewed science. And 

now, when state and federal biologists agree that a robust and genetically diverse 

population exists, de-listing has stalled again. The disagreement between 

Wyoming and the federal government revolves around a desire by USFWS to 

retain post de-listing control of grizzly management. This is contrary to the ESA, 

10 
21 

which makes delisting the final federal decision subject to review five (5) years 

later. Post de-listing management is the responsibility of the States and not the 

federal government. Section 6 was crafted to foster cooperation. Our experience 

with the grizzly bear suggests we can do better to achieve this objective. 

GRAY WOLF 

Plans for the re-introduction of the Gray Wolf into the Greater Yellowstone 

Ecosystem began in the 1980's when Wyoming had a Democrat Governor and 

America had a Republican President. The plan was for the re-introduction of Gray 

Wolves into Yellowstone Park as a "non-essential, experimental population". The 

expectation was the wolf population would remain within and be managed within 

the area encompassed by Yellowstone National Park, Grand Teton National Park, 

John D. Rockefeller Memorial Parkway and the adjacent US Forest Service 

designated Wilderness Areas. Then in 1994, the USFWS decided to designate the 

entire State of Wyoming as part of the wolf recovery area for the "non-essential, 

experimental population". While I love my State, few would argue the entire state 

is suitable wolf habitat. Throughout the ensuing years, through USFWS policy 

changes and litigation the Gray Wolf population continued to grow and the area 

over which USFWS asserted management control also continued to expand. And 

the number of wolf/man encounters escalated. Wyoming's Game and Fish 

Department has spent more than $9 million dollars of license fee and tax funds 

11 
22 

since 1980 to support this federal priority. (And again, the USFWS mandates 

applied to government and private activities.) The pattern of"moving the goal 

posts" was again repeated by USFWS. The Gray Wolf remains listed today. 

This pattern of''moving the goal posts" is both frustrating and nearly 

impossible to fold into the management of the resources and politics of a State. 

Each time, USFWS would rely upon the phrase " ... the best available science and 

commercial data". What is left out of the discussion, and why coopemtion is not 

real, is that USFWS remains the sole custodian of the determination of what 

constitutes " ... the best available science and commercial data". 

SAGE GROUSE 

Wyoming, over the past several decades, confronted a series of listing 

petitions for the sage grouse. Wyoming is home to roughly 40% of the country's 

sage grouse population. Rather than continue to react to events, we chose to 

develop a sage grouse management plan designed to preserve sufficient birds and 

habitat to avoid a listing. In 2007, with the able assistance of Steve Allred, then 

Interior Undersecretary, we convened a series of meetings with stakeholders. 

Steve attended some of the meetings, more importantly he empowered the local 

USFWS and BLM personnel to work closely with Wyoming and he kept 

Washington D.C. out of the mix. 

12 
23 

Together, they developed, what became known as the "Wyoming Sage 

Grouse Core Area Strategy". It was not designed to save every bird, every blade 

of grass or sagebrush stand. The design focused instead on preserving more than 

enough birds and habitat to avoid a listing. After much controversy, we adopted a 

plan and enforced it. It protected nearly 15 million acres ofimportant habitat and 

most of the sage grouse population. 

USFWS ultimately made a warranted but precluded finding for multiple 

sage grouse listing petitions relying substantially on the Wyoming effort to avoid a 

fulllisting.3 The decision was tested in an Idaho federal court. The Judge 

reluctantly upheld the decision but made clear the issue would be revisited, unless 

the federal government acted to create appropriate sage grouse protections and 

adequate regulatory mechanisms on federal lands. 

Amending BLM Resource Management Plans (RMPs) and similar US 

Forest Service planning documents was the logical approach to address the 

concerns raised by the Judge. Unfortunately, this is when discussions moved from 

the States and the federal field offices to Washington, D.C. From my perspective, 

four policy preferences or attitudes account for the ensuing struggle between the 

3 A ''wananted but precluded" finding by USFWS does not terminate federal protections. Such 

a finding automatically makes the species a "Sensitive Species" for BLM land management 

pursuant to BLM Manual 6840, section 0.2A. 

13 
24 

States and the Department of the Interior. While each of these may be viewed as 

appropriate policy objectives, they are not directly required by the ESA 

First, the original Wyoming Core Area Strategy was morphed into an effort 

to save every bird, every blade of grass and generally preserve the "Sagebrush 

Ecosystem". A requirement, which is not in the ESA. 

Second, it became a vehicle to move the BLM land management further 

from its "multiple use, sustained yield" mission, implied in the Federal Land 

Policy and Management Act (FLPMA), and into a species management agency. A 

pattern began decades ago but accelerated in recent times. While the Supreme 

Court in Kleppe v. New Mexico recognized managing wildlife as part of BLM 

mission, it could hardly have contemplated that mission would supplant most of 

FLPMA. 

Third, the RMP revisions for sage grouse became a vehicle to implement a 

vision of larger landscape scale planning. The RMP drafting efforts were 

continually overshadowed by USFWS in combination with the USGS announcing 

new science, adding ideas and ultimately designation of important habitat and 

withdrawal recommendations. Landscape scale planning makes sense as a 

scientific matter but such policy preferences should be developed and articulated 

broadly rather than slipped into RMP revisions specifically for sage-grouse. 

Fourth, the command and control model that has supplanted "Cooperative 

14 
25 

Federalism" encouraged a "one size fits all" preference for dealing with the States. 

While this is administratively attractive, it fails to account for the wide variations 

of topography, land ownership, bird numbers, habitat conditions, threats to birds 

and habitat and history among the States encompassed by the sage grouse range. 

The Wyoming strategy would not work in Montana or Nevada. 

Committee members are no doubt thinking ''that is all interesting, but what 

does it have to do with modernizing the ESA ?" Please consider the following. 

Amend the ESA to recognize that it is logical to consider state boundaries in 

the determination of"distinct population segments" or DPS (including revisions to 

the definition of"significant portion of the range" under the DPS policy) for 

purposes oflisting and delisting. While not outwardly appearing to serve as 

biological considerations, the reality is that the presence or absence of thoughtful 

state management plans inherently affects the conservation status of a species or 

habitat. By accounting for changes in management philosophy "at the state line" 

through the listing status of the species, each state could manage species differently 

and be judged accordingly. Species do not recognize political boundaries, be they 

State or National Park boundaries as we learned with wolves and bears. 

Recognition of State boundaries should be an option but not a mandate. This 

option would allow each state to craft its own response to ESA requirements or 

leave it to the federal agencies. In this manner, states would not be penalized by 

15 
26 

the action or inaction of another state or be conscripted into an issue they do not 

choose to address. Further, it would allow USFWS to narrowly tailor a listing to 

those areas that should be listed - because of known threats or the presence or 

absence of a thoughtful management plan - and those that should remain outside 

the purview of the ESA. 

As a real example, I would offer Wyoming's experience with the Preble's 

meadow jumping mouse. The Preble's range extends from Colorado to northern 

Wyoming. As you might surmise, a Preble's mouse living around or within urban 

Denver, Colorado, faces a much different set of circumstances and threats than a 

Preble's living near rural Wheatland, Wyoming. When it was listed under the 

ESA, the USFWS acknowledged as much. Unfortunately, listing is an "all or 

nothing" proposition - even though the mice in Wyoming are fat and happy 

irrespective of whether they are listed or not. In time, the USFWS was able to 

implement special rules, known as 4( d) rules under the ESA, to relieve Wyoming 

agricultural producers and others impacted by the listing from the oppressive take 

requirements of the ESA, but not before many farmers and landowners nearly lost 

their livelihoods. In my view, the Preble's should have never been listed, at least 

in Wyoming, because there were no or at least very limited threats to the species in 

my state. This said, because even the USFWS knew that its main interest was in 

controlling the threat of urban development for the protection of the mouse, the 

16 
27 

4(d) rule should have been published simultaneously with the listing rule to spare 

Wyoming and its economy what USFWS and other admitted was needless pain. 

Require USFWS to articulate the recovery or listing avoidance goals in a 

clear and concise manner. Once done, they could be modified only through public 

notice and rulemaking. This would give substance to Section 6 of the ESA, which 

encourages cooperation with the States. Under the current practice, USFWS will 

not provide concrete guidance, arguing that such guidance would be 

"predecisional". Instead. they assert certain practices or actions are necessary but 

may not be sufficient to avoid a listing or achieve recovery. A conversation often 

accompanied by a wink and a nod. A perfect example is USFWS suggesting 

certain areas were important sage grouse habitat to be protected and essentially 

forcing a withdrawal proposal by BLM. At the same time USFWS was arguing it 

could not mandate such action. IfUSFWS wants to direct land management, they 

should own the decision. 

I recognize that the insertion of policy preferences cannot and should not be 

legislated out of the system. However, it would be appropriate to require those 

preferences be measured against the specific objectives of the ESA as related to an 

individual species and not an entire landscape such as the Sagebrush Ecosytem. 

Finally, I must add my voice to that of the Western Governors Association on 

the matter of funding. I recently had the honor of Co-Chairing with John L. 

17 
28 

Morris, Founder and CEO of Bass Pro Shops, the "Blue Ribbon Panel on 

Sustaining America's Diverse Fish and Wildlife Resources". This is a nonpartisan panel representing outdoor recreation, the retail and manufacturing sector, 

the energy industry, conservation and sportsman organizations along with state 

game and fish directors. The geographic reach of the members is nationwide. 

One of the significant lesson learned is the unfunded mandate nature of the ESA. 

While very noble in intent, the ESA has matured into full blown, unfunded federal 

mandate. State recreation agencies and game and fish departments are stretched to 

the breaking point by the costs of managing fish, wildlife and recreation resources. 

One of the unintended consequences of passage of the ESA in 1973 was severely 

taxing these already stretched resources. 

Our federal government simply "helicopters in" with ESA requirements. States 

are compelled to respond to listing petitions, species management directives, 

creation of adequate state regulatory mechanism, information requests, data and 

analysis disputes and meeting, after meeting, after meeting, etc. 

USFWS actually has no choice but to pressure the states. USFWS lacks 

sufficient scientific, manpower and data resources to meet the federal mandate. I 

would add from experience, USFWS also lacks sufficient enforcement resources. I 

am not advocating a great expansion of the USFWS budget. States remain the 

front line in these efforts so resources should be directed to them. This can be 

18 
29 

done as recommended by the Western Governors or as recommended by the Blue 

Ribbon panel or a device of your own creation. But, we must concede ''there is no 

free lunch". And the states lack the resources to feed the appetite ofthe ESA 

unfunded mandate. 

MITIGATION 

Mitigation, including compensatory mitigation, is an important tool for the 

preservation of a species. A rational mitigation policy is based on avoidance, 

minimization and compensation for that which cannot be practically avoided or 

minimized. In properly balancing the needs of the economy and our cherished 

environmental values, compensatory mitigation is an important asset. Practically 

unavoidable impacts have traditionally been measured against a "no net loss" 

policy. This approach is logical and legally supportable. 

The recently announced USFWS mitigation policy and other, associated 

Department of the Interior guidance go too far. The rule adopted a 

"net conservation gain" policy. It is a distinct overreach. I have read the recent 

Interior Department Solicitor's Opinion attempting to legitimize "net conservation 

gain". Suffice to say, I fowtd it wtpersuasive. When it takes 31 pages of 

discussion containing no citation to specific statutory language dictating "net 

19 
30 

conservation gain", you know you are attempting pile up gravel and call it a 

marble monument. 

If we are serious about species preservation, we should focus compensatory 

mitigation on preserving the best habitat on a scale capable of sustaining a 

genetically diverse population preferably over an extended timeframe. As a 

starting point, the compensatory mitigation timeframe needs to be at least equal to 

the timeframe over which the impacts extend. There are various existing and 

evolving models for the provision of compensatory mitigation. Some are 

government sponsored and some are purely private sector initiatives. The general 

categories are project proponent sponsored, in lieu fee programs, habitat exchanges 

and habitat banks. The clearest federal guidance exists for Habitat Banks. This is 

one of the few areas, in which I actually support federal legislation. I do not 

support the federal government being in the business of providing compensatory 

mitigation for projects. I do support codification of a set of standards and then 

allowing the private market to develop mechanisms that respond to those 

standards. Markets work but they work best when the marketplace signals are 

clear and consistent. 

Mitigation is recognized in the ESA, but the issue is not specifically within 

the scope of my remarks but habitat and species preservation will not occur 

without disciplined compensatory mitigation. During my term as Governor, 

20 
31 

Wyoming created a Wildlife and Natural Resources Trust Fund. We also had 

experience with so called ''postage stamp" mitigation, which is the preservation of 

unconnected parcels which may or may not aid the life cycle of the species in 

question. 

I would encourage the Committee to schedule time to receive testimony on 

the compensatory mitigation issue. As our population and economy grow, the 

number of unavoidable conflicts will escalate. Compensatory mitigation, properly 

applied with discipline and focused on the objectives of the ESA can be a powerful 

tool, particularly in encouraging private investment in critical habitat. 

ESA ENFORCEMENT 

During my time as U.S. Attorney and in my current practice, I have had 

experience on both sides of the table, in various parts of America, related to the 

enforcement of the ESA. Most of the experience is related to Department of 

Justice criminal investigations and prosecutions. The enforcement provisions of 

the ESA are adequate but you may want to consider inserting language 

encouraging the use of civil remedies prior to criminal enforcement. When a 

matter arises and is referred to the Department of Justice for criminal enforcement, 

there may or may not have been adequate investigation conducted to determine 

that it is a criminal matter. Once at Department of Justice criminal, there is a 

tendency to ignore civil disposition. This is due in part to the pre-disposition of 

21 
32 

prosecutors and in part due to the public pressure surrowuiing ESA matters. The 

sense of proportionality can be lost. There is a large difference between intentional 

and incidental take, with or without a permit. There is also a substantial difference 

between the loss of one member of a species and a pattern of violation. While 

these judgments are properly left to the discretion of the prosecutor, you may want 

to require some higher threshold before matters are referred for federal 

prosecution. 

ABANDON CANDIDATE DESIGNATION 

While the logic behind the determination that a species might be 

"warranted" for listing but precluded by other priorities made sense when it was 

embedded into the ESA, I believe that our collective experience with these 

"candidate species" supports abandonment of the idea. First, there is no room for 

"purgatory" in wildlife management. In my view, a species should either be listed 

and subject to ESA protection or management should be left with the states. There 

is either sufficient urgency and concern that the hammer of the ESA is required or 

there is not. Today, the candidate designation is the regulatory equivalent of a 

"punt" and has been used far too often to make it meaningful. At some point, the 

candidate species list became so long that it lost its value in terms of helping order 

ESA priorities. Second, as a practical matter, there are simply not enough federal 

resources in the listing and delisting budgets to fully address listed species -no 

22 
33 

less candidates. Third, the candidate "safety blanket" has become a favored 

litigation tool for environmental groups -leading to the mega-settlements of the 

Bush and Obama eras and further diminishment of sparse federal resources that 

could and should be used to recover truly threatened and endangered plants and 

animals. Finally, although it is a "punt" of sorts, it is not without effect in terms of 

federal land management determinations. After being named a candidate, a 

species enjoys significant protection- as if it were listed- when federal land 

management and other agencies take actions that might overlap its range. USFWS 

and NOAA should fully own the regulatory responsibility that attends a listing and 

not engage in a system that leaves us with "de facto listings" that only serve to 

hobble other federal and state agencies. This is especially true considering the 

massive number of candidates that have been "listed" and the reality that USFWS 

and NOAA do not have the resources to make a final "list" or "no list" decision for 

each of them. As a result, they languish on the list and serve as a burr under the 

saddle ofboth environmentalists and the regulated public. 

SUE AND SETTLE 

A lawyer mentor of mine told me that a "bad settlement is usually better 

than a good lawsuit." This advice is valid only if you have standing in the 

settlement discussion and approval process. States, businesses and individuals 

often have vital interests at stake in litigation brought by environmental groups. 

23 
34 

These vital interests are not part of the confidential settlement discussions or the 

agreement on terms. Even when afforded the post settlement opportunity to 

comment, it proves to be a futile exercise. The train has left the station. 

This issue is difficult because we do not want to encourage continuation of 

litigation that should settle. However, it may be appropriate to compel disclosure 

of the existence and substance ofESA settlement discussion in significant cases 

impacting numerous non-parties. I would point to the settlement entered by 

USFWS agreeing to processing schedules for numerous listing petitions as a case 

in point. 

A ITORNEY AND EXPERT WI1NESS FEES 

With some adjustments, I support the ESA provisions allowing judicial 

review of agency action. However, the unrestricted payment of attorney and 

expert witness fees merits review. We have created an entire industry of interest 

groups and law firms that rely on these provisions for income and salary. This is 

particularly true now that the practice of law is more of a business than a 

profession. 

I would recommend the following steps for consideration. 

1. Establish a benchmark for reasonable attorney and expert witness 

fees. A "one size fits all" benchmark would not work since attorneys 

generally charge more in Washington D.C. or New York than in 

24 
35 

Denver or Santa Fe. However, it may be appropriate to benchmark 

their fees against the amount the federal government pays private 

lawyers who act as public defenders in federal criminal cases. I recall 

these are subject to regional adjustments. 

2. The amount awarded to litigants, law firms and expert witnesses 

should be published in the Federal Register, whether awarded by a 

judge or part of a "sue and settle" agreement. Most especially in the 

latter case. 

CONCLUSION 

I would again encourage you to seriously consider the work of the Western 

Governors Association. In particular, the section related to State/Federal 

cooperation, the precautionary principle, "foreseeable future" and judicial review. 

I would also encourage you to take advantage of those who have been through the 

battles to amend the ESA in the past. My friend and former colleague, Steve 

Quarles, lives in DC and is a true expert with experience dating back to the Wild 

Horse and Burro Act and beyond. 

Thank you. 

25 
36 

Senate Environment and Public Works Committee 

Hearing entitled, "Oversight: Modernization of the Endangered Species Act" 

February 15,2017 

Questions for the Record 

Governor David D. Freudenthal 

Chainnan Barrasso: 

1 . The U.S. Fish and Wildlife Service, the Wyoming Game & Fish Department, and other 

stakeholders have limited resources to fund species conservation and recovery programs. 

According to then- Fish and Wildlife Director Ashe, in testimony before the House at the time, F 

WS was allocated $20.9 million for endangered species listings and critical habitat designation 

in FY 2011; the agency spent more than 75% of that (or $15.8 million) taking substantive 

actions required by court orders or settlement agreements resulting from the litigation. 

In other words, sue and settle cases and other lawsuits have effectively driven the ESA 

regulatory agenda- and taken resources away from species conservation and recovery 

programs. 

Do you agree that litigation regarding the ESA is a problem that needs to be addressed? 

Please explain. 

ESA litigation has become the driving force in ESA activity by the USFWS. Whether by 

design, coincidence or shared values, deadline litigation combined with settlements have 

created judicial mandates, which have been prioritized by the agency over other activities. 

The original objectives of the ESA have been hijacked by purpose driven litigation. Two 

legislative actions would help return the ESA to its original noble purposes. 

First, remove ambiguity. Clearly dctine. by legislation. the ambiguous terms. which have 

led to expansive rulemaldng and litigation. As passed, the original statute left many terms 

undefined. This was logical at the time as there was limited experience with this type of 

legislation. With 40 years of experience, it is time to codify our experience. My earlier 

testimony identified potential areas for modernization. 

Second, remove the financial incentive from the litigation equation by restricting the 

amount of fees recoverable and/or requiring some judicial determination as to whether the 

agency position was unreasonable, prior to the award of fees. Administrative actions should 

be subject to judicial review. However, the generous litigation reward system around the 

ESA should be addressed. I originally suggested capping fees---a suggestion which has not 

Page 1 of8 
37 

enjoyed broad support among the legal community. As an alternative, consider mandating 

the court undertake a determination as to whether the position taken by the agency was 

unreasonable or frivolous as a matter of policy or judgment before awarding fees. A court 

may conclude an agency position is ultimately not in accord with the law or supported by the 

record. But, this is a very different conclusion than a determination that the position 

originally asserted by the agency was frivolous or completely unreasonable. 

Ranking Member Carper: 

2. If you were in our shoes, what would you do to find consensus for proposed changes to 

theESA? 

I was honored by the opportunity to testify before the Committee. The nature of the 

questions from both sides reminded me what a difficult task you confront. The hints of 

leave everything "as is" and "throw it all away" were certainly in the air. Neither of 

these seem like springboards to constructive changes. Add to this the role of outside 

interest groups on all sides demanding I 00% allegiance and using ESA Modernization as 

a rallying cry for fundraising, it will be difficult to achieve the goal of working together 

you and the Chairman articulated at the outset. 

I would start from the "set up" question you asked the panel, which related to the rate of 

species extinction worldwide. I am still not a scientist and cannot speak to the study 

predictions you referenced, however all of the data shows an accelerating rate of 

extinction. Accepting this fact does not suggest the ESA should be left to operate as it 

does today, nor does it suggest it should be scrapped. It is important to recognize the 

ESA by itself cannot solve the accelerating rate of extinction; in fact, the ESA is a tool to 

deal with the symptoms rather than the causes of accelerated extinction rates. History 

demonstrates the resources available for ESA implementation will always be relatively 

limited. Even within these limitations, ESA can, if properly focused on the species of 

biologic importance and the known degree of risk factors to those species make a 

significant contribution. If we can start from the premise that the ESA is a tool to address 

symptoms of larger problems and not the answer to those problems nor a symbolic 

battleground between right and left, progress can be made on improving the mechanics of 

the ESA. 

3. Please identify three (3) areas where there is the greatest opportunity to find consensus 

for changes in the ESA. 

Page 2 of8 
38 

I offered a number of suggestions in the testimony but will highlight 4 thoughts. 

I. LISTING PROCESS: USFWS attempted to address the listing process with a proposed 

rule on May 21, 2015 (80 FR 29286). The apparent intent was to make the process more 

sophisticated and efficient. The proposal was a relatively modest attempt to focus ESA 

implementation on petitions ba~ed on substantial and credible infonnation. The proposal 

also enhanced the role of the States. If we want the listing process to work, the first step 

has to be to limit the petitions to those ofimportance. which are supported by credible 

and substantial scientific infonnution. Since this proposal originated within the Obama 

administration, it seems like a good place to start. Many of the deadline issues, delay 

complaints and rushed decision-making could be addressed by better triage of the 

petitions as submitted. 

2. Section 6 "COOPERATION WITH STATES": This entire section is pennissive in 

tenns ofUSFWS cooperation with the states. And USFWS, regardless of the party in 

power, has chosen to disregard these provisions. This language should be mandatory 

and not pennissive. 

3. BEST AVAILABLE SCIENCE: Most people agree agency decisions should be based 

on reliable, credible, impartial, scientifically sound infonnation and data. Amending 

such language into the provisions related to "best scientific and commercial data 

available" and "best scientific data" would be a logical reflection of such agreement. 

4. De-Listing Criteria: USFWS evaluates risk factors and species condition at the time of 

listing. It is not too much to ask that a decision to list also include a statement as to the 

conditions that must exist for de-listing. The agency will resist this suggestion because 

of the alleged added work. If the agency has sufficient knowledge to list, it should also 

possess sufficient infom1ation to define conditions necessary for delisting. 

Senator Capito: 

4. In recent years, I heard from many West Virginians concerned that the potential listing of 

the Northern Long-Eared Bat would prove a nearly insurmountable obstacle to development in 

our state. The bat was listed as "threatened" under the ESA in 2015. On April, 27, 2016, the Fish 

and Wildlife Service (FWS) found that a critical habitat determination was "not prudent" at this 

time, preventing my entire state from being burdened with significant constraints on agriculture, 

mining, construction, and infrastructure. While this was the right conclusion, the uncertainty 

surrounding the process served to chill investment in areas that could be designated as critical 

habitat. 

Page 3 of8 
39 

I find the Northern Long-Eared Bat example to be instructive for this Committee as we seek to 

modernize and improve the ESA to prevent overreach at odds with science and economic 

interests. 

a. Governor Freudenthal, in your experience protecting critical habitats, what is the 

impact on economic development during and following the designation process? 

We have limited experience with critical habitat designations. The more common 

approach by USFWS in public land states is to establish recovery zones, management 

areas or other designations of wide ranges of habitat. This works for USFWS because 

ESA attaches directly to federal land management agencies decisions from grazing to oil 

and gas to outfitters' camps. The habitat designations are usually accompanied by 

management prescriptions and proposed stipulations attached to federal permitting 

actions. These zone designations and critical habitat designations have an impact on 

economic development and resource utilization. The impact is generally negative unless 

the land purchaser is an "amenity buyer'' seeking their own undisturbed piece of the 

West. Most of the information is anecdotal. I am not aware of a reliable study or data 

source that would be responsive to your question. 

b. Do you feel that the risk or uncertainty associated with the mere potential of a 

designation negatively impact investment and economic development? 

Markets despise uncertainty and potential or threatened designation create uncertainty. 

The market will discount value and economic development potential in direct proportion 

to the perceived nature and extent of the designation. 

5. In the case of the Northern Long-Eared Bat, the FWS estimates the species' range covers 

half of the territory of the continental United States (including all or part of 37 states and the 

District of Columbia) and one-third of Canada. Estimates are that the population has declined by 

90 percent, the result of White-Nose Syndrome (WNS), which is caused by an invasive 

European fungus. However, those declines are not the result of habitat loss or economic 

development- indeed the incidence of WNS spikes among the bat populations when they 

hibernate in large groups in caves during the winter, not when they are foraging across forests 

during the summer. 

a. While the potential designation of the Northern Long-Eared Bat's vast range is a 

particularly egregious example, are their other examples oflarge areas having a fmal 

designation as critical habitat and what has been the impact on people living and 

working in those areas? 

I am unable to answer this question. 

Page4 of8 
40 

b. How can we better align our conservation efforts to address the actual causes of 

population declines- preventing and combatting WNS in the case of the Northern 

Long-Eared Bat-rather than succumbing to a knee-jerk inclination to ban 

economic activity over broad swathes of the country? 

The problem you allude is very real in the West. In the case of sage grouse, much 

of their population cycle is tied to predation, West Nile/Bird Flu and the simple 

availability of food and the weather during nesting and brood rearing. While all 

of these are recognized risks, none of them need a permit from the federal 

government. So, as you suggest; the burden falls upon those seeking to undertake 

economic activity because it is easier to regulate than fmding federal or state 

dollars to fund disease research or selected habitat preservation or restoration. 

The Blue Ribbon Task Force has recommended expanded federal assistance to 

State Game and Fish Agencies to address at risk and potentially listed species as 

determined by the State. The funding would be by fonnula and hopefully without 

USFWS interferences. 

c. Does the F WS have the authority to tailor its responses to the particular threats 

facing particular species, or is the agency largely stuck with the blunt instrument of 

critical habitat designation? 

USFWS has a variety of options available but could be more creative, particularly 

if we forced greater use of 4(d) and allowed distinct population segments to be 

defined, in part, by political boundaries. 

d. How can this Committee improve the statute to prevent designations oflarge areas 

as critical habitat if that is not appropriate for the relevant conservation challenges? 

Prior to the Obama administration, the rules relating to critical habitat designation 

required the "critical habitat" to be occupied by the species in questions. Limited 

exceptions existed but this was generally the rule. The Obama USFWS expanded 

the idea of critical habitat to include unoccupied areas that might be potentially 

occupied at some point in the future. Congress should codify the pre-Obama 

administration rule. 

It would also be appropriate to strengthen the language in 16 USC 1533 to require 

that areas in which the cost benefit analysis indicates non-designation conclusion, 

not be included in the designation. 

e. What are the states' roles in informing the designation of critical habitats and what 

are their roles in enforcing compliance? 

Page5of8 
41 

Section 6 on cooperation with the States has largely been ignored since the Act 

was passed. USFWS consults with the states but the degree of consultation is 

within the discretion ofUSFWS. The States have no real say in these matters. In 

the public land states, as discussed before, enforcement really occurs through the 

federal permitting process within the land management agency. 

6. Governor Freudenthal, I am intrigued by some of the proposals raised in your written 

testimony to modernize the listing petition process, particularly: 

a. requiring petitioners to complete the relevant scientific surveys themselves, rather 

than outsourcing data gathering to state and local stakeholders; 

b. requiring petitioners to identifY what "success" for the requested conservation effort 

looks like; and 

c. directing the FWS to approve delisting criteria when a species is added to the list to 

prevent an indefinite listing that may no longer be warranted. 

I have again discussed these in response to questions. I remain convinced 

adjustments along these lines arc in the best interests of the important species and 

the economy. 

7. Governor Freudenthal, what are the costs to states of conducting scientific surveys when 

the F WS outsources data collection on species to your agencies prior to a listing? 

a. What is the cost-share of this activity between the states and the federal 

government? 

i. Do the petitioners bare any of those costs? Should they? 

ii. Are there costs associated with unfunded mandates imposed on private 

sector stakeholders? 

There is no specific cost contribution by USFWS. State game and fish 

agencies receive some federal funding for other purposes but I am not 

aware ofuny ESA earmark. A~ my testimony dcmonstmtcs. the amount 

spent by the state can vary from thousands to millions, as is the case with 

bears and wolves. Petitioners bear none of these costs. Petitioners should 

at least be required to provide the best scientific data at their cost, to 

trigger the listing process. Private sector stakeholders bear their own 

costs. 

b. Do these outlays interfere with the states' efforts to conduct more material 

conservation initiatives? 

Page6 of8 
42 

Absolutely. State game and fish agencies, as well as state recreation agencies, 

have limited budgets to accomplish their in-state mission. Dollars spent dealing 

with ESA are not available for the agencies' state mission. 

c. Can you give examples where the FWS has failed to delist species, even well after 

population or habitat preservation targets -backed by science - have been met? 

Gray wolves, Grizzly Bears and Utes's Ladies Tresses 

d. Does the FWS have the authority to incorporate "delisting" criteria at the time a 

species is listed, or are statutory changes necessary to permit this? 

They absolutely have authority to incorporate "delisting" criteria. However, the 

only way they will actually undertake this activity is if the statute is amended to 

mandate it. 

8. There are examples of court cases compelling the FWS to make critical habit 

designations or list species as threatened or endangered. Many more do not lead to a designation, 

but these frivolous lawsuits tie up FWS resources and personnel, at the taxpayers' expense. 

a. How can we d.isincentivize frivolous, sue-and-settle lawsuits against the F WS in 

this arena? 

Addressed in previous questions. 

b. What share of legal challenges related to the ESA go against the federal government 

for its role in administration as opposed to the states for their share of 

implementation? 

Senator Wicker: 

i. Does the federal government assist the states in any way in addressing 

legal challenges to their implementation of ESA requirements? 

States are not challenged under the ESA as it is a federal responsibility. 

Most of the State involved ESA litigation involves States suing USFWS 

over a decision they have made. To the extent states intervene in support 

of USFWS decisions, the federal government provides no assistance to the 

states. 

Page 7 of8 
43 

9. I am sympathetic to the western states like yours that have struggled with the highest 

profile species problems. But now, the listing work plan has identified many species in every 

state that are going through the process and litigation. It seems we have two options for dealing 

with this. One is to try to begin efforts to diagnose and respond to suspected problems with the 

species identified. The other is to lawyer up and fight against agenda-driven abuse of the 

Endangered Species Act. What are the most important pros and cons to choosing which way to 

The reality is we have and will continue to pursue both approaches. To the extent Stales 

can afford to support research and data collection to rationalize the listing process, that is 

always the preferred course. If a listing can be dealt with at the petition process level that 

is better than litigation. Unfortunately, there will continue to be litigation costs for the 

States and for the private sector. The "cautionary principle" (as discussed by the Westero 

Governors Association) combined with a less than precise statute has led to a regulatory 

and agency bias in favor oflisting. Even when they do a "warranted but precluded" 

determination, the problem remains. Such a finding is like the Sword ofDamocles over a 

state or region. 

The best answer is for Congress to amend the ESA to make it work better for all of the 

parties involved. Everyone has suggested changes but there is so little trust around these 

issues, nothing happens. 

Page 8 of8 
44 

Senator BARRASSO. Thank you very much, Governor Freudenthal. 

Senator CARPER. I want to again thank you very much for what 

you said, Governor. 

You mentioned Richard Nixon. You also mentioned as Governor, 

you did not make many mistakes. We know that is not true. We 

have another recovering Governor over here who knows that. 

Not many Democrats quote Richard Nixon. I do. One of the 

things that Richard Nixon said is the only people who do not make 

mistakes are the people who do not do anything. As we take up his 

work we want to be careful that we do not make any significant 

mistakes. Maybe some tiny ones would be OK, but we want to 

make sure that we are temperate in that. 

There are no Democrats here. That is very unusual, especially on 

an issue like this which is especially important to all of us. We are 

going to be in and out of our other meetings as quickly as we can, 

so do not take our absence as we are not interested. 

You will get questions for the record, a number of those, and I 

will just telegraph a picture if I can. 

One of the things I always look for in a diverse panel like this 

where we have a contentious issue is to try to develop within the 

panel consensus. What can we agree on? To the extent we can keep 

that in mind in the context of your testimony, questions and answers to questions and certainly to questions for the record, I 

would really appreciate it. 

Thank you all so much. I apologize. 

Senator BARRASSO. Thank you, Senator Carper. 

Our next witness is Gordon S. Myers, Executive Director, North 

Carolina Wildlife Resources Commission and President of the 

Southeastern Association of Fish and Wildlife Agencies. 

Thank you so much, Mr. Myers, for joining us. We look forward 

to hearing your testimony. 

STATEMENT OF GORDON S. MYERS, EXECUTIVE DIRECTOR, 

NORTH CAROLINA WILDLIFE RESOURCES COMMISSION; 

PRESIDENT, THE SOUTHEASTERN ASSOCIATION OF FISH 

AND WILDLIFE AGENCIES 

Mr. MYERS. Thank you very much for the opportunity to be here. 

Good morning, Chairman Barrasso, Ranking Member Carper, 

and Committee members. 

I am Gordon Myers, Executive Director of the North Carolina 

Wildlife Resources Commission. Thank you for this opportunity to 

testify on modernizing the ESA on behalf of my fellow State Fish 

and Wildlife directors. 

The States appreciate the value of the ESA as a landmark Federal law to protect and recover imperiled species. After nearly half 

a century of implementation, we have learned much about the conservation of listed species, their recovery needs, and how to facilitate and not proscribe private landowner involvement. 

The ESA gives explicit direction on how Congress expected the 

Federal-State jurisdictional relationship to work. Section 6 states, 

‘‘In carrying out the program, the Secretary shall cooperate to the 

maximum extent practicable with the States.’’ Unfortunately, the 

section 6 authorities available to the States have never been fully 

realized. 
45 

Attached to my written statement is the Association of Fish and 

Wildlife Agencies’ general principles for improving implementation 

of the ESA. AFWA continues to actively participate in the Western 

Governors Species Conservation and ESA Initiative led by Governor Matt Meade of Wyoming. 

As a general observation, the States believe that addressing life 

needs and habitat requirements of declining species before triggering ESA protection is the most prudent, economical, and biologically sound approach to managing species tending toward listing. 

We are working with Congress to identify permanent and dedicated funding sources to build much needed capacity for the species 

of greatest conservation need. Today I will share six recommended 

improvements to the ESA and briefly highlight examples that demonstrate State-led conservation delivery. 

First is to increase opportunities for Fish and Wildlife agencies 

to take a more formal and active role to fully participate in all aspects of ESA implementation as intended by Congress. 

Second is to restore the distinction between threatened and endangered species to reflect original congressional direction, thereby 

providing greater flexibility to manage these categories differently. 

Third is to improve the listing process, making sure to consider 

a more realistic timeframe for listing decisions, how to best utilize 

available science, give weight to State data and its interpretation 

by the States, and to prove the quality of petitions that are submitted. 

Fourth is to require recovery teams to develop science-based recovery plans for listed species and further require that after recovery plan population or habitat objectives are reached, the Secretary 

must initiate delisting process. 

Fifth is to relocate critical habitat designations to the recovery 

plan development process and give the Secretary more discretion to 

designate or not designate critical habitat. 

Finally, sixth is to expedite the process for down or delisting of 

recovered species. 

Throughout the Nation, States are leading or supporting many 

innovative efforts to keep common species common, prevent declines of at risk species, and recovery of threatened and endangered 

species. 

I will share two examples. The first focuses on the Tar River 

spinymussel, a federally endangered mussel restricted to the Tar 

and Neuse River Basins in North Carolina. Between 2014 and 2016 

the State, along with our partners, augmented existing populations 

by introducing more than 9,500 Tar River spinymussels propagated 

at one of our State conservation aquaculture facilities. 

Follow up surveys indicate high survival and growth rates as 

well as suggest propagation and stocking into best available habitat—including unoccupied habitat—have tremendous potential to 

assist in species recovery. 

However, potential ESA regulatory impacts associated with introductions form a barrier to gaining support. 

Let me also share an example of how the States are coordinating 

and focusing resources on at risk species. Following the 2010 megapetition filing that covered 404 aquatic species across the South-
46 

east, the States developed the Southeast At-Risk Species Program 

in partnership with the Fish and Wildlife Service Southeast Region 

Office. 

This broad partnership among the States, the Fish and Wildlife 

Service, universities, corporate and private partners focuses surveys, monitoring, and research on priority at-risk species. It integrates and documents voluntary conservation actions all the while 

working across jurisdictional boundaries throughout the Southeast. 

To date the outcomes have been extraordinary. Four species have 

been listed as threatened rather than endangered, eight species 

have been down-listed to threatened, and 93 species have been precluded from listing. 

These range-wide conservation partnerships are capable of remarkable conservation outcomes. After all, many hands make light 

work. 

Much has changed since the ESA was enacted 44 years ago. We 

cannot do the same thing over and over and expect different results. To realize the greatest potential of our partnerships, it is 

time to make substantial investments in capacity while also modernizing the ESA to fully engage our States and private partners 

to conserve and recover at-risk and listed species. 

Thank you once again for this opportunity this morning. 

[The prepared statement of Mr. Myers follows:] 
47 

TESTIMONY OF GORDON MYERS 

EXECUTIVE DIRECTOR 

NORTH CAROLINA WILDLIFE RESOURCES COMMISSION 

PRESIDENT 

SOUTHEAST ASSOCIATION OF FISH AND WILDLIFE AGENCIES 

BEFORE THE SENATE COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS 

"Oversight: Modernization of the Endangered Species Act." 

FEBRUARY 15,2017 

Good morning Chairman Barrasso and Senator Carper, and members of the Committee. My name is 

Gordon Myers, and I am the Executive Director of the North Carolina Wildlife Resources 

Commission (Commission). I am also President of the Southeastern Association ofFish and 

Wildlife Agencies (SEAFW A), and I sit on the Executive Committee of the Association of Fish and 

Wildlife Agencies (AFWA), of which all 50 states are members. In those capacities, I also represent 

the views and positions of SEAFW A and AFW A today, and I very much appreciate the opportunity 

to testifY today on modernizing the Endangered Species Act (ESA). 

The state fish and wildlife agencies (states) appreciate the value of the ESA as a landmark federal 

law to protect and recover the imperiled species listed under the Act. The ESA was last amended 

and authorized in 1988. Since then, Congressional authorization has been realized through the 

annual appropriations bills for the respective agencies. Enacted in 1973, over the almost 44 years of 

implementation, we have learned much about the conservation oflistcd species, their recovery 

needs, and how to facilitate, not proscribe, private landowner involvement. It is time to apply that 

knowledge to improving the ESA to better achieve the conservation and recovery of listed species 

and to better enable, not direct, the participation of private landowners. I will share today our 

recommended improvements to the ESA, and some state success stories. 

Let me quickly describe the jurisdictional authorities for fish and wildlife in the state-federal 

relationship. States have broad police powers and authority for the conservation and management of 

fish and wildlife within their borders, including on most federal land. Congress has repeatedly 

confirmed that authority. Fish and wildlife conservation was one of "The powers not delegated to 

the United States by the Constitution, ... [and thus] are reserved to the States respectively, or to the 

people". Only Congress can give a federal agency authority to preempt the states' authority for 

management of fish and wildlife, and then only for certain federal actions. The ESA is one example, 

but in doing this, Congress explicitly affirmed that the federal authority they gave the federal 

agency exists concurrent with the pre-existing authority of the state agency (defined in the ESA as 

the state fish and wildlife agency). 

Section 6 of the ESA gives the Secretary explicit direction on how Congress expected the federalstate jurisdictional relationship to work. It starts with Sec. 6.(a) GENERAL-" In carrying out the 

program authorized by this Act, the Secretary shall cooperate to the maximum extent practicable 

with the States". Section 6 goes on to describe agreements that the Secretary may enter into to allow 

a qualified state to implement the ESA. These cooperative agreements contemplated that the 

Secretary upon the state's demonstration of the appropriate authority and adequate program design 

would authorize an approved state to lead ESA activities, directing research and management of 

liPage 
48 

listed species, not just apply the Secretary's program for each species. The legislative history of the 

ESA demonstrates that Congress intended that states with qualified endangered species programs 

lead in the conservation and recovery of threatened species (see Sen. John Tunney's 1973 floor 

remarks in consideration of S.l983). 

Congress also authorized the Secretary to grant funds to the qualified states for implementing the 

ESA, but no funds were ever granted to the States under Section 6 to fulfill Congress' intent that 

States lead in the conservation of threatened species. Unfortunately, this has created missed 

conservation opportunities to restore species by state experts who are closest to the species, 

understand the recovery needs, and have the community relationships necessary to achieve 

recovery. 

Unfortunately, the Section 6 authorities available to the states have never been fully realized by the 

states, and Section 6 became only a funding mechanism to direct limited appropriated funds to the 

states. Admittedly in the first dozen or so years of the ESA, only a few states had the capacity and 

political support to realize the authorities under Section 6. Hence, the Secretary through the U.S. 

Fish and Wildlife Service (FWS) exercised through rule and policy, a very significant portion of the 

ESA authority. There are a few exceptions where a state and the FWS have a Section 6 Cooperative 

Agreement that creates a more sophisticated state-federal partnership for implementing the ESA. 

Since the mid-1980s, in general the states have enhanced their staff, expertise, habitat management 

techniques, science capability for listed species, relationships with private landowners and local 

communities, and political support that would enable them to more fully exercise their authorities 

and roles in implementing the ESA as Congress originally envisioned and if it was modernized to 

meet today's species restoration needs. Some state budgets are challenged to provide the dedicated 

and permanent fiscal resources consistent with their desires and abilities to launch into 

implementation of an enhanced ESA. 

We support the ESA but believe that it should be modernized to meet today' s restoration 

challenges. As state agencies and managers of fish and wildlife resources held in trust for the 

public and for the benefit of future generations, we would like to see more constructive and 

collaborative efforts from interested stakeholders that more directly advance the conservation and 

recovery of species of interest. We all have an interest in recovering species listed under the ESA 

and together could do more if concerns and stakeholder interests were directly focused on habitat 

conservation and recovering listed species rather than redirecting limited federal and state fiscal 

resources away from on the ground conservation activities. 

As an observation, the states believe that addressing the life needs and habitat requirements of 

declining species before they reach the point where ESA application is required, is the more 

prudent, economic and biologically sound approach to managing species tending toward listing. 

Through State Wildlife Action Plans, the states have comprehensively identified species of greatest 

conservation need and outlined the key actions needed to conserve them. Further, we have funding 

source recommendations from a Blue Ribbon Panel on Sustaining America's Diverse Fish and 

Wildlife Resources co-chaired by Governor Freudenthal and Bass Pro Shops founder and CEO John 

L. Morris, and are working with Congress to identify a permanent and dedicated funding source. 

We would be happy to discuss this further. 

I include as an attachment, the AFW A General Principles for Improving Implementation of the 

Endangered Species Act, approved on March 18, 2016 by all State fish and wildlife agency 

21Page 
49 

Directors assembled in their Business Meeting in Pittsburgh, P A. AFW A continues to actively 

participate in Western Governors' Species Conservation and Endangered Species Act Initiative led 

by Governor Matt Mead (WY) and continues to coordinate with those staffs. The two sets of 

modernization ideas are congruent, and AFW A in cooperation with the Governors is utilizing both 

sets of ideas as we contemplate future ways to improve implementation of the Act and more quickly 

recover species listed under the ESA. 

Let me now describe the ESA priority improvements ofthe AFW A. First, increase opportunities 

for state fish and wildlife agencies to take a more formal and active role and fully participate in all 

aspects ofESA implementation as intended by Congress, through the authority of Section 6 

Cooperative Agreements. States have broad expertise, experience and often comprehensive data 

sets and analyses on listed species because before they were listed, the species were under state 

management jurisdiction. These data and the states' interpretations should be more readily utilized 

by our federal partners throughout ESA processes. States should be afforded the opportunity to 

participate in all implementation aspects of the ESA from listing decisions, to recovery plan 

development and conservation recovery efforts on the ground, to providing guidance to private 

landowners in the use of federal incentive programs that provide them more certainty, to decisions 

regarding down-listing and de listing of recovered species. 

Second, restore the distinction between threatened and endangered species to reflect Congressional 

direction, providing greater flexibility to manage these categories differently. Congress intended 

that the states have the opportunity to lead the management of threatened species, including the 

provision of"take" as a means of conservation of the species. Unfortunately, the FWS (but not 

NOAA) promulgated a default rule (50 CFR 17.31) in the mid-1980s that applies all Section 9 

restrictions for endangered species also to threatened species unless the Secretary determines 

otherwise. This essentially eliminated the distinction between the two listing categories because by 

statute, endangered species Section 9 provisions could only be applied to threatened species if the 

Secretary explicitly declared it. 

Third, improve the listing process. This involves a consideration of adjusting the listing process 

decisions to a more realistic time frame in order to appropriately utilize the best available science 

and improving the quality of petitions submitted that should also reflect the best available science. 

We support a provision authorizing a prioritization process for species considered for listing in 

order to focus resources and energy on the species most in need of immediate recovery efforts, with 

a clear path for other petitioned species. The process needs to insure that all state species data are 

utilized and considered, giving great weight to the state data and its interpretation by the state 

agencies in decision-making. In some cases, this may preclude the need to list a species under the 

ESA because of the quantity and quality of state data. However, states' data must be shared 

between state and federal partners in a way that upholds State privacy laws and respects private 

property rights. 

Fourth, require recovery teams to develop science based recovery plans for listed species, providing 

opportunities for the states to lead recovery planning and implementation. Recovery can be 

expedited by supporting and continuing state level initiatives and partnerships to recover listed 

species. Further, require that once an approved recovery plan's population and/or habitat objectives 

are reached, the Secretary must initiate the delisting process. 

3IPage 
50 

Fifth, relocate critical habitat designation to recovery plan development, and give the Secretary 

more discretion to designate or not designate critical habitat based comprehensively on continued 

implementation of state conservation plans or initiatives, state lessons-learned, economic 

implications for communities, funding availability, and other aspects that directly impact the 

recovery of a species. The scope of critical habitat should be better defined and clear guidance 

given to when designations are needed or required. 

Finally, create more specificity and flexibility in the delisting process to alleviate lengthy and 

unnecessary burdens on local communities by allowing both the listing and delisting of a species by 

a Distinct Population Segment (DPS) of a species, and other improvements. Unfortunately, there are 

less statutory details provided for the delisting process, and we deduce that Congress assumed that 

delisting, which is the objective of the ESA, would quickly follow the recovery of a species because 

protections of the ESA were no longer required. Unfortunately, that has not been the case and 

delisting can take decades and require overcoming many obstacles even after species' recovery 

goals are met. Further, once a species is delisted, it should return to state jurisdiction for sustainable 

conservation as designed by the state, with a report to the Secretary after 5 years. 

North America's conservation model and its delivery system is the foremost model around the 

globe. The fundamental tenets of this model along with the collective efforts of partners have 

resoundingly contributed to its effectiveness, and contributions of state fish and wildlife agencies 

are foundational. Collectively, state fish and wildlife agencies provide more than 50,000 full and 

part-time employees, including more than 11,000 biologists and 8,400 certified law enforcement 

officers to manage, conserve, and protect the public's wildlife resources and their habitats. 

Across the Southeast and throughout nation, the states are leading and supporting many innovative 

and collaborative efforts to keep common species common, prevent declines of imperiled species, 

and recover threatened and endangered species. There are many groundbreaking state-led 

conservation partnerships across the region that have yielded significant conservation outcomes, 

including the historic delisting of the Louisiana black bear, range-wide collaborative conservation 

of the Gopher Tortoise, and innovative Red-cockaded woodpecker recovery efforts within the 

eastern North Carolina Sentinel Landscape. I will briefly share a few other examples that 

demonstrate state capacity to focus, coordinate, and integrate resources to deliver effective 

conservation. 

The first example focuses on a state-led recovery partnership for the Spotfin Chub (Erimonax 

monachus), a federally threatened minnow found in western North Carolina, east Tennessee, 

western Virginia, and north Alabama. The Spotfin Chub recovery plan calls for reestablishment of 

the species into suitable habitat within its historic range. A section of the Cheoah River in western 

North Carolina was determined a suitable reintroduction location following river restoration 

pursuant to Santeetlah Reservoir FERC relicensing. In 2008, the Commission partnered with the 

FWS, Conservation Fisheries, Inc., the U.S. Forest Service, Alcoa Power Generation, Inc. and 

others to collect broodstock, propagate the species, and ultimately reintroduce it into the Cheoah 

River. Staff from the Commission collected broodstock that were taken to Conservation Fisheries 

for propagation. The resulting fry were then taken to a state-owned hatchery opemted by the 

Commission for grow out. The propagated fish were released into the Cheoah River when they 

reached one year of age. Between 2008 and 2016, over 5000 Spotfin Chub were propagated and 

released or translocated to the Cheoah River. Follow up surveys indicate that the Spotfin Chub 

restoration in the Cheoah River has been a success. The Cheoah River Spotfin Chub reintroduction 

41Page 
51 

location was differentiated from other potential sites because it was highly unlikely to result in 

additional regulatory burden. The reintroduction area is relatively remote and already designated as 

critical habitat for Appalachian Elktoe, a federally endangered mussel. The Commission has 

identified several other suitable reintroduction areas and should the species be similarly 

reestablished, the species would likely be considered recovered and could be de-listed. 

Unfortunately, regulatory impacts that accompany the presence of a federally listed species have 

proven to be a significant barrier to implementing additional recovery efforts. It is ironic that the 

regulatory provisions meant to protect the Spotfin Chub and other federally listed species is 

inhibiting the recovery of these species. The Commission is currently propagating four other 

federally-listed species and others petitioned for listing. If a means of reintroducing these species 

into historic habitat without the threat of increased regulatory burden could be formulated, effective 

conservation actions could be implemented which could lead to the protection and potential 

recovery of these species. 

The second example focuses on the Tar River Spinymussel (Elliptio steinstansana), a federallyendangered mussel species restricted to the Tar and Neuse river basins in central and eastern North 

Carolina. In 2007, the Commission worked in partnership with the FWS and North Carolina State 

University to collect broodstock, propagate, and ultimately augment remaining populations of these 

federally endangered mussels. Between December 2014 and September 2016, the Commission and 

partners released over 9,500 propagated Tar River Spinymussels at four locations in Fishing and 

Little Fishing creeks in the Tar River basin. To measure program success, 1,310 mussels were 

individually tagged, measured, and released into an experimental reach of Little Fishing Creek in 

2014 and 2015. Follow up surveys indicated high survival and good growth of the stocked mussels. 

Preliminary results suggest that propagation and stocking of Tar River Spinymussels into the best 

available habitat has the potential to bolster dwindling populations and assist in the recovery of this 

species. An important follow up step in this state-led effort is to determine mechanisms to stock 

propagated mussels into currently unoccupied suitable habitat without introducing regulatory 

constraints associated with the presence of a federally listed species. 

The last example focuses on a pioneering approach to unifY human, financial, data, and other 

resources across the Southeast. Following the 2010 filing of the so called "mega-petition" by the 

Center for Biological Diversity and others that covered 404 aquatic species in the southeast, state 

fish and wildlife agencies comprising the SEAFW A developed the Southeast At-Risk Species 

(SEARS) program in partnership with the FWS Southeast Region Office. The purpose of this 

program is to cooperate and coordinate among the states to address the conservation needs of at-risk 

species. A first task was to develop a work plan to guide the activities of the states. The plan 

includes the following five elements: 

1. Develop and implement an information sharing network. 

2. Establish a criteria framework for species prioritization. 

3. Develop a regional research and survey process 

4. Conduct regional conservation activities 

5. Speak with one unified voice 

Implementation of this plan has resulted in numerous beneficial actions to date. The states 

categorized species into bins related to conservation and information needs associated with each 

species. This categorization approach later became the foundation of the system adopted by the 

FWS for their national work plan. 

SjPage 
52 

The outcomes of this approach have been remarkable. This focused, coordinated, and integrated 

allocation of human, financial, and other resources across the Southeast has already accomplished 

the following: 

Four species have been listed as threatened rather than endangered, 

Eight species have been down-listed to threatened from endangered, 

84 species were determined to not need protection under the ESA, could be listed as 

threatened rather than endangered, or could be down-listed or removed altogether, due to 

proactive conservation efforts, and 

The voluntary conservation efforts developed for these species also provide benefits for 

many more species (both imperiled and common) on the landscape. 

The SEAFW A states are also similarly committed to integrate agency resources across territorial 

jurisdictions to develop species status assessments. For species where information is lacking, states 

are coordinating survey and monitoring activities. These actions will provide much needed 

information to determine each species' conservation status. Most importantly, activities of the 

SEARS program have led to needed conservation actions. A prime example is the Candidate 

Conservation Agreement for the Sicklefin Redhorse, a large fish found in western North Carolina 

and northern Georgia. This agreement involved two states, the FWS, two power companies, and the 

Eastern Band of Cherokees. This agreement, which contains numerous conservation actions for the 

species, led directly to a decision by the FWS not to list the species. Such examples demonstrate 

the benefits and capabilities of the states and FWS to work shoulder-to-shoulder for the range-wide 

conservation of species and their habitats. 

In the more than four decades since the landmark ESA was enacted, the state-of-the-art for 

conserving fish, wildlife, and their habitats has evolved considerably. Great strides have been made 

to fill critical knowledge gaps, build professional capacity, and conserve and protect key habitats. 

As outlined in the preceding examples, range-wide conservation partnerships among state, federal, 

non-governmental organization, and private citizens are capable of remarkable conservation 

outcomes. It is time to apply state-of-the-art conservation to improving the ESA to better achieve 

the conservation and recovery of listed species and to better enable the full participation 

conservation partners. Thank you once again for this opportunity to testify. I would be happy to 

answer any questions. 

6jPage 
53 

ASSOCIATION •f 

FISH & WILDLIFE 

AGENCIES 

General Principles for Improving Implementation of the Endangered Species Act 

Adopted March 18, Z016 

Objective Statement: Improve Endangered Species Act implementation to ensure its future by 

making it a more effective conservation program for fish and wildlife, and more acceptable to 

private landowners. This improved implementation would be directed and managed by state and 

federal fish, wildlife, and natural resource professionals. 

Principles for Improvement: 

1: Enables more effective and consistent conservation and protection of species. 

2: Ensures fish, wildlife and natural resource professionals make Endangered Species Act 

decisions. 

3: Facilitates the opportunity for robust utilization of state fish and wildlife agency concurrent 

jurisdictional authorities in Endangered Species Act implementation as Congress originally 

intended. 

4: Focuses on management actions that will recover species to the point that provisions of the 

Endangered Species Act are no longer necessary, and the species can be delisted or down-listed. 

5: The approach is apolitical and politically viable because it has bipartisan support. 

6: Better incentivizes private landowner participation in application of the Endangered Species Act. 

Recommendations for Improvement: 

I. Implement Preventive and Restorative Management: improve cooperation between state and 

federal agencies to preclude the need to list species by addressing species life needs and habitat 

requirements, more fully recognize and integrate state-led conservation efforts, and improve 

processes and guidelines for listing decisions. Secure funding sources for these actions. 

II. Elevate the Role of State Fish and Wildlife Agencies: increase opportunities for state fish and 

wildlife agencies to take a more formal and active role and fully participate in Endangered Species 

Act implementation actions as intended by Congress under Section 6 Cooperative Agreements. 

III. Improve the Listing Process: make the best decision within a more realistic timeframe; 

prioritize species considered for listing; and insure all state fish and wildlife data are utilized and 

fully considered in the listing determination whether such data are published or not; and include 

state agency expertise in the process of interpreting these data and drawing conclusions. 

?!Page 
54 

IV. Require the Development of Science-Based Recovery Plans for Listed Species Directed 

.l!y Recovery Teams: enhance States' role including the opportunity to lead recovery planning 

and implementation, expedite recovery by supporting state level initiatives and partnerships; and 

increase flexibility and feasibility for recovery plan applicability. 

V. Relocate Critical Habitat Designation to Recovery Plan Development and Create More 

Flexibility: create more flexibility for the Secretary to exercise discretion to designate or not 

designate critical habitat, better define the scope, scale and basis for critical habitat 

designations and include clear guidance on when such designations are needed or required. 

VI. Revise Down-listinz: and De-Listinz: Processes: increase reliance on and give great weight 

to recovery plan population and habitat objectives to inform the initiation of the delisting or 

down-listing process and create more ecological and geographic flexibility for downlisting and 

de listing valid listable entities, regardless of how they were originally listed; expedite downlisting and de-listing processes to realize conservation successes and reduce unnecessary 

regulatory burdens. 

VII. Restore the Distinction between Threatened and Endangered Species Categories: 

return to Congressional intent providing greater flexibility to manage these listed species 

differently; afford state fish and wildlife agencies the opportunity to manage threatened species 

as Congress intended; and allow take as a possible means of"conservation" in the Act. 

VIII. Fully Utilize State Conservation Agreements. Candidate Conservation Agreements. 

Candidate Conservation Az:reements with Assurances. Safe Harbor Agreements and 

Habitat Conservation Plans: provide consistency and guidance on utility. 

IX. Provide Certainty and Incentives for Private Landowners: enhance clarity and increase 

conservation incentive options available; expedite the process for concluding these 

conservation agreements to enhance certainty to private landowners. 

X. Enhance Endangered Species Act Funding: sufficient funding should facilitate 

successful conservation outcomes, species recovery, and delisting; enhance funding to states 

and federal agencies for all aspects of Endangered Species Act implementation. 

XI. Improve Implementation of lO(j) Experimental Populations to Enhance Species 

Recovery: provide guidance on when the use of lOU) experimental populations are 

appropriate and standardize post delisting monitoring plans. 

XII. Science and actual conservation work to recover species should drive Endangered 

Species Act decision making: devolve the role of litigation and more fully realize 

Congressional intent for Endangered Species Act implementation. 

XIII. Establish more Consistent Implementation Procedures and Processes: improve 

consistency and timeliness of administrative processes and actions implemented under the 

Act. 

8 
55 

Senate Environment and Public Works Committee Hearing entitled, 

"Oversight: Modernization of the Endangered Species Act" February 15,2017 

Questions for the Record: Executive Director Gordon S. Myers 

Chairman Barrasso: 

I. The science used in Endangered Species Act decision-making provides the very foundation for 

a listing decision. Yet many stakeholders are concerned that the science being used in these 

listing decisions is not always the best available science. 

Do you believe state-level data, analyses, and reports are sufficiently taken into account by the 

Fish and Wildlife Service? 

ANSWER. No, these state data and analyses are not being given significant or sufficient 

consideration in the listing decision-making process. Since many of these petitioned species 

are fully under state authority prior to listing, the state fish and wildlife agencies often have 

the best and most complete data and analysis. The North Carolina Wildlife Resources 

Commission (Commission) and the Association of Fish and Wildlife Agencies (Association) 

believe that the ESA needs to be amended to give great weight to state data and analysis 

during the listing decision-making by the Secretary. We recommend that there be a 

rebuttable presumption created in statute for state data and analysis that the Secretary can 

overcome only by a written statement that the state data and analysis are deficient in fact and 

inconsistent with the best available science. 

There is also a real concern among state fish and wildlife agencies that once state data are 

turned over to the FWS or NOAA that those data in entirety will be subject to the Freedom of 

Information Acy (FOJA). Not only do state data contain sensitive information about species, 

they may also identify specific landowner property. Neither of those data should be available 

to the public. 

A federal court has also precluded the FWS from requesting listing data only from the state 

and requiring a broader solicitation of data. That ignores the fact that the state as a 

sovereign has concurrent authority over listed species; no other entity or organization has 

that authority. 

2. One of the most frequent problems attributed to the Endangered Species Act concerns the 

petition process for listing species. Under the current law, the Fish and Wildlife Service has 90 

days to make an initial determination as to whether a petition for listing presents substantial 

scientific or commercial information indicating that the petition action may be warranted. If so, 

the agency has 12 months to conduct a status review of the candidate species. 
56 

Are current statutory deadlines for determining whether a species warrants listing feasible and 

appropriate, in your opinion? If not, is there another approach or set of time lines that are more 

practicable? 

ANSWER: The Commission and Association find great favor with the approach adopted by the 

FWS in dealing with the multi-species listing petition. It is essentially a work plan that allows the 

prioritization of species based on threat, using bins in which to categorize species and specifYing 

a deadline for action on the species in that bin. In no case shall the deadline exceed 7 years. By 

dealing with the deadline up front in the work plan, it will take a lot of pressure off of the FWS to 

meet the statutory deadlines once a warranted determination is decided. The statute should 

direct the establishment of the work plan with guidance for its construct, and authorize the 

Secretary to address details in regulation. 

3. Do you share the opinion of critics of more expansive state involvement in ESA 

implementation that state budgets, politics, and other challenges would make it too difficult for 

states to efficiently and effectively coordinate recovery actions? 

ANSWER: No. Compared to 25 years ago when those may have been constraints onfoller state 

engagement, they are not impediments now. States have great experience in restoring game 

species, sustaining and recovering non-hunted or non-fished species, and recovering listed 

species. States have spent far more to recover many listed species than the federal government 

has spent, as you well know from grizzly bear and wolf recovery in Wyoming. Plus, the Western 

Governors endorse full state involvement in implementing the ESA. Also, as demonstrated by the 

Southeast states in the implementation of their Southeast At-Risk Species Program, the states 

have the necessary commitment and capability, and will succeed in recovering listed species. 

Ranking Member Carper: 

4. If you were in our shoes, what would you do to find consensus for proposed changes to the 

ESA? 

ANSWER: the Governors have a great start at doing just that. It is not an exaggeration to say 

that an endangered species issues crosses the desk of every western governor every day. And 

with the many species proposed for listing, or listed, in the southeast, we are fast reaching that 

level. Governors have to solve problems for their citizens that are realistic, pragmatic, balanced, 

and respectful of the need to sustain natural resources through science-based management. 

Great weight should be given to their recommendations, which have been arrived at through 

several public listening sessions. Unfortunately, the ESA has engendered great dogmatism 

because of its absolute obligatory language which trumps other federal statutes. Perhaps the 

greatest biggest concensus building incentive for responsible changes to the ESA is the 

uncertainty of the Act's survival without change. 
57 

5. Please identify three (3) areas where there is the greatest opportunity to find consensus for 

changes in the ESA. 

ANSWER: I. Enhance the role of the states in carrying out the provisions of the ESA by giving 

them the opportunity to lead and co-manage. Sect 6 cooperative agreements can be amended to 

reflect the authority and capability ofthe state to fit/fill the obligations of the Act. 

2. Improve the efficiency of and quality of the data used in listing decisions, including the use of 

a work plan to prioritize species by threat and set deadlines for action in each category. 

3. Give greater emphasis and funding to developing recovery plans with recovery objectives 

established by a recovery team and upon achieving those objectives, the Secretary must initiate 

the de listing process. 

Senator Capito: 

6. In recent years, I heard from many West Virginians concerned that the potential listing of the 

Northern Long-Eared Bat would prove a nearly insurmountable obstacle to development in our 

state. The bat was listed as "threatened" under the ESA in 2015. On April, 27, 2016, the Fish 

and Wildlife Service (FWS) found that a critical habitat determination was "not prudent" at this 

time, preventing my entire state from being burdened with significant constraints on agriculture, 

mining, construction, and infrastructure. While this was the right conclusion, the uncertainty 

surrounding the process served to chill investment in areas that could be designated as critical 

habitat. I find the Northern Long-Eared Bat example to be instructive for this Committee as we 

seek to modernize and improve the ESA to prevent overreach at odds with science and economic 

interests. Mr. Myers, in your experience protecting critical habitats, what is the impact on 

economic development during and following the designation process? 

ANSWER: The timing of the non-discretionary obligation to designate critical habitat does not 

allow for a more thoughtful and thorough analysis of both its' value to the listed species or its' 

economic impact. We recommend moving that designation concurrent with developing the 

recovery plan and giving the Secretary more discretion, including the option to not designate 

critical habitat. With the accumulation of additional data in the recovery plan development 

process, this should allow for better science-based decisions and more opportunity to minimize 

disruptive economic consequences. 

a. Do you feel that the risk or uncertainty associated with the mere potential of a designation 

negatively impact investment and economic development? 

ANSWER: potentially but the remedy described in my answer above can help solve that. 
58 

7. In the case of the Northern Long-Eared Bat, the FWS estimates the species' range covers half 

of the territory ofthe continental United States (including all or part of37 states and the District 

of Columbia) and one-third of Canada. Estimates are that the population has declined by 90 

percent, the result of White-Nose Syndrome (WNS), which is caused by an invasive European 

fungus. However, those declines are not the result of habitat loss or economic developmentindeed the incidence of WNS spikes among the bat populations when they hibernate in large 

groups in caves during the winter, not when they are foraging across forests during the summer. 

a. While the potential designation of the Northern Long-Eared Bat's vast range is a particularly 

egregious example, are their other examples of large areas having a final designation as critical 

habitat and what has been the impact on people living and working in those areas? 

ANSWER: The designation of critical habitat for the Canada lynx in the northern U.S. is such an 

example. It is similar to the Northern Long-Eared Bat because designation of critical habitat will 

not maintain the species and may actually cause its' decline by prohibiting active forest 

management. The lynx depends on rabbits and hares jar its prey, which are obligate to early 

forest succession stages. The lynx is on the southern ecological periphery of its range, and the 

U.S. population is expected to remain about what it is now, with or without ESA designation. It 

never should have been listed. Impacts of critical habitat designation adversely impact forest 

products industry jobs from harvest to milling and the associated businesses. 

b. How can we better align our conservation efforts to address the actual causes of population 

declines- preventing and combatting WNS in the case of the Northern Long-Eared Bat- rather 

than succumbing to a knee-jerk inclination to ban economic activity over broad swathes ofthe 

country? 

ANSWER: Establish a category that differentiates listed species that are affected by threats such 

as disease or other factors for which application of the ESA would not improve their population. 

c. Does the FWS have the authority to tailor its responses to the particular threats facing 

particular species, or is the agency largely stuck with the blunt instrument of critical habitat 

designation? 

ANSWER: Under the existing statute, as foderal courts have repeatedly directed, the Secretary 

has a non-discretionary obligation to designate critical habitat. We recommend moving critical 

habitat into the recovery planning process and giving greater discretion to the Secretary, 

including the option to not designate critical habitat. 
59 

d. How can this Committee improve the statute to prevent designations of large areas as critical 

habitat if that is not appropriate for the relevant conservation challenges? 

ANSWER: Adopt in the statute the Association's and WGA recommendations as described in 

answer number 6. 

e. What are the states' roles in informing the designation of critical habitats and what are their 

roles in enforcing compliance? 

ANSWER: The states have no statutorily designated role but may submit recommendations if 

they choose when they submit listing data. The states have no role in enforcing compliance, 

8. Mr. Myers, what are the costs to states of conducting scientific surveys when the FWS 

outsources data collection on species to your agencies prior to a listing? 

The FW!'> does not technically outsource data collection for species surveys. However, the FWS 

and states work cooperatively to attain the data necessary to make listing determinations. North 

Carolina collects data on many petitioned species annually using fonds from State and Tribal 

Wildlife Grants (65%federal-35% state cost share). The North Carolina Wildlife Action Plan 

sets priorities for this work. If there is a petition to list a species, surveys for that species become 

higher priority for Commission. 

When a petition is filed, our staff assess what data we have on-hand to determine what will be 

needed to assist USFWS in a species review during the 12 month finding. These efforts may 

include data compilation, data collection, field surveys, contracted work, coordination with 

adjacent species within the species' historical range. I will share an example using the Center 

for Biological Diversity petition filed in April2010 with 404 species. Thirty-five of the species 

occur in NC; 27 of which are fishery species and 8 are water dependent. Here are a few 

examples of species and estimated expenses that includes some details on the level of effort: 

1. Carolina Madtom- $170,516.29 (includes contracted work and agency staff hours; 

includes data collection since the petition was submitted) 

2. Brook Floater- $47,342.99 (only agency staff labor; result of two efforts: 1) fieldwork 

on Catawba and Yadkin right after the petition was filed; and 2) staff expanded range in 

the last two years which found significantly expanded populations) 

3. Grandfather Mountain Crayfish- $34,482.50 (include contracted work and agency staff 

hours; includes data collection after the petition wasjiled) 

4. Carolina Pygmy Sunfish $15,281.09 (only agency staff labor [also with free 

volunteers} and coordination with South Carolina which was initiated qfter petition was 

filed) 
60 

5. Chowanoke Crayfish - $71,130.68 (only agency staff labor and coordination with 

Virginia which was initiated ajier petition was filed} 

a. What is the cost-share of this activity between the states and the federal 

government? 

Much of our efforts rely upon State and Tribal Wildlife Grants to fond surveys for petitioned 

species. The cost share is typically 65% federal and 35% state fonds. Some states, including 

North Carolina, use Pittman-Robertson Grants to .fund survey work for birds and mammals. The 

cost share for Pittman-Robertson Grants is 75%federal and 25% state. 

i. Do the petitioners bare any of those costs? Should they? 

Petitioners bear only the costs of filing, which include compiling support for petitions. 

Petitioners should be required to compile only data from primary sources such as peer-reviewed 

science publications and federal and state agencies. Data from secondary sources, such as web 

sites or popular literature, should not serve as petition support. 

Further, petitioners should bear the burden as the responsible requestor, including the costs 

associated with the 90-day.finding. It is important to note that a 3-month period is not adequate 

time for field surveys, so mosts costs at this point in the process are data compiliation and 

coordination expenses. 

ii. Are there costs associated with unfunded mandates imposed on private sector stakeholders? 

I am not sure !fully understand the question. I assume it refers to data collection and listing. 

Based on that assumption, I am not aware of any unfunded mandates for petitioned species 

imposed on private sector stakeholders by the petition process; however, because the entry bar is 

set so low for petitioning, there are many costs associated with regulatory uncertainty. Fears of 

potentia/listing and associated consequences of listing can have a deeply chilling effect on 

prospective private sector investment. 

b. Do these outlays interfere with the states' efforts to conduct more material conservation 

initiatives? 

Again, because the entry bar is set so low for petitioning, the petition process can interfere with 

state efforts to conduct hands-on conservation of declining species. (aka implementing the State 

Wildlife Action Plans). State and Tribal Wildlife Grantfonding has increased our capacity to 

implement on-the-ground conservation measures for species being considered for federal listing; 

however, lack of funding still limits our state's ability to do so for most at-risk species. Thus, we 

must prioritize our actions. The State and Tribal Wildlife Grants were meant to provide states 
61 

the capacity to prioritize and implement conservation actions at a state level. The current 

petition process lacks appropriate filters. As a result, petitioners often inadvertently set state 

resource allocation priorities so the states can ensure the on-hand species data is adequate and 

in a format to aid the FWS in their petition review and finding by the legal deadline. 

Additionally, a 12 month review is only one survey year and is not enough time to have an 

opportunity for collecting new data for these species, especially if states lack historical data. 

These surveys are typically determined and conducted by state agency staff and not ftderal 

employees. So the true interference from petitioned species is the opportunity lost due to changed 

work priorities. When a petition is filed, all current projects are placed on hold until petitioned 

species are assessed. 

Further, state's ability to conduct more material conservation actions are hindered by the 

regulatory burdens oft he ESA itself For example, North Carolina has hatchery propagation 

capability and capacity to produce large quantities of several different federally-listed species. A 

very effective conservation strategy would be to propagate these species and stock them into 

currently unoccupied habitat within the species' historic range. However, the increased 

regulatory burden that would result on local landowners, businesses, and municipalities from 

stocking a federally listed species into currently unoccupied habitat makes it impractical to do 

so. Adding much needed regulatory flexibility would be an effective step in promoting 

meaningful species conservation. 

c. Can you give examples where the FWS has failed to delist species, even well after population 

or habitat preservation targets backed by science- have been met? 

Recovery plans are required for all federally listed species and establish goals to de list species. 

Unfortunately, recovery plans have not been completed for allfederally listed species and many 

are only partially developed. Furthermore, our knowledge of listed species changes over time 

which directly impacts the triggers that should be used for determining de listing qualifications. 

Recovery plans oftenare not updated to reflect new information or data. Legally, without a 

recovery plan that includes triggers to define recovery, a species can not be de listed. Each year, 

state biologists continue to conduct species specific surveys that inform range and population 

status. Often, these surveys reveal new populations and species habitat conditions directly 

informing the species population status. Outside of North Carolina is the Grizzly Bear in the 

Greater Yellowstone Ecosystem. Recovery goals have been met for more than two decades, yet 

this population segment remains listed due to court intervention and fluid de listing criteria The 

recovery criteria should be more flexible to allow best available science to inform when a 

species is recovered and when deli.Hing is appropriate. As an aside, it is also relevant to point 

out that 30 years after the introduction of a nonessential experimental population of red wolves 

in Northeastern North Carolina, the FWS has been unable to meet its recovery goals of a selfsustaining population on federal lands. Yet, the program continues to utilize limited recovery 

resources without progress towards recovery. There is no evidence to support potential reversal 
62 

of this trend, yet due to litigation and because there are also no triggers to discontinue the 

experiment, those limited resources continue to be expended on this program. 

d. Does the FWS have the authority to incorporate "delisting" criteria at the time a species is 

listed, or are statutory changes necessary to permit this? 

Often, a recovery plan is not completed for many years after a species is federally listed. 

Assembling species experts and compiling the data to support the recovery planning process may 

take longer than the time allotted in the ESA. When recovery plans are written, the criteria for 

delisting should utilize best available science should be clear and concise with specific triggers 

that would inititate de listing. 

9. There are examples of court cases compelling the FWS to make critical habit designations or 

list species as threatened or endangered. Many more do not lead to a designation, but these 

frivolous lawsuits tie up FWS resources and personnel, at the taxpayers' expense. 

a. How can we disincentivize frivolous, sue-and-settle lawsuits against the FWS in this arena? 

ANSWER: As a start, require all litigants to report to Congress any federal reimbursed attorney 

fees they receive from litigation. Also, most litigation under ESA is against process, eg missing 

deadlines. Directing the FWS to implement a listing work plan prioritizing species based on 

threat and assigning deadlines to the d(fferent categories will significantly reduce process 

litigation. 

b. What share of legal challenges related to the ESA go against the federal government for its 

role in administration as opposed to the states for their share of implementation? 

ANSWER: There are very few legal challenges to the states under the existing statute because 

the Secretary is the final decision-maker. 

c. Does the federal government assist the states in any way in addressing legal challenges to 

their implementation ofESA requirements? 

ANSWER: I am unaware if that has ever happened. 
63 

Senator BARRASSO. Thank you very much, Mr. Myers. 

Our next witness is James Holte, who is President of the Wisconsin Farm Bureau Federation. 

Mr. Holte, thanks so much for joining us. We look forward to 

your testimony. 

STATEMENT OF JAMES HOLTE, PRESIDENT, 

WISCONSIN FARM BUREAU FEDERATION 

Mr. HOLTE. Good morning, Chairman Barrasso, Ranking Member 

Carper, and members of the Committee. 

My name is Jim Holte. I am a beef and grain farmer from Elk 

Mound, Wisconsin. I also serve as President of the Wisconsin Farm 

Bureau Federation and as a member of the American Farm Bureau 

Federation Board of Directors. 

I appreciate the opportunity to speak with you today about the 

Endangered Species Act and specifically one of the listed species 

that impacts many farmers throughout the State of Wisconsin, the 

gray wolf. 

I included many pertinent statistics about Wisconsin’s population 

in my written testimony which I hope you will take some time to 

review. Today, I would like to share with you a story of one of our 

young farm families from Medford, Wisconsin, which has experienced devastating wolf depredation. 

I have heard many personal stories from farmers about the loss 

of livestock and how it has impacted their farms, lives, and their 

families. These stories are powerful, emotional, and very real. 

The story of fourth generation farmers Ryan and Cheri 

Klussendorf takes place in June 2010. They own and operate a 100- 

cow rotationally grazing dairy farm and had just moved a group of 

young calves out to pasture for the summer. 

In early July they received a call in the middle of the night from 

a local county sheriff that a large group of young cattle were out 

in the roadway not far from their farm. This occurred several more 

times over the next 2 months as passing motorists knocked on their 

door in the middle of the night because cattle were out and agitated. 

In late August there was another middle of the night visit from 

the local sheriff resulted in a citation for animals at large. 

Ryan was able to start farming at the age of 21 because he was 

able to keep costs low by grazing cattle. Now, the liability he faced 

every night while his cattle were on pasture was a serious public 

safety hazard with potentially devastating impacts to his life. 

They asked the local district attorney and sheriff’s office for help 

but were told ‘‘There is nothing we can do for you. Buy a gun.’’ 

On the morning of November 7, 2010, the family started chores. 

Some of the cows were already in the barnyard to be milked, which 

was rather unusual because they normally are brought in from the 

pasture. 

As Ryan headed to the pasture to bring in the rest of the cows, 

he found what was left of cow 2042. The gruesome scene told the 

story of the deadly attack on this 3-year-old cow. She was bitten 

in the back of the leg until all the tendons and ligaments were severed, she was dragged down from behind after she could no longer 

stand, and the pack of wolves started eating her alive. 
64 

The pasture was a blood bath, and her corpse was unidentifiable 

other than the tags from ears were found 100 feet away. This was 

the worse summer of Ryan’s life. His stomach sinks every time the 

phone rings late at night; he sleeps with a window open no matter 

the time of the year so he can listen to the traffic on the road. 

He springs out of bed at night thinking there is a knock at the 

door when it is only the icemaker in the kitchen. This happened 

more than 6 years ago, and yet the events during the summer of 

2010 impact every decision the Klussendorfs make for their cattle 

and their farm management practices. 

All of Ryan and Cheri’s cows are now within 200 feet of their 

farmyard at night. Calves are no longer put on pasture. The cost 

has been burdensome, but the emotional toll, the increased stress 

on the family and the animals has been tremendous. 

Ryan was a husband, a father, and a farmer. Right now, he cannot protect his cows and his family’s livelihood without the risk of 

being prosecuted because it is illegal to shoot a wolf in Wisconsin. 

The graphic images of this incident are included in my written testimony. 

The Klussendorfs are not the only farmers who have been impacted, which is why the Wisconsin Farm Bureau continues to support the decision to delist the gray wolf and allow State wildlife officials to manage wolf populations. 

Interactions between farmers, their livestock, rural residents, 

and wolves continue to escalate without a remedy in sight. During 

the last 15 years the gray wolf’s endangered status has undergone 

numerous changes. Many have not been based on scientific evidence that the population numbers for this species have been met 

and exceeded but flaws in the Act make these decisions prone to 

politics and legal battles. 

While the recovery status of the gray wolf in the Western Great 

Lakes Region continues to be fought in courtrooms and determined 

by Federal judges, Wisconsin farmers continue to have their hands 

tied when it comes to protecting their livestock and their livelihoods. 

Congressional action needs to occur, and our farmers continue to 

lobby Congress for this change. The ESA has been successful for 

species recovery, but it has failed to remove the species once the 

population adequately recovered. 

Congress intended for the ESA to protect species from extinction. 

However, it prioritizes species listing over actual recovery and 

habitat conservation. The law fails to provide adequate incentives 

for working land species conservation and imposes far reaching 

regulatory burdens on agriculture. 

Reform of the ESA should include a focus on species recovery and 

habitat conservation that respects landowners. Coordination with 

other State and Wildlife agencies to leverage private incentivebased conservation efforts can better achieve long term conservation goals. 

I appreciate the actions and efforts by this Committee to address 

needed reforms to the Endangered Species Act and the serious nature of the gray wolf situation in Wisconsin. 

Thank you for your time. I would be happy to answer any questions you may have. 
65 

[The prepared statement of Mr. Holte follows:] 

Wisconsin 

Far• Bureau 

Testimony before 

Committee on Environment & Public Works 

United States Senate 

The Gray Wolf: Modernization of the Endangered 

Species Act 

February 15, 2017 

Washington, D.C. 

Offered by 

James Holte 

On Behalf of 

Wisconsin Farm Bureau 

1 WisconsinWolfManagementPian, October27, 1999. P. 15 

2. Wisconsin Gray Wolf MonitoJing Report, 15 April 2015 Through 14 April2016 

3. Wisconsin Wrnf Harvest Zone Map 

4. Wisconsin Wolf Season Reports 2012, 2013, 2014 

5. Wisconsin Annual Wolf Damage Payment Summary 

6. Testimony of Ryan Klussendorf from the Great Lakes Wolf Summit, September 15, 2016 

7. Cow 2042 & Cow 2042 (2) Photos 

B. Wolf Depredation Photos 
66 

Good morning Chainnan Barrasso, Ranking Member Carper and members of the 

committee. My name is Jim Holte and I am a beef and grain fanner from Elk Mound, 

Wisconsin. I also serve as President of the Wisconsin Fann Bureau Federation and as a 

member of the American Farm Bureau Board of Directors. I appreciate the opportunity to 

speak with you today about the Endangered Species Act and specifically, one of the listed 

species that impacts many fanners throughout the state of Wisconsin, the gray wolf. I 

have heard many personal stories from farmers about the loss of livestock and how it has 

impacted their farms, lives and their families. These stories are powerful, emotional and 

very real. Today, I will share one farmer's story as well as some facts, figures, concerns 

and updates to our efforts dealing with gray wolves in Wisconsin. 

I'd like to start with some Wisconsin-specific wolf statistics. Wisconsin's Wolf 

Management Plan has a population recovery goal of 350 animals1• As of Apri12016, the 

state's overwinter wolf population minimum was 866-897 animals. 2 (p.3) That is an 

increase of 16.1% from the previous year (746 wolves). Overwinter population means that 

counts occur during the winter when wolf populations are at their lowest and populations 

essentially double once new pups arrive in the spring and uncounted wolves are factored 

in. 

Wolves were federally delisted in January 2012. In April 2012, Wisconsin authorized a 

wolf hunting and trapping season. Six zones were created within the state3, each with 

individual harvest quotas based on various factors. Three hunting seasons occurred 

before the wolf was relisted as endangered in December 2014. There was a total of 5284 

wolves harvested during the hunting seasons over those three years and a population 

reduction of less than 9%. We saw livestock depredation damage payments significantly 

decrease ($60,000-$75,000 per yearS) in the three years that a wolf hunting and trapping 

season was in place. Since the relisting of the wolf in December of 2014, Wisconsin's 

wolf population has grown from 660 animals to 897 and depredation damage payments 

exceeded $200,0000 for 2016. 

1. Wisconsin Wolf Management Plan. October 27, 1999. P. 15 

2. Wisconsin Gray We~ Monitoring Report, 15 April2015 Through 14 April2016 

3. Wisconsin Wolf Harvest Zone Map 

4. Wisconsin Wolf Season Reports 2012.2013, 2014 

5, Wisconsin Annual Wolf Damage Payment Summary 

6. Testimooy of Ryan Klussendori from the Great Lakes Wolf Summit, September 15, 2016 

7. Crm 2042 & Cow 2042 (2) Photos 

B. Wolf Depredation Photos 
67 

Under the umbrella of the Endangered Species Act, the gray wolfs federal status has 

undergone extensive changes over the last 15 years. This is not due to the biological or 

scientific evidence that population numbers for the species have met and exceeded their 

recovery goals, but flaws in the Act that make these decisions prone to politics and legal 

battles based on procedural technicalities. While the recovery status of the gray wolf in 

the Western Great Lakes region continues to be fought in courtrooms and determined by 

Federal Judges in Washington, D.C., Wisconsin farmers continue to have their hands tied 

when it comes to defending their livestock and livelihoods. It is illegal for farmers in the 

Western Great Lakes region to protect their livestock from depredating wolves and there 

is no mechanism to manage the population. 

Farmers' livestock are their livelihoods. Not only do acts of depredation increase stress 

to farmers and their families, they consume valuable time and negatively impact a 

farmer's bottom line. Depredations are quantifiable and measurable factors that can be 

charted, trended and accurately determined, but wolf damage includes unquantifiable 

factors that cattle and other livestock experience from stress due to increased predatory 

pressures. Some examples of these livestock stressors include: loss of pregnancy; 

reduced pregnancy rates; decreased rate-of-gain; changes in calving/birthing procedures 

due to the unsafe nature of leaving pregnant livestock to give birth in pastures; increased 

mowing of tall grasses around pastures; upgrading fencing and other wolf deterrent 

practices. All of these factors are costly. They can be difficult to measure but are directly 

related to the increase in the wolf population and interactions wolves are having with 

livestock in Wisconsin. Wolf populations have increased more than 300% in Wisconsin 

since 20002 (p.14) and the pressures for food and territory have forced lone wolves and 

packs to travel farther south to find new habitat. This has led to an increase in livestock 

depredations and damage payment from $18,630 in 2000 to more than $200,000 in 

2016.5 

I'd like to share with you a story of one of our young farm families from Medford, Wisconsin 

who has experienced devastating wolf depredation on their farm. 

1. Wisconsin Wolf Management Plan, October 27, 1999. P. 15 

2. Wisconsin Gray Wolf Monitoring Report, 15 April2015 Through 14 April2016 

3. Wisconsin Wolf Harvest Zone Map 

4. Wisconsin Wolf Season Reports 2012,2013, 2014 

5. Wisconsin Annual Wolf Damage Payment Summary 

6. Testimony of Ryan Klussendorf from the Great Lakes Wolf Summit, September 15, 2016 

7. Cow 2042 & Cow 2042 (2) Photos 

8. Wolf Depredation Photos 
68 

Ryan and Cheri Klussendorf are fourth generation farmers who own and operate a 1 DOcow rotational grazing dairy farm. Their nightmare began in June of 2010 when they 

moved a group of young calves out to the pasture for the summer. In early July, they 

received a call in the middle of the night from the local County Sherriff that a large group 

of young cattle were on the roadway not far from their farm. They promptly recovered the 

agitated and sweat-covered calves and returned them to their pasture. Several more 

times that month and in early August they received middle of the night visits from passing 

motorists because once again, the cattle were found agitated and out of the pasture or 

on the road. In late August, another middle of the night visit from the local Sherriff's office 

resulted in a citation for having animals at-large. At this time, the Klussendorfs thought 

the cattle were being chased by coyotes. All fences were well maintained and more than 

adequate to contain their livestock. 

Each time cows get on the road, there is a real possibility one could get hit. Cattle are the 

most valuable investment and sole income generators on their farm. Not to mention, what 

if there was an accident and a person was injured or killed? 

Ryan was able to start farming at the age of 21 because he was able to keep costs low 

by grazing cattle. Now, the liability he faced every night while his cattle were on pasture 

was a serious public safety hazard with potentially devastating impacts to his life. They 

asked the local District Attorney and Sherriff's office for help but were told "there is nothing 

we can do for you, buy a gun." 

They changed some of their farming practices, to keep younger cattle closer to the barns, 

but nothing helped. On the morning of November 7, 2010, a day that Ryan will never 

forget, the family got up and started doing chores. Some of the cows were already in the 

barnyard ready to be milked. This was very unusual because normally they are brought 

in from the pasture. As Ryan headed to the pasture to bring in the rest of the cows he 

found what was left of cow 2042.7 The gruesome scene told the story of the deadly attack 

on this three-year-old cow. She was bitten in the back leg until all the tendons and 

ligaments were severed. She was drug down from behind after she could no longer stand 

and the pack of wolves started eating her alive. She eventually succumbed to her lethal 

injuries. The pasture was a blood bath and her corpse was unidentifiable other than the 

tags from her ears that were found 100 feet from her corpse. 

1. Wisconsin Wolf Management Plan, October 27, 1999. P. 15 

2. Wisconsin Gray Wolf Monitoring Report, 15 April2015 Through 14 April2016 

3. Wisconsin Wolf Harvest Zone Map 

4. Wisconsin Wolf Season Reports 2012,2013, 2014 

5. Wisconsin Annual Wolf Damage Payment Summary 

6. Testimony of Ryan Klussendorf from the Great Lakes Wolf Summit, September 15, 2016 

7. Cow 2042 & Cow 2042 (2) Photos 

8. Wolf Depredation Photos 
69 

Four days later all charges for animals at-large were dismissed and an apology issued 

from the local Sherriff's office. This was the worst summer of Ryan's life. His stomach 

sinks evety time the phone rings late at night, he sleeps with the window open, no matter 

the time of year so he can listen to the traffic on the road and he springs out of bed at 

night thinking there is a knock at their door, when it's only the icemaker in the kitchen. 

This happened more than six years ago and yet the events during the summer of 2010 

impact evety decision they make for their cattle and farm management practices. All of 

Ryan and Cheri's cows are within 200 feet of their farmyard at night. Calves are no longer 

put on pasture. The costs have been burdensome due to building maintenance, feed 

management and manure hauling but the emotional costs of increased stress and trauma 

for the family and animals has been tremendous. Ryan is a husband, father and farmer. 

Right now, he cannot protect his cows and his family's livelihood without the risk of being 

prosecuted. 6 

Ryan and Cheri Klussendorf are not the only farmers who have been impacted, which is 

why the Wisconsin Farm Bureau Federation continues to support the decision, made in 

2011 by the United States Fish and Wildlife Service (USFWS), to delist the gray wolf in 

the Western Great Lakes region and allow the Wisconsin Department of Natural 

Resources (DNR) to implement the Wisconsin Wolf Management Plan. The latest 

population estimates of gray wolves in Wisconsin is the highest on record at almost 900 

animals and far exceeds the targeted management goal of 350 wolves specified in the 

plan. Since implementation of the first gray wolf hunting and trapping season in Wisconsin 

in 2012, the DNR's management plan has been conservative, science-based and 

designed to maintain the prescribed wolf population while managing it to minimize 

conflicts with Wisconsin farmers and others. 

Not only have wolves increased their depredations on domestic livestock such as calves, 

cattle, sheep, horses, guard animals, pigs, goats, domestic fowl and domestic deer, but 

depredations to pets and hunting dogs have also risen. 8 In 2016, 22 hound dogs and six 

pet dogs were reported for damage payments. The threats that these predators pose to 

rural residents is evident in the Wisconsin DNR's 2015-2016 Wolf Monitoring Report that 

states, "One wolf was euthanized by USDA-WS in response to a verified human health 1. Wisconsin Wolf Management Plan, October 27, 1999. P. 15 

2. Wisconsin Gray Wolf Monitoring Report, 15 April2015 Through 14 April2016 

3. Wisconsin Wolf Harvest Zone Map 

4. Wisconsin Wolf Season Reports 2012, 2013, 2014 

5. Wisconsin Annual Wolf Damage Payment Summary 

6. Testimony of Ryan Klussendorf from the Great Lakes Wotf Summit, September 15, 2016 

7. Cow 2042 & Cow 2042 (2) Photos 

B. Wolf Depredation Photos 
70 

and safety threat during the monitoring period2." (p. 4-5) These predators are smart, and 

easily learn new behaviors. As their numbers continue to increase without restrictions, we 

dread the day this "threat" becomes a human mortality. 

As wolf populations continue to increase, interactions between farmers, their livestock, 

rural residents and wolves continue to escalate without a remedy in sight. Congressional 

action needs to occur and our farmers continue to lobby Congress for this change. 

Currently, two pieces of legislation sit in various stages of procedure that would delist the 

gray wolf in the Western Great Lakes region and Wyoming. S. 164, and H.R. 424 would 

reinstate the USFWS 2011 decision to delist the gray wolf and that decision would not be 

subject to judicial review. The gray wolf is a great example of the Endangered Species 

Act functioning positively and negatively. It has been successful for the purpose of 

species recovery but it has failed due to unsuccessful removal of the species once the 

population adequately recovered and no longer required the support provided by the law. 

Congress intended for the ESA to protect species from extinction. However, the law fails 

to accomplish this, instead it prioritizes species listings over actual recovery and habitat 

conservation. The ESA was enacted in 1973 and has more than 1,600 species currently 

listed. Less than 2% of these species have been removed from the list during the 44-year 

life of the law. The law fails to provide adequate incentives for working lands species 

conservation and it imposes far-reaching regulatory burdens on agriculture. Farmers and 

ranchers consider it their personal responsibility to be stewards of the land, however the 

ESA creates many challenges for them to balance agriculture production with wildlife 

habitat. Reform of the ESA should include a focus on species recovery and habitat 

conservation that respects landowners and prioritizes basic human needs over those of 

endangered species. Coordination with state wildlife agencies to leverage private, 

incentive-based conservation efforts can better achieve long-term conservation goals. 

I appreciate the efforts by this committee to address the needed reforms to the 

Endangered Species Act and the serious nature of the gray wolf situation in Wisconsin. 

There is a legitimate need for states to have more control of wildlife management while 

still maintaining some level of federal oversight. Thank you for your time and I would be 

happy to answer any questions you may have. 1. Wisconsin Wolf Management Plan, October 27, 1999. P. 15 

2. Wisconsin Gray Wolf Monitonng Report, 15 ApMI2015 Through 14 ApMI2016 

3. Wisconsin Wotf Harvest Zone Map 

4. Wisconsin Wolf Season Reports 2012,2013,2014 

5. Wisconsin Annual Wolf Damage Payment Summary 

6. Testimony of Ryan Klussendorffrom the Great Lakes Wolf Summit, September 15, 2016 

7. Cow 2042 & Cow 2042 (2) Photos 

8. Wolf Depredation Photos 
71 

Addendum 
72 

WISCONSIN GRAY WOLF MONITORING REPORT 

15 APRIL 2015 THROUGH 14 APRIL 2016 

Jane E. Wiedenhoeft, David M. MacFarland, Nathan S. Libal, and Jean Bruner 

BUREAU OF WILDLIFE MANAGEMENT 

Wisconsin Department ofNatoral Resources 

P.O. Box 7921 

Madison, Wisconsin 53707 
73 

2 

Introduction 

This report describes wolf management and monitoring activities conducted in Wisconsin during the 

wolf monitoring year, Aprill5'', 2015 to Aprill4'h, 2016. Gray wolves (Canis lupus) reverted to 

federally endangered status in the Western Great Lakes region as a result of a federal court decision 

in December 2014. They have been in this status for the entire monitoring period. 

Wolf Population Monitoring 

Wolf population monitoring was conducted using a territory mapping with telemetry technique, 

summer howl surveys, winter snow track surveys, recovery of dead wolves, depredation 

investigations, and collection of public observation reports. A full description of methods is provided 

by Wydeven et al. (2009). Data are reported by wolf management units (WMU's) established in 2012 

(Figure 1). Wolf monitoring methods were similar to the previous year. 

Observation reports were collected from the public and agency staff. A total of279 reports of wolf 

or wolf sign observations were recorded. This is 16% fewer than the 334 reports recorded the 

previous year (Wiedenhoeft et al. 2015). Additional reports were received but lacked sufficient 

information on date, location, or circumstances for recording. Forty-eight reports ( 17%) were verified 

as wolves by submitted photos. One hundred six reports (38%) were considered to be "probable" 

wolves. Photos were submitted for 17 of these reports and were inconclusive but considered to be 

probable wolves. Photos were requested, but not received, for an additional 3 reports. Descriptions 

provided for the remainder of these reports supported a designation of probable wolf. Eighty-one 

reports (29%) lacked adequate evidence or descriptions to determine species and were designated as 

possible wolves. Some reports were likely mis-identifications. Photos were submitted for 7 of these 

reports, but were inconclusive. Photos were requested, but not received, for an additional 2 of these 

reports. Forty-four reports (16%) were considered to be "not likely" wolves. Photos were submitted 

for 17 of these reports. Species found included coyotes (12 photos), coyote tracks (I photo) domestic 

dogs (2 photos), domestic dog tracks (I photo), and tracks including dog, coyote, and bobcat (I 

photo). Photos were requested, but not received, for I additional report. A field check was conducted 

for I report which found evidence of coyotes and a coyote den. Twenty-five additional reports were 

considered not likely wolf based on the descriptions provided. Verified, probable, and possible wolf 

observations are shown in Table I and Figure I. Reports of packs outside known occupied pack 

range were forwarded to the biologist responsible for the geographic area for further monitoring to 

attempt to verifY pack presence. Reports from outside the winter count period were used to help 

direct winter tracking effort. Consistent with our historic methodology, confirmed and probable 

reports within the winter count period were incorporated into count data. 

During summer 2015, 131 howl surveys were conducted with 54 packs detected (Table 2). Pups were 

detected in 65% of the detected packs. This compares with a pup detection rate of 73% of 52 packs 

responding during howl surveys in summer 2014 (Wiedenhoeft et al. 2015). A more thorough 

analysis of wolf howl data is in process. 

During winter 2015-16, a total of 17,759 miles of track surveys were conducted by WDNR and 

volunteers, with 162 of 167 survey blocks tracked (Figures 2 & 3). Tribes tracked an additional2 

survey blocks; 3 blocks that were considered inactive were not tracked. A total of 222 packs were 

detected in Wisconsin (Figure 4, Table 3). One wolf from a pack considered to be primarily in 

Michigan and I radio collared wolf being monitored in Minnesota were also detected (Figure 4). Of 
74 

3 

the 208 packs detected in winter 2014-15, 21 (10%) were not detected at all and 7 (3%) were 

detected as loners in winter 2015-16. Forty of the 222 packs detected in winter 2015-16 had not been 

detected the previous winter. Of these packs, 12 (5%) had been detected previous to winter 2014-

2015, 15 (7%) had been detected as loners in 2014-15, and 13 (6%) had not been previously detected. 

An average of 3.4 surveys were conducted per pack or area surveyed. 

During the 2015-2016 monitoring period 60 wolves were monitored by telemetry (Table 3). Average 

pack territory size was 61.3 mi2 for 3 7 packs with ~20 telemetry locations. This included 20 

territories determined from satellite and VHF locations (avg. = 71.7 mi 2

) and 17 territories with only 

VHF locations (avg. = 49.1 me). Average territory size was largest in WMU I (67.6 mf n=l8) and 

WMU 5 (60.5 mi2 n=8). The large average territory size in WMU 5 was likely due to the high 

percentage (88%) of territories determined from satellite and VHF locations. Research trapping 

resulted in capture of22 wolves and telemetry collars were placed on all of them. Three wolves were 

trapped and removed from captive cervid facilities. Telemetry collars were placed on 2 of them 

before release. Recreational trappers reported an additional 10 wolves incidentally captured that 

DNR personnel were also able to place collars on before release. Telemetry collars were deployed on 

a total of34 of35 wolves captured during the monitoring period (Table 4), including 12 adult, 6 

yearling, and 2 pup females, and 10 adult, 3 yearling, and 1 pup males. 

In April, 2016 the statewide minimum wolf population count was 866-897 wolves, an increase of 

16.1% from the previous year (Table 3 & Figure 5). This included increases in 4 of the 6 

management units and decreases in 2 units, ranging from -19.4% in WMU 5 to +67.7% in WMU 4. 

Some of the decrease in unit 5 was likely due to better knowledge of pack boundaries in several 

packs with GPS collared wolves. The count included 838-869 wolves living in 222 packs, or an 

average of3.8 wolves per pack, which is back to the level packs had stabilized at prior to delisting in 

2012. An additional28 non-pack associated wolves were detected. State wolf management is based 

on the minimum count off Native American reservations. The off reservation minimum count in 

April2016 was 829-860 wolves. More detailed information on the 2015-2016 wolf count can be 

found on the Wisconsin DNR website, 

http://dnr.wi.gov/topic/wildlifehabitat/documents/Cam Track Blocks Results.pdf. 

Statewide Wolf Distribution 

Contiguous wolf pack range was estimated to be 20,500 mi2

• The main range encompassed 20,3 7 4 

m? and included northern and central forested regions of Wisconsin (Figure 1 ). A 126 m? area in 

Dunn County comprised the remainder ofprobab1e wolf pack range. A single wolf was detected 

during winter surveys in the Dunn County area, but the area has a history of pack habitation so was 

included in the probable pack range calculation. Using the 2016 minimum population count of 866-

897 wolves, wolf density is estimated to be 1 wolf per 22.9 to 23.7 m? of contiguous wolf range, 

calculated by dividing contiguous wolf range by the minimum population count range. 

Wolf Mortality 

Mortality was monitored through field observation and mandatory reporting of control mortalities. 

Cause of death for wolves reported dead in the field was determined through field investigation or by 

necropsy when illegal activity was suspected or where cause of death was not evident during field 

investigation. A total of38 wolf mortalities were detected during the monitoring period (Table 5, 
75 

4 

Figure I), Detected mortalities represented 5% of the minimum 2014-2015 late winter count of746-

771 wolves (Wiedenhoeft eta!. 2015). 

Vehicle collisions ( 45%) and illegal kills (34%) were the leading causes of death for detected 

mortalities. One wolf (3%) was trapped and euthanized in a human health and safety concern case. 

Human caused mortality represented 82% of known cause detected mortalities overall. 

The sole cause of mortality detected due to natural causes was intra-specific aggression (5%). No 

mortalities due to disease were detected. Mortalities due to natural causes are difficult to detect 

unless the animal is wearing an active telemetry collar. 

Cause of mortality could not be determined for 5 (13%) of the cases. 

Twelve collared wolves died during the monitoring period, I 1 of which were being actively 

monitored at the time of death (Table 5). Of those being actively monitored, cause of death could not 

be determined for 3 collared wolves. For the 8 where cause of death could be determined, 4 (50%) 

were illegally killed, 2 (25%) were killed by vehicle collision, and 2 (25%) died from intra-specific 

aggression. For an analysis of estimated rates of undetected mortality in Wisconsin wolves see 

Stenglein et a!. 2015. 

Disease I Parasite Occurrence in Wolves & Body Condition 

General body condition was reported for 33 wolves that were captured and collared for 

monitoring (Table 4). Thirty-one (94%) were reported to be in good or excellent body condition, 

1 (3%) was reported to be in fair body condition, and 1 pup trapped in a cervid enclosure (3%) 

was reported to be emaciated and in poor condition. Average weight of 8 live-captured adult 

males was 85 Ibs. (range 72 to 106 Ibs.), and average weight of 11 adult females was 69 lbs. 

(range 60 to 77lbs.). Monitoring for mange was conducted by inspection of 35 wolves livecaptured for research monitoring, and inspection of 38 wolf mortalities (Table 4). Symptoms 

consistent with mange were noted in I dead wolf(I4%) and none of the live captures. Ticks 

were monitored by inspection of live-captured wolves. Ticks were noted on 21 (60%) of 

captured wolves. 

Wolf Depredation Management 

Wolf depredation incidents were investigated by United States Department of Agriculture -Wildlife 

Services. During the monitoring period, Wildlife Services investigated 160 wolf complaints and 1 

complaint was investigated by DNR wardens. Fifty-two incidents of wolf depredation to livestock 

and 6 incidents of wolf threat to livestock were confirmed on 34 different farms during the 

monitoring period (Table 6). This included I I of 38 farms classified as chronic wolf depredation 

farms (29% ), Livestock depredations included 49 cattle killed and I injured, 2 guard animals killed, I 

horse killed, I 2 domestic fowl killed, and 2 captive white-tailed deer killed. The number of farms 

affected increased 6.2% from 2014-15 when 32 farms were affected. This follows a decrease of26% 

from 2012-13 when 43 farms were affected (MacFarland & Wiedenhoeft 2013) to 2014-2015. 

Twenty-five incidents of non-livestock depredation and 7 incidents of non-livestock threats were 

confirmed during the monitoring period. This included 18 dogs killed while actively engaged in 

hunting activities, and 6 dogs killed and 3 injured outside of hunting situations. One wolf was 
76 

5 

euthanized by USDA-WS in response to a verified human health and safety threat during the 

monitoring period. 

Regulatory Changes Affecting Wolf Management 

There were no significant regulatory changes during the reporting period. 

Law Enforcement 

Population monitoring and law enforcement efforts detected 13 wolves illegally killed within the 

monitoring period. Law enforcement staff conducted 5 investigations and issued I citation during 

the reporting period (Table 7). 

Information on Wolf Prey Species 

White-tailed deer are the primary prey species for wolves in Wisconsin. Units used for monitoring 

Wisconsin deer are counties, or in some cases, partial counties. Counties were assigned to the wolf 

harvest zone that the majority of the county falls in to compare deer density changes in the wolf 

management units (Table 8). White-tailed deer density estimates increased 8% statewide from the 

previous year estimate (Rolley 2015, Rolley 20 16). Recommendations from the County Deer 

Advisory Council and approved by the Natural Resources Board are to increase deer populations in 

counties in wolf management units I through 5 and maintain the deer population density in most 

counties in unit 6. There is no indication that prey density is negatively impacting the wolf 

population. 

Literature Cited 

MacFarland, D.M. and J.E. Wiedenhoeft. 2013. Wisconsin Gray Wolf Post Delisting Monitoring 27 January 2012 

through 14 April2013. 18 pp. 

http://dnr.wi.gov/topic/Wildlifehabitat/wolf/documents!PostDelistMonitor.pdf. 

Rolley, R. 2015. Final2014 Deer Population Estimates for Wisconsin Deer Management Units. Wisconsin DNR 

unpublished data. 

Rolley, R. 2016. Final2015 Deer Population Estimates for Wisconsin Deer Management Units. Wisconsin DNR 

unpublished data. 

Stenglein, J.L., Van Deelen, T.R., Wydeven, A.P., Mladenoff, D.J., Wiedenhoeft, J.E., Businga, N.K., Langenberg, 

J.A., Thomas, N.J., and D.M. Heisey. 2015. Mortality patterns and detection bias from carcass data: An 

example from wolf recovery in Wisconsin. The Journal of Wildlife Management. doi: 10.1002/jwmg.922. 

Wiedenhoeft, J.E., MacFarland, D.M, Libal, N.S., and J. Bruner. 2015. Wisconsin Gray Wolf Monitoring Report 15 

April2014through 14April2015.17pp. 

http:/! dnr. wi. gov/topic/W ildli fehabitat/wolf/documents/PostDelistMonitor20 15 .pdf 

Wydeven, A.P., Wiedenhoeft, J.E., Schultz, R.N., Thiel, R.P., Jurewicz, R.L., Kobo, B.E., and T.R. Van Deelen. 

2009. History, population growth, and management of wolves in Wisconsin. Pp. 87-105 in Wydeven, A.P., 

Van Deelen, T.R., and E.J. Reske. Recovery of Gray Wolves in the Great Lakes Region of the United 

States: An Endangered Species Success Story. Springer, New York, NY, USA. 350 pp. 
77 

Table 1. Verified, probable and possible wolf observations reported by natural resource 

agency personnel and private citizens in Wisconsin, 15 April2015 to 14 April2016. 

Wolf Mgmt. Number of Wolves Track or Sign Total Wolf 

Unit Sightings Seen Observations Observations 

1 24 40 35 59 

45 

Table 2. 2015 Wisconsin wolf howl survey data. I Howl I Packs I Detected Packs I % Detected Packs 

Wolf Mamt. Unit Surveys Detected with Pups with Pups 

UNIT 1 42 17 13 76 

UNIT2 41 17 10 59 

UNIT3 13 2 1 50 

UNIT4 4 1 1 100 

UNITS 19 12 8 67 

UNITS 12 5 2 40 

TOTAL 131 54 35 65 
78 

Table 3. Pack and lone wolf summaries for Wisconsin in winter 2015-2016. 

Wolf 

Mgmt. 

Unit 

2 

3 

4 

5 

6 

Statewide 

Change 

#of Total# from 

# of Wolves of 2014-

Packs in Packs Loners Wolves 2015 

#of 

Telemetry 

Monitored 

Wolves• 

28 

3 

31 

Average 

Annual 

Pack 

Territory• 

(mi2

l 

67.6 

jn=18) 

Off Reservations 51 216-225 5 221-230 12 __ 

On Reservations 5 22 o 22 1 

--· ---rota( ---561--238-017 5 243-25:2 50.9% ------13 52.5(n;;il 

Off Reservations 29 r--~~~ 3 _,9,_,6'--1'-'0'-;;0:+---!-----:30+----

0n Reservatiop~ _ _Q 0 · --0- 0 0 

Total 29 93-97 3 96-100 17.1% 3 48.2 n=3} 

_9_1! Reservations 9 25-26 7 32-33 2 

On Reservations . ____ _Q_ ____ g. ~==~~Q ---;'"_""_o;-·t--~=-+----0=-+------- ------- Total 9 25-26 7 32-33 -5.9% 2 

Off Reservations 214 804-835 25 829-860 

oii"ReSeiViiliOris - -s - -~- · --~~~- ·--37 -------··---+----~~ -------- 4 

Total 222 838-869 28 866-89 7 16.1% 60 61.3 

jn=37) 

Outside 2 2 

WI 

'Wolves are counted in the primary WMU they were monitored in, though they may have been monitored 

in multiple WMUs. 

• Pack territory size is only calculated for packs with ;,20 radiolocations for the period 15 April2015 to 14 

April2016. 
79 

Table 4. Research capture summary. body condition, and detection of ectoparasites in captured 

wolves and morta 1.. . w· . A I 01 4 A '120 i!Jes m ISCOnSin from 15 \pri 2 5 to 1 \pn 16. 

n Body Condition # (%) w/Mange 

Good Fair Poor 

Unit1 

Research Captures 18 16 (89%) 1 (6%) 0 

Mortalities 7 1 (14%) 

Unit2 

Research Captures 7 5 83% 1 17% 0 

Mortalities 11 0 

Unit3 

Research Captures 1 1 (100%) 0 

Mortalities 3 0 

Unit4 

Research Captures 0 0 

Mortalities 3 0 

UnitS 

Research Captures 7 7(100%) 0 

Mortalities 6 0 

Unit6 

Research Captures 2 2 (100%) 0 

Mortalities 8 0 

STATEWIDE AVERAGES 

Research Captures 35 31 (94%) 1 (3%) 1 (3%) 0 

Mortalities 38 1 (14%) 

Table 5. Detected wolf mortality in Wisconsin 15 April2015 to 14 Apri12016. 

Cause of Death L Wolf Management Unit I State % of 

1 2 3 4 5 6 Total Total 

•Includes 1 radio collared wolf 

'Includes 2 radio collared wolves 

'Radio collared wolf unmonitored at time of death 

12 radio collared wolf mortalities, including 1 unmonitored at time of death 

# (%) w/Ticks 

14(78%) 

2 29%) 

1 (100%) 

0 

4 (57%1 

0 

21 (60%) 
80 

9 

Table 6. Wolf depredation management in Wisconsin, 15 April2015 to 14 April 

2016 

I Wolf Manaaement Unit 

I 1 2 3 4 5 6 

State 

Total I 

Livestock Cases ' 

~redation ~-~~~-~-----_-_ +--2"70-~~-'3;-+ ~~ 23 __ "-~-,-:_1:_-_--~,_-~o;:__::--_~--'05"'-----:_-~f-:_·~52;'- ·II 

Threat ~---------~------- 4 1 0 ' 0 0 1 6 J 

Chronic Farms Affected 7 2 

Total Farms Affected ------------- _15___ 2 

Cattle Killed 17 3 

Cattle Injured 

Horses Killed 1 

2 

/ 2 111 of 38 ! o I o o (29%) : i 10 1 0 , 6 34 1 

I 24 1 I 4 4

1

9 i 1 , 

1 

Guard Animals Killed 2 

Captive Deer Killed 

Poultry Killed 2 I 12 

2 

12 

Dogs Killed While Actively Engaged in 12 Hunting Activities 

Dogs Injured While Actively Engaged 

in Hunting Activities 

Dogs Killed While Not Engaged in 

Hunting Ac;til!ities . .. . _ 

Dogs Injured While Not Engaged in 

HuntinQ Activities 

Control Actions 

3 

2 3 

2 

Table 7. Summary of law enforcement activity during the reporting period. 

Wolf Related Complaints Received 3 

Wolf Related Investigations Conducted 5 

Citations Issued 1 

Verbal Warnings Issued 0 

Illegally Harvested Wolves Recovered 2 

Unknown Cause of Death Wolves Found 0 

Other Dead/Injured Wolves Recovered 8 

Total Wolves Recovered 10 

18 

0 

6 

3 
81 

10 

Table 8. White-tailed deer density estimate in wolf management units in 2014 & 2015. 

Wolf #of Deer Deer 2014 Post-Hunt 2015 Post-Hunt 2015-17 

Mgmt. Mgmt. Range Deer Density Deer Density % Deer 

Unit Zones (mi2

) (Deer/mi2

) (Deer/mi2

) Change Population 

Objective 

1 6 6,516 12.0 13.1 +8% Increase 

2 6 4,573 16.0 16.2 +1% Increase 

3 4 3,141 23.0 25.6 +12% Increase 

4 4 2,305 27.0 24.8 -8% Increase 

5 7 2,315 24.0 28.1 +17% Increase 

6 53 16995 44.0 48.3 +9% Maintain 

TOTAL 80 35,845 30.5 33.0 +8% 

Deer range and post-hunt deer estimates based on Robert Rolley, 2016, Final 2015 Deer Population 

Estimates for Wisconsin Deer Management Units, WDNR unpublished data. 

Deer population objectives from County Deer Advisory Council Final 2015 - 2017 Deer Population 

Objectives Approved by the Natural Resources Board, http://dnr.wi.govltopic/huntlcdac.html. 
82 

II 

+ Pack observation CJW1VIU1 

• Single wolf obseo1ation Wl\iiU 2 

f Wo.tf depredations ~~W1\IIU3 

* Wolf mo rta!iti e s Wl\iiU 4 

2016 Probable wolf range Wl\iiU 5 

CJW1VIU6 

0 25 

Figure 1. Probable wolf pack range, wolf mortalities, verified and probable wolf depredations, and verified, 

probable and possible wolf observation reports in Wisconsin 15 April2015 to 14 April2016. 
·+' 

Inactive, not tracKed (3 blOcks) 

Tracked Dy only ON R (78 Dlocks} 

rracked tly only volunteers (21 O!ock.s} 

Figure 2. Wisconsin carnivore survey blocks tracked: winter 2015-2016. 

12 

lSOOO r 17 n"lil.oc in 

17,759 total miles .. ·-- ... "C 16000 

12000 

; 10000 

.!! 8000 

:E 6000 

4000 

2000 

C!Volunteers 

lliDNR 

0 111)11111111, 

1996 1998 2000 2002 2004 2006 2008 2010 2012 

Figure 3. Carnivore track surveys in Wiscon

WDNR & volunteers 1996-2016 
84 

0 25 

Wsconsin ONR 

2016 

13 

c=J Pac:t.s CMeeteo last2:111inNt~s VVolf Harvest Zone 

[SJ p!ld(~ R~tea:ed from priertc20t5 

.. New Pads 

~"""'wor­

• DUpers~ Wolvt~ 

Figure 4. Wolves detected in Wisconsin in winter 2015-2016. 
14 

Wolves 25 20 23 1 

Packs 8 9 5 

N N 

Figure 5. Changes in Wisconsin Gray Wolf Population: 1980-2016. 
86 

Wisconsin Wolf Season Report 2012 

Federal Delisting of Wolves- Federal delisting of wolves occurred on January 27, 2012, 

following years of de-listings and re-listings resulting from a number of court cases, even though 

the Midwest wolf population exceeded recovery goals for many years. 

Statutory Direction: Act 169 was approved by the Governor in April2012. This statute 

authorizes and requires a wolf hunting and trapping season. Numerous season and application 

details were described in the statute. Act 169 authorized the Department to delineate harvest 

management zones, set harvest quotas, and determine. the number oflicenses to be issued to 

accomplish the harvest objective. 

Wolf Season Emergency Rule: Act I69 required that the department draft an emergency rule 

for implementation of the statute with a 2012 season. After work by the Wolf Season Ad Hoc 

Team, public meetings, meeting with the Wolf Science Team and Stakeholders Team, review of 

wolf season public survey responses, consultation with the Voigt Task Force and Great Lakes 

Indian Fish and Wildlife Commission (GLIFWC) staff and attorneys, consultation with other 

tribal representatives, and public testimony to the Natural Resources Board (NRB), the 

emergency rule was adopted by the NRB on July I7, 20 I2. 

Harvest Goals: The goals of the prescribed harvest were to: begin to reduce the statewide wolf 

population toward the wolf management plan population goal; maintain a sustainable wolf 

population; reduce conflicts, particularly in areas with the greatest past or potential future 

conflicts; and learn for adapting harvest management prescriptions in subsequent years. 

Quotas and Expected Impacts: The NRB adopted a total harvest quota of20l. University of 

Wisconsin-Madison modeling predicted a population reduction of about 14% (8-I9%) if this 

quota was reached and other mortality factors occurred as expected. The predicted impacts 

included the assumption that tribes would take the harvest quota allocated to them, which did not 

occur. Winter wolf surveys will provide information useful for determining impacts of the 20I2 

season. 

Approach to Zones: Six zones were delineated based on wolf habitat value and human conflict 

potential. Harvest quotas were set for each zone based on 20% (zones I, 2, 5), 40% (zones 3, 4) 

and 75% (Zone 6) of the mid-point of the minimum wolf count in each zone. 

Reservation Restrictions: Zero quota areas were established for state-licensed hunters and 

trappers within the reservation boundaries of the Bad River, Red Cliff, Lac Courte Oreilles, Lac 

Du Flambeau, Menominee and Stockbridge-Munsee reservations. 

Tribal Quota: The department set one-half of the 20I2 wolf harvest quota aside for Ojibwe 

tribes based on Voigt case requirements and based on wolf counts within the area of each zone 

delineated as ceded territory. This tribal quota amounted to 85 wolves, leaving I 16 for statelicensed hunters and trappers. 
87 

Licenses Available: The number of state licenses was set at 10 times the quota allocated to state 

hunters and trappers, based on the expectation that success rates would be better than that seen in 

Idaho and Montana with the amount of road access and trapping interest in Wisconsin. 

Approximately 75% of applicants notified of the opportunity to buy a license actually purchased 

one. Most applicants were residents. Most applicants had purchased some kind of license from 

the department in the past. The number of licenses purchased and activity of licensees was 

sufficient to reach harvest quotas in all zones well before the end of the bunting and trapping 

season. 

Known Mortalities by Zone: We have tallied mortalities detected through harvest registration, 

radio-telemetry, depredation control action reports, and reports from staff and the public. 

Recorded mortalities were as follows for 20 12 

Cause Zonel Zone2 Zone3 Zone4 ZoneS Zone6 Total 

Licensed 32 19 19 5 23 19 117 

Harvest 

Depredation 38 0 29 0 I 8 76 

control 

Vehicle 4 7 3 I 4 5 24 

collision 

Illeeal Kill 8 0 5 I 3 4 21 

Unknown I 2 0 0 2 0 5 

Total 83 28 56 7 33 36 243 

Sex of Harvested Wolves: The harvest was comprised of 59% males and 41% females. 

Method of Harvest: Trapping accounted for 52% of the harvest, with bunting accounting for 

the remainder. Additional information will be available once responses from returned trapper 

and hunter surveys are summarized. Due to a lawsuit that was not resolved until after the season 

closed, dogs were not used for bunting wolves in 2012. 

Tribal Harvest: The Ojibwe did not authorize tribal members to hunt for wolves. The reported 

tribal wolf harvest on off-reservation lands was zero. 

Expected Mortalities: All detected mortalities were within the levels expected when modeling 

was used to predict the impact of the harvest quotas on the population. For example, the 

depredation control harvest of76 was less than the 10% of winter count mid-range (85). Both 

the number of reported road kills and reported illegal kills were less in 20 12 than in 20 II. 
88 

Zone Closures: Successful wolf hunters and trappers were required to report harvested wolves 

within 24 hours. Zones were closed either when they were close to the harvest quota or had 

reached the harvest quota. Wolf harvest trends were reviewed daily to predict how soon the 

harvest might increase t o the quota an d , th ere ti ore, h ow soon the zone should be closed. 

Zone Date Closed 

I December 2 

2 November 16 

3 December 23 

4 November 16 

5 December 12 

6 December 14 

Wolf Harvest Distribution: Wolf harvest was distributed across occupied areas of the wolf 

zones, with harvest corning from 30 counties. 

Depredation Control Activities: The USDA Wildlife Services (USDA WS) was contracted to 

remove wolves from farms with depredation problems. Landowners were given permits for wolf 

removal where they have had problems on their land or nearby. USDA WS removed 57 wolves 

from farms with a history of depredation problems. A total of 129 permits were issued to 

landowners with a history of depredation problems or who owned land near such situations, and 

16 wolves were removed under authority of these permits. An additional three wolves were 

killed in the act of depredation by landowners without permits. Most of the depredation control 

wolf kills occurred in areas of Zones 1 and 3, where there has been a history of substantial 

depredation problems. For Zone 3, most of the depredation control wolf removals were 

associated with 2 farms, 1 of which was located near the Minnesota border. 

Wolf Management Revenue: Ear-marked revenues from wolf application fees and license 

purchases were roughly equivalent to the total costs of depredation compensation and the USDA 

WS depredation control contract. The revenue was $289,865.50. 

Dogs Reported Killed by Wolves: One pet dog and 7 hunting dogs (while hunting bears, 

bobcats, and coyotes) were reported killed by wolves in 2012. 

Depredation Compensation Costs: The amount of compensation to be paid for loss of 

livestock and dogs is estimated to be approximately $120,000 for the period of Aprill6 to the 

end of2012. 

Wolf Carcass Data: Teeth and female reproductive tracts were collected from registered 

wolves for data on age and reproductive status that will be useful for evaluating wolf population 

trends and impacts of seasons. Data are not yet available. 

Law Enforcement Visits with Public: Wardens across the state reported that they heard 

overwhelming support from most people they had contact with during the fall and winter wolf 

season, including both hunters and non-hunters who supported a managed wolf harvest. Overall, 

the season was a very positive experience for most who participated. Many deer hunters 
89 

commented on the importance of having a wolf season to reduce the population and were 

pleasantly surprised to see the high level of success amongst hunters and trappers. 

Law Enforcement Activity Report: 

15 

11 

30 

33 

5 

#of Other dead/injured wolves recovered: (car-kills. etc.) 

Plans Going Forward 

Wolf Permanent Rule: A request to go to hearings on a permanent rule was approved at the 

December 2012 NRB meeting as required by Act 169. The Act allows the emergency rule to 

remain effective until the permanent rule is adopted and gives no deadline for adoption. The 

draft permanent rule is basically a replica of the emergency rule; however, the department and 

board will consider amending the rule based on tribal and public feedback. The plan at this point 

is to hold public hearings in the winter of2014 and request board approval in June 2014 at the 

same time as approval is sought for the revised Wolf Management Plan and the proposed 2014 

harvest quotas. 

Wolf Management Plan Revision: The department's goal is to draft an updated wolf 

management plan for approval in June 2014. Preliminary plans call for gathering initial input 

from a roundtable of stakeholder group representatives, followed by drafting of a revised plan by 

a department wolf advisory committee, followed by additional meetings for feedback from the 

roundtable and through a number of public meetings. 

Wolf Surveys: Wolf survey blocks have been assigned to department staff and/or trained 

volunteer trackers for all blocks where wolves have been detected. Requests have gone out to 

department staff and potential volunteers to report any wolves detected in unassigned blocks, 

with observations followed up for verification. The department's intent is to get as complete a 

winter count as possible. 

Quotas for 2013: Wolf count data should be compiled in April. The department wolf advisory 

committee will be asked to develop quota recommendations in late April or May. The Natural 

Resources Board will be asked to approve quotas in June. The state drawing for hunting and 

trapping license will occur in August. Tribal declarations will be needed by the end of July. The 

2013 season starts on October 15. 
90 

Abstract 

Wisconsin Wolf Season Report 

2013-14 

Wisconsin wolf hunters and trappers harvested 257 wolves during the 2013-14 season. This 

was a 119% increase from the 2012-13 harvest of 117 wolves. The 2013-14 harvest was 

comprised of 134 males and 123 females. 

Background 

Wisconsin requires non-Chippewa hunters and trappers to obtain a wolf permit to harvest a 

wolf. Permits are issued through a 2 stage process. The first 50% of permits are issued 

through a random lottery in which all applicants are entered. The second 50% of permits are 

issued based upon the cumulative preference points of applicants which give unsuccessful 

applicants from prior years a greater chance to obtain a permit. Each permit allows the harvest 

of one wolf by any legal method. Legal methods include trapping with foothold traps and cable 

restraints, hunting with the use of electronic calls, bait and the aid of dogs. 

Wisconsin's wolf season opens on October 15t" of each year. Trapping with foothold traps and 

hunting with the aid of bait and calls are legal throughout the season. Trapping with cable 

restraints and hunting with the aid of dogs become legal methods on the Monday following the 

gun deer season, in 2013 these became legal methods on December 2"d. The state is divided 

into 6 wolf management zones (Figure 1). Wolf permits authorize hunting and trapping in any 

open zone. The Department has the authority to close wolf zones as zone specific quotas are 

reached. If quotas are not met the season closes on February 28"'. 

Methods 

Wisconsin requires state-licensed wolf hunters and trappers to register their wolf using a 2 stage 

registration process. Within 24 hours of harvest, permit holders are required to inform the 

Department by phone of the location, sex and method used. This information is used to track 

harvest by unit and make unit closure decisions. By the 5th day of the month following harvest, 

hunters and trappers are required to present the pelt and skinned carcass to the department for 

final registration and tagging of the animal. The department collects a pre-molar for aging 

purposes, a genetic sample, and a reproductive tract from females. 

Results 

Wolf season 

Of 16,672 total applicants (table 1 ), 2,510 (15.1 %) received authorization to purchase a wolf 

permit. The state-wide wolf quota was set at 275 with 251 available to state license holders, the 

total wolf harvest in the 2013-14 season was 257 representing a 32.4% harvest rate (table 2) 

compared to 117 in the 2012-13 season. Males comprised 52.1% (134) and females 47.9% 
91 

(123) of the total harvest. Wolf harvest was distributed across the 6 management units 

according to unit specific quotas (table 2, figure 2). 

Of the 257 wolves harvested, trapping with foothold traps accounted for 180 (70.0%), 77 

(30.0%) wolves were harvested by hunters. Of the 77 wolves harvested by hunters, 35 (13.6%) 

were hunted with the aid of dogs. One wolf was harvested with archery equipment; fireann was 

the method of harvest for all other animals (table 3). No wolves were harvested with the use of 

cable restraints. 

All zones opened to wolf harvest on October 15'". The first zone closure (zone 2) occurred on 

October, 23"\ the final zone (zone 3) closed on December 23n:l (table 2). The 2012-13 season 

also closed on December 23n:~, however the rate of harvest early in the 2013-14 season was 

greater (figure 3). 

Biological Sample Collection 

Successful license holders are required to submit wolf carcasses to the Department. The 

primary objective in carcass collection is to obtain biological samples. Carcass collection and 

handling procedures were designed for this purpose, not as an investigatory tool. A genetic 

sample and a tooth for aging was collected from every carcass received. A reproductive tract 

was collected from every female. 

At the time of registration, both the pelt and carcass are available for inspection by trained DNR 

personnel conducting the registration. This provides an opportunity to evaluate the animals for 

evidence of harvest violations. Given the heightened public interest in wolf hunting with the aid 

of dogs, the Department conducted an additional evaluation of a sample of carcasses to assess 

potential dog related injuries to wolves. This evaluation was led by the DNR wildlife 

veterinarian, assisted by the DNR wildlife health section chief, an investigative warden, a USDAWildlife Services damage specialist, and the DNR large carnivore specialist. 

Twenty seven skinned carcasses were examined. The outer exposed tissue layer of the 

carcasses was severely desiccated. Due to the condition of the carcasses, subcutaneous 

hemorrhaging and edema, as well as presence or absence of injuries that didn't extend further 

into the muscle layers could not be assessed. Evaluation of these carcasses was inconclusive. 

One evaluation was conducted of a carcass with the pelt removed only from the shoulder and 

head. The cause of death for this wolf was a bullet wound but the carcass showed evidence of 

minor trauma consistent with bite wounds which occurred prior to death. Available evidence did 

not allow for conclusive detennination of the species responsible for the bite wounds. Law 

enforcement personnel investigated the events surrounding the harvest of this animal and found 

no evidence of a violation. 

Trauma consistent with gunshot wounds was found in all carcasses. 

Law Enforcement Activities 

Department law enforcement personnel conducted a total of 31 wolf hunting/trapping related 

investigations and issued 21 citations during the 2013-14 wolf season (table 4). 
92 

Figure 1: Wolf management zones 

CJ Wolf Management Zones 

• Zero Quota Areas 

~Area Closed 

DCounty 
93 

Table 1: Wolf permit applications 

Table 2: Wolf quota, harvest and closure date by management zone. 

Zone 2013 off 

reservation 

winter count 

mr 'd . t -porn 

1 '' 

2 154 

3 

4 25 

5 

6 33 

Total ' .. . 

Total 

quota 

" 

., 

'' 31 

13 

33 

Statelicensed 

quota 

~ 

28 

12 

30 

Table 3: Method of harvest by management zone. 

Harvest 

,, 29 

12 

29 

Harvest 

Rate as% 

of winter 

coun t 

18.8 . .. 48.0 

,_," 

87.9 

''§)- I 

Closure 

date 

10123/13 

11/S/13 

11/7113 

Unit Gun Bow Foothold 

T 

With the aid Total 

rap 0 fD 

1 . I I 

2 5 24 

3 

4 1 11 

5 

6 5 24 

Total I ... •. 

Table 4: Summary of law enforcement activity during the wolf season 

# Hunting related complaints received: 

#of Wolf Trapping related complaints received: 

#of Wolf related Investigations conducted: 

#of Hunting related citations issued: 

#of Trapping related citations issued: 

#of Verbal Warnings Issued: 

ogs 

29 

12 

29 
94 

0 12.5 25 

518114 

WDNR 

Figure 2: Location of 2013 wolf harvest and control mortalities. 

fli 2013 Wolf Harvest 

• 2013 Woff Contm! MPf'!alihes 

Wolf Harvest Zone 
95 

"t1 

., 

-5 

.. 

f 

.. 

0 

6 

'0 

'$. 

100 

90 

80 

70 

60 

so 

40 

30 

20 

10 

a 1 4 7 10 13 16 19 22 25 28 31 34 37 40 43 46 49 52 55 58 61 64 67 

Day 

Figure 3: Rate of harvest in the 2013-14 and 2012-13 wolf seasons 

--2012-13 

--2013-14 
96 

Wisconsin Wolf Season Report 

2014-15 

David MacFarland and Jane Wiedenhoeft 

Wisconsin wolf hunters and trappers harvested 154 wolves during the 2014-15 season. This 

was a 60% decrease from the 2013-14 harvest of 257 wolves. The 2014-15 harvest was 

comprised of 87 males and 67 females. 

Background 

Wisconsin requires state-licensed hunters and trappers to obtain a wolf permit to harvest a wolf. 

Permits are issued through a 2 stage process. The first 50% of permits are issued through a 

random lottery in which all applicants are entered. The second 50% of permits are issued 

based upon the cumulative preference points of applicants which give unsuccessful applicants 

from prior years a greater chance to obtain a permit. Each permit allows the harvest of one wolf 

by any legal method. Legal methods include trapping with foothold traps and cable restraints, 

hunting with the use of electronic calls, bait and the aid of dogs. 

Wisconsin's wolf season opens on October 15111 of each year. Trapping with foothold traps and 

hunting with the aid of bait and calls are legal throughout the season. Trapping with cable 

restraints and hunting with the aid of dogs become legal methods on the Monday following the 

gun deer season, in 2014 these became legal methods on December 151• The state is divided 

into 6 wolf management zones (Figure 1). Wolf permits authorize hunting and trapping in any 

open zone. The Department has the authority to close wolf zones as zone specific quotas are 

reached. If quotas are not met the season closes on February 28'h. 

Methods 

Wisconsin requires state-licensed wolf hunters and trappers to register their wolf using a 2 stage 

registration process. Within 24 hours of harvest, permit holders are required to inform the 

Department by phone of the harvest location, sex and method used. This information is used to 

track harvest by unit and make unit closure decisions. By the 5th day of the month following 

harvest, hunters and trappers are required to present the pelt and skinned carcass to the 

department for final registration and tagging of the animal. The department collects a pre-molar 

for aging purposes, a genetic sample, and a reproductive tract from females. 

Wolf season 

Of 9,334 permit applicants, 1,500 (16.1%) received authorization to purchase a wolf permit. An 

additional 5,005 individuals applied for a preference point bringing the total number of applicants 

to 14,339 (table 1). The state-wide wolf quota was set at 156 with 150 available to state license 
97 

holders, the total wolf harvest in the 2014-15 season was 154 representing a 23.8% harvest rate 

(table 2) compared to 257 and 32.4% in the 2013-14 season. Males comprised 56.5% (87) and 

females 43.5% (67) of the total harvest. Wolf harvest was distributed across the 6 management 

units according to unit specific quotas (table 2, figure 2). 

Of the 154 wolves harvested, trapping with foothold traps accounte!j for 124 (80.5%), and 30 

(19.5%) wolves were harvested by hunters. Of the 30 wolves harvested by hunters, 6 (3.8%) 

were hunted with the aid of dogs. Three wolves were harvested with archery equipment; 

firearm was the method of harvest for all other animals (table 3). No wolves were harvested 

with the use of cable restraints. 

All zones opened to wolf harvest on October 15'h. The first zone closure (zone 2) occurred on 

October, 18'h, the final zones (zones 3 and 6) closed on December 5'h (table 2). The rate of 

harvest in the 2014-15 season was faster than experienced in the previous 2 seasons (figure 3). 

Biological Sample Collection 

Successful license holders are required to submit wolf carcasses to the Department. The 

primary objective in carcass collection is to obtain biological samples. A genetic sample and a 

tooth for aging was collected from every carcass received. A reproductive tract was collected 

from every female. Data analysis will be completed by summer 2015. 

In response to concerns over the use of dogs in wolf hunting, the Natural Resources Board 

directed the DNR to establish a voluntary program to evaluate wolf carcasses at the time of pelt 

removal. The purpose of this program was to provide additional information on the prevalence of 

bite related injuries in harvested animals. Successful hunters and trappers were asked if they 

would like to participate during the call in registration process. Personnel from USDA-Wildlife 

Services traveled to the participant and collected information as the pelt was removed from the 

animal. Eight evaluations were conducted with no bite related injuries observed. All 8 animals 

were harvested with the use of foothold traps. 

Law Enforcement Activities 

Department law enforcement personnel conducted a total of 19 wolf hunting/trapping related 

investigations and issued 6 citations during the 2014-15 wolf season (table 4). 
98 

Figure 1: Wolf management zones 

D Wolf Management Zones 

• Zero Quota Areas 

~Area Closed 

County 
99 

Table 1: Wolf permit applications 

Table 2: Wolf quota, harvest and closure date by management zone. 

Zone 2014 off Total State- Harvest 

reservation quota licensed 

winter count quota 

mid- oint 

1 

2 16 15 29 

3 

4 9 8 5 

5 

6 36 35 36 

Total 

Table 3: Method of harvest by management zone. 

Unit 

2 

3 

4 

5 

6 

Gun 

2 

1 

5 

Bow Foothold 

Trap 

.27 

4 

2 24 

Total , '· a wolves harvested by gunshot with the aid of trailing hounds. 

Harvest 

Rate as% 

of winter 

count 

20.9 

27.8 

128.6 

Gun -with 

the aid of 

Dogs• 

5 

Table 4: Summary of law enforcement activity during the wolf season 

Closure 

date 

Total 

29 

5 

36 

~~~~~i:;';';;i:~~:;;;t;;~';;=:d::-"JO.ct_. ~~~~N~ov-.• ·D~e~c~. ~~~~J~an 111111F~e~b~. lliiTotal # of Wolf Hunting related complaints received: 

#of Wolf Trapping related complaints received: 

#of Wolf related Investigations conducted: 

# of Hunting related citations issued: 

#of Trapping related citations issued: 

#of Verbal Warnings Issued: 
100 

N 

A 

3126115 

WD!IlR 

Figure 2: Location of 2014 wolf harvest and control mortalities. 

• 2014-Wo.fftiWRit 

• li'l14 'NU!f:C Gttl'mi M'Crtd'Mre$ 
101 

100 

... 90 .. .c 80 u 70 "' ~ 60 

'0 "' 50 

a 40 

'!; 30 

If. 20 

10 

0 

T 

... - .,., _, 

.......,..- r" - / "" I / /" 

-"-

I / / 

I / ~ 

If / 

·1// 

{!-,/ 

147WU~~llBDll~n~~%~~~~hlM~m 

Day 

Figure 3: Comparative rate of harvest in Wisconsin's first 3 wolf seasons 

--2012-U 

--20U-14 

-2014-15 
Wisconsin Annual Wolf Damage Payment Summary 

Cattle Pot 

""~' 

#Indicates the number of that species compensation was provided on. Note: Totals fndicate the number of animals and compensation paid In a calendar year which may or may nat be the same year the depn~datlon occurrad, 
103 

Wolf Harvesting Zones 

Key 

Primary Range 

Secondary Range 

U nsuitab!e Range 

• Zero Quota Areas 

Zero Quota Areas ~ \-Volf harvest is not allowed within the exterior boundaries of the Bad River, 

Lac Courte Oreilles, Lac du Flambeau 1 Menominee1 and Red Cliff reservations nor within the 

designated Stockbridge-!V1unsee wolf zone except with DNR depredation permits. 

Access to Fort McCoy is by special permit only. 
104 

Testimony of Ryan Klussendorf 

W2072 State Highway 64 

~edford,WIS4451 

Great Lakes Wolf Summit 

Cumberland, WI 

September 15, 2016 

Good Afternoon. My name is Ryan Klussendorf. I am a 41

h generation dairy farmer 

from Medford, WI. I own and operate a 100 cow rotational grazing dairy farm 

with my wife, Cheri, and three sons Kale, Owen, and Max. 

I am here to testify because, like so many other farms in Wisconsin, I have had a 

confirmed wolf depredation on my farm. I'm here to tell you about the gruesome 

attack that happened on my farm, and how my cow number 2042 was bit in the 

back leg and drug down from behind by a pack of wolves. It is hard to believe it 

happened six years ago, and yet this single attack still impacts every decision we 

make for our cattle and our farm management practices continually revolve 

around it. 

After cow number 2042's tendons and ligaments in her back legs were severed, 

the pack started eating her soft tissue while she was alive, but she eventually 

succumbed to her lethal injuries. The blood bath in the field was large and it was 

hard to identify her. The tags from her ears were 100 feet from her blood-stained 

corpse. For all of you this is the beginning of my story •.. but for me it started 

months before. 

Our nightmare began in the middle of June 2010. We moved a group of young 

spring calves out to pasture for the summer. The calves all born between 

February and April were put in a paddock close to the barn. These calves were 

moved to new pasture and fed grain twice a day. They were used to human 

contact and were very friendly. 

On July 2nd we received a phone call at 3:55AM from the Taylor County Sheriffs 

Department. They had a report of a large group of young cattle in the roadway 

about a quarter of a mile from our farm. We were up, dressed and outside in a 
105 

matter of minutes. We went out to the roadway and brought the agitated, sweatcovered calves from the roadway back to their pasture. Several more times on 

early July mornings we found these spring calves separated into groups out of 

their paddock but still on the farm. 

In August we were awaken twice by passing motorist and notified that our calves 

were out in the roadway. On August lOth at 2:15AM we received a phone call 

from the Taylor County Sheriff's Office that our calves were again in the roadway. 

We were able to herd the calves off the road but could feel a sense of fear in 

them. They seemed to be attracted to lights and were uncontrollable. We offered 

grain to the calves but as soon as we moved around to count them they would 

spook and run. 

While I was tending to the calves, my wife Cheri was being issued a citation for 

animals at large. By this time, we believed- incorrectly- the calves were being 

chased by coyotes. As Cheri tried to explain this to the officer, she was told that 

we had inadequate fences, this was not the first time law enforcement was called 

out, and to contact the DNR for help with the wildlife. 

This is the first time I really felt I was fighting a losing battle. Our cattle are our 

most valuable investment and sole income generators on the farm. Each time 

there are cows on the road there is a very real possibility one could get hit. I kept 

asking myself, "What if it caused an accident, maybe even the death of the cow? 

Or even worse, a person?" This is an extremely serious public safety hazard and a 

huge liability I take each and every night I put cows on pasture. The sole reason I 

was able to start farming at age 21 was my ability to keep my overhead cost low 

by grazing my cattle. That day I also realized exposing my cattle to normal grazing 

practices- under the threat of wolf predation -could also ruin my life. 

I certainly couldn't blame these calves. If I was running for my life, I would also 

run through a fence and head for the first car or light I could find. Not only was I 

being tormented by a pack of wolves, but now I felt like I, and my wife, were 

being treated as a second-class, law-breaking citizen by my county sheriff's 

department. 

We decided to fight the citation and go to trial. Having farmed all my life, I was 

confident I had adequate fences to contain our livestock, and we made changes 
106 

to the way we farmed, including keeping our calves closer to the buildings, but 

nothing we did helped. When we were approached by the District Attorney to 

pay the fine or go to trial we expressed our problem with wildlife to him but were 

told "there is nothing I can do for you, buy a gun." 

To bring my story full circle, on the morning of November Jlh we got up and 

headed to the barn to start chores. The first thing we noticed were cows in the 

barn yard waiting to be milked, but this was highly unusual as I normally have to 

go out to the pasture to get them. That morning, as I made my way out to pasture 

to bring the rest of the cows in, I found cow 2042. She might only be one cow to 

you, but she was my cow. She was a 3-year old cow, a good milker, and ready to 

calve the next spring. That day I didn't only lose a cow but every calf she could 

have had in the years to come, and all the milk she could have produced. Each day 

my cows produce milk we pour on cereal in the morning and fill our cups with at 

supper each night. It is my responsibility as their farmer to keep the cows happy, 

healthy, and safe and that day I failed them. 

On November nth, the charges of animals at large were dismissed, and we 

received an apology from the Sheriff's department. That was the worst summer 

of my life, and it still affects me every day. My stomach sinks if the phone rings 

after 9 pm. At night we have our window open no matter what time of year. I 

listen to each car go by and make sure they don't slow down. There are times that 

I spring out of bed at night thinking someone was knocking on the door only to 

figure out it is the ice maker in the kitchen dropping the ice. I am not an expert on 

wolves, but I am an expert on how one pack of wolves can torment you, threaten 

your livelihood and haunt you until you just want to give up. 

Our cows are now within 200 feet of the buildings on our farm each night. Our 

calves are no longer out on pasture at all. The cost has been financially 

burdensome due to additional feed management and manure hauling, and 

emotionally burdensome with increased health and stress levels for us and our 

animals. 

I am a husband, a father, and a farmer. Right now I cannot protect my cows and 

my family's livelihood without the risk of being prosecuted. Help Wisconsin 

farmers by removing the grey wolf from the endangered species list and get back 
107 

to a state-run management plan that accomplishes a population goal of 350 or 

less. 

I don't think a federal judge, and most others who do not farm and care for 

livestock, can truly understand and appreciate the emotional tow and financial 

burden that wolf depredation can have on a farmer, their family, and their small 

business. Cow 2042 might only be one cow to you, but she was one of the reasons 

I get out of bed each morning, and still is the subject of my nightmare every night. 

Thank you. 
108 

Warning 

Wolf Depredation Photos are graphic in nature 
109 
110 
111 
112 

lt 

-J :::. 

':;::. :--

"""'"" 
113 
114 

,if 

·;o 

~ 

':l 

'\::) 

~ 

~ 'C) 

" 

~ 

""' "{: 

"i 

~ ~ 

~ 

~ \) ('i 
115 
116 
117 

Senate Environment and Public Works Committee 

Hearing entitled, "Oversight: Modernization of the Endangered Species Act" 

February 15,2017 

Questions for the Record 

President James Holte 

Ranking Member Carper: 

I. If you were in our shoes, what would you do to find consensus for proposed changes to the 

ESA? 

Answer: Senator Carper, there are several opportunities for consensus on the issue of the ESA. 

The largest issue the must be identified is the need to work with landowners to really make the 

ESA function for all parties. Landowners must be consulted to discuss the areas of concern and 

challenges they have with the current ESA, what changes they recommend to help alleviate 

heavy burdens on them while balancing the need to preserve habitat and populations of 

endangered species. 

These conversations need to occur with lawmakers truly LISTENING to these concerns by 

people whose livelihoods are dependent upon the land. This may mean that lawmakers must 

listen to citizens outside of their normal constituent base. Urban citizens often have a much 

different view of the realities that rural citizens face daily. This must be addressed when 

determining how to best modernize the Endangered Species Act to work for landowners and 

endangered species protection because the current system does not function properly. 

2. Please identify three (3) areas where there is the greatest opportunity to find consensus for 

changes in the ESA. 

Answer: 

• Working lands conservation- There must be an incentive basis established for farmers to 

participate in order to providing habitat for endangered species. Often these agreements 

can be established but there must be proper incentives for the changes that will take place 

to the farmer/rancher's operation. This can be accomplished by private partnerships with 

landowners as well as identification of opportunities for voluntary conservation practices 

that help preserve habitat. With 70 percent of listed species residing on private land, there 

must be a better incentive for farmers and ranchers to willingly participate. 

• Identify guidelines for placing limitations and a minimum standard for listing new 

species. USFWS is required to address every inquiry or request they receive for new 

species listing, regardless of the evidence presented or validity of the claim. These are 

vital resources that could be focused toward more productive efforts. There should also 

be a refocus of the entire ESA to concentrate on species population recovery and the 

criteria for de listing. This has been woefully inadequate with the statistics of over I ,600 

species that have been listed throughout the history of the ESA and less than 2% of those 

have been delisted in over 40 years. There must be a refocus on species population 

recovery. 

• Transparency and State Wildlife Agency Involvement. Those that work closest to the 

land know it best. This is true for both farmers and those in the state wildlife agencies. 

These two groups are integrally involved in conservation and species awareness at the 

local level. Wisconsin has their own State Endangered Species List and I reference in my 

testimony that during the last revision, 15 species were de listed and only 9 were listed. 

That shows an understanding of what is happening at a local level and a positive 

engagement with wildlife, their habitat and their recovery. 
118 

Both fanners and wildlife agencies should be in integral part of the conversation and 

detennination of what conservation plans and ESA decisions are made in their backyard. 

They should not be swooped down upon by broad sweeping mandates that may or may 

not function well for their individual situation. There are nuances in every situation that 

are known best by those that have their boots on the ground locally. The same objectives 

can be met with a little flexibility and creative ingenuity. Farmers have a lot to offer to 

this conversation and should be included from the very first step of the decision-making 

process. 

Senator Wicker: 

3. Like you, I come from a state with strong interests in the private property rights of fanners and 

other working lands. The biggest problems for landowners under ESA seem to be that having a 

listed species on your land is a legal liability and very costly. Is there a way to shield these 

property owners tram litigation and create financial incentives to help recover species? 

Answer: There is an opportunity to provide both financial incentives and shield property owners 

from legal liability while helping recover species. These issues are listed below: 

• Financial Incentives: Working lands conservation- There must be an incentive basis 

established for farmers to participate in order to providing habitat for endangered species. 

Often these agreements can be established but there must be proper incentives for the 

changes that will take place to the fanner/rancher's operation. This can be accomplished 

by private partnerships with landowners as well as identification of opportunities for 

voluntary conservation practices that help preserve habitat. With 70 percent of listed 

species residing on private land, there must be a better incentive for farmers and ranchers 

to willingly participate. 

• Legal Liability: We have started down a slippery slope as recent species listings have 

started to tread closer and closer to what private landowners can and cannot do with their 

property. This movement needs to be reined in and revised with more of a carrot v. stick 

approach. Revision of the habitat conservation listing agreement to include a reduction 

tor litigation risk is essential. Farmers and ranchers assume all the risk with the 

agreements, therefore, these agreements should provide assurances to those that are 

taking the risks. In addition, these risks should include better pay and incentives to meet 

conservation requirements. Many of the practices necessary to protect habitat require a 

change in fanning/ranching practices and that requires time, labor, reconfiguring fann 

management strategies, all things that have a monetary implication. If the federal 

government truly wants to protect and revive endangered species populations, there must 

be a fair, market-based, monetary compensation provision created and provided for those 

actions. 
119 

Senator BARRASSO. Thank you very much, Mr. Holte, for your 

compelling testimony. We appreciate you sharing your story. 

Our next witness is Hon. Jamie Rappaport Clark, President and 

CEO of Defenders of Wildlife. 

Thank you very much for joining us today. We look forward to 

your testimony. 

STATEMENT OF JAMIE RAPPAPORT CLARK, 

PRESIDENT AND CEO, DEFENDERS OF WILDLIFE 

Ms. RAPPAPORT CLARK. Thank you, Mr. Chairman, Ranking 

Member Carper, and other members of the Committee. 

I am Jamie Rappaport Clark, President and CEO of Defenders 

of Wildlife, a national, nonprofit conservation organization dedicated to the protection of all native animals and plants and their 

natural communities. 

From 1997 to 2001 I served as Director of the U.S. Fish and 

Wildlife Service under former President Bill Clinton. For 16 years 

prior to that I was a wildlife biologist for both the Department of 

Defense and the Department of the Interior. 

Thank you for the opportunity to present the views of Defenders 

at today’s oversight hearing on modernizing the Endangered Species Act. 

For almost 45 years now the Endangered Species Act has protected our most imperiled species helping bring back the bald 

eagle, the American alligator, the Steller sea lion, the peregrine falcon, and many others from the brink of extinction. 

It is a law that once enjoyed amazing bipartisan support. It 

passed the Senate in 1973 unanimously. It is a law that American 

people still support. A national poll conducted just last December 

found that 81 percent of voters believed that saving at risk wildlife 

from extinction is an important goal for the Federal Government. 

It is a law that many other countries look to as a model for expressing their own commitment to future generations. 

When President Nixon signed the Endangered Species Act into 

law, it represented the collective determination of the American 

public that we would not sit by and watch our species go extinct. 

It is a law that embodies a lofty vision of protection and preservation of species grounded in clear conservation principles. 

Simply put, the Endangered Species Act works. It is important 

to remember that the Act is a tool of last resource to save species, 

the final measure when all others have failed to protect plants and 

animals on the brink of extinction. 

It is an alarm bell that sends a warning signal about the state 

of our natural world, giving us an opportunity to find ways to save 

imperiled species and their habitat, plan for their recovery, and be 

responsible stewards of our environment. 

Endangered species and the plants put in place to restore them 

are increasingly presented as barriers or annoyances to unfettered 

development or unchecked planned use activities. The Act has become a lightning rod for those who want less oversight and less 

protection from government. 

That is not what the American people want for our wildlife, 

which brings us to today’s oversight hearing. In my over 35 years 

of experience, talk of modernizing the Endangered Species Act has 
120 

amounted to one thing—a euphemism for undermining and weakening the statute. 

In just the past 2 years in this Congress we have seen over 130 

bills or riders proposed that all without exception would have 

weakened or undermined the Act and its purposes veering away 

from the American value of conservation and protection for future 

generations. 

The Endangered Species Act is not broken. It does not need to 

be fixed. In fact it is enormously flexible. It has been improved by 

continuous administrative reforms that have made the law work 

better, both for the species it is designed to protect and for the 

landowners and other stakeholders affected by its provisions. 

Federal agencies have made significant advances in implementing the Act from habitat conservation plans that integrate development and species conservation to candid conservation agreements with assurances that provide upstream solutions and regulatory certainty to landowners. That process is continuing. 

Defenders is deeply engaged in thinking through new ways to 

make the Act work better and to make it more transparent for all 

stakeholders. 

It is also important to remember that for many species recovery 

occurs not over years or months but over decades. We cannot rush 

nature toward recovery, but we can rush its destruction by weakening the single greatest tool we have to protect it. 

The Act’s strength is in its simple purpose, to prevent the extinction of threatened and endangered species and to promote their recovery. Local, State, tribal, and Federal agencies working with interested stakeholders continue to do some innovative, cutting edge 

work that guarantees the best chance for species survival. 

The biggest problem the Endangered Species Act faces is not a 

need for modernization. It is a need for funding. Conflict surrounding the Act arises when government agencies lack the resources to fully implement the law. 

Starving the Federal and State agencies that are committed to 

preventing species extinction and providing for the diversity of life 

across our country seriously undermines the goals of the law. 

This debate should not be about the law. Rather, it should be 

about our commitment to its purposes and goals. Once a species is 

gone, it is gone forever. Let us not be the generation that bears the 

inglorious reputation of condemning our species to irrevocable extinction. We can and must do better for our children and grandchildren. They deserve it. 

Thank you. 

[The prepared statement of Ms. Rappaport Clark follows:] 
121 

Testimony 

of 

JAMIE RAPPAPORT CLARK 

PRESIDENT & CEO 

DEFENDERS OF WILDLIFE 

before the 

COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS 

U.S. SENATE 

on 

Oversight: Modernization of the Endangered Species Act 

February 15, 2017 
122 

Good morning Chairman Barrasso, Ranking Member Carper and Members of the Committee: 

My name is Jamie Rappaport Clark and I am the President and CEO of Defenders of Wildlife, a 

national non-profit conservation organization dedicated to the protection of all native animals and 

plants in their natural communities. Thank you for inviting me here today to speak about my 

experience conserving imperiled wildlife under the Endangered Species Act (ESA). 

For 70 years, Defenders of Wildlife has protected and restored imperiled species throughout North 

America by establishing on the ground programs at the state and local level; securing and improving 

state, national, and international policies that protect species and their habitats; and upholding legal 

safeguards for native wildlife in the courts. We represent more than 1.2 million members and 

supporters. 

Before coming to Defenders of\Vildlife, I spent 20 years working in conservation as a wildlife 

biologist in the federal government, first at the Department of Defense and then at the Department 

of the Interior. From 1997 until2001, I served as the Director of the U.S. Fish and Wildlife Service 

(FWS) under President Bill Clinton. In that role, I oversaw the implementation of the ESA and 

presided over the recovery and deli sting of key endangered species including the bald eagle, the 

Aleutian Canada goose and the peregrine falcon. During my confirmation hearing before this 

committee almost 20 years ago, I pledged to increase the FWS's role in cooperative approaches to 

species conservation. I firmly believe that involving stakeholders and other federal and state agency 

expertise early on reaps long-term benefits for fish and wildlife resources and the economy. As 

detailed in my testimony, I remain convinced that such collaborative projects can be accomplished 

under the authority of the ESA in its current form. 

The ESA is not broken and does not need to be fixed - or, in the vernacular of the hearing 

"modernized." For more than 40 years, the ESA has been successful, bringing the bald eagle, the 

American alligator, the Stellar sea lion, the peregrine falcon and numerous other species back from 

the brink of extinction. Based on data from the FWS, the ESA has saved 99 percent of listed species 

from extinction. In its 44-year history, only 10 listed species have been officially declared extinct. 

Moreover, the ESA is in fact enormously flexible. Simply put, the ESA works. It has been improved 

by continuous administrative reforms that have made the ESA work better- both for the species it 

protects and for landowners and other stakeholders affected by its provisions. The Services have 

made enormous advances in implementing the ESA, from habitat conservation plans that integrate 

development and species conservation to candidate conservation agreements with assurances that 

provide regulatory certainty to landowners. And that process is continuing. 

As this testimony emphasizes, the most important thing Congress can do to improve the ESA's 

effectiveness is to fully fund it. The current fiscal starvation must end. For the ESA to work as 

effectively as was intended, the agencies charged with overseeing and implementing it simply must 

have the necessary resources to achieve its visionary purposes and goals. Congress must provide 

adequate resources not change the structure of this successful and popular law - to help realize the 

ESA's full potential. 
123 

A Visionary Law: The ESA's Values and Purpose Remain Strong Today 

So many of the conservation successes I've witnessed during my career can be attributed to the 

Endangered Species Act- a law that has withstood the test of time thanks to its solid grounding in 

shared conservation values. The preamble to the ESA rccot,>nizcs that endangered and threatened 

species of wildlife and plans "arc of esthetic, ecological, educational, historic, recreational, and 

scientific value to the Nation and its people."' The intrinsic value placed on the presence of diverse 

and abundant plant and animal species on the landscape has long been hailed as a fundamental 

American principle. That value has been shared throughout centuries of U.S. conservation history by 

Native American tribes, western settlers, hunters and anglers, property owners, scientists, 

conservation professionals and the average American citizen. In addition to their intrinsic value, 

many threatened and endangered species provide tangible services and benefits to humans, playing 

valuable roles in providing us with clean water, food, medicines and more. 

The sudden extirpation of the passenger pigeon at the turn of the 20th Century- a bird that had 

numbered in the billions just decades prior- underscores that without adeguate safeguards, even the 

most common species can vanish forever in the blink of an eye. By the 1960s and 70s, the urgent 

need to address lethal threats to imperiled species catalyzed existing public support for wildlife 

conservation, culminating in the enactment of the ESA in 1973. When President Richard Nixon 

signed the ESA into law, he reflected on public conservation values, recognizing that "Americans 

are more concerned than ever with conserving our natural resources," including "an irreplaceable 

part of our natural heritage- threatened wildlife." The values enshrined in the ESA still reflect the 

American public's strong commitment to wildlife conservation. 

Far from being a controversial law, the ESA was enacted nearly unanimously with strong bipartisan 

support. Robust public support for the ESA has remained strong throughout the years. A July 2015 

poll conducted by Tulchin Research on behalf of Defenders of Wildlife and Earthjustice revealed 

that 90 percent of American voters support the ESA. This support extended across gender, age, and 

political lines, with the law being backed by overwhelming majorities of self-identified liberals (96 

percent support), moderates (94 percent), and conservatives (82 percent).' A poll from December 

2016 conducted by Hart Research on behalf of the Center for American Progress revealed that 81 

percent of American voters agree that saving at-risk wildlife from going extinct is an important goal 

for the federal government.' 

The ESA is also notable for its strong, yet simple purpose: to prevent the extinction of threatened 

and endangered species, conserve the ecosystems they depend on, and promote their recovery. This 

broad purpose bas allowed the oversight agencies to adapt and improve upon the law over the years 

through administrative actions. The ESA was intended to be a strong, yet flexible statute that 

prioritizes the conservation and recovery of threatened and endangered species, while 

simultaneously permitting activities, where appropriate, in imperiled species' habitat. This permitting 

regime is enshrined in Sections 7 and 10 of the Act, and it has been implemented with tremendous 

flexibility. 

1 National Oceanic Atmospheric Administration, Full Text of the EJA, 

http://www.nmfs.noaa.gnv/pr/laws/csa/text.htm. 

2 Tulchin Research, Poll Finds OJJenPhelming, Broad-Based Support for the Endangered Species Act Among Voter.r r-v-atiomJJide,July 6, 

2015, http: I I www.dc fcndcrs.org lpu blications IDcfcndcrs·of-Wildlife-National-ESi\-Survcy.pdf. 3 Hart Research, CAP Ene'KIIEnvirrmment/ Climate Voters Survey, Dec. 2016, 

https:/lcdn amcricanpro~>ress.org/content/uploads/2017/01/18040011/FI-Ci\P-Energy-Enviro-Dcc2016.pdf. 

2 
124 

Partly because of this flexibility, the ESA has accommodated many human activities. For example, a 

recent peer-reviewed study by ESA experts at Defenders of Wildlife revealed that between 2008 and 

2015, the FWS conducted over 88,000 consultations under Section 7 .' Out of those consultations, 

only two were deemed to "jeopardize" a species and neither project was stopped. Administrative 

adjustments to the ESA over the years have increased flexibility for developers and private 

landowners alike, while reaffirming its foundational goal of species conservation and recovery. 

The drafters of the ESA also recognized that successful species conservation and recovery must rely 

on sound science, and thus re9uired that all key decisions made under the ESA be based on the best 

available science. This re9uirement ensured there would be no political interference with identifying, 

protecting and recovering threatened and endangered species. The 2015 Tulchin poll showed that by 

a margin of nearly 4-to-1, a strong majority of voters said that decisions about which species should 

be protected under the ESA should be science-based and made by FWS biologists, rather than 

Congress.' With a March for Science scheduled on Earth Day this year, it's clear that public support 

for science-based research in policymaking is stronger than ever. 

The strong, clear values underlying the ESA are as American as apple pie and its goals are just as 

sacrosanct as they were when the law was enacted in 1973. Just imagine- without the ESA, we 

would not have recovered our national symbol: the bald eagle. And countless other species 

important to the fabric of this nation would be lost forever. As stewards of our natural heritage, it is 

our duty to continue the critical work to fulfill the ESA's purpose and protect our natural wildlife 

heritage for generations to come. 

The ESA has Achieved Great Success 

The ESA's prescient vision is surpassed only by its on the ground successes. The statute has been 

incredibly successful in achieving one of its primary goals- preventing species extinction. In its 44-

year history, only 10 listed species have been officially declared extinct. According to the FWS's data, 

that translates to a 99 percent success rate in preventing the extinction of threatened and endangered 

species protected by the ESA. Scientists have predicted that 227 species would have gone extinct by 

2006 if not for the conservation measures of the ESA. 6 

The ESA has also made significant progress in achieving its goal of species recovery. Forty-seven 

species have been removed from the endangered species list due to recovery, including the iconic 

bald eagle, peregrine falcon, American alligator and brown pelican. Before the bald eagle became 

one of the first species to receive protections under a precursor to the ESA in 1967, biologists 

4 See Malcom, Jacob W.; Li, Ya-Wei, Data contradict tw;mon perceptions about a controversial provision of the US Endangered Species 

Ar~ Proceedings of the National Academy of Sciences, Dec. 29, 2015, available at: 

http:/ iW'I\'W.pnas.orv fcontentf112/52/15844. 

s See Tu1chin, note 2. 

6 See Goble, Dale D.; Scott,J. Michael; Davis, Frank W., The Endangered Species Ad at Thirl)•: Volume 1, Island Press, 2006, 

p. 31. 

3 
125 

estimated that there were barely 400 breeding pairs left in the continental United States.' As of 

2009, that estimate stands at over 15,000 breeding pairs, with an additional15,000 pairs in Alaska.' 

Species deli stings increased significantly under President Barack Obama, a true testament that, with 

time and attention, many species can and do recover if protected by the ESA. During its eight-year 

tenure, the Obama administration removed a record-setting twenty-nine species from the 

endangered species list- more than all previous administrations combined. In 2015, the FWS found 

that the Delmarva fox squirrel and the Oregon chub had both recovered. In 2016, the Service 

de listed sixteen species, including the Columbia whitetail deer, nine humpback whale populations, a 

Texas plant and three subspecies oflsland Fox located on California's Channel Islands. The ESA 

has also made significant strides in bringing endangered species back from the very brink of 

extinction, including the gray wolf, the wood bison, the California condor and the black-footed 

ferret. 

Despite being a miraculous antidote to extinction, the ESA cannot make miracles happen overnight. 

For many species, recovery takes a long time, particularly those clearly on the brink of extinction 

when finally afforded the protections of the ESA. For certain species, gestation periods are 

particularly long and birth rates are low. For example, Florida manatees usually bear one calf every 

13 months, and intervals between births range from two to five years.' Similarly, orcas typically bear 

just one calf at a time and the gestation period lasts for 15 to 18 months. 10 Grizzly bears are one of 

the slowest reproducing land mammals, with an extremely brief mating season and a 4-month delay 

of the implantation of eggs in the female's uterus. For other species, a pernicious and unforeseen 

threat such as white-nose syndrome plaguing numerous bat species may block an otherwise steady 

path to recovery. 

On the other hand, there have been several instances where the protections of the ESA have 

allowed biologists to address some discrete threat to a species, allowing delisting to occur relatively 

quickly. For example, the FWS was able to dclist the San Miguel, Santa Cruz and Santa Rosa Island 

foxes after only 12 years of ESA protection as a result of a focused island fox recovery program that 

included captive breeding and reintroduction of foxes, removal of resident golden eagles, reestablishment of bald eagles and removal of non-native ungulates." This story provides a compelling 

example of how a coordinated, organized and highly focused strategy under the ESA can recover a 

highly endangered species. 

The ESA is successful partly because it enables private conservation partners and non-profit 

organizations to also play a vital role in recovering species. These mission-based entities have 

bolstered the agencies' work to implement the ESA and recover threatened and endangered species. 

At Defenders of Wildlife, we have worked hard both in the field and in the policy realm to conserve 

species and their important habitat and improve the effectiveness of the ESA. For decades, we have 

'U.S. Fish and Wildlife Service, Bald Ea.~le Rtmot•edfrom Endangered Species Uri, :\farch 18, 2011, 

https: llwww. fws.gov /pacific I ceo services /BaldEagleDelisting.htm. 

El U.S. Fish and Wildlife Service, Bald and Golden Eagles: Population demographics and estimated .ru.rtoinable take in the United 

Stales, 201611jJdate, April 26, 2016, https://www.fws.gov /migratozybirds/pdf/mana?ement/Eag!eRuleRevisionsStatusRcport.pdf. 

9 National \X'ildlife Federation, W-'ut Indian Manatee Fact Sheet, http.s:/lwv."W.nwf.org/\V'ildlife/\V'ildlifeLibrarv /Mammals /VX/ est-Indian-1fanatcc.aspx. 10 Defenders of Wildlife, Orca Bm;c Facts, http://www.defenders org/orca/baslc-facts. 11 National Park Service, Channel Islands, https://\\."WW.nps.gov/chislleam/naturc/island-fox.htm. 

4 
126 

been working with lawmakers, conservation professionals, local communities and private 

landowners to develop innovative and effective methods for minimizing conflicts with imperiled 

predators, including wolves and bears. Our coexistence program has helped ranchers across the 

West address the presence of predators on the landscape through nonlethal deterrents, better animal 

husbandry practices and other innovative tools, minimizing conflict and building social acceptance 

for these species. In the Southeast, we have worked closely with the state of Florida, other 

conservation groups and private landowners to pave the way for recovery of the Florida panther 

while minimizing conflicts and increasing social tolerance throughout the densely populated state. 

And we have just recently launched the Center for Conservation Innovation to pioneer innovative, 

pragmatic solutions to enhance the effectiveness of endangered species conservation in the United 

States. For example, we are leading the way to develop the first web-based ESA recovery plan, 

which can be updated readily and regularly to reflect the best available science on a species. By 

relying on the power of data analytics, technology, and interdisciplinary approaches, the Center for 

Conservation Innovation will help federal and state agencies, as well as other interested stakeholders, 

take advantage of science and technological advances to improve how they implement the ESA. 

The ESA Does Not Need to be "Modernized" through Legislation 

As detailed above, the ESA has proven highly successful. It does not need legislative changes to 

meet its goals. Over the years, administrations of both political parties have been committed to 

improving the way the ESA is implemented. There have heen numerous successful efforts to truly 

improve the efficiency and effectiveness of the ESA through administrative actions. The ESA's 

flexible nature lends itself to these actions, all while staying committed to the purposes and goals of 

the law itself. 

While I was the Director of the FWS, I oversaw the issuance of several agency rulemakings that 

increased the ESA's flexibility and provided more certainty to private landowners. For example, the 

No Surprises Assurance rule increased landowner participation in habitat conservation plans by 

several fold, while the policies on safe harbor agreements and candidate conservation agreements 

with assurance remain some of our most popular voluntary landowner conservation tools. 

Under President Obama's Administration, the FWS issued numerous administrative reforms to 

improve the ESA's efficiency and conservation effectiveness. For example, the seven-year listing 

workplan enables the agency to prioritize listing reviews for over 300 candidate and petitioned 

species, while providing the public with greater clarity and predictability about the timing of listing 

deterrninations.12 FWS also recently revised its listing petition role, giving states a greater role in 

informing FWS's 90-day petition findings." 

Republican administrations have also finalized important updates to ESA policies and regulations. 

For example, in 2008, the FWS finalized guidance on the "recovery crediting system" to encourage 

voluntary recovery actions. And the Reagan Administration issued guidance on how the agencies 

should prioritize recovery and listing decisions. For most species, conserving them is all about 

conserving their habitat. For years, every administration has worked with mitigation banks to ensure 

12 U.S. Fish and Wildlife Service, The Service's Nati011al Listing Workplan, Last updated Sept. 7, 2016, 

htt;ps: 1/wv,rw,fws.gov /endangc.rcd/improvin~r ESA/listing workplan.html. 

" U.S. Fish and Wildlife Service, Petition Regulations, Last updated Dec. 8, 2016, 

https://w\11\V.fws.gov/endangcrcd/improving ESA/pctition~rc~rulari<ms.html. 

5 
127 

that the habitat species need to recover is identified and protected. These private-public partnerships 

again demonstrate the ESA's flexibility to conserve species through creative, pragmatic policy 

improvements. 

In contrast with these administrative improvements to the ESA, the mounting volume of ESArelated legislation proposed by Congress over the past decade has all sought to roll back and 

undermine ESA protections. In my experience working on ESA policy over the course of several 

decades, the professed desire to "modernize" the ESA has almost always been code to push forward 

an agenda to weaken or gut the nation's premier and most effective wildlife conservation law. That 

agenda- backed by special interests -ignores the public value of wildlife conservation and 

unequivocally violates the original purpose of the ESA. I'm concerned that legislators who talk 

about the need to modernize the ESA really seek to weaken its ability to conserve imperiled species. 

At least two members of the 115'h Congress have expressed an outright desire to repeal the ESA.14 

As long as our country is still committed to species conservation and recovery, there is no need to 

amend the law through legislation. Instead, Congress should focus on fully funding the agencies so 

that they can implement the ESA more effectively and continue their important work to fulfill its 

goals. 

Of the 130 legislative proposals introduced last Congress aimed at updating the ESA, not a single 

one would have improved species conservation. 15 Many would have stripped existing protections or 

blocked future protections for at-risk and listed species, accelerating those species' decline and likely 

condemning them to extinction. Remarkably, none of the delisting proposals initiated by Congress 

would assure funding to the states that would be left in charge of conserving these threatened and 

endangered species with limited resources and weaker protections under their state ESAs. The ESA 

is already starved for funding. Removing protections under the ESA and the federal support that 

accompanies those protections would most definitely send some of these species spiraling down the 

path of extinction. 

Other legislative proposals would have interfered with the ESA's science-based listing process, 

including by redefining "best available science" to automatically include all data submitted by states, 

localities and tribes, regardless of the quality of the data. Another category of proposals would 

interfere with the ESA's science-based listing process by injecting economic considerations into 

listing determinations. \\\'hile the agencies already consider economic considerations when they 

designate critical habitat, those considerations are strictly prohibited as part of the listing decision. 

Economic considerations must not factor into science-based determinations about whether a species 

needs protections under the ESA. Science informs us whether a species is threatened or endangered 

with extinction, not politics, economics or personal desire. 

The ESA's citizen lawsuit provision has been another target of proposed legislative "fixes." The 

ESA's citizen lawsuit provision allows members of the public to hold federal agencies accountable to 

Congress's directives in the ESA through the federal court system. Judicial review is an essential part 

of the checks and balances within the federal government to ensure that laws enacted by Congress 

14 See LA Times Editorial Board, GOP IPaierbi/1 in Ca.gm.r should be njectea;]uly 10,2015, 

http: //www.latimes.com/ opinion /cditorials/la-cd-watcr-bills-2015071 0-story.html; Zaffos, Joshua, Hotl.ff Republicans 

want to 'npealand replace' the ESA, High Country News, Dec. 28,2016, http://www hcn.org/articles/house-republicansmay-try-to-repcal-and-replacc-thc-cndangcrcd-specics-act. 

15 See Defenders of Wildlife, JHmlllal)' q[Legislative Attacks on the Endangered Species Art in tbe 114'1

' Congress, Dec. 21, 2016, 

http: //www.dcfcndcrs.org/publications/ Chart-of-ESA-;\ ttacks-in-114th-Congrcss.pdf. 

6 
128 

are properly implemented. By including an explicit mechanism for reviewing agency decisions, the 

drafters of the ESA wisely intended the courts - nor Congress - to resolve disputes over the 

agencies' implementation of the law. 

The existing structure of the ESA works well to meet its purpose- the conservation of at-risk 

wildlife and plant species. Any necessary reforms to improve its effectiveness and efficiency can and 

should he carried out by the wildlife agencies that implement the law. Congressional interference in 

science-based decisions about how to conserve species would only serve to undermine the nation's 

ability to conserve imperiled species, and is strongly opposed by the American public. By focusing 

on funding the ESA instead of weakening it, Congress could remain committed to the 1,roals of the 

ESA and provide more certainty for the regulated community waiting for decisions on permits and 

plans. 

The ESA is Not Broken- it's Starved 

It is clear that more work could and should be done to provide protections for those species that 

need it, to expeditiously respond to requests for permits and impact decisions and to successfully 

recover listed species. 'W'hat the ESA really needs is more funding so that the federal agencies and 

states can catty out important conservation programs and fully implement the ESA. Congress must 

help accomplish this goal by adequately funding the federal agencies that play a role in species 

conservation. 

Federal spending on recovery actions under the ESA has long been severely insufficient. A 2002 

study estimated that current funding is only 20 percent of what the authors estimate is required to 

carry out the work of endangered species recovery." The agencies desperately need more funding to 

develop species recovery plans and implement species recovery actions. Over 400 U.S. listed species 

do not currently have recovery plans. This gap in recovery funding is unfortunately only widening, as 

congressional appropriations for recovery have not kept pace with the number of listed species, 

especially after adjusting for economic inflation. 

Funding for the ESA permitting program has also failed to keep pace with the addition of newlylisted species. Because of inadequate funding, American businesses and landowners face delays in 

requests for ESA permits to carry out activities ranging from road construction to bridge repairs to 

housing developments and other land use activities. It is imperative for F'W'S to have the resources 

to properly evaluate these activities for their effects on species recovery, so that the ESA can 

accommodate conservation and human activities simultaneously. 

In addition, to truly stop the decline of at-risk and listed species at its ori1,rin, adequate funding to 

conserve their habitat is essential. Congress must fully fund the Land and Water Conservation Fund 

and substantially increase funding for the Recovery and Habitat Conservation Plan Land Acquisition 

Programs for states under the Cooperative Endangered Species Fund as well as for other habitat 

conservation programs, including those under the Farm Bill which is up for reauthorization in 2018. 

The agencies also need adequate funding to evaluate whether declining species should be listed and 

"See Miller, Julie K.; Scot~ Michael J.; Miller, Craig R.; Waits, Lisette P., The Endangered Species Act: Dollars and Srnse?, 

BioScience, Feb. 1, 2002, https://academic oup.wm/bioscicnce/artide/52/2/163/341363/The-Endangered-SpeciesAct-Dol!ars-and-Sensc. 

7 
129 

to take steps, in partnership with the states and other stakeholders, to conserve them while they 

await decisions. 

If this committee is truly committed to conserving at-risk and listed wildlife and plant species, it 

should work with members of the Appropriations Committee to ensure that the ESA is fully funded 

-not draft legislation to "fix" or "modernize" a hugely important, wildly successful and popular law. 

The Role of States in Conserving Threatened and Endangered Species 

States have a very powerful and important voice in determining the fate of species- both before and 

after species are listed. The ESA is the law oflast resort in species conservation. It was enacted to 

ultimately prevent species from going extinct after they are deemed threatened or endangered using 

the best available science, and to recover those species. Until the ESA is deemed necessary, states 

have primary authority and responsibility for protecting and managing their native fish, wildlife, and 

plants and their habitats. Often, a listing comes only after the species has declined for decades and 

state management in accordance with state laws and regulations are deemed insufficient to avoid 

extinction. 

Species often come under the protections of the ESA after years of chronic underinvesrment in 

habitat conservation at the state level. The lack of state funding spent on conserving non-game 

species puts an increasing pressure on the ESA, causing the list of endangered species to increase 

rather than decrease. By then, some of the species have declined so much that recovery becomes far 

more difficult and expensive. States can help stave off species decline by increasing their own 

funding for species and habitat conservation. A commitment by states to fund upstream solutions 

could prevent species from being listed in the first place, saving money in the long run. Innovative 

upstream funding initiatives to conserve habitat and ultimately species are essential to minimize the 

need for the ESA to step in and provide necessary protections. 

A prime example of how states have achieved successes in species conservation is through the State 

Wildlife Grants Program, which provides federal funding to a variety of conservation needs that are 

identified within a State's Wildlife Action Plan.17 Each State Wildlife Action Plan identifies "species 

of greatest conservation concern" and outlines steps needed to conserve those species before they 

become rare and costly to protect. However, more funding is still needed. States should recommit to 

increasing their spending on conserving the diversity of wildlife -not just the game species. 

Recently, eleven western states played a critical role as partners in an unprecedented collaboration 

led by the federal government to conserve the imperiled greater sage-grouse. States partnered with 

the F\VS, the Bureau of Land Management, private landowners and other stakeholders to reach an 

agreement to improve the management of over 60 million acres of the Sagebrush Sea- a little 

known, but vitally important landscape to hundreds of species, outdoor recreation, western 

communities and sustainable economic development. This historic, national strategy would not have 

been happened without the pressure of a potential ESA listing. And in the end, the F\VS determined 

that because of this National Greater Sage-Grouse Planning Strategy, the agency did not have to list 

the bird at that time. Implementation of the Strategy will be critical to ensuring the greater sage17 Jee Association ofFish and Wildlife Agencies, State and Tribal U:'i!Jiift Grants Program: 10 Years of Success, Sept. 2011, 

http://www.flshwildlife.org/flles/StateWildlifcGrants 10YcarSucccss-Report.pdf. 

8 
130 

grouse is sustained. If commitment to the Strategy wanes or is undennined, it is '~rtually certain that 

the bird and possibly other species will need the protection of the ESA to survive. 

When a species does come under the protections of the ESA, states continue to play a significant 

role as collaborative conservation partners. Federal agencies are required to use state expertise and 

solicit the information and participation of state agencies in all aspects of the recovery planning 

process, including implementing recovery plans. State agencies have the authority to carry out many 

of the actions identified in recovery plans and are in an excellent position to do so because of their 

close working relationships with local governments and landowners.18 States can receive federal 

funding to implement recovery actions through grants under section 6 of the ESA. These grants 

support a variety of voluntary conservation projects for listed, recently delisted, and candidate 

species. In addition, data collected and maintained by state agencies is important to ensuring the best 

available science is used in all federal agency decision making, from listing to permit issuance, to 

recovery planning and implementation. 

However, the ultimate responsibility under the ESA lies ~ith the federal government, acting through 

FWS and the National Marine Fisheries Service (NMFS), to make science-based decisions about the 

status of imperiled species and actions necessary to ensure their continued existence and ul-timate 

recovery. That responsibility must not be diminished or undermined, as some have suggested. The 

current federal role is critically necessary and has proven effective at taking up the arduous -and 

sometimes controversial- work to carry out the ESA's mission of conserving threatened and 

endangered plant and wildlife species. Just as this country has committed to civil rights for citizens, 

it has also made a national commitment to conserve species under the ESA. Imperiled species 

deserve that support and should not depend on the sentiments or politics of particular states. The 

federal government is the appropriate authority to ensure that at-risk species are conserved 

according to the best available science under the ESA, rather than local economic and political 

considerations. 

Conclusion 

The conservation values enshrined in the ESA remain strong today, with 90 percent of the 

American voting public supporting this ~sionary law that is respected by countries well beyond our 

borders. Given the ESA's flexibility and its broad delegation of implementation authority to the 

federal agencies charged with its oversight and implementation, there is no need to update the ESA 

through legislation. Any true improvements to the law can be achieved through administrative 

actions. Congress should instead consider focusing on ways to fully fund the ESA so that the I:'WS, 

NMFS and other engaged federal agencies can implement it more effectively. 

When Congress enacted the ESA over 40 years ago, it made a commitment to future generations to 

protect and restore at-risk species and their habitat. As this committee considers proposed changes 

to the Act, please ask yourselves whether you are upholding that commitment. Ask yourselves 

whether the proposed changes would actually help meet the ESA's goals rather than undercut 

species protections. 

Thank you for considering my testimony. I would be happy to answer any questions. 

"See U.S. Fish and Wildlife Service, Jnteragenl)' Poliry Regarding the Role of State Agencies in ESA Activ;ties, Last updated Feb. 

22, 2016, https://w\llW.furs.gov /cndan~rcrcdllaws-polkics/policy-statc~agcncies html 

9 
131 

Senate Environment and Public Works Committee 

Hearing entitled, "Oversight: Modernization of the Endangered Species Act" 

February 15, 2017 

Answers to Questions for the Record 

Jamie Rappaport Clark, President and CEO, Defenders of Wildlife 

Answers to Questions from Ranking Member Caq>er: 

1. If you were in our shoes, what would you do to find consensus for proposed changes to the 

ESA? 

Answer: 

As highlighted in my testimony before the committee, I do not believe the Endangered 

Species Act (ESA) is in need of statutory revision. The ESA is a flexible statute. Its 

structure has allowed the oversight agencies to adopt and improve upon the law over the 

years through administrative actions. To the extent that the Committee pursues changes to 

the statute anyway, it should only do so with strong bipartisan support and should focus on 

strengthening the ability of the ESA to protect species on the brink of extinction and 

provide for their recovery. Administrative initiatives that focus on those goals, while 

promoting collaborative partnerships, transparency, and open dialogue could be pursued. 

Without adequate funding to support implementation of the ESA, the law will continue to 

be challenged for reasons not related to the statute itself. 

2. Please identify thtee (3) areas where there is the greatest opportunity to fmd consensus for 

changes to the ESA? 

Answer: 

As emphasized in my testimony, it is unequivocally clear that the ESA is starved for funding. 

Lack of funding is hindering efforts to provide deserving species needed protections, to 

expeditiously respond to requests for technical assistance and permits, to develop species 

recovery plans and to implement recovery actions. Over 400 listed species do not currently 

have recovery plans and 30 candidate species are currently awaiting ESA listing. Funding for 

the ESA permitting program is increasingly deficient and causing frustrating delays for 

businesses and landowners in carrying out various activities. Additional funding for key 

habitat conservation ptO[,>rams is sorely needed as well. These programs include the Land 

and Water Conservation Fund and the Recovery and Habitat Conservation Plan Land 

Acquisition Programs for states under the Cooperative Endangered Species Fund. And 

finally, the lack of state funding for conserving non-game species puts increasing increased 

pressure on the ESA by ultimately requiting federal protection for more species the states 

have not successfully conserved. Increased funding for the federal State Wildlife Grants 

Program would respond to this need and provide an upstream solution before the ESA is 

needed as a last resort conservation tool. Addressing the current funding deficiencies is 

without a doubt the area of legislative activity relating the endangered species conservation 

where consensus is more likely to be found. 
132 

In the current highly polarized and increasingly toxic political environment, however, there is 

not the opportunity to find truly bipartisan consensus on changes to the ESA that would 

improve species conservation. In fact, of the more than 130 legislative proposals introduced 

last Congress aimed at updating the ESA, not a single one would have improved species 

conservation. Many would have stripped existing protections or blocked future protections 

for at-risk and listed species, accelerating those species' declines and likely condemning them 

to extinction. And the same alarming pattern is well underway in the current Congress. 

Virtually all initiatives to date, both in the House and the Senate, have been pursued on a 

highly partisan basis and are aimed at undermining species protection and the ESA. The 

vast difference that now exists between the two parties about the wisdom and nature of ESA 

legislation demonstrates there is no political appetite to fmd consensus on changes to a 

landmark environmental law that has been so overwhelmingly successful in fulfilling its goal 

of preventing species extinctions and providing pathways to recovery for many more. While 

some lawmakers may have a genuine interest in fmding common ground, the toxic 

atmosphere in Congress makes it impossible to see how legislation that actually improves the 

effectiveness of Endangered Species Act could in fact become law. 

Answers to Questions from Senator Wicker: 

3. I understand that the current 1-year statutory deadline for every listing decision creates a 

lawsuit problem. I know more funding could help the situation, but what are some ways to 

improve scheduling and budgeting for listing decisions? 

Answer: 

The U.S. Fish and Wildlife Service recently developed a seven-year listing workplan to 

improve scheduling and budget allocations for the listing program and to attempt to reduce 

litigation over listing deadlines.' The workplan is a reasonable solution to managing the 

listing workload because it prioritizes species for 12-month fmdings based on the immediacy 

of threats to species, existing voluntary conservation efforts, and other factors. The 

workplan covers over 350 pending species and critical habitat decisions. To date, a variety 

of stakeholders have supported the workplan. For example, the recommendations from a 

recent work session of the Western Governors' Associations indicate that "attendees widely 

agreed that the listing workplan presented a favorable approach" and should eventually be ' 

extended beyond the seven-year horizon2 

The workplan is also likely to significantly reduce the extent of litigation over missed listing 

deadlines. Several other wildlife organizations that have actively petitioned for listings had 

recently informed us that they support the workplan if FWS implements it properly. To the 

extent that some organizations continue to challenge missed listing deadlines, the workplan 

could provide a basis for the courts to give deference to FWS's proposed timeframe for 

issuing listing decisions. The workplan is thus very likely to substantially reduce piecemeal 

litigation over listing deadlines. Congress should support the workplan by allowing l•WS the 

opportunity to implement it and by adequately funding that work. 

1 https:/ /www.fws.gov / endangercd/improving_esa/listing_ workplan.html 2 \X' estern Governors' Species Conservation and Endangered Species Act Initiative \X7

ork Session: Listing, Recovery and 

Delisting Qan. 31, 2017), available at: https:/ /www.westgov.org/images/SU.'vL\HRY_ Work_Session_Section_ 4.pdf 
133 

That said, it's important to recognize that most, if not all, the candidate species awaiting 

decisions for ESA protection that are now part of the workplan are continuing to decline in 

status while they a\vait decisions. ~fore resources arc essential to address their conservation 

needs so that ESA protection may not be necessary, and to more expeditiously recover those 

that require the safety net of the ESA. 
134 

Senator INHOFE [presiding]. Thank you, Ms. Rappaport Clark. 

What you are witnessing right now is we are swapping the Chair 

back and forth between Senator Barrasso and me because we are 

in the middle of two votes right now. I have already voted on the 

first, and that is what he is doing now. 

Before we hear from Dan Ashe, we know the next witness but 

we know him in a different life. Why don’t you take just a moment 

and tell us a little bit about your incarnation before your presentation? 

Mr. ASHE. Thank you, Senator Inhofe. 

It is a joy to be back here once again. From 2011 to January 

2017 I served as Director of the United States Fish and Wildlife 

Service. My confirmation was considered in a hearing by this Committee. 

STATEMENT OF DAN M. ASHE, PRESIDENT AND CEO, 

ASSOCIATION OF ZOOS AND AQUARIUMS 

Mr. ASHE. Today I sit here as President and Chief Executive Officer of the Association of Zoos and Aquariums, or as we affectionately call it, AZA. AZA represents 232 accredited aquariums, nature centers, science centers, and zoos that annually host more 

than 186 million visitors, generating more than $17 billion in economic activity and employing over 175,000 Americans. 

I believe we bring a somewhat unique perspective to this important discussion. We are a partner with our governments in species 

conservation, but we are also a directly and significantly regulated 

party. As a partner, AZA members contributed over $186 million to conservation in 2016 alone. 

Senator INHOFE. Are you into your presentation? What are you 

doing now? 

Mr. ASHE. I am making my presentation. 

Senator INHOFE. Yes, go ahead. You are going to have to get out 

to Tulsa and see, where you least expect them, spectacular aquariums. We have them. 

Mr. ASHE. I will be there. 

Senator INHOFE. I will look for you. 

Mr. ASHE. We support more than 1,000 field conservation and research projects here in the U.S. and in more than 100 other countries. From this practitioner perspective the law is working to save 

species. It is a catalyst for organizations like ours and our members 

to participate in conservation. 

A good example is the partnership between AZA accredited zoos, 

the Federal and State governments, and other organizations to conserve the California condor. Without that effort, the California condor would be extinct today. 

It began with a bold decision to remove all California condors 

from the wild back in the early 1980s. Like so many other efforts 

to recover endangered species, it has required continuous effort and 

extraordinary dedication. The Los Angeles Zoo, the San Diego Zoo, 

the Oregon Zoo, and many others have played integral roles in that 

effort. 

AZA accredited aquariums and zoos have supported recovery of 

Florida manatees, spending over $6 million in the last 5 years 
135 

alone. Tampa’s Lowry Park Zoo, Sea World, the Mote Marine Laboratory and Aquarium have long partnered to rescue, rehabilitate, 

and release injured and ill Florida manatees and conduct crucial 

research that is answering questions about manatee biology, 

health, and behavior so that we can better understand the species 

and inform management decisions and the public. 

Especially since Senator Barrasso is the new Chairman, I have 

to mention the effort to recover black-footed ferrets which were 

once believed extinct and were rediscovered near Matesee, Wyoming, in 1981. 

Last July I had the privilege to join Wyoming rancher Christina 

Hogg and her family and many others in reintroducing 35 ferrets 

to this incredible landscape. Christina Hogg sent me this little 

cardholder which I keep in my office until today to remind me of 

the importance of partnership with private landowners and what 

we can do when we work together with private landowners. 

We are proud of our history, zoos and aquariums, but we are far 

from done. Building on the success of existing conservation and 

species preservation efforts, AZA and its members are launching a 

new effort we call SAFE, Saving Animals From Extinction. 

Through SAFE we are challenging ourselves to provide urgent 

leadership and create a collective movement that is strong enough 

to turn the tide against the massive wave of animal extinctions. 

As regulated parties, our members, their 186 million visitors, and 

their communities depend upon an efficient and effective regulatory 

structure within the U.S. Fish and Wildlife Service and the National Marine Fisheries Service. 

As any regulated party from time to time, we have frustrations, 

but overall the process is professional and predictable as evidenced 

by the vibrant economy surrounding AZA aquariums and zoos. It 

works. 

Mr. Chairman, as you and Committee members consider the future of this great law, I would suggest careful consideration of context. Scientists estimate that the total number of mammals, birds, 

reptiles, amphibians, and fish has declined by more than 50 percent since 1970, leading many to conclude that we are living 

amidst the planet’s sixth mass extinction event. 

It is being driven by the ability of human beings to change the 

very physics underlying the earth’s ecology, the molecular composition of the atmosphere, the moisture of soil, and the temperature 

and acidity of oceans. 

Mr. Chairman, saving species from extinction is very challenging. 

It will become increasingly challenging in the future. The Endangered Species Act is the world’s gold standard. It has helped us to 

achieve miracles. 

It is not perfect, and we can make it better, but as this Congress 

considers its future, your goal should be to make it stronger, faster, 

and better for the 21st century because life literally depends upon 

it. 

Thank you, Mr. Chairman, as always, for the opportunity to be 

here with you. I look forward to a dialogue with you. 

[The prepared statement of Mr. Ashe follows:] 
136 

Testimony 

of 

DAN ASHE 

PRESIDENT & CEO 

ASSOCIATION OF ZOOS AND AQUARIUMS 

before the 

COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS 

U.S. SENATE 

on 

Oversight: Modernization of the Endangered Species Act 

February 15, 2017 
137 

Thank you Chairman Barrasso and Ranking Member Carper for the opportunity to testify before the 

Committee today about the Endangered Species Act. 

My name is Dan Ashe, and I am the President and CEO of the Association of Zoos and 

Aquariums (AZA). Founded in 1924, the AZA is a 501(c)3 non-profit organization dedicated to 

the advancement of zoos and aquariums in the areas of conservation, education, science, and 

recreation. AZA's 232 accredited aquariums, nature centers, science centers and zoos annually 

see more than 186 million visitors, collectively generate more than $17 billion in annual 

economic activity, and support more than 17 5,000 jobs across the country. Over the last five 

years, AZA-accredited facilities supported more than I ,000 field conservation and research 

projects, contributing over $186,000,000 in 2015 in more than I 00 countries. In the last I 0 

years, accredited zoos and aquariums formally trained more than 400,000 teachers, supporting 

science curricula with effective teaching materials and hands-on opportunities. 

At the heart of the AZA's mission is its accreditation process, which assures that only those zoos 

and aquariums that meet the highest standards can become members of the AZA. The rigorous, 

unbiased, and lengthy AZA accreditation process includes self-evaluation, on-site inspection, and 

peer review. The standards are continuously evolving and getting stronger as we learn more 

about the needs of the animals in our care. Accreditation is mandatory for all AZA aquariums 

and zoos. Once earned, it confers best-in-class status, an important message for local, state, and 

federal government and the visiting public. 

AZA and its members bring a different perspective to this discussion. We are a partner and 

participant in species conservation. We work with the government to save species. And we are 

also a regulated party and depend on an effective and efficient regulatory structure within the 

U.S. Fish and Wildlife Service (USFWS) and National Oceanic and Atmospheric Administration 

(NOAA). 

As a partner in species conservation, we work in concert with Congress, the federal agencies, 

conservation organizations, state governments, the private sector, and the general public to 

conserve our wildlife heritage. In particular, AZA and its member facilities have long-standing 

partnerships with the USFWS, NOAA, and the U.S. Department of Agriculture (USDA). Our 

collaborative efforts have focused on: 

Engaging in endangered species recovery and reintroduction; 

• Supporting multinational species conservation funds and state wildlife grants; and 

• Collaborating on partnership opportunities involving wildlife refuges, migratory birds, 

freshwater and saltwater fisheries, national marine sanctuaries, illegal wildlife trade, 

amphibians, and invasive species. 

The AZA and its members take the issue of wildlife conservation very seriously and 

wholeheartedly support the Endangered Species Act, which has prevented hundreds oflisted 

species from going extinct. Simply put, the ESA, which is recognized globally as a model for 

species preservation, is working. It has prevented the extinction of99% of the species it protects 

2 
138 

since its inception in 1973. However, we know that the challenges facing our planet in the 21st 

century are as complex as they are urgent. Scientists estimate that the total number of mammals, 

birds, reptiles, amphibians, and fish has declined by more than 50% since 1970, and many 

believe that we are living amidst the planet's sixth mass extinction. Climate change threatens to 

accelerate this crisis. Without critical intervention today, we are facing the very real possibility 

of losing some of our planet's most magnificent creatures such as cheetahs, elephants, gorillas, 

sea turtles, and sharks. 

AlA-accredited zoos and aquariums have a unique responsibility to help others understand this 

crisis. It is our obligation -to these animals and to all life on earth· to take bold action now to 

protect our planet's biodiversity. 

One achievement that has gone unnoticed by most people is that zoos and aquariums have played 

a significant role in bringing over 25 species back from the brink of extinction. 

The California condor, officially labeled as extinct in the wild in 1987, has been bred in human 

care and is being reintroduced in the wild by a coalition of groups including San Diego Zoo 

Global, The Peregrine Fund, the Los Angeles Zoo, the Oregon Zoo, and the Ventana Wildlife 

Society. In 1982, with only twenty-two condors left in the wild, San Diego Zoo Global began 

the first breeding program for California condors. The program also involved the USFWS, 

California Department of Fish and Game, the National Audubon Society, and the Los Angeles 

Zoo. Within twenty years the population of California condors grew to almost 200. The 

zoological breeding programs now release 20 to 40 condors annually, and according to USFWS 

officials, the California condor population has reached a total of 435 birds, 268 of which are 

living in the wild in California, Arizona, Utah, and Baja California, Mexico. 

Another success story is the black-footed ferret. Just last year, thirty-five years after the species 

was rediscovered after having been believed to be extinct, a historic reintroduction took place, 

marking another positive step toward recovery for the black-footed ferret, one of North 

America's most endangered mammals. 

On July 26,2016, the Wyoming Game and Fish Department, in partnership with the USFWS and 

the owners oftwo ranches, released 35 black-footed ferrets to honor the special anniversary. The 

release occurred near Meeteetse, Wyoming on the Lazy BV, Pitchfork, and Hogg Ranches, 

where the species was first rediscovered, and was also supported in part by the AZA and four of 

its accredited facilities: the Phoenix Zoo, Louisville Zoo, Cheyenne Mountain Zoo, and Santa 

Barbara Zoo. The zoological facilities contributed funds to support the necessary dusting of the 

prairie dog colonies with the insecticide deltamethrin (Delta Dust) to address the presence of 

sylvatic plague, a flea-borne disease that has decimated the prairie dog population. 

Beginning in 1986, the Wyoming Game and Fish Department and USFWS founded a successful 

breeding program for black· footed ferrets. Breeding under managed care continues today, and 

the ferrets have been released throughout western North America. Black-footed ferrets currently 

reside at five AlA-accredited facilities: the Cheyenne Mountain Zoo, Louisville Zoo, Phoenix 

Zoo, Smithsonian National Zoological Park, and Toronto Zoo. Additionally, between 2011 and 

2015,22 AlA-accredited facilities contributed approximately $5.8 million to 32 field 

3 
139 

conservation projects benefitting black-footed ferrets. These projects primarily focus on 

reintroduction, monitoring of reintroduced ferrets, and ecological studies focused on 

strengthening long-term sustainability of the population, such as those investigating the species' 

relationship with its prey, the black-tailed prairie dog. 

The national Black-footed Ferret Recovery Implementation Team has released ferrets at 24 sites 

across North America. Current ferret numbers in the wild are encouraging, but more 

reintroduction sites are needed to fully recover the species so that it no longer requires federal 

protection. 

Building on the success of existing conservation and species preservation efforts, AZA and its 

members launched SAFE: Saving Animals From Extinction® to provide urgent leadership and 

action to prevent mass animal extinctions. The actions we take to protect endangered species 

today will determine the kind of world we live in for many generations to come. 

AlA-accredited zoos and aquariums all share a deep commitment to the animals we care for and 

to conserving wildlife throughout the world. Now, through SAFE, we are challenging ourselves 

to create a collective movement strong enough to turn the tide against a massive wave of animal 

extinctions. 

I would like to briefly mention one SAFE signature species, the vaquita porpoise. It is the most 

critically endangered cetacean in the world and can only be found in the northwestern comer of 

the Gulf of California in Mexico. This porpoise population is in rapid decline, with recent reports 

pegging the total population to 30 animals left. This is a direct result of the animals being caught 

accidentally in fishing gillnets which are used by drug cartels to catch totoaba, an endangered 

fish. Totoaba bladders, which command thousands of dollars in China, are trafficked through the 

United States to the market there. 

What is important to note is that there is no zoo or aquarium in the world where you can see a 

vaquita porpoise. This amazing animal will likely only be known by our children and 

grandchildren in photographs. AZA members stepped up and have contributed hundreds of 

thousands of dollars to projects specifically designed to help save the vaquita. This is an 

opportunity to help save a species. That is why AZA and its members are collaborating with U.S. 

and Mexican government agencies, including NOAA and the Mammal Marine Commission, 

NGOs in Mexico, and local communities in the Upper Gulf to do everything we can to keep the 

vaquita from going extinct. 

AlA-accredited zoos and aquariums also are uniquely positioned to educate the public and 

inspire them to take conservation actions both locally and globally. With our reach to more than 

186 million visitors annually, our members have taken the lead on many critical issues affecting 

endangered species including one which Congress, the federal agencies, and many states have 

worked to advance: combating wildlife trafficking. 

In 2013 the AZA and many of our members joined The Wildlife Conservation Society as a 

partner in the 96 Elephants Campaign an effort focused on securing a U.S. moratorium on 

illegal ivory; bolstering protection of African elephants; and educating the public about the link 

4 
140 

between ivory consumption and the elephant poaching crisis. Through the 96 Elephants 

campaign, millions of zoo and aquarium visitors took action to stop the demand for ivory here in 

the United States and around the world. 

Last year the federal government finalized a rule to close the loopholes in the existing 

regulations that inadvertently enabled illegal ivory to be sold in the U.S. for decades. The rule 

established a near-complete ban on commercial ivory sales. Congress also passed and President 

Obama signed into law the "END Wildlife Trafficking Act," which will help wildlife law 

enforcement personnel by providing them with additional tools and resources they need to 

apprehend, prosecute, and convict wildlife criminals. Meanwhile, AZA members have worked 

with their state partners to pass wildlife trafficking legislation in New York, New Jersey, 

California, Washington, Hawaii, and Oregon. 

AZA-accredited zoos and aquariums are connecting people with these iconic species and 

engaging them in conservation issues that these animals face in their natural ranges. However, 

none of us can save these species alone. This effort requires partnerships among NGOs, 

Congress, federal agencies, state governments, foreign governments, private sector stakeholders, 

and the public. AZA and its members view the USFWS, NOAA, and the USDA as exceptional 

partners in these efforts, and we are striving to be even better partners to them. 

The public display of ESA-Iisted species is not an easy endeavor. Since most of our threatened 

and endangered animals are born in our aquariums and zoos, the frequent, timely and humane 

transport ofthese animals is critical to our conservation breeding and conservation education 

efforts. There are specific regulatory and permitting requirements that must be met in order to 

import, export, and in some cases, move animals across state lines. In the past few years, AZA 

zoos and aquariums have experienced increasing delays in getting these permits approved by the 

relevant federal agencies. These delays are not the result of neglect or disinterest on the part of 

the federal authorities but moreso are due to the lack of human resources required to process the 

voluminous number of ESA pern1its ... most of which do not originate from the AZA community. 

We are currently looking at alternatives to streamlining the permit process for ESA-Iisted species 

for AZA institutions while maintaining the intent and integrity of the ESA permit process. We 

look forward to working with this Committee and the relevant federal agencies to improve this 

critical process. 

Although we have made significant progress in saving endangered species, this work is far from 

done. Species protection and conservation requires long-term commitment by all of us. It is 

through the ongoing work related to species recovery plans that we will conserve these species 

for future generations. The AZA and its members fully support the Endangered Species Act, and 

we look forward to working with Congress to assure that the agencies responsible for carrying 

out the mandates ofthe Act receive the necessary funding, human resource capacity, and 

regulatory flexibility to succeed. 

Thank you for the opportunity to testify on this important matter, and I would be happy to 

answer any questions that you may have. 

5 
141 

March 16, 2017 

The Honorable John Barrasso 

Chairman 

Committee on Environment and 

Public Works 

410 Dirksen Senate Office Building 

Washington, DC 20510 

The Honorable Tom Carper 

Ranking Member 

Committee on Environment and 

Public Works 

456 Dirksen Senate Office Building 

Washington, DC 20510 

Dear Chairman Barrasso and Ranking Member Carper, 

Thank you for the opportunity to testify before the Environment and Public Works 

Committee about the Endangered Species Act (ESA). Species conservation and 

preventing extinction are critically important issues for the zoos, aquariums, science 

centers, and nature centers that are accredited by the Association of Zoos and 

Aquariums (AZA). At your request. I am providing answers to your follow-up 

questions below. 

Chairman Barrasso: 

I. The Endangered Species Act is premised on a strong federal-state partnership. 

States have primary authority over wildlife species within their borders, while 

the federal government is responsible for species conservation under the ESA. 

Many states have expressed concerns that they are not being treated as full 

partners with the federal government in ESA decision-making. As a former 

Director of the U.S. Fish and Wildlife Service, do you believe that the statutory 

intent of the ESA is being realized with respect to federal-state cooperation? In 

your opinion, is state data and expertise adequately included in ESA listing and 

delisting decisions, critical habitat designations, and recovery planning? 

In general, yes. Inherent in implementing a statute like the ESA is a constant sense 

of urgency. Due in part to the statutory deadlines, and resulting litigation and 

court orders; but mainly due to the press of business and the catastrophic 

consequence of failure-- extinction. States are not monolithic; some participate 

extensively, and others rarely, based on choice, priority and capacity. Sometimes, 

states are limited in their ability to participate in ESA decisions because they lack 

regulatory authority (e.g., some state wildlife agencies lack authority over 

insects). Sometimes, states are reluctant or unable to share data collected from 

private landowners. Sometimes, states simply do not want to get involved in a 
142 

controversial issue or are prohibited from involvement by their Governor or 

Commission. However, mostly, states are engaged partners in providing data and 

information to federal agencies to help inform the decision-making process. 

When it comes to the listing process and recovery teams, states are critical 

partners to the federal agencies. Overall, in my opinion, capacity is the single 

greatest limitation to greater state involvement in ESA implementation. 

The best example of recent collaborative federal-state effort was the process to 

consider listing of the greater sage grouse. The USFWS relied extensively on state 

data. All eleven range states had full opportunity to participate. The Department 

of the Interior worked with the Western Governors' Association to establish a 

federal-state Sage Grouse Task Force, chaired by the WGA. There was full and 

complete discussion and sharing of information from start-to-finish. This was 

recognized, when the U.S. Fish and Wildlife Service decision was announced, and 

both Republican and Democratic Governors praised the process as well as the 

decision. Nevada Governor Sandoval said, "This is good government." 

Ranking Member Carper: 

2. If you were in our shoes, what would you do to find consensus for proposed 

changes to the ESA? 

My recommendation would be to forge an agreement upfront at the top level 

about the process for crafting this legislation. This agreement would require 

everyone to agree to work by consensus and only include legislative language 

that changes the ESA by consensus. Without this firm agreement, I doubt there 

would be adequate trust to move forward. 

3. Please identify three (3) areas where there is the greatest opportunity to find 

consensus for changes in the ESA. 

First, states and federal agencies need greater capacity to support listing 

functions, participate in recovery activities, and coordinate conservation plans. 

Everybody wants more "cooperation" but that requires people, science, and 

resources to support it. Second, greater focus on cooperative recovery efforts 

would increase the effectiveness of the ESA. These changes could promote and 

incentivize cooperation between federal agencies, between federal and state 

partners, and between public and private stakeholders. The single most 

significant "innovation" in the past decade has been the partnership between 

USDA's Natural Resource Conservation Service, and the USFWS. NRCS has 

brought the incentives of financial and technical support to landowners (and trust 

and credibility with landowners), and USFWS has brought regulatory 

predictability. This partnership was the cornerstone of success on species like 

greater sage grouse, arctic grayling, New England cottontail, and others. Finally, 

the USFWS should develop five-year plans for listing decisions so that the 

process becomes more predictable. Opponents would have an opportunity to 

challenge the integrity of a plan schedule rather bring deadline lawsuits, speciesby-species. This would streamline the process and reduce time and resources 

spent by all concerned parties in the courts. 
143 

Thank you for the opportunity to provide additional feedback to the committee. The 

AZA and its members fully support the Endangered Species Act, and we look 

forward to working with you to assure that the agencies responsible for carrying out 

the mandates of the Act receive the necessary funding, human resource capacity, 

and regulatory flexibility to succeed. 

Sincerely, 

Dan Ashe 

President and CEO 
144 

Senator INHOFE. It is nice to have you back. I would say when 

you made the statement that when you work on a partnership 

basis, as you personally came out on two occasions to western 

Oklahoma and discovered that the landowners want the pristine 

environment the same as you might from another perspective. 

It is easy to sit in Washington and talk about how everything is 

working well, but when you are out in the States is where you really have problems. 

I am going to start the questions since I am the only one here. 

I am not going to be encumbered by any short timeline. 

Why don’t you ask your questions first? 

Senator BARRASSO [presiding]. Thank you, Senator Inhofe, for 

holding down the fort as people are back and forth with the votes. 

There are two votes so some of the members are waiting for that 

second vote to start. As a result, they will be back. 

I would like to start with Governor Freudenthal, if I may. 

In 1973 the Congress was controlled by the Democrats, but with 

a Republican President they enacted the Endangered Species Act 

as we discussed earlier. Cliff Hansen, former Governor of Wyoming 

and then Senator for Wyoming, supported it. 

The last significant amendments took place in 1988, almost 30 

years ago. Since that time a lot has changed. Do you agree with 

the stakeholders who argue that the time really has come to modernize the Endangered Species Act? Would you give us your 

thoughts on that? 

Mr. FREUDENTHAL. Senator, the world has changed. This Act has 

just too much sand in the gears to get where it needs to go. Some 

of these things need congressional adjustment so that we actually 

get where we want to go as Dan Ashe indicates in a more efficient, 

more logical kind of fashion and employ the resources that are 

there. 

There is a history, as you know. There have been a couple of 

times when they have tried to redo the ESA, and it got lost in two 

sides wanting the whole loaf. I think the opportunity now is to arrive at some compromises that address the portions that could 

function better. 

There is no suggestion that it not be continued, at least not in 

the Senate so far, but if we think it is going to function in the way 

we wanted it we are going to have to change it. The proof of that 

is when everybody talks about how much is not being done. We forget maybe we could do more if we did it right, faster, and better, 

and frankly if we employed the resources of the State. 

Senator BARRASSO. Senator Inhofe. 

Senator INHOFE. Thank you, Mr. Chairman. 

Let me say from our experience, I had the opportunity to chair 

this Committee for a number of years. We have had problems, and 

some have been pretty serious. I categorize them in three groups. 

One is that the States during this process seemed to be ignored. 

The second thing is the delisting just never happens. We talk about 

it, and it never comes about. Third, the stakeholders and the landowners are pretty much ignored. 

I will start with you, Governor. In Oklahoma, we set in motion— 

and you will remember this, Dan Ashe, because you were there at 
145 

the time—a 5-State partnership with New Mexico, Colorado, Kansas, and Texas. 

We got together and spent a lot of time on this. We sat down and 

decided what we were going to do with the problems facing the 

lesser prairie-chicken by bringing all the States together, the agencies together, industries, conservation groups, and private landowners. 

Despite this the Fish and Wildlife listed the species as threatened. That listing was so wrong that the courts reversed it. Yet 

Fish and Wildlife continued moving forward. 

As a former Governor of a State, isn’t this a little frustrating 

when you go to this much work? That is not an easy thing to do, 

to get five States all in one room for a long period of time. 

Mr. FREUDENTHAL. Senator, I am familiar a bit with the lesser 

prairie-chicken. Obviously it is complicated. From my experience I 

would say they ought to be required at the outset if they are going 

to list to tell you what is required to get it delisted so that does 

not continue to move. 

Second, they need to recognize that if they want to do this on a 

scale that does something for the species, multi-State cooperation 

is difficult, and it is expensive to put together. At some point they 

have to become a partner with the States. 

The problem with the Act is it has the cooperation component, 

but it has this role where they are also judge and jury. At some 

point those two roles have to be reconciled. If you are going to be 

partners in putting together a recovery effort, yet you have to be 

guarded. 

As I say, they would always come and talk to us about the wolf, 

the bear, and that and say, we really cannot say anything because 

that would be pre-decisional. We have to somehow reconcile the 

fact that cooperation means people actually can sit down and work 

together. 

The problem I have with it is that they are judge and jury and 

at the same time they want to be a cooperator. We have to reconcile those two roles, because what happens now is cooperation 

with the States is clearly secondary because the decisionmaking 

role is so subject to judicial review. 

Senator INHOFE. Excellent. 

Mr. Myers, getting back to the delisting dilemma that we sometimes face, in 1989 Fish and Wildlife listed the American burrowing beetle. This was the hardest thing for me to explain back 

home, not just to road builders and farmers, about why they cannot 

do something because there is a bug down there because it had disappeared from its former range. That was the reason for doing it 

in the first place. 

It seems the information relied on for the listing was based on 

anecdotal historical evidence and poorly performed surveys, yet 

nearly 30 years later the beetle is a thriving and stable species, but 

we are still not delisting. 

Mr. Myers, how could that system be improved? 

Mr. MYERS. I guess I would mention a couple of things. One is 

I do not know the specifics of the case, but I would first mention 

that many States, in fact, have very good data on species. I think 
146 

it is important to assure integration of State data into any decisions. 

Relative to the delisting, I think, as Governor Freudenthal pointed out, specific triggers are very important. I think integration of 

those triggers up front in the listing process is also key, but once 

those triggers obtained, whether they are habitat or population objectives, that should key and bring forward the delisting process. 

Of course often the courts end up becoming a very big problem 

in moving along those decisions. 

Senator INHOFE. What I hear from both of you is that maybe a 

system should be set up that when a listing goes into place, state 

at that point the conditions and the timeline of delisting, and then 

expand that even further and go into others that are already listed 

because there are many on that list right now. 

The last question I have, Mr. Chairman, would be for Mr. Holte. 

Our Oklahoma farmers and ranchers are just now learning about 

a petition to list the monarch butterfly under the Endangered Species Act. 

They were not aware that there was a problem. They did not 

know anything about it until they woke up and found that was 

going on. The monarchs need milkweed to breed, yet milkweed is 

poisonous to cattle. It is clear that a listing will directly affect our 

agricultural community, yet they were left in the dark. 

We are talking about modernizing now. Changes are going to be 

made. 

What are your thoughts about that, Mr. Holte? 

Mr. HOLTE. I would respond that I think the communication to 

farmers and others might be enhanced by a better line of communication with general farm organizations, commodity groups, and 

State Departments of Natural Resources. 

I would admit that when I, my neighbors or colleagues arise in 

the morning, the first thing we think about is not the Endangered 

Species Act. It is producing our livelihood in production of food and 

fiber. 

Opportunity to share that information and concerns before they 

are actually listed and then the opportunity to work with States 

with incentive-based programs could maybe solve the situation before we get to a listing situation. Those processes could be very 

helpful, I believe. 

Senator INHOFE. Thank you very much. 

Senator BARRASSO. Thank you, Senator Inhofe. I appreciate it. 

Governor Freudenthal, I wanted to talk about Wyoming and the 

time you were Governor. The wolf population really has exceeded 

recovery goals I think since about 2002. The Yellowstone population of the grizzly bears has exceeded recovery goals for a decade. 

They both remain listed. 

In the case of the grizzly bear, it is not because of scientific judgment of Fish and Wildlife, but because of litigation. Can we talk 

about that in terms of is the Endangered Species Act working when 

species have exceeded the recovery goals for a decade and continue 

to be listed? 

Mr. FREUDENTHAL. Mr. Chairman, the numbers are correct. Everyone agrees it is a robust population. The bear is hung up, I 

think, in part, over concern from the Fish and Wildlife Service that 
147 

they want to engage in post-delisting management. Under the statute that is not contemplated. 

The problem I see is that the language that is in the statute was 

intentionally broad. As lawyers we are very good at taking broad 

language and creating new law, particularly law that works to 

whatever client we have. 

I think if we could end up with a clarifying in the statute as to 

when those targets are hit, and they need to be established at the 

time of listing, and then if they are going to deviate from those targets later, which is what they tended to do. 

If you look at the history of both those species, the area over 

which there were management prescriptions imposed grew significantly over the decades involved. Each of those was really 

unreviewable. At some point we had to say this is what is needed. 

The courts have to be bound by that. They only way they will be 

is if the language of the statute is modified. 

The rules and regulations vary over Administrations, and then 

the administrative judgments vary. Nobody argues that the wolf 

population is not robust. I would argue that if we did it right, and 

thought again about distinct population segment, and thought 

about that as part of the State management, they would not have 

needed the rider to allow Montana and Idaho to proceed. In Wyoming we were still in dispute with the Fish and Wildlife Service. 

There has to be reconciliation between the nobility of the goals 

and the implementation. The perfect examples are the wolf and the 

grizzly bear. 

I sympathize with Mr. Holte because I was the prosecutor in 

some of those cases, not in your district, and people are defending 

their livelihood. I think we have not understood that if we can 

structure it right, they would be equally interested in defending the 

wolves. 

It is not that people are against having the wolf present. Some 

are; as you know, some of our friends are. Most people say, look, 

I can live with this, but I have to know what the rules are, and 

I have to have some assurance that in the context of those rules 

whatever judgment I execute will be respected both in terms of 

prosecution and in terms of recovery. 

Senator BARRASSO. So we need to improve the certainty? 

Mr. FREUDENTHAL. Absolutely. 

Senator BARRASSO. Mr. Ashe, last summer, the Western Governors’ Association unanimously passed a policy resolution to modernize the Endangered Species Act. There was an article in E&E 

last June. In your comments you remarked about the Western Governors’ Association saying, ‘‘I think the resolution is a great place 

to begin a dialogue. If we can continue that dialogue, and if we can 

keep it bipartisan and then start to take the resolution and build 

that into more specific principles and legislative language, then I 

think it represents the best opportunity that we have had in a long 

time to think about reauthorization of the Endangered Species 

Act.’’ 

Do you still agree that the Endangered Species Act needs to be 

modernized and that the Western Governors’ Association bipartisan policy resolution represents a decent place to start the discussion? 
148 

Mr. ASHE. I do agree that the WGA resolution represents a good 

step forward. The statement you made earlier about a bipartisan 

effort on this Committee, I think obviously is what is going to happen or needs to happen if we are going to have an effective debate 

about the future of the Endangered Species Act. 

Hats off to Governors Mead and Bullock and the leadership of 

the WGA, and the U.S. Fish and Wildlife Service under my leadership supported that effort. We supported it financially, and we supported it by providing our expertise. 

I would encourage bipartisan communication and discussion 

about the future of this law. It cannot be premised, I do not think, 

Senator, on a notion that the law is broken. I believe that the law 

is working well. I will mirror Senator Carper’s remark saying can 

it be better, can it work better? Of course it can. I do not think a 

debate, the starting point of debate should be that the law is broken. 

Senator BARRASSO. Ms. Rappaport Clark, you said in your testimony, ‘‘The ESA is not broken.’’ You went on to say, ‘‘It does not 

need to be fixed.’’ 

In 2013 you authored an article in BioScience titled, ‘‘The Endangered Species Act at 40, Opportunities for Improvement.’’ In the article you argued for modernization of the Endangered Species Act. 

You highlighted five areas for reform. You concluded that these 

ideas were ‘‘just the tip of the iceberg.’’ The vast majority of Americans, I think, agree with you. 

There was actually a poll conducted by Morning Consult in 2015 

that said 63 percent of registered voters favor updating and modernizing the Endangered Species Act. Only 10 percent oppose modernization. 

While we may not agree precisely on what changes need to be 

made to the Endangered Species Act, it does sound like we do 

agree that some changes are needed. Are you willing to work with 

the Committee on ESA modernization? 

Ms. RAPPAPORT CLARK. Thank you, Senator Barrasso, for that 

question. 

There are a couple of things. 

I would echo what I am hearing on this panel that certainly the 

Endangered Species Act could work better, absolutely. Before I get 

too far into my response, yes, I am happy to work with this Committee, for sure, as I have for years. 

Again, the Endangered Species Act—as we stay focused on the 

purposes and the goals and the objectives, what we end up debating are the implementation mechanics. I think you have heard a 

lot of that conversation today. 

I believe I have seen it happen through both Democratic and Republican Administrations. A lot of the challenges we are hearing 

conversation about I believe can be fixed administratively. There is 

a lot more rigor that can go into the Endangered Species Act. 

I remain concerned about these times given the 100-plus amendments that occurred in the last Congress which seemed disconnected from the purposes and goals. I believe the American public 

enjoys and supports this law. As long as we are working to 

strengthen its ability to achieve its goals and vision, absolutely, it 

can work better. 
149 

A huge issue though which I think undercuts a lot of the frustration you are hearing is this law is starving. I have watched it happen since my time as director through Dan’s time as director, the 

chipping away of the funding fabric and the ability of the Federal 

and State agencies to save species at risk of extinction is very dire. 

To the degree this committee can work with the appropriators to 

adequately fund, I think you will see a lot of this frustration begin 

to erode. 

Senator BARRASSO. Thank you. 

Senator Boozman. 

Senator BOOZMAN. Thank you, Mr. Chairman. We appreciate you 

and Senator Carper for holding such an important hearing. It really is important to the people of Arkansas. 

Thank all of you for being here. We do appreciate your testimony. 

This is not a question, Ms. Clark, but I think the reason we are 

seeing so much backlash in the sense of people introducing legislation in an effort to kind of push things back the other way is I 

think we have had instances where things have, sometimes rightfully, sometimes wrongfully, appeared pretty heavy handed in the 

sense of using the power of the Endangered Species Act. 

Arkansas is a natural State. It is so important for so many dif- ferent reasons, including $1.55 billion to the State, 25,000 jobs annually in the case of sports people. However, I and many others, 

as we have heard today, have grown concerned that the Endangered Species Act at times has been implemented in a manner that 

hurts Arkansas families, farms, businesses, and communities with 

disputable benefits at times to wildlife. 

Director Myers, critical habitat designation has caused unease 

and even fear with private landowners concerned for the use of 

their property if it is within the circle. Under section 7 of the ESA 

private landowners are required to consult with the Fish and Wildlife Service when their property use requires a Federal permit or 

funding. Do we really need critical habitat designation to apply to 

private landowners? 

Mr. MYERS. Thank you, Senator, for the question. 

As you stated, section 7 consultation is triggered when a Federal 

action agency is permitting or funding a project on private land 

where a listed or threatened species is present. That consultation 

will result in whether or not that permit or funding is allocated for 

that particular land management activity. 

In my view critical habitat designation has no further effect on 

those situations, but it can cause unnecessary anxiety as you have 

pointed out. I would just further my view that designation of that 

habitat could be eliminated on private lands. 

Senator BOOZMAN. Tell me how it affects agriculture. 

Mr. MYERS. With agricultural practices it is a similar situation. 

If they are receiving, say, farm bill allocations, and there is critical 

habitat that overlays, there are those conditions under which if 

those species are present, as they go through their planning process with FSA or NRCS, they could be precluded from receiving 

some of those funds. 

Senator BOOZMAN. Often there is little data available for a petitioned species other than required under section 4 listing criteria. 
150 

However, when developing a recovery plan much more refined data 

on life needs and habitat requirements is realized. 

Does it make sense that the need for critical habitat designation 

occurs with the recovery plan development and not at the listing? 

Mr. MYERS. Senator, absolutely. I think there are many examples that show that as you go into that recovery plan process there 

are much more comprehensive amounts of data and much more information through stakeholders and partners. 

Of the simple examples I have encountered, the Atlantic sturgeon is a simple example of there was critical habitat designated 

that included reaches of rivers that were above dams where that 

species of fish never would be occurring. 

Had those designations come subsequent to or during the recovery planning process I think it would have been refined and been 

more targeted. 

Senator BOOZMAN. Director Ashe, it is good to see you. There is 

lots of talk about the frivolous lawsuits that come about. It does 

seem there is perhaps an economic incentive for lawyers to do that 

in the sense that their attorney fees are paid regardless of if they 

win the case or not. Can you explain why this has become the 

norm? 

Mr. ASHE. Attorney fees are paid only if they win their case. 

They are not paid whether they win the case or not. As I have testified before, when somebody takes on the Federal Government 

that is a big chore. 

We get sued by States, energy industry, and NGOs. When they 

win the law provides their attorney fees and costs should be paid, 

but it is only when they win. I would say that is not a substantial 

burden for the Federal Government because No. 1 they do not win 

that often, and two, it is not a big expense for us. 

Senator BOOZMAN. In regard to that, how much time and effort 

is spent by the agency in man hours and the hassle factor where 

you could have that ability to do other things directly in line with 

your mission? I would say certainly all lawsuits are not frivolous 

and this and that, but there is enough smoke here that there actually is some fire. 

Mr. ASHE. Whether and how to compensate people for successful 

challenge against the Federal Government is a legitimate thing for 

the Congress to consider. It is kind of outside my area of expertise, 

but it is kind of a fundamental question of justice. To what extent 

do you want, does the Congress want to provide recompense to people who challenge their Federal Government and win? 

Senator BOOZMAN. Right, but it does take a lot of resources from 

the agency. 

Mr. ASHE. It takes resources, but again, as others have mentioned here, Senator, the biggest challenge for the U.S. Fish and 

Wildlife Service in implementing the law is not the challenge that 

we face in the courts. It is the lack of capacity for us to do the work 

that the law requires. 

When we talk about recovery and recovering species we proved 

in the last Administration I think that where you make a dedicated 

investment and dedicated effort we can recover species and get 

them off the list. We delisted due to recovery more species than all 

previous Administrations combined. 
151 

Where you dedicate the resources, where you build capacity, 

where we build partnership with our State colleagues we can 

achieve success. I think we have shown that. 

If I could take 1 minute I would tell you a number of suggestions 

have been made here today to make recovery standards binding at 

the time of listing to move critical habitat designation up to recovery planning. 

If you push everything up to the point at which you list the species, you are going to create a huge backlog. If we push everything 

up to the point at which we make a listing determination, it is 

going to make the work impossible to do listing, to do critical habitat, to do recovery planning, and to make that all binding at the 

time that you list the species is an incredible burden. 

I would urge the Committee to think about that carefully. 

Senator BOOZMAN. Thank you very much. 

Thank you, Mr. Chairman. 

Senator INHOFE [presiding]. Thank you, Senator Boozman. 

Senator Rounds. 

Senator ROUNDS. Thank you, Mr. Chairman. 

Governor Freudenthal, it is good to see you once again. I could 

not agree more with your comments regarding the Western Governors’ Association. That is an organization that is bipartisan in 

nature, but it is made up of leaders in the western part of the 

United States from many different points of view, but they come 

together and work through issues that are important to them. 

With the amount of Federal lands with which they have to work 

and the different ecosystems they are all involved with, they really 

do a marvelous job of trying to come together and find consensus. 

You talked about moving the goalpost and changing the course 

when someone has a new theory with regard to how we respond 

to these listings and so forth. Is this the result of a lack of perhaps 

up to date science at the agency, and if so, how should the scientific 

process be improved to make sure that we are using the most accurate science and have clear goals for species conservation? 

Mr. FREUDENTHAL. As you know, as former Governors we believe 

in the Western Governors’ largely bipartisan operation, and it always has been. 

I think what happens is, as I mentioned in my testimony, we develop missions that people want to insert into the ESA. In the case 

of sage grouse the science sort of took a back seat to the Administration’s desire to impose landscape scale planning, which is a legitimate policy but should actually be manifested not through an 

ESA listing where you piggyback it onto the sage grouse. 

What happens is people develop new ideas. I am not a scientist 

but I will say the new ideas seem to conveniently align with the 

policy of the given Administration. In the recent rules, they stuck 

in the word ‘‘credible.’’ That was essentially a reflection of the status quo. We need to strengthen the kind of science that can be 

brought to bear on these decisions. 

I am nervous about peer review. I have a son who is a scientist. 

It is a lot like lawyers judging each other. We are pretty kind to 

each other, but I think the legislation has to have some yardstick 

that says the science has to have either been—you have to talk to 
152 

the scientists, something that formulates whether it is required it 

be peer reviewed. 

For instance, in the attempt to change the listing they wanted 

the proponent to offer kind of both sides of the argument. That got 

struck before they finalized it. At some point you have to say 

science is a lot like a lot of other things. Some of it is statistical, 

and some of it is opinion. You have to differentiate opinion from 

what I would call statistical or more supportable facts. 

I am not quite sure how you word it, but one of the things that 

has to come out of this is better definition so that Director Ashe’s 

successors and others—as well as the States—begin to get a sense 

of certainty and what the target is. 

The problem is that the ESA will work if we stop putting bells 

and whistles on it to accomplish other purposes. Suddenly it becomes how do we get the western States to behave? How do we 

save 11 State sage grouse or sagebrush ecosystems? You end up 

saying that is not what the ESA is for. The ESA is supposed to be 

species specific and not necessarily become a fulcrum by which you 

lift up certain policy preferences. 

I think the key is to get back to the notion of what is the science 

related to that species and how is that science validated? I, obviously, disagree with Dan. I think more of it can be done up front 

so that we would know what the objective was on sage grouse, 

know the objective on bears, know the objective on the wolf so you 

could actually focus the limited resources we have. 

Senator ROUNDS. This may have been covered since we are all 

popping in and out. If it is, I will move on. 

I am curious both with Governor Freudenthal and also Director 

Myers. In 2015 we held an Oversight Subcommittee hearing on the 

practice of sue and settle. Particularly in this hearing we heard testimony discussing the impact of the 2011 legal settlement between 

the Fish and Wildlife Service and the Center for Biological Diversity and Wild Earth Guardians that required the agency to issue 

a final listing decision on more than 250 species. 

Can you explain what impact the practice of sue and settle has 

on the ability of States and local units of government with whom 

you should be working to work constructively together toward species conservation? I would like your thoughts on it. 

Director Ashe, would you like to begin? 

Mr. ASHE. As I testified before, the notion of sue and settle, No. 

1, I think is illegal. It would be illegal for the U.S. Fish and Wildlife Service to encourage someone to sue us and then settle. That 

is not what happened. 

What happened is the law contains very strict deadlines. We 

found ourselves I think in 18 Federal district courts arguing deadline lawsuits. We threw a lasso around that and pulled the plaintiffs to the table and forced them to settle. It was not a cozy agreement. It was actually a forced settlement. 

That allowed us to then put together a timeline that would allow 

us to meet the requirements under the law and get the courts to 

then hold to that timeline. 

I would say from the standpoint of our State and local partners 

it was very successful because we were able to push the big con-
153 

troversial things to the back, like sage grouse, which gave us 3 

years to work with our State colleagues and sit down. 

We formed a Sage Grouse Task Force with 11 range States. It 

gave us the space to make a good decision. The same happened 

with Arctic grayling. It gave us the space to work with the State 

of Montana and ranchers in the Big Hole Valley of Montana and 

avoid the need to list the Arctic grayling. 

I think it worked to the advantage of our partners for us to have 

a logical, predictable, sensible schedule that everyone could see. 

Senator ROUNDS. I apologize to the Chair but would you mind if 

the Governor would respond to that as well? Thank you. 

Mr. FREUDENTHAL. An old lawyer mentor of mine told me that 

a bad settlement is better than a good lawsuit. That is only true 

if you are in the room when it is being settled and when it is being 

approved. 

This is sort of we are going to settle it and then we will issue 

and you can comment on it, particularly on something that is broad 

and affects and immense number of people and their rights. 

I do not assert collusion. It is kind of fun as a rotary speech matter, but I do not do that as a matter of lawyer ethics. It is one that 

has a convenient outcome. People settle when the outcome works 

for both of them. It is the people on the outside, the States, private 

property owners, interest groups who are confronted with a de 

facto end game that is finished. 

I would also take exception on the question of we need to define 

win when it comes to the attorneys’ fees. They do not have to win 

the whole case; they have to win one point, and that opens it up. 

You do not want to discourage settlement, but you have to formulate the settlement in the context of the people who are broadly 

affected by it because these are public policy questions. These are 

not just two private litigants engaged. At some level you have to 

let others participate. 

Director Ashe asserts that this was better for us. For those of us 

on the receiving end it may not have felt that way, but we would 

love to have been in the room when they were talking about what 

the terms of the settlement were to have some standing. 

Remember, even intervenors do not necessarily have standing to 

participate in the settlement depending on the posture of the litigation. I would argue that sue and settle—I do not want to discourage people from settling, but I do think that settlement has to be 

subject to a higher level of scrutiny when it involves significant 

rights of non-parties across the board in a public policy context. 

Senator ROUNDS. Thank you. 

Thank you for your patience, Mr. Chairman. 

Senator BARRASSO [presiding]. Thank you, Senator Rounds. 

Senator Fischer. 

Senator FISCHER. Thank you, Mr. Chairman. 

Mr. Holte, thank you for being here today. I appreciate your 

sharing of experiences about the real challenges and the costly consequences that ag producers face due to ESA policies. I am a cattle 

rancher. I can empathize with the producer and the family you 

mentioned. 
154 

In your testimony you cited the general need to modernize the 

ESA from a listing and delisting perspective. We have tremendous 

assets in agriculture. Chief among them are our producers. 

Can you discuss the tools available to landowners that promote 

species recovery, and are these programs voluntary or incentivebased? 

Mr. HOLTE. I probably do not have real personal experience with 

the tools to assist in that. Much the frustration which I think was 

somewhat apparent in my testimony, most of the frustration was 

with an animal that has reached recovery status or well exceeded 

recovery status and yet through legal means delisting does not 

occur or is not maintained. 

To be frank with you, I do not know if I can answer your question real well. 

Senator FISCHER. I think it is clear that better engagement is 

necessary, and we have to have that engagement with landowners 

in order to address the deficiencies many of us feel are within the 

ESA. 

As we look to modernize that Act, in your view are there any 

mechanisms dealing with consultation that you think might be 

helpful so that we can enhance a discussion with local landowners 

and bring them to the table? 

Mr. HOLTE. As I mentioned earlier, you may not have been able 

to be here, but the first thing farmers think of when they get up 

in the morning is not the Endangered Species Act. It is very much 

about the livelihood they are producing and the people they are 

feeding. 

We have a great network in agriculture of general farm organizations, commodity organizations, and we work closely with our State 

Departments of Agriculture and Natural Resources. 

It is an obvious conduit to get to farmers. Many States—including Wisconsin, for sure—have a great ag press organization, a 

great network of agricultural press people, both in radio and print 

which are somewhat untapped at times, I think, in the area you 

mentioned. 

Those would be some suggestions I would throw out. 

Senator FISCHER. Thank you, sir. 

Governor, I do not know if you know but Nebraska has 23 natural resource districts. That is a system that is very unique to my 

State. Each of these NRDs is located within an individual watershed which allows the local people to develop programs to best 

serve the local natural resource management needs of that area. 

In your testimony you discussed mitigation as an important 

mechanism to preserve species. An NRD within the Missouri River 

Watershed has worked on the levee system that protects drinking 

water for two-thirds of Nebraskans as well as safeguard Offutt Air 

Force Base where STRATCOM and the 55th are located. 

However, under ESA rules this NRD would be required to purchase land for mitigation for future development. Certainly it is 

equally important so that we protect species and deliver this necessary levee project to the area. 

In your experience, Governor, what are the different tools currently available to mitigate the impact of projects on species? 
155 

Mr. FREUDENTHAL. Mitigation was actually developed, as you 

know, in the Army Corps of Engineers 404 bank context. There is 

a pretty good set of U.S. Fish and Wildlife Service rules that relate 

to banking. 

However, now we have mitigation options, in lieu fee where you 

pay into a fund or project-sponsored activities. You also have something called exchanges which have not really evolved to a definition. 

I think on mitigation, I would think about structuring the mitigation so that it responds to the nature of the impact. In some 

cases, something like the sage grouse, that is a much longer timeframe than it is for some other species which are able to respond 

more quickly to habitat changes. 

The problem with the sage grouse is they fall in love with one 

parcel of ground, and they are dependent on certain levels of sagebrush. They are not necessarily the smartest species the Lord ever 

created, so they need a different formulation. In that context, you 

want it to be responsive to the impact. 

I think the issue for the people doing what your folks are doing 

is that we are looking for some degree of permanence to make sure 

the impact is offset over the life of it. I do not know that has to 

be a permanent easement. For some species, it does but it has to 

be more than some of the stuff that is going on, repeatedly doing 

5- and 10-year leases. That is meaningless in terms of species. 

My thought is the Committee needs to integrate some kind of 

discipline corresponding mitigation to the kind of impact, its nature 

and extent, as opposed to having that kind of float out there so 

your folks would have a set of rules. 

You need rules and consistency on mitigation just like you do on 

everything else where everybody has their own idea. Mitigation is 

not like art, is not in the eye of the beholder. It either works, or 

it does not. 

I think some yardsticks could be put in so your folks would know 

what they need to do and how it would be responsive to the impact 

they are trying to offset. 

As long as I am on that subject, one of the worse things they are 

doing now is going from a no net loss provision, which was present 

clear back to the 1980s. I think it is a 1981 set of rules. Now we 

have gone to net gain with no definition. 

Neither the ESA nor NEPA or any of the land management statutes contemplate using the authorization by the Federal Government as a vehicle to impose an additional tax on the activity of net 

gain. I get no net loss. That makes sense. It is a Federal resource; 

you want to protect it. 

To say that in addition to everything else you are going to do we 

are going to slap this other tax on as a matter of policy. That is 

important in the context of mitigation because it sets the bar as to 

what the impact is you are trying to offset. I get it, no net loss. 

I do not understand net gain. 

Other than that, I am entirely neutral. 

Senator FISCHER. Got that. Thank you, sir. 

Senator INHOFE. Mr. Chairman, before you go on, may I have 

about 30 seconds to clarify something that was said? 
156 

First of all, I would say to my friend, Dan Ashe, I have heard 

him talk about it before, that you have had more delistings than 

anyone has. 

Since its inception total listings have been 1,652. The total number of delistings during that time has been 47, 47 out of 1,600. Ten 

of those 47 were because they became extinct, so it is really 37 out 

of 1,600. You were responsible for 16 delistings, 1 out of 100. 

Senator BARRASSO. Senator Carper. 

Senator CARPER. Thank you. 

Again I apologize to our witnesses for not being able to join you 

for most of this hearing. I appreciate very much what is going on. 

I am going to telegraph a pitch here. I think pitchers and catchers report for spring training this week. I am going to telegraph a 

pitch. The pitch that I telegraphed is what are a couple of areas 

where you think there is broad consensus, if we are to make any 

changes at all? What might they include? 

When you have a controversial hearing, I think this, from what 

I am told, is constructive. There is a lot of controversy and not a 

whole lot of agreement. Help us find a few nuggets of agreement 

here today. Why don’t we start with that? 

Dan, do you want to go first? Mr. Ashe, where do you think there 

is agreement among the witnesses? 

Mr. ASHE. I think the first broad consensus needs to be that the 

benchmarks—— 

Senator CARPER. Be very brief. 

Mr. ASHE. The first point is I think we need to start with the 

consensus that we are trying to strengthen the law and our ability 

to save endangered species. 

Second, I think we can come agreement about enhanced capacity 

for States and Federal agencies to do their job and looking for ways 

to build and strengthen capacity, both in the field capacity and the 

science needed to support these decisions so they have a 

underlayment and firmament in science. 

Senator CARPER. Good. 

Jamie Clark, can you give us two, just very briefly. You can 

agree or disagree, that is OK. Repetition is good. 

Ms. RAPPAPORT CLARK. Not that I often agree with Dan but absolutely funding—with funding for the Federal and State oversight 

agencies, I believe that we could make great strides in addressing 

imperiled species challenges across our country as well as our habitat. 

Second, if I have two, an underlying consensus issue is to increase the transparency with which the Endangered Species Act is 

implemented. I think that will cross over all the elements of the 

law. 

Senator CARPER. All right, thank you. 

Mr. Holte. 

Mr. HOLTE. I think it might be more obvious, and we have not 

said it; we support the Endangered Species Act and the thought behind it. It is the right thought and the right direction to go. That 

is the first one. 

Second, probably for myself, it is the experience of having a species that has very definitely recovered, but we cannot get it 
157 

delisted. It is the frustration of either too much broadness in the 

Act or allowing the legal system to cause us headaches. 

Senator CARPER. Thank you. 

Mr. Myers. 

Mr. MYERS. I would reflect what Dan said about building capacity. It is very important. I would also say as Governor Freudenthal 

said, there is sand in the gears. We need to use our existing capacities as effectively and efficiently as possible into addition to building that capacity. 

As Mr. Holte has mentioned I think the delisting delays and 

those choke points are very important and is probably common 

ground. 

Senator CARPER. Thanks. 

Governor. 

Mr. FREUDENTHAL. Senator, I advocate more funding, but I am 

careful of the biblical admonition about new wine and old 

wineskins. We need to do more than that. 

I do not know that there is agreement on this panel. I think the 

reason there is not agreement is it gets to be very nuanced, the 

interrelationship between significant portions of the range and 

DPS gets to—that is pretty tricky. 

There are probably things we could agree on, but everybody is so 

tentative about this because this has been tried twice before and 

it failed. I would argue that there is agreement about a discussion 

of problems, but we are a long way about agreement as to how the 

corrections in the different areas would occur because it is a complicated interrelationship that has evolved over the period of time, 

particularly with some of the case law. Everybody sees an advantage for them in that. 

At some stage you guys are going to have to convene something 

that everybody puts down their spears and says, OK, is there something that we can move on. I would say that we really have not 

crossed the threshold you established in your initial comments. 

Senator CARPER. Thank you. 

Christophe Tulou, Senior Aide and former Secretary of the Delaware Department of Natural Resources and Environmental Control, is sitting right behind me. He was talking to a member of our 

EPW Committee on the minority side. He was talking to me about 

something called the sixth mass extinction. 

Apparently a number of scientists, maybe most, concluded that 

we are now living in the midst of what is termed a ‘‘sixth mass extinction,’’ one caused by human alteration of the planet. 

I would like a quick yes or no answer. Do you all agree that we 

are now experiencing a sixth mass extinction of species, just yes or 

no? 

Governor, do you want to start? 

Mr. FREUDENTHAL. The truth is I am not qualified to answer. I 

am not familiar. 

Senator CARPER. Thank you. 

Mr. Myers. 

Mr. MYERS. I would echo the same answer. I am not qualified to 

answer that. 

Senator CARPER. Thank you. 

Mr. HOLTE. Three in a row. 
158 

Senator CARPER. Ms. Rappaport Clark. 

Ms. RAPPAPORT CLARK. Yes. 

Senator CARPER. You said yes? 

Ms. RAPPAPORT CLARK. Yes. 

Mr. ASHE. Yes. 

Senator CARPER. All right. Thank you. 

I have a question, if I could, for Mr. Myers, Mr. Holte, and the 

Governor. 

Mr. Chairman, let me know when I need to slow down. 

I am wondering how it is that the population of a species declines so much that it has to be protected under the Endangered 

Species Act in the first place. I want to ask a couple questions 

about that, if I might. 

First, are States well aware generally years in advance of species 

in their jurisdiction that are declining? That is one question. The 

second question is, should we expect the States, who as I listened 

to your testimony, feel left out, unengaged, and willing to take on 

more responsibilities under this Act? Shouldn’t we expect our 

States to do a better job of managing species so they do not end 

up in so much trouble? 

Mr. Myers, do you want to go first, and then we will ask the two 

fellows on either side of you? 

Mr. MYERS. I would point out that for over a decade now State 

wildlife action plans have been guiding the work of State agencies. 

With development of State wildlife grants and these alternative 

funding sources, we have built capacity, significant capacity. 

I mentioned in my testimony and in greater detail in my written 

testimony, using the a southeast example, that we have created the 

Southeast At Risk Species Program where we are triaging across 

State boundaries and looking across those territorial jurisdictions 

range-wide at species. 

We are applying financial and human resources much more wisely and effectively than we have in the past to optimize those results. These are species that are not listed at this point in time, 

so I would say the States have made tremendous strides in building capacity but also in using their existing capacities more wisely. 

Senator CARPER. Thank you. 

Mr. HOLTE. I would say in Wisconsin we have a State law that 

recognizes endangered species. We have our own list. That is periodically reviewed as far as the species listed and those delisted. 

In the last review I think we added six or seven species and we 

delisted 15. To me that says that our State is appropriately interested, active, and capable of managing the situation. 

One other point I would make is in the area I am most familiar 

with, the gray wolf. There was a 3-year period of time in which 

wolves were delisted in Wisconsin before court action was taken 

and listed them again. 

During that 3-year period of time, our Department of Natural 

Resources held three hunting seasons in which several hundred 

wolves were taken, but the total population only decreased 9 percent, well in excess yet of our goal. 

I think there is a lot of capacity and appropriate expertise at the 

State level to deal with these issues in conjunction with the Federal Government. 
159 

Senator CARPER. Governor. 

Mr. FREUDENTHAL. I have three observations. One really has to 

with the history of game and fish agencies. They were initially created for management of species that people were interested in for 

either hunting or fishing or other things. 

It is really only within the last 10 or 15 years, largely driven by 

Federal grants, that the State agencies have shifted their focus. 

That accounts, I think, for part of the problem in that species habitat and species conditions deteriorate over time. Fifteen years is a 

pretty short period in terms of the States focusing on it. 

Second, I don’t want to get into the issue about whether climate 

change is manmade. I will leave that to you. However, climate is 

changing. You see that, and those are things that State agencies 

try to account for it, but they account for it in the same gradual 

nature that it occurs. 

I think the question you raised is the correct one. I would argue 

that really the history of game and fish agencies does not, until recently, in a relative sense, focus on the question of species maintenance or species enhancement. It has by and large been hunting, 

fishing, the hook and bullet crowd. 

I love them but now our agencies have a much broader mission. 

One of the things I learned when I was Governor was how much 

money we spent in game and fish that was beyond the traditional 

mission that those game and fish agencies had. 

That is, I don’t know, maybe a 15- or 20-year history. That is a 

relatively short time in the life of a species. 

Senator CARPER. I have one last point, if I could. You mentioned 

trying to figure out how much you are spending in these agencies. 

One of the things I mentioned in my testimony is what does the 

preservation of our species or protection of our natural resources, 

whether animals, birds, or fish, mean for us economically in our 

State? 

We have a lot of people who come to our State to hunt for ducks, 

we have a lot who come to our State who want to fish our inland 

bays and also the Atlantic Ocean which is right off our coast. We 

actually tabulated how much we realized in economic development. 

There is a real positive there. We have to keep that one in mind. 

I am going to ask a question for the record. I will mention the 

question here. It is hard to get anything done around here, as you 

know, even on a good day for things that are not controversial. 

When you have something that is controversial, we do not have 

a lot of good days yet this year. It is especially challenging. I think 

the Chairman and I have a good personal relationship and have a 

real interest in collaborating and finding areas where we can collaborate. 

We talk about the 80-20 rule is our colleague from Wyoming, 

Mike Enzi, whom you know well, Governor. Mike Enzi has the 80- 

20 rule. He says 80 percent, the things we agree on, why don’t we 

focus on that. The 20 percent of things we don’t agree on, why don’t 

we just not focus on that and come back another day. 

I don’t know that this is the 80 percent or the 20 percent, but 

I think we need to spend some time focusing on it and finding out. 

I will just close with this. I would ask, if you were in our shoes, 

what are some of the things you would do to try to find consensus 
160 

to grow and develop consensus going forward? Give us your counsel. 

The second thing just for the record, the Chairman has heard me 

say this before, and my colleagues have as well, I was born in West 

Virginia not too far from where Senator Capito grew up. My dad 

and grandfather took me fishing at a very young age, probably 3 

or 4, and hunting, a little bit older than that. I have memories still 

of the New River, fishing in the New River and other bodies of 

water. 

I remember my dad and my grandfather just being outraged at 

seeing trash in the water, along the shore, or on the docks and literally taking the time to clean it up. 

I got to be a Boy Scout later on in life. My wife and I had two 

boys became Eagle Scouts, and we were very much involved in 

what they do. The idea is I think we have a moral obligation to 

leave this planet better than the way we found it. 

There are ways to do that. There are ways to do that we do not 

impede our economic growth and economic opportunity. We have to 

be smart enough to figure out how can we be true to the advice 

my dad used to give me and my sister on our responsibility of stewardship to his planet. 

The other thing my dad used to say to my sister and me—my 

dad was a Chief Petty Officer in the Navy for like 30 years. He was 

tough as nails. He used to say a couple things over and over. One 

of the things he would say over and over to my sister and me was 

just use some common sense. He did not say it so nicely. He said 

it a lot. 

Out of that I take the notion that we should use some common 

sense in what we do here and our responsibilities. 

He also used to say had chores to do around our house, our garden and the yard and so forth. He was always saying if the job is 

worth doing, it is worth doing well. If the job is worth doing, it is 

worth doing it well. He said it a lot. 

Out of that, I took the idea that everything I do, I can do better. 

I think the same is true of all of us. I think the same is probably 

true of most programs that we develop in our States and for our 

country. 

Our challenge here is a way to do this better. My hope is by 

working together, by communicating, compromising, and collaborating, we will find the path forward is true to both our stewardship responsibilities and our responsibility to make sure we have 

jobs for people in this country. 

Thank you. 

Senator BARRASSO. Thank you, Senator Carper. Thank you for 

your thoughtful comments. 

Senator Ernst. 

Senator ERNST. Thank you very much. 

Thanks to our panel. I think there are a lot of other hearings 

going on this morning, but I appreciate the fact that you are here 

today to share some thoughts. 

I would like to redirect to State and local control or collaboration 

in some of these projects. I know the Chair mentioned the monarch 

butterfly. This is a great example of where Iowa has really stepped 

up to the plate. We have what is the Iowa Monarch Conservation 
161 

Consortium. It is a great example of how collaborative local-based 

approaches should be made prior to listings. 

The Consortium involves the Iowa State University, the Farm 

Bureau, the Iowa Department of Natural Resources, the Iowa Department of Agriculture and Land Stewardship, The Nature Conservancy, and many others. They are using science-based approaches in efforts to establish the best ways to increase habitat 

that will benefit the monarch butterfly. 

We are really glad that they have come together in this manner 

to head off a problem that we do see. We would much rather see 

that rather than heavy handed government approaches. I think 

this is a great way of how we leave the environment better than 

we found it. 

Ms. Rappaport Clark, I would like to direct this question to you. 

Do you support a greater role for States in the implementation of 

the ESA? 

Ms. RAPPAPORT CLARK. Absolutely, Senator. The States are very 

important collaborators and partners in all wide range of species 

conservation given their knowledge base, given their relationship 

with local landowners, and given their relationship with local entities. 

I believe that the Endangered Species Act over the years has 

demonstrated—your monarch example is a very good one—that 

there is enough flexibility in the law to expand those partnerships, 

and there is enough flexibility in the law to celebrate and ensure 

more rigor in those partnerships. 

The Federal Government cannot do this alone. The Federal Government steps in when everything else has failed. It is a last resort. The Endangered Species Act is not a law that leads conservation; it is a law that is there to prevent the extinction. 

To the degree we move upstream and States, tribes, other local 

stakeholders are engaged and resourced to be able to take care of 

our natural resources, that is a win-win all around. 

Senator ERNST. That is wonderful. What are the best ways we 

can be communicating out there when there is a species that is approaching endangered status? How is that communicated to the 

States and local government so they can proactively embrace this 

rather than having the Federal Government come in and instruct 

them how to do so? 

Ms. RAPPAPORT CLARK. There are a number of ways. Certainly 

I think you have heard some of my colleagues on the panel talk 

about their own State endangered species list. To a large degree 

the States have a tremendous capacity of knowing what is certainly 

endangered or imperiled within their own borders. 

However, oftentimes some of these species extend beyond State 

borders. The Federal Government, the Fish and Wildlife Service 

and NOAA Fisheries, maintain a list of candidate species which I 

call the yellow blinking light, what are those species trending toward endangerment and that should provide incentive for everyone 

interested and capable to come together to prevent the need to list 

so there is that upstream solution and the upstream capacity to engage early on. 

Senator ERNST. Mr. Ashe. 

Mr. ASHE. Thank you, Senator. 
162 

I think yes to greater State engagement and involvement. I think 

we have been realizing that over the last decade or so. I think key 

to that is a predictable schedule. We talked earlier about the multidistrict litigation settlement. 

What the U.S. Fish and Wildlife Service is involved in now is a 

process of planning the next schedule, looking at their listing obligations, sitting down with our State partners and NGO partners 

and looking forward and setting up a schedule, a predictable schedule for doing the work of the Endangered Species Act. 

The monarch butterfly is a great example of that where we said 

we have a petition, we are considering the need to list the Endangered Species Act; let us engage all of our partners now and start 

working on conservation. 

We are working with the Natural Resource Conservation Service 

to put I place assurances so that agricultural producers will know 

if they do good work for the monarch butterfly, it will not be a disadvantage to them. 

The Natural Resource Conservation Service has been a tremendous partner in providing those kinds of assurances to producers. 

Senator ERNST. OK. 

I am going to ask one more question for the entire panel. It focuses on do you believe that we cannot only support economic 

growth, but we can also balance that with the way we protect different species? How do we strike that balance? 

I am going to pose that to you, but I am going to give you a quick 

example of something we have seen in Iowa. Then I will ask you 

to respond to that first question. 

On January 11, 2017, the Fish and Wildlife Service listed the 

rusty patched bumblebee on the Endangered and Threatened Species List under the Endangered Species Act. The rule was set to 

go into effect on February 10 but was delayed under the current 

Administration until March 21. As of yesterday, the way I understand it, the NRDC has filed a suit on this delay. 

In Iowa, several counties in the central Iowa area would be included in this listing as historical areas where the bee used to 

exist. There has not been a sighting of this bee in Iowa since 2000 

according to the Fish and Wildlife Service. That is concerning to 

me. This listing will tie the hands of farmers while really doing 

nothing to increase the habitat for the bee. 

Can you speak to the economic balance that we have to have between actually promoting economic development and protecting 

habitat? 

Yes, sir. 

Mr. FREUDENTHAL. Thank you for the question, Senator. 

I would make two observations. One, it is entirely possible, but 

it will not occur unless we end up with the circumstance where we 

give meaning to partnership. The truth is the States are limited 

partners in an instance where the Federal Government is the general partner making the decisions. The States contribute resources 

to try to implement them. 

I think until there is some degree of sharing of authority you are 

not going to have a sharing of information or have that information 

become decision relevant. Regarding the monarch, it is interesting 
163 

to me it stands out because we focus on these examples of cooperation because there are so few. 

In fact, we need to figure a way that it is not the exception but 

is the rule. I think the only way you do that is redefine this as a 

general partnership and not a limited partnership, because from 

the State’s point of view we are the limited partner. They make a 

decision; we get to figure out how to implement and pour in resources to try to get it there. 

I think those kind of structural changes need to be effected so 

that when something like this is going to happen, somebody can 

say, just a minute. The significant portion of the range does not include, or this is a habitat designation. What does that mean? 

A more practical example in Wyoming is you can have a nest for 

a raptor that has not been occupied in 7 or 10 years, and people 

have to adjust their activities around it when in fact—don’t get me 

started. 

Let me say the point you raise is the correct one. The issue is 

the resolution of it. That is why everyone is so nervous because 

somehow we are going to upset this balance when in fact the lack 

of balance is what keeps us from making this Act function the way 

it should where everybody is paddling the canoe in the same direction. 

The only way you get there is if everyone is actually a partner 

and there is not a general partner who makes the decisions and 

calls the shots and their limited partners get to contribute resources. 

Senator ERNST. Collaboration, yes. Thank you. 

Mr. HOLTE. Senator, I would respond. I am optimistic. I think 

these things can happen. The one factor I think we sometimes 

overlook is discussion around our organization occasionally called 

‘‘farmer common sense.’’ I am pretty sure it is very similar to Senator Carper’s father’s common sense. It might be difficult to legislate. 

What gives me optimism is the obvious bipartisanship this Committee has and the attitude they have toward these issues. If you 

can maintain that working together attitude, I am confident that 

State relationships as well as the actions of this Committee will be 

successful. 

Senator ERNST. Thank you. 

Yes, Ma’am. 

Ms. RAPPAPORT CLARK. Senator, I firmly believe that economic 

security and environmental security are flip sides of the same coin. 

They do go hand in hand. 

While I do not know the specifics of the bumblebee you mentioned, I do know a number of these species and bat species that 

are facing serious declines in this group called ‘‘pollinators’’ are essential to the food crops of this country. 

They are sounding the alarm that something is going wrong. If 

we lose the pollinators, that whole segment of the food chain—we 

are going to be really threatening the agriculture fabric of this 

country. 

I would say one last issue for many threatened and endangered 

species is they provide tangible benefits to all of us as humans, 
164 

whether they play valuable roles in clean water, food, medicines 

and things we do not even know yet. They are sounding the alarm. 

Protecting that whole fabric of species’ existence is really important to the economic platform of who we are as a country. 

Senator ERNST. Going back to the bumblebee example, if it has 

not been cited in Iowa for 17 years, there is no reason there could 

not be habitat somewhere but that should be done in a collaborative effort with local authorities and those individual farmers. 

Sir, did you have one closing comment, and then I will relinquish 

my time? 

Mr. MYERS. Yes. I would add you absolutely can find that balance. Just a simple example that comes to mind is forestry practices in the southeast as it relates to prescribed fire. 

Using prescribed fire protects their investment and their forests 

but also provides great habitat and also recovery potential for both 

T&E species as well as species that are tending toward listing. 

Senator ERNST. Thank you very much, Mr. Chair. 

Senator BARRASSO. Thank you very much, Senator Ernst. 

Thanks to Senator Carper for coming back. I appreciate all of 

you being here today. 

If there are no more questions, members may submit follow up 

questions for the record. The hearing record will be open for the 

next 2 weeks. 

At this time, I would like to ask unanimous consent to enter into 

the record the 2013 article published by Ms. Rappaport Clark in 

BioScience, the 2015 Morning Consult poll, the 2016 E&E article, 

seven documents submitted by the Western Governors’ Association, 

plus a statement by Senator Johnson. 

Senator CARPER. I object. 

Senator BARRASSO. Hearing no objection. 

Senator CARPER. I do not object. 

[The referenced information follows:] 
165 

Viewpoint ----------'"'"'''',,', The Endangered Species Act at 40: 

Opportunities for Improvements 

JAMIE RAPPAPORT CLARK 

The Endangered Species Act 

(ESA), signed into law by President 

Nixon 40 years ago this month, has 

provided protection for imperiled species, preventing hundreds of extinctions and putting many more species 

on a path to recovery. Compared with 

other wildlife laws around the world, 

the ESA is unique because it prohibits 

activities that would lead to species 

extinction on both government and 

private property. Those powers are 

coupled with a wide range of creative 

tools that proactively conserve and 

recover wildlife. But like most laws, 

times change, new opportunities arise, 

and there are always ways to make our 

national endangered species programs 

even better. 

Congress last reauthorized the ESA 

25 years ago. Despite numerous attempts 

over the years to either strengthen or 

undermine the law, Congress has never 

had enough votes to pass one of those 

bills. There is little reason to believe 

that reauthorization is any more likely 

today, 

When I served as director of the US 

Fish and Wildlife Service (USFWS) in 

the Clinton administration, however, 

we launched a blizzard of reforms 

to make endangered species policy 

more effective, none of which involved 

Congress. We instead relied on bold 

administrative changes to policies and 

regulations that would make the law 

work better. Similar opportunities 

exist today. Here are five of the most 

important ones. 

Meaningful habitat protection 

Habitat loss remains the primary threat 

to most listed species. It is unfortunate that one of the central tools 

for protecting habitat-critical habitat 

designation-has never been used to 

its potential. One problem is that when 

the USFWS and the National Marine 

Fisheries Service (hereafter, the services) 

normally first designate critical habitat 

for a species, they do not always iden~ 

tify all areas needed for recoveryparticularly, unoccupied areas. This 

is often because the targeted species 

does not have an updated recovery 

plan. To fix this problem, the services 

should evaluate whether the boundaries of critical habitat should be revised 

whenever they finalize a recovery plan. 

In some cases, this would result in 

designating additional critical habitat 

later to achieve recovery goals. In other 

cases, the services might identify areas 

of occupied habitat as not essential to 

recovery. 

But merely designating critical habitat does not equate to protecting it. 

The services must rigorously enforce 

the ESA prohibition on "destroying or 

adversely modifying" critical habitat. 

Owens (2012) concluded that the services rarely relied on this prohibition 

to protect habitat for the 4000 projects 

that he reviewed. This is a missed 

opportunity, because "no destruction 

or adverse modification" should be a 

more objective standard to measure 

than that provided for threats to species (i.e., "no likelihood of jeopardy"; 

NRC 1995). The services are currently 

proposing to revise their definitions of 

critical habitat and adverse modification for the first time in over 20 years. 

This is an opportunity to further species recovery through stronger, more 

biology-based protections for critical 

habitat 

When not to list a candidate 

species 

For decades, the services have lacked 

the resources to immediately list all 

species that warrant protection. During 

this period of regulatory limbo, the 

924 BioScience • December 2013/ Vol. 63 No. 12 

species is considered a candidate for 

listing. The term candidate is a misnomer; we should call them deferred 

threatened and endangered species. 

The truth is that candidate species 

are just as deserving of protection as 

any listed species, because, biologically, they have already met the test for 

listing. 

Recently, the services have faced 

tremendous political pressure to not 

list many candidate species. Unfortunately, the services lack a clear standard for when they will decline to list 

a candidate species, and this creates 

the risk that political pressure will 

make decisions for them. The standard 

should be this: If the services decline 

to list a candidate species, they must 

ensure that the threats that supported 

its candidacy in the first place are 

adequately curtailed and that population targets have been met. For many 

candidates, however, their status has 

deteriorated to such an extent that 

last-minute conservation efforts often 

cannot meet population targets and 

threat-reduction goals. Therefore, they 

should be listed, The development of 

such a standard would help the services set expectations before political 

pressure starts to rise. 

Distinguishing between 

threatened and endangered 

species 

The International Union for Conservation of Nature, NatureServe, the 

state of Florida, and countries around 

the world use structured and transparent definitions to categorize different levels of extinction risk. The ESA 

uses the terms threatened and endangered; for decades, the services have 

been urged to define these terms by 

quantifying the level of risk that corresponds to threatened and endangered 

lflVW.biosciencemag.org 
166 

status (NRC 1995). However, the services still use a "best professional judgment" model, in which listing decisions 

are based primarily on a qualitative 

framework that lacks transparency and 

consistency. 

Creating a meaningful distinction 

between these two categories is not 

a paper exercise. The ESA allows the 

services to create special rules (under 

section 4[d]) for threatened species 

in which regulatory protections are 

tailored to the needs of the species, 

in contrast to the blanket protections 

provided to endangered ones. The use 

of such a rule would actually create an incentive to list species earlier, 

when they first require some but possibly not all ESA protections and when 

more conservation options still exist. 

In addition, the opportunity to more 

precisely target regulation to benefit 

threatened species is an enormous 

incentive for states or others to take 

conservation action that would move 

an endangered species to threatened 

status. The services should develop 

better definitions for these terms, 

down-list endangered to threatened 

species when appropriate, and make a 

commitment to consider section 4(d) 

rules for each threatened species. 

Monitoring and accountability 

Basic information on the status of 

many listed species is lacking. The 

USFWS does not monitor the performance of many habitat conservation plans and other conservation 

agreements. In addition, thousands 

of avoidance measures and conservation actions are negotiated through 

consultation between federal agencies, 

but the agencies do not systematically 

www.biosciencemag.org 

,,,,,,'li''"--11111111111111 .. _____ Viewpoint 

track whether and how those commitments and actions are carried out. The 

typical response is that little funding 

exists to carry out the necessary monitoring. One solution to this problem 

is for the USFWS to finalize the development of a formal tracking system. 

The second is for the USFWS to create 

a better system to track the data that 

its staff and state agencies already collect but rarely share with those who 

could benefit from it. Monitoring does 

not have to be expensive, and it should 

be part of every project, not a separate 

line item that is easily excised from a 

budget. 

Prioritizing recovery 

Funding has never been adequate 

to recover all listed species whose 

threatened or endangered status may 

have been decades or centuries in the 

making. Given this constraint, the services should seek to maximize the 

amount of biodiversity conserved 

under the ESA. To do this, they need 

a structured process to prioritize 

limited resources in ways that would 

achieve that goal. The ESA asks for 

the agencies to use a priority system 

to implement recovery plans. Although 

such systems were developed in 1975 

and again in 1982, they are not used 

today to allocate recovery funding. 

Instead, funding is based largely on 

opportunities to leverage other funding and other nonbiological factors 

like the number of employees in an 

office. 

VVhen New Zealand recently adopted 

a funding prioritization process, they 

found that they could recover 100 more 

species for the same amount of funding (Joseph et al. 2009). Similar systems 

are used or are under development in 

Australia. If the services were to develop 

similar guidelines and restructure 

their budget allocation processes to 

implement them, more recovery plans 

could be implemented with better 

results for wildlife. In some ways, this 

is the hardest administrative reform 

of the five identified here, because it 

shakes up long-standing practices and 

power among the regional bureaucra~ 

cies within the agencies, but it could 

have the most transformative results. 

Conclusions 

At the 40th anniversary of the ESA, we 

should be looking forward to the solutions that we already have on the table 

that will make the ESA more successful in the coming decade. These ideas 

are the tip of the iceberg; many more 

administrative improvements to ESA 

policy would make implementation 

of the law more effective at conserving 

biological diversity and more efficient 

in doing so, for wildlife and for the 

people affected by the law. 

References cited 

Joseph LN, Maloney RF, Possingham HP. 

2009. Optimal allocation of resources 

among threatened species: A pmject 

prioritization protocol. Conservation 

Biology 23: 328~338. 

Owen D. 2012. Critical habitat and the 

challenge of regulating small harms. 

Florida Law Review 64: 141-198. 

[NRC] National Research Council. 1995. 

Science and the Endangered Species Act. 

National Academies Press. 

Jamie Rappaport Clark (jclark@defenders.org) 

is the president and chief executive officer of 

Defenders of Wildlife, in Washington, DC. 

doi: 1 0.1525/bio.20 13 .63 .12.4 

December2013/VoL63No.12 • BioScience 925 
167 

~ MORNING CONSULT 

Methodology: 

Morning Consult 

National Tracking Poll #150706 

July 31 -August 3, 2015 

Crosstabulation Results 

This poll was condu"ed from July 31 ·August 3, 2015, among a national sample of2069 registered voters. The interviews were conducted online and the data were weighted to approximate a target sample of registered voters based 

on age, race/ethnicity, gender, educational attainment, region, annual household income, home ownership status and 

marital status. Results from the full survey have a margin of error of plus or minus 2 percentage points. 
168 

Table Index 

Table PI: Now, generally speaking, would you say that things ill the country are going in the right direc· 

tion, or have they pretty seriously gotten off on the wrong track! . . . . . . . . . . . . . . . . • . . . . . 5 

2 Table PlNET: Do you approve or disapprove of the job Baradc Obama is doing as President? . • . . . . 8 

3 Table PZ: Do you approve or disapprove of the job Barack Obama is doing as President? . . • . . . . . . II 

4 Table P3: Now, thinking about your vote, what would you say is the top set of issues on your mind when 

you cast your vote for federal offices such as US. Senate or Congress? • • . . . . . . . • . . • • • . . . . 14 

5 Table FBI: Whic/1 oftilefoUowing comes closes/to your view, even if neither is exactly right! . . . . . . 17 

6 Table FBZ: Would you say that the condition of the environment in tl1e United States is getting better, 

gening worse, or is it staying about the same? . . . • . . . . . . . . . . . • • . . . . . . . . . . . . . . . 22 

7 Table FB3NET: How familiar are you with the Endangered Species Act? . . . . . . . . . . . . . . . . . 25 

8 Table FB3: How familiar are you with the Endangered Species Act? . . . 28 

9 Table FB4NET: Given what you know about the Endangered Species Act, do you favor or oppose updating 

and modernizing the Endangered Species Act? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 

10 Table FB4: Given what you know about the Endangered Species Act, do you fm•or or oppose updating 

and modernizing tl1e Endm1gered Specie5 Act? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 

11 Table FBS_lNET: For each of t/1e following statements about the Endangered Species Act, please indicate 

whether knowing this information would make you more likely or less likely to support updating and 

modernizing the Endangered Species Act It has been over 42 years since the Endangered Species Act was 

passed . . . . . . . . . . . . . . . . • . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37 

12 Table FBS_l: For each of the following st<Jtements about the Endangered Species Act, please indicate 

whether knowing this information would make you more likely or less likely to support updating and 

modernizing the Endangered Species Act. II has been over 42 ye<~rs since the Endangered Species Act was 

passed .................................................... 40 

13 Table FBS_lNET: For each of the following statements about the Endangered Species Act, please indicate 

whether knowing this information would make you more likely or less likely to support updating and 

modernizing the Endangered Species Act. Since the Endangered Species Act was possed, nearly 1,600 

species have been added to the endangered list, but only 30 species (less than 2%) ltave been recoYered at1d 

removed from the list . . . . • . . . . . . • . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44 

14 Table FBS_2: For each of the following statements about the Endangered Species Act, please indicate 

whether knowing this information would make you more likely or less likely to support updating aJUf 

modernizing the Endangered Species Act. Since the Endangered Species Act was passed, nearly 1,600 

species have been added to the endangered list, but only 30 species (less than 2%) have been recovered and 

removed from the list . . . . . . . . . . . . . . . . . . • . . . . . . . . . . . . . . . . . . . . . . . . . 48 

15 Table FB5_3NET: For e<~ch of the foUowing statements about the Endangered Species Act, please indicate 

whether knowing this inforlll<ltion would make you more likely or less likely to support updating and 

modernizing the Endangered Species Act. From 1994 to 2013, Federal expenditures for the conservation 

of individual threatened and endangered species totaled $21.4 billion, $1.67 billion in 2013 alone 52 

2 
169 

National Tmcking Po//1150706, fu/y-August, 2015 

16 Table FBS_J: For each of the following statements alwut the Endangered Species Act, please indicate 

whether knowing this information would make you more lilcely or less liJcely to support updtUing and 

modernizing the Endangered Species Act. From 1994 to 2013, Federal e;cptnditures for the conservation 

of individual threatened and endangered species totaled $21.4 bi!Uon, $1.67 biUion in2013 alone . . . . 56 

17 Table FBS_ 4NET: For each of the following statements about the Endangered Species Ac~ please indicate 

whether knowing this information would make you more likely or less likely to support updating and 

modernizing the Endangered Species Act. Despite receiving foderal protections under the Enda11gered 

Species Act, ten species have gone extinct . . . . . . . . . . . . . . . . . . . . . . . . . . . • . . . . . . 60 

IB Table FB5_4: For each of the following statements about the Endangered Species Act, please indicate 

whether knowing tltis information would make you more likely or less likely to support updating and 

modernizing the Endangered Species Act. Despite receiving federal protections under the Endangered 

Species Act, ten species have goue extinct . . . . . • . . . . . . . . . . . . . . • • • . . . . . . . . . . . 63 

19 Table FBS_SNET: For each of the following statements about the Endangered Species Act, please indicate 

whether knowing this information wo11ld make you more likely or less likely to support updating and 

modernizing the Endangered Species Act. 26% of aU species currently listed under the Endangered Species 

Act do not have active recovery plans , . . . • . • . . . . . . . . , . . , . . . . . , . . . . • . . . . • • 67 

20 Table FBS_S: For each of the following statements about the Endangered Species Ac~ please indicate 

whether knowing this infonnalion would make you more likely or less likely to support updating and 

modernizing the Endangered Species Act. 26% of all species currently listed under the Endangered Species 

Act do not have active recovery plans . . . . . . . . .. ·. . . . . . . . . . • • . . . . . . . . . . . . • . 70 

21 Table FB5_6NET: For each of the followillg statements about the Endnngered Species Act, please indicate 

whether knowing this information would make you more likely or less likely to support updating and 

modernizing the Endangered Species Act. 7he current Endangered Species Act requires little or 110 second 

opinions from other scientists, or independent scientific review. . . • . . . . . . . . . . . . . • . . . . . 74 

22 Table FB5_6: For each of the following statements about the Endangered Species Act, please indicate 

whether knowing this information wmdd make you more likely or less likely to support updating and 

modernizing the Endangered Species Act. 7he current Endangered Species Act requires little or no second 

opinions from other scientists, or independellt scientific review. . . . . . . . . . . . . . . . . . . • . . . 77 

23 Table FB5_7NET: For each of the foUowing statements about the Endangered Species Act, please indicate 

whether knowing this information would make you more likely or less likely to support updating and 

modernizing the Endangered Species Act. Under the current Endangered Species Act, a private londowner 

can effectively lose the right to use his/her land if the land is labeled "critical habitat" for any endangered 

plant, animal, or fish. . . . . . . . . . . . . . . . . . . • . . . . . . . . . . . . . . . . • . . . . . . . . 81 

24 Table FB5_7: For each of the foUowing statements about the Endangered Species Act, please indicate 

whether knowing this information would make you more likely or less likely to support updating and 

modernizing the Endangered Species Act. Under the current Endangered Species Act, a private landowr1er 

can effictively lose the right to use his/her land if the land is labeled "critical habitat" for any endangered 

plant, animal, or fish. . . . . . . . . . . . . . . . . . . . . . . . • . . . . . . . . . . . • . . . . . . . . 85 

25 Table FB5_8NET: For eacit of the followillg statements about the Endangered Species Act, please indicate 

whether knowing this information would make you more likely or less likely to support updating and 

modernizing the Endangered Species Act. Most decisions under the Endangered Species Act are made 

with little or no state and local government involvement • . • . . . . . , . . . . . . . . . . . . . . . . . 89 

3 
170 

Paragon Insights 

26 Thble FB5_8: For eJJch of the followitlg statements about the Endangered Species Act, please indicate 

whether knowing this Information would mtJice you more likely or less likely to support up®ting and 

modernizing the En®ngered Species Act. Most decisions under the Endangered Species Act are made 

with little or no state and local govemment involvement . • . . . . . . . . . . . . . . . . • . . . . . . . 92 

27 Table FB6: Do you think the purpose of the Endangered Spedes Act should be nwinly to... . . . . . . • . 96 

28 Table FB1NET: As you may know, 75 pen:tnt of all habitats for identified endangered species are located 

on private land. Would you favor or oppose the government offering resources to farmers and ranchers to 

help endangered species recover on their private land? . . . . . . . . . . . . . . . . . . . . . . . . . . . 99 

29 Table FB7: As you may know, 75 percent of all habitats for identified endangered species are loc11ted on 

private land. Would you fRVor or oppose the government offering resoun:es to farmers and r11nchers to 

help endangered species recover on their private land? . • . . . • . . • . . . . . . . . . . . . . . . . • . I 02 

30 Table FB8: In your opinion, which level of government do you think should be most responsible for 

managing recovery of threatened and endangered species in your area? . . . . . . . . . . . . . • . . . . 105 

31 Table FB9NET: Do you fRVor or oppose updating and modernizing the Endangered Species Act? . . . . I 08 

32 Table FB9: Do you favor or oppose updating and modernizing the Endaugered Species Act? . • . . . . . Ill 

33 Summary Statistics of SW'Vey Respondent Demographics . . . . . . . . . . . . . . . . . . . . . . . 114 

4 
Nu. .al Tracking Poll 1150706. 20JS 

Table FB4NET 

Table FB4NET: Gi•en what you know about the Endangered Species Act, do you favor or oppose updating and modernizing the Endang

Don,t Know I No 

Demographic Total favor Total oppose Opinion 

Registered Voters 63'7r. (1307) 10% (209) 27% (553) 

Gender: Male 66% (632) 14% (133) 21% (200) Gender: Female 61% {675} 7% (n) 32% (353) 

Age: 18-29 59% (195) 12% (40) 29% (96) 

Age: 30-44 67% (345) 8% (42) 25% (128) Age:45-54 63% (250} U% (46) 26% (102) 

Age: 55-64 60% (228) 10% {37) 31% (118) 

Age: 65+ 65% (289) 10% (45) 24% (108) 

PID: Dem (no lean) 70% (490} 7% (47) 23% (163) PID: Jnd (no lean) 59% (441) 10% (76) 30% (226) P!D: Rep (no lean) 60% (375) 14% (87) 26% (163} 

PID/Gcnder: Dem Men 73% (225) 8% (26) 19% (59) P!D/Gender: Dem Women 68% (265) 5% (21) 27% (104) 

PID/Gender: Jnd Men 64% (202) 15% (46) 21% (67} PID/Gender: Jnd Women 56% (240) 7% (29) 37% (160) PID/Gender: Rep Men 60% (205) 18% (61) 22% (74) PID/Gender: Rep Women 60% (170) 9% (27) 31% (89) 

Tea Party: Supporter 65% (391) 16% (99) 19% (116) Tea Party: Not Supporter 63% (906) 7% (108) 30% (434) 

Ideo: Uberal (1·3) 73% (413) 7% (38) 20% (116) 

Ideo; Mnderate ( 4) 68% (376) 8% (46) 24% (134) 

Ideo: Conservative (5-1) 59% (437) 15% (113) 26% (194) 

Educ: < College 62% (844) 10% (134) 28% (382) 

Educ: Bacl!elors d"l!!'ee 68% (310) 9% (40) 24% (109) 

Educ: Post-grad 61% (153) 14% (35) 25% (62) 

Income: Under 50k 61% (547) 11% (95) 28% (255) 

!ll(Ome: 50k-100k 64% (437) 9% (62) 27% (181) !ll(Ome: lOOk+ 66% (323) 11% (52) 24% (117) 

Ethnictty: White 65% (1094) 10% (164) 25% (426) 

Continued on next page 
M

Table FB4NET: Given what you know about the Endangered Sped" Act, do you favor or oppo._ updating and modernizing the Endang

Act? 

Don't Know I No 

Demographic Thtalfawr Total oppose Opinion 

Registered Voters 63% (1307) 10% (209) 27% (553) 

Ethoiclty: Hispanic 56% (103) 15% (28) 29% (53) 

Btlmicity: Mr. Am. 49% (131) 11% (30) 39% (105) 

BtlmJcity: Other 69% (81) 13% (15) 18% (22) 

RelJg; Protestant 66% (369) 11% (64) 23% (129) 

RelJg; Roman Catholic 63% (276) 11% (48) 26% (114) 

Relig: Ath.!AsnJNone 62% (344) 8% (42) 30% (167) 

Rellg: Something Else 61% (195) 11% (35) 27% (87) 

RelJg; Jewish 63% (33) 11% (6) 26% (14) 

Rellg: Evangelical 63% (328) 13% (67) 25% (129) 

RelJg; Non-Evang. Catholics 65% (432) 10% (66) 25% (166) 

RelJg; All Christian 64% (761) 11% (132) 25% (296) 

RelJg; All Non-Christian 62% (539) 9% (77) 29% (254) 

Community: Urban 67% (315) U% (50) 22% (102) 

Community: Suburban 63% (650) JO% (106) 27% (280) 

Community: Rural 60% (337) 9% (53) 30% (170) 

Employ: Priwte Sector 68% (454) 10% (66) 22% (148) 

Employ: Government 71% (107) JO% (15) 19% (29) 

Employ: Self-Employed 68% (104) 13% (20) 19% (30) 

Employ: Homemaker 55% (129) 12% (27) 34% (80) 

Employ: Student 59% (40) 23% (15) 19% (13) 

Employ: Retired 65% {314) 8% (41) 26% (126) 

Employ: Unemployed 45% (75) 8% (13) 47% (78) 

Employ: Other 56% (79) 9% (12) 35% (49) 

job Type: White-collar 65% (580) 12% (110) 23% (200) 

Job Type: Blue-collar 68% (533) 10% (79) 22% (173) 

Job Type: Don't Know 49% (189) 5% (20) 46% (179) 

Military HH: Yes 69% (293) 10% (41) 22% (93) 

Military HH: No 62% (1010) Jo% (169) 28% (460) 

RD/WT: Right Direction 70% (483) 7% (51) 22% (154) 

RDIWT: Wrong Track 60% (824) 11% (158) 29% (399) 

Continued on next page 
Nm ..... al Trackiug Poll #150706,/uly·August. 2015 

TableFB4NET 

Table FB4NET: Given what you know about the Endangered Species Act, do you favor or oppose updating and modernizing the Endang

Don't Koow I No 

Demographic Thtal favor Total oppose Opinion 

Roglsteml Voters 63% (1307) 10% (209) 27% (553) 

Obama )olr. Approve 71% (591) 8% (64) 21% (174) 

Obama job: Disapprove 60% (687) 12% (140) 28% (320) 

II Issue: Economy 64% (511) 9% (73) 27% (212) 

#!Issue: Security 62% (233) 15% (57) 23% (88) 

#I Issue: Health Care 63% (171) 7% (19) 30% (83) 

II Issue: Medicare I Social Security 64% (160) 6% (16) 29% (73) 

f! Issue: Women:Sissues 62% (50) 17% (14) 21% (17) 

#!Issue: Bducation 59% {72) 11% (14) 30% (36) 

#I Issue: Energy 75% (53) 10% (7) 15% (10) 

#II....., other 57% (57) 10% (10) 33% (32) 

2014 Vote: Democrat 74% (555) 6% (47) 20% (148) 

2014 Vote: RepubUcan 60% (440) 14% (104) 26% (192) 

2014 Vote: Other 53% (78) 14% (21) 32% (47) 

2014 Vote: Didn't Vote 53% (228) 9% (38) 38% (162) 

2012 Vote: Barack Obama 72% (622) 6% (52) 22% (191) 

2012 Vote: Mitt Romney 60% (453) 14% (108) 26% (196) 

2012 Vote: Other 53% (66) 15% (18) 32% (40) 

2012 Vote: Didn't Vote 51% (161) 10% (32) 39% (US) 

4-Region: Northeast 66% (251) 7% (26) 27% (100) 

4-Region: Midwest 61% (297) 13% (62) 27% (130) 

4-Region: South 60% (461) 10% (77) 30% (231) 

4·Region: West 69% (299) 10% (44) 21% (92) 

Note: Row proportions may total to larger than one-hundred percent due to rounding. 
M

Table FB4: Given what you know about the Endangered Species Act, do you favor or oppose updating and modernizing the Endan&_ered 

Somewhat Somewhat Strongly Don't Know/ Demographic Strongly fal'Or favor oppose oppoae No Opinion 

RegiStered Voters 26% (544) 37% (763) 7% (148) 3% (61) 27% (553) 

Gender: Male 25% (240) 41% (392) 10% (93) 4% (40) 21% (200) 

Gender: Female 28% (304) 34% (371) 5% (56) 2% (21) 32% (353) 

Age: 18-29 28% (94) 31% (101) 9% (31) 3% (9) 29% (96) 

Age: 30-44 33% (170) 34% (175) 7% (35) 1% (7) 25% (128) 

Age: 45-54 24% (96) 39% (153) 7% (28) 5% (19) 26% (102) 

Age: 5S..64 24% (91) 36% (137) 6% (23) 4% (14) 31% (ll8) 

Age:65+ 21% (92) 45% (197) 7% (32) 3% (U) 24% (108) 

PID: Dem (no lean) 32% (221) 38% (269) 5% (32) 2% (14) 23% (163) 

PID: lnd (no lean) 25% (184) 35% (257) 7% (49) 4% (27) 30% (226) 

PID: Rep (no lean) 22% (138) 38% (237) ll% (67) 3% (20) 26% (163) 

PID/Gender: Dem Men 27% (84) 45% (141) 6% (17) 3% (8) 19% (59) 

PID/Geoder: Dem Women 35% (137) 33% (128) 4% (15) 2% (6) 27% (104) 

PIP/Gender: Ind Men 25% (79) 39% (123) 10% (30) 5% (16) 21% (67) 

PID/Geoder: Jnd Women 25% (105) 31% (134) 4% (19) 3% (11) 37% (160) 

PID/Geoder: Rep Men 23% (77) 38% (128) 13% (45) 5% (16) 22% (74) 

PID/Geoder: Rep Women 22% (62) 38% (109) 8% (23) 1% (4) 31% (89) 

Tea Party: Supporter 30% (181) 35% (210) n% (67) 5% (32) 19% (!!6) 

Tea Party: Not Supporter 25% (360) 38% (546) 6% (81) 2% (27) 30% (434) 

Ideo: Liberal (l-3) 39% (222) 34% (191) 5% (27) 2% (ll) 20% (ll6) 

Ideo: Moderate ( 4) 26% (145) 42% (231) 7% (39) 1% (7) 24% (134) 

Ideo: Conservative (5-7) 20% (146) 39% (291) 10% (75) 5% (37) 26% (194) 

Educ: < College 27% (363) 35% (480) 7% (94) 3% (41) 28% (382) 

Educ: Bachelors degree 27% (123) 41% (187) 7% (32) 2% (8) 24% (109) 

Educ: Post-grad 23% (57) 38% (96) 9% (23) 5% (U) 25% (62) 

Income: Under 50k 28% (250) 33% (297) 7% (65) 3% (31) 28% (255) 

Income: 50k-1 OOk 25% (168) 40% (269) 7% (46) 2% (16) 27% (181) 

Income: lOOk+ 26% (125) 40% (197) 8% (38) 3% (14) 24% (!!7) 

Ethnicity: White 26% (443) 39% (651) 6% (109) 3% (55) 25% (426) 

Ethnidty: Hispanic 28% (51) 28% (52) U% (22) 4% (7) 29% (53) 

Continued on next page 
Na,. _,tl Tracking Pr>ll f 150706. August, 2015 

TableF84 

Table FB4: Given what you know about the Endangered Species Act, do you favor or oppose updating and modernizing the Endangered S

Somewhat Somewhat Strongly Don't Kn.ow I 

Demographic Strongly favor favor oppose oppose No Opinion 

Registered Voters 26% (544) 37% (763) 7% (148) 3% (61) 27% (553) 

Ethnidty: Afr. Am. 23% (62) 26% (69) 11% (29) 1% (2) 39% (105) 

Ethnicity: Other 32% (38) 36% (43) 9% (11) 4% (4) 18% (22) 

Relig: Protestant 23% (131) 42% (238) 8% (45) 3% (19) 23% (129) Relig; )toman Catholic 23% (100) 40% (175) 6% (28) 5% (20) 26% (114) Relig: Ath./ Agn./None 30% (166) 32% (178) 6% (35) 1% (8) 30% (167) 

Relig: Something Else 30% (95) 32% (100) 10% (31) 1% (4) 27% (87) 

Relig: Jewish 32% (17) 31% (16) 9% (5) 2% (I) 26% (14) 

Relig: EV1111gelical 25% (129) 38% (199) 8% (42) 5% (25) 25% (129) 

Relig: Noo-Evang. Catholics 23% (153) 42% (280) 6% (41) 4% (25) 25% (166) 

Relig: All Cbristisn 24% (282) 40% (479) 7% (83) 4% (50) 25% (296) 

Relig: All Non-Christian 30% (261) 32% (278) 8% (66) 1% (II) 29% (254) 

Community: Utban 34% (158) 34% (158) 8% (38) 3% (12) 22% (102) 

Community: Subwban 24% (250) 39% (400) 8% (79) 3% (27) 27% (280) Commnoity: Roral 24% (135) 36% (202) 6% (31) 4% (22) 30% (170) 

Employ: Priwte Sector 31% (206) 37% (249) 6% (39) 4% (27) 22% (148) Employ: Government 24% (37) 47% (70) 8% (13) 2% (3) 19% (29) Employ: Self-Employed 32% (49) 36% (55) 11% (17) 2% (3) 19% (30) Employ: Homemaker 25% (60) 29% (69) 7% (17) 4% (10) 34% (80) Employ: Student 29% (20) 29% (20) 23% (IS) - (0) 19% (13) 

Employ: Retired 21% (101) 44% (213) 6% (29) 2% (12) 26% (126) Employ: Unemployed 22% (36) 23% (39) 7% (12) - (1) 47% (78) 

Employ: Other 24% (34) 32% (45) 4% (6) 4% (6) 35% (49) Job Type: White-collar 25% (225) 40% (355) 8% (75) 4% (35) 23% (200) 

Job Type: Blue-collat 30% (237) 38% (297) 8% (62) 2% (17) 22% (173) 

Job Type: Don't Know 21% (81) 28% (108) 3% (11) 2% (9) 46% (179) Military HH: Yes 28% (119) 41% (174) 8% (34) 2% (7) 22% (93) 

Military HH: No 26% (424) 36% (586) 7% (115) 3% (54) 28% (460) RD/WT: Right Direction 32% (221) 38% (261) 6% (41) 2% (11) 22% (154) RO/WT: Wrong Thtck 23% (323) 36% (502) 8% (108) 4% (50) 29% (399) 

Obama Job: Approve 33% (274) 38% (317) 7% (55) 1% (9) 21% (174) Obama Job: Disapprove 22% (257) 38% (430) 8% (89) 4% (51) 28% (320) 

Continued on next page 
Mo

Table FB4: Gi>en whDt l.ou know about the Endangered Species Act, do you jtlVor or oppose updDting Dnd modernizing the Endanf!red 

Somewhat Somewhat Strongly Don't Know/ Demographic Strongly favor favor oppose oppose No Opinion 

Registered Voters 26% (544) 37% (763) 7% (148) 3% (61) 27% (553) 

#!Issue: Economy 24% (193) 40% (317) 6% (48) 3% (24) 27% (2U) 

#I Issue: Security 27% (101) 35% {132) 12% (45) 3% (12) 23% (88) 

II Issue: Health Care 26% (72) 36% (99) 4% (12) 3% (7) 30% (83) 

#I J.ssue: Medicare I Social Security 25% (63) 39% (97) 4% (ll) 2% (5) 29% (73) 

#I J.ssue: Women's Issues 36% (30) 25% (21) 17% (14) - (0) 21% (17) 

#!Issue: Education 25% (30) 34% (42) 7% {9) 4% (5) 30% (36) 

I! J.ssue: BneJgy 39% (27) 37% (26) 6% (4) 4% (3) 15% (10) 

#I l.ssue: Other 28% (27) 30% (29) 5% (5) 5% (5) 33% (32) 

2014 Vote: Democrat 34% (255) 40% (300) 5% (37) 1% (10) 20% (148) 

2014 Vote: Republican 20% (151) 39% (289) 9% (69) S% (35) 26% (192) 

2014 Vote: Other 28% (40) 26% (38) 7% (10) 8% (II) 32% (47) 

2014 Vote: Didn't Vote 22% (94) 31% (134) 8% (33) 1% (5) 38% (162) 

2012 Vote: Barack Obama 33% (282) 39% (340) 5% (41) 1% (ll) 22% (191) 

2012 Vote: Mitt Romney 22% (167) 38% (286) 10% (75) 4% (33) 26% (196) 

2012 Vote: Other 20% (25) 33% (41) 7% (9) 8% (9) 32% (40) 

2012 Vote: Didn't Vote 22% (70) 29% (91) 8% (24) 2% (8) 39% (125) 

4-Region: North ... t 30% (ll4) 36% (137) 4% (15) 3% (U) 27% (100) 

4-Regloo: Midwest 25% (121) 36% (176) 9% (43) 4% (19) 27% (130) 

4-Reglon: South 24% (185) 36% (276) 7% {57) 3% (20) 30% (231) 

4-Region: West 29% (U4) 40% (175) 8% (33) 2% (10) 21% (92) 

Not<: Row proportions may total to larger than one-hundred percent due to rounding. 
177 

ENDANGERED SPECIES 

Western governors propose sweeping ESA 

overhaul 

Phil Taylor, E&E News reporter 

Published: Tuesday, June 14, 2016 

JACKSON, Wyo. --The Endangered Species Act should be amended to provide clearer goals for 

recovering imperiled species and make states "full partners" in listing, critical habitat and 

recovery decisions, according to a policy resolution unveiled yesterday by the Western 

Governors' Association. 

The policy blueprint, passed unanimously at WGA's summer meeting here, also proposes that 

federal wildlife agencies be given greater flexibility to prioritize which listing petitions they 

respond to first, among several other proposals. 

The eight-page resolution is the culmination of a yearlong, bipartisan effort at WGA to get 

conservation groups, industry and elected officials to take a "hard look" at how to update the 

1973 law. The initiative led by WGA's chairman, Wyoming Gov. Matt Mead (R), included four 

workshops in Cody, Wyo.; Boise, Idaho; Denver; and Honolulu that drew thousands of 

partie i pants. 

Mead plans to bring the resolution to the National Governors Association, where he chairs the 

Natural Resources Committee, and seek support from industry, environmental groups, state game 

and fish agencies, and the Fish and Wildlife Service for a legislative package that could be sent 

to Congress for approval, he said. 

"I refuse to accept that something [as] important as the Endangered Species Act can't be 

improved upon," Mead said yesterday during a WGA panel on ESA. "I am not going to go 

forward today in a timid fashion." 

A key provision in the resolution asks Congress to set clearer goals in ESA for what constitutes 

recovery of a species. 

"Western Governors believe that the best way to accomplish this goal is to require the Services 

to publish clear and quantifiable recovery goals, in consultation with the individual affected 

state(s), for threatened or endangered species at the time of the listing decision," the resolution 

states. 

The issue resonates for Mead, whose Cowboy State has worked for years to recover the gray 

wolf. The Fish and Wildlife Service has delisted the predator in Wyoming on multiple occasions, 

most recently in 2012, only to have the decisions reversed by federal judges (see related story). 
178 

Mead said that sends a bad signal to landowners and industry partners who can assist FWS in 

keeping species from the brink of extinction. 

"If you want people to support conservation, if you want them to do conservation work as well, 

you also have to have the appropriate finish line, [to show] that the job can be done," Mead said. 

When litigation keeps wolves endangered despite findings by FWS and state scientists that they 

are recovered, "the Endangered Species Act loses credibility." 

FWS Director Dan Ashe called the resolution an important first step toward updating ESA, 

which was last reauthorized in 1988. 

"I think the resolution is a great place to begin a dialogue," he said. "If we can continue that 

dialogue and if we can keep it bipartisan, and then start to take the resolution and build that into 

more specific principles and legislative language, then I think it represents the best opportunity 

we've had in a long time to think about reauthorization of the Endangered Species Act." 

But Ashe was skeptical whether the current Congress is up to the task. 

"[think in our current political climate, constructive legislative improvement ofthe law, I think, 

will continue to be difficult to envision," he said. "But I think hope springs eternal that 

conditions will change, and ... [think the WGA effort puts us in a better position to work 

constructively in a legislative process when the opportunity arises." 

In the meantime, he said, FWS will continue to pursue administration reforms to make ESA 

more efficient and flexible for landowners and industry. 

Brett Hartl, endangered species policy director with the Center for Biological Diversity, warned 

the WGA resolution "would gut the Endangered Species Act" by vesting too much power in 

states. 

"There should be no mistake that if we tum over the keys to the states on the implementation of 

the Endangered Species Act, the states would immediately tum around and give those keys to the 

oil and gas industry and other special interests," he said. "And that only spells trouble for wildlife 

already at the brink of extinction." 

The initiative lists seven goals for reauthorizing ESA: 

Requiring clear recovery goals for listed species. 

Increasing FWS flexibility to prioritize listing petitions for species in most need of 

attention. 

Enhancing the role of state governments in recovering species. 

Ensuring the use of sound science in ESA decisions. 
179 

Providing economic incentives for landowners to participate in conservation efforts. 

Providing a clearer definition of "foreseeable future," a term in ESA that determines 

whether species are "threatened." 

Making states "full partners" in listing, critical habitat and recovery decisions. 

The resolution also calls for discouraging ESA litigation, increasing grants to help states recover 

species and giving states greater say in the passage of special rules for threatened species. 

It also recommends "delaying judicial review of a rule delisting a species until the conclusion of 

the federally identified post-de listing monitoring period to allow state management of recovered 

species an opportunity to succeed." 

WGA Executive Director James Ogsbury said finding solutions on ESA requires navigating a 

political minefield. Legislative compromise in Congress has been elusive. 

"Perhaps, I suggested to [Mead], we could take on something a little easier -- like peace in the 

Middle East," Ogsbury said. However, "what has ensued is a remarkably adult and evenhanded 

dialogue about the ESA and species conservation." 

Email: ptaylor@eenews.net 
180 

Testimony of James D. Ogsbury 

Executive Director, Western Governors' Association 

Before the 

United States Senate 

Committee on Environment and Public Works 

Oversight: Modernization of the Endangered Species Act 

February 15, 2017 

Chairman Barrasso, Ranking Member Carper, and members of the Committee, Western 

Governors appreciate the opportunity to provide written testimony on the issue of species 

conservation and the Endangered Species Act (ESA). These remarks are presented by the 

Western Governors' Association (WGA), an independent, non-partisan organization 

representing the Governors of 19 western states and three U.S.-flag islands. 

Background 

Western Governors applaud the principles and intent of the ESA. Since its enactment in 1973, 

the ESA has helped prevent the extinction and assisted the recovery of threatened and 

endangered species, while providing ancillary benefits to other species. We believe that there is 

much to learn from both the successes and the failures of the Act. 

Western states are particularly and uniquely affected by the ESA, and they contain the vast 

majority of ESA critical habitat designations made by the U.S. Fish and Wildlife Service and the 

National Marine Fisheries Service (Services). The economic benefits derived from tourism and 

recreation supported by healthy species and ecosystems redound largely to states. At the same 

time, species listings and the associated prohibitions can negatively affect western states' ability 

to promote economic development, accommodate population growth, and maintain and 

expand infrastructure. The economic costs of ESA compliance can fall disproportionately on 

western states and local communities. 

The ESA is premised on a strong state-federal- partnership. Section 6(a) of the ESA states that, 

"in carrying out the program authorized by the Act, the Secretary shall cooperate to the 

maximum extent practicable with the States." Western Governors submit that such cooperation 

should involve full and authentic partnership between the states and Services with respect to 

species listing, critical habitat designations, establishment of recovery goals and delisting 

decisions. 

Through decades of work by staff and contractors, states have developed extensive science, 

expertise and knowledge of species within their borders. In many cases, state wildlife agencies 

often possess the best available science on species and retain primary management authority 

over most fish and wildlife within their borders. 
181 

Experts, observers and wildlife managers acknowledge that, in the 44 years since the passage of 

the ESA, changes to the Act are warranted. Regardless, proposed amendments to the Act are 

frequently opposed on the basis that any change represents a first step toward dismantling the 

ESA. Through the Species Conservation and ESA Initiative (Initiative), Western Governors 

have taken a significant step towards changing that narrative and will continue to advance 

common-sense reforms in the years to come. 

As former Chairman of WGA, Wyoming Governor Matt Mead launched the Initiative in June 

2015. This multi-faceted effort has included numerous public workshops, focused work 

sessions, webinars and survey instruments to collect the best ideas, recommendations and 

thoughts of a wide variety of stakeholders. Principal goals of this effort are to create a 

mechanism for states to share best practices in species management, promote the role of states 

in species conservation and explore options for improving the efficacy of the ESA. The 

Initiative has also focused on how to avoid the need to list species in the first place, through 

establishment of institutional frameworks that encourage collaborative voluntary conservation. 

Western Governors' Association Policy 

WGA's successful effort to manage an inclusive and bipartisan dialogue in the first year of the 

Initiative culminated in the adoption of WGA Policy Resolution 2016-08: Species Conservation 

and the Endangered Species Act. We hope the principles that Western Governors have embraced 

on a bipartisan basis will help to inform your own deliberations on possible changes to the ESA. 

In this resolution, Western Governors suggest seven broad goals as a basis for any bipartisan 

reform effort. We would stress that these goals must be achieved in a manner that maintains 

the Act's integrity and original intent to protect listed species. Implementation of these goals 

will improve the efficacy of the ESA by making it more workable and understandable. 

As directed by the resolution, the Initiative is continuing with a series of in-depth work sessions 

and webinars. Work sessions are primarily constructed to refine the Governors' policy 

recommendations and address challenges identified in the first year of the Initiative. We would 

like to highlight the Western Governors' Species Conservation and ESA Initiative Year Two 

Work Plan as further evidence of Governors' ongoing commitment to implementing their ESArelated recommendations. 

WGA would also like to highlight the efforts Western Governors have made to promote 

positive administrative changes to the ESA regulatory process. Western Governors have 

provided comments on several recent rulemakings, and I am pleased to submit such comments 

as concern: 

Testimony of James D. Ogsbury, Page 2 
182 

Revisions to the Regulations for Petitions 

Endangered Species Act Compensatory Mitigation Policy 

FWS Methodology for Prioritizing Status Reviews 

Proposed Changes to Critical Habitat Designation (encompassing two rules and one 

policy) 

Western Governors recognize the value of the Services' engagement in the Initiative. Governors 

are hopeful that this positive engagement will help ensure that state considerations are reflected 

in federal agency rulemaking and policies. Governors also recognize the limitations of 

regulatory reform. Regulations are not statutes and do not provide the certainty and 

consistency that statutory changes would produce. 

Conclusion 

Western Governors appreciate this opportunity to discuss species conservation, the role of 

states in this endeavor, and the impact the ESA has on state conservation efforts. Having 

worked diligently for many years on species conservation on a bipartisan basis, most recently 

through the Initiative, Western Governors recognize that much can be accomplished by 

collaborating with the Services to enact administrative changes to the Act. Further, we assert 

that the ESA should be reauthorized through bipartisan legislation that maintains the intent of 

the ESA to conserve and recover imperiled species. Western Governors hope that their 

contributions will help improve the Act's operation and its outcomes for imperiled species. 

Thank you. 

Testimony of James D. Ogsbury, Page 3 
183 

Western Governors' Association 

Policy Resolution 2016-08 

WESTERN 

GOVERNORS' 

ASSOCIATION 

Species Conservation and the Endangered Species Act 

A. BACKGROUND 

1. Western Governors applaud the principles and intent of the Endangered Species Act 

(ESA). Since its enachnent in 1973, the ESA has helped prevent the extinction and 

assisted the recovery of some threatened and endangered species, while providing 

ancillary benefits to other species. 

2. Through broad trustee, statutory and police powers, States have primary management 

authority over all fish and wildlife within their borders. States also exercise sovereign 

authority over the administration of water rights within their borders. 

3. Western states are proactively engaged in species conservation, including development 

of state and/or multi-state conservation plans to manage species at the local level as an 

alternative to federal ESA regulation. 

4. Through decades of work by staff and contractors, States have developed extensive 

science, expertise, and knowledge of species within their borders. 

5. Western states are particularly and uniquely affected by the ESA. States are the primary 

recipients of economic benefits associated with healthy species and ecosystems. 

Tourism and recreation in wildlife-dependent communities help sustain rural economies 

and promote healthier communities throughout the West. At the same time, species 

listings and the associated prohibitions and consultations can impact western states' 

abilities to promote economic development, accommodate population growth, and 

maintain and expand infrastructure such as roads, water projects, and transmission 

lines. In these circumstances, the economic costs of ESA compliance can fall 

disproportionately on western states and local communities. 

6. Given the impact ESA listing decisions have on vital state interests, states should be 

provided the opportunity to be full partners in administering and implementing the 

ESA. Federal agencies should work with states in a meaningful and productive manner 

on all ESA matters potentially impacting the states, as required by Section 6(a) of the 

Western Governors' Association Page 1 ofB Policy Resolution 2016-08 
184 

ESA: "In carrying out the program authorized by the Act, the Secretary shall cooperate 

to the maximum extent practicable with the States." 

7. The ESA is premised on a strong federal-state partnership. But the Act and its 

implementation should seek to provide expanded and meaningful consultation 

opportunities for states to comment, participate, or perform before the federal 

government takes action under the ESA. Such participation is largely optional under the 

current scheme and has been provided inconsistently. The role of states also has been 

limited by rigid internal federal processes, interagency jurisdictional disputes, and 

interpretations of the provisions of the Federal Advisory Committee Act (FACA). This 

scenario has prevented the sharing of scientific information and the consideration of 

state determined, science-based information. 

8. Western Governors recognize that species and habitat protection can be enhanced 

through working with the U.S. Fish and Wildlife Service (FWS), the National Marine 

Fisheries Service (NMFS) (referred to collectively as "the Services"), the Department of 

the Interior (DOl), and appropriate changes in the Act. However, determining the shape 

of those changes has proven controversial and Congress has been unable to reauthorize 

the ESA since its spending authority expired in 1992. Key areas that need to be 

addressed in the ESA in addition to reauthorization include: 

a) Defining a clear methodology and practice for de-listing recovered species; 

b) Delaying judicial review of a rule de listing a species until the conclusion of the 

federally identified post-delisting monitoring period to allow state management 

of recovered species an opportunity to succeed so long as there is a federally 

reviewed and endorsed conservation plan in place; 

c) Improving regulatory flexibility for federal agencies to prioritize petitions 

received to list or change the listing status of a species under the ESA; 

d) Establishing a comprehensive system of incentives to encourage state and local 

governments to develop water, land-use and development plans that meet the 

objectives of the ESA as well as local needs, both before and after a species is 

petitioned for listing under the ESA; 

e) Providing adequate tools and incentives that encourage private landowners to 

engage in species and habitat conservation activities both before and after a 

species is petitioned for listing under the ESA; 

f) Addressing ways to dis-incentivize litigation that strains federal resources and 

impedes the Services' ability to direct resources to truly imperiled species; 

Western Governors' Association Page 2 ofB Policy Resolution 2016-08 
185 

g) Increasing grants authorized under ESA Section 6- and other federal funding for 

the recovery of listed species- for: 1) state and local implementation of the Act; 

and 2) federal efforts to prevent additional listings in active partnership with the 

states; 

h) Improving the functionality of ESA Section 6 to increase partnerships and 

cooperation between states and the federal government in addressing ESA 

issues; 

i) Alleviating the pressure on states to expend scarce funds to address, mitigate 

and recover endangered and threatened species, at the expense of non-listed 

species within the state's jurisdiction; 

j) Providing greater distinction between the management of threatened versus 

endangered species in ESA to allow for greater management flexibility, including 

increased state authority for species listed as threatened; and 

k) Providing more extensive state engagement in development and implementation 

of Section 4(d) special rules or other mechanisms under the ESA that promote 

species conservation while addressing situations that merit flexibility or creative 

approaches. 

9. Climate change is increasingly being used as a determinant factor in the assessment of 

the need to list a species under the Act; however, the ESA may not be equipped to 

address this potential global threat to species and habitat. Nevertheless, the meaning of 

"foreseeable future" with the use of climate modeling is still undefined for effective 

management decisions related to implementation of the ESA. Predictions from climate 

models grow increasingly uncertain over time. Additionally, the Services currently have 

no criteria to weigh the model uncertainty related to projected scientific information, 

such as climate change, in their scientific review. 

10. States are concerned about the use of the precautionary principle in the Services' recent 

listing regulations and recovery planning processes, both proposed and adopted. This 

principle, coupled with over-reliance on predictive models that have not been validated 

with independent observational data, can have the effect of removing species from state 

jurisdiction and extending critical habitat into areas requiring extensive groundtruthing. In some instances, such listed species are at a healthy population level and are 

expected to remain healthy for decades into the future. Listings based on climate change 

modeling makes it difficult for the federal government and the states to identify a 

recovery timeline or plan for management of the listed species. 

11. States are capable of managing species, including those that might be impacted by 

future conditions. States should be viewed as full partners in all ESA decisions, but 

Western Governors' Association Page3 ofB Policy Resolution 2016-08 
186 

particularly when reviewing and considering the challenges that could be faced by 

species in the future. States bring a wealth of observational knowledge and information 

about the current status of a species and its habitat that must be factored into any ESA 

analysis or decision beyond just responding to data calls. The full depth of state 

capabilities should be incorporated in any listing decision or critical habitat designation 

based on the precautionary principle and best professional judgment. Federal 

consultation with states in analyses and final decision making will result in more 

durable and implementable solutions, better conservation outcomes, and allow for 

strained federal budgets and resources to be allocated to protecting and conserving 

species at serious risk of extinction. 

12. The Services have administratively expanded the definition of "(unoccupied) critical 

habitat" beyond the "specific areas ... essential to the conservation of the species" (ESA, 

Section 3(5)(A)(ii)) to include areas not currently capable of supporting the species but 

determined to have the potential of becoming habitat in the future. Because the 

designation of "critical habitat" can limit activities on state, county, municipal, and 

private lands, this overly broad reading can add unnecessary and uncompensated 

regulatory burdens and costs. Some recent critical habitat designations (and proposed 

designations) have been overly expansive, including nearly all or all of the geographical 

area of a broadly distributed species including peripheral habitat. This runs counter to 

statutory guidance and adds unnecessary regulatory burdens. For broadly distributed 

species, critical habitat should not include the entire or nearly all of the geographic area 

which can be occupied by a threatened or endangered species. 

13. The ESA requires that the Services use the "best available" biological information in 

making determinations about individual species' status for the purposes of the ESA. 

Biological information should be collected as thoroughly as possible in the timeframe 

provided by the Act, and should include scientific information and biological opinions 

from affected states. 

B. GOVERNORS' POLICY STATEMENT 

1. Western Governors support all reasonable management efforts to conserve species and 

preclude the need to list a species under the ESA. 

2. Western Governors believe that state and multi-state conservation plans, upon review, 

consultation, and endorsement by the Services, should give rise to a regulatory 

presumption by federal agencies that an ESA listing is not warranted so long as 

resources and mechanisms are in place to implement such plan and listing factors 

affecting the viability of the species are addressed in the plan. To that end: 

Western Governors' Association Page 4 ofB Policy Resolution 2016-08 
187 

States need clear, concrete guidance from the Services about the requirements of 

state and multi-state conservation plans in meeting minimum conservation goals 

and objectives that would lead to stable or increasing populations, eliminate 

perceived threats to the species, and eliminate the need for listing. 

The Services should acknowledge that variability in state approaches for 

conservation of species is acceptable, particularly for species with a wide geographic 

range, as long as conservation goals and objectives are met. 

3. Governors support legislative initiatives, court rulings, petitions or regulatory measures 

which allow local, state, federal and private conservation efforts adequate time to be 

implemented and demonstrate their efficacy. 

4. Western Governors recognize that much can be accomplished by working with DOl and 

the Services, and they believe that the ESA can only be reauthorized through legislation 

developed in a fashion that results in broad bipartisan support and maintains the intent 

of the ESA to protect and recover imperiled species. 

5. Western Governors call on Congress to amend and reauthorize the Endangered Species 

Act of 1973 based upon seven broad goals. These goals should be achieved while 

maintaining the Act's integrity and original intent to protect and recover listed species to 

a point where the protections of the Act are no longer necessary. Implementation of 

these goals will improve the effectiveness of the Act by making it more workable and 

understandable. The seven goals are: 

Require clear recovery goals for listed species, and actively pursue delisting of 

recovered species. Western Governors believe that recovery, and ultimately delisting of species covered by the ESA, should be the highest priority of the Act. 

Every effort should be made to complete a recovery plan within one year of a species 

being listed, when doing so will not compromise the integrity of the plan. For 

climate change listings a two to three year process may be reasonable. Federal 

funding for ESA activities should be prioritized to achieve species recovery. 

Western Governors believe that the best way to accomplish this goal is to require the 

Services to publish clear and quantifiable recovery goals, in consultation with the 

individual affected state(s), for threatened or endangered species at the time of the 

listing decision. This will provide objective recovery criteria that both state and 

federal agencies may work toward in the recovery process. Recovery plans should 

also provide guidance, in the case of species listed as endangered, regarding the 

criteria for a down-listing from endangered to threatened. In cases where 

quantification of recovery goals is not initially feasible, the services should be 

required to publish a plan, including a timeline, describing the steps the federal 

agencies will take in identifying measurable goals. Recovery goals should be 

reviewed and changed using an adaptive framework Further, the Western 

Western Governors' Association Page 5 of8 Policy Resolution 2016-08 
188 

Governors believe the required objective recovery criteria should include a clear 

articulation of the required population, population trends, or other relevant criteria, 

including amelioration of threats identified in the listing process. 

Increase the regulatory flexibility of the Services to review and make decisions on 

petitions to list or change the listing status of a species under the ESA. The current 

statutory time frames provided for making listing determinations are not sufficient 

to allow for adequate data collection and analysis. Consequently, instead of 

prioritizing listing decisions based upon resource availability and for the species 

needing the most immediate attention, the agencies are often forced to prioritize 

listing determinations through legal action. This can result in making 

determinations based on insufficient data for a species. Further, it can jeopardize 

opportunities to partner with states, landowners and other stakeholders for 

preemptive species conservation efforts that could eliminate any need to list the 

species. 

Enhance the role of state governments in recovering species. The Endangered 

Species Act can effectively be implemented only through a full partnership between 

the states, federal government, local governments and private landowners. One way 

to accomplish this partnership is to authorize the delegation of authority for the 

development of conservation plans on a voluntary basis to states that choose to 

accept such delegation, and agree with the appropriate Secretary to perform them in 

accordance with specified standards. Authority should also be given to the 

appropriate Secretary to provide grants for the additional administrative costs to the 

state. States will benefit by a right of refusal to be partners in recovery planning and 

species management. Additionally, states should also be offered tools such as 

incidental take authority, as authorized by the ESA. 

Ensure the use of sound science in ESA decisions. Given the broad implications 

that may arise when ESA actions are taken, significant decisions must be made using 

objective, peer-reviewed scientific literature and scientific observations. A review of 

the scientific and management provisions contained within listing, recovery and delisting decisions by acknowledged independent experts is important to ensure the 

public that decisions are well-reasoned and scientifically based. State agencies often 

have the best available science, expertise and other scientific and institutional 

resources such as mapping capabilities, biological inventories, biological 

management goals, state wildlife action plans and other important data. This wealth 

of resources is highly valuable; the federal government should recognize, consult, 

and employ these vast resources in developing endangered species listing, recovery 

and delisting decisions. Scientific and management review committees, as well as 

the scope and extent of the appropriate scientific and management review, should be 

agreed upon by the Services and the affected states. Federal agencies may delegate 

Western Governors' Association Page 6 ofB Policy Resolution 2016-08 
189 

their responsibility to name these review committees, and determine the scope of 

review to states in order to enhance state ownership of the committee's decision. 

Incentives and funding for conservation are essential. Western Governors believe 

that providing economic incentives for landowners to participate in conservation 

efforts is likely to achieve more efficient and cost-effective results, and may lead to 

more rapid conservation, and even obviate the need to list a species in the first 

instance. ln addition, funding for ESA related activities should be enhanced to 

address the growing list of threatened and endangered species. Funding needs to 

escalate rapidly as state and federal agencies increasingly assume ESA management 

activities and embrace ecosystem and multi-species management strategies. The 

Cooperative Endangered Species Conservation Fund authorized under Section 6 

should be funded and managed as a block grant, with state discretion on spending 

priorities. A broad range of programs, from the Farm Bill to the Water Resources 

Development Act, should be reviewed for opportunities to assist communities and 

landowners in their efforts to conserve species in a manner that respects water and 

property rights. Funding needs to be made available for proactive and incentivebased efforts to prevent listings, and for recovery plans and de-listing activities. 

Foreseeable future must be defined. The ESA does not contain a clear definition of 

"foreseeable future," a term of art in the Act. As a result, there is considerable 

variation in the Services' interpretation of this factor in listing, recovery planning, 

and delisting decisions. This lack of clarity is becoming a critical point for divergent 

and unfocused decisions as the scientific effects of climate change are being 

incorporated into these decisions. The meaning of "foreseeable future" with the use 

of climate modeling needs to be defined for listing decisions where climate change is 

critical to the decision. The re-authorization of the Act needs to provide further 

definitions for this term including an exception if there is a determination made that 

conservation objectives can be met or maintained for 5 years under state 

management authority, at which time another status review should occur. The 

Solicitor's 2009 M-Opinion that has been the basis for the Services' interpretation of 

the term provides only vague guidance, explaining that Congress intended 

"foreseeable future" to "describe the extent to which the Secretary can reasonably 

rely on predictions about the future in making determinations about the future 

conservation status of a species." M-37021, Jan. 16, 2009. 

States should be full partners in listing, critical habitat designations, recovery 

planning, and delisting decisions, particularly when modeling is used in 

analysis. When federal agencies intend to rely on the precautionary principle or best 

professional judgment, particularly when coupled with the use of long-term 

modeling and forecasting, in place of current observational science and measurable 

impacts, the states should be a full partner in the analyses, model development and 

consulted with prior to final decisions. Furthermore, the Services need to establish 

Western Governors' Association Page 7 ofB Policy Resolution 2016-08 
190 

consistent criteria to assess modeling uncertainty related to projected scientific 

information, such as climate change, in their scientific review. In these 

circumstances, federal agencies should partner with states to develop and utilize 

mutually acceptable predictive techniques and consensus-based metrics that 

maintain state primacy in the management of the species and are strongly grounded 

in observational science and measurable outcomes. 

6. Western Governors encourage the federal government to consider sound science, 

particularly from state agencies, and to include such science in its species status 

assessments and listing decisions. 

C. GOVERNORS' MANAGEMENT DIRECTIVE 

1. The Governors direct the WGA staff, where appropriate, to work with Congressional 

committees of jurisdiction and the Executive Branch to achieve the objectives of this 

resolution. 

2. Furthermore, the Governors direct WGA staff to develop, as appropriate and timely, 

detailed annual action/work plans that shall include specific targets, actions, and 

timelines necessary for furthering the policy positions and goals contained in this 

resolution. The Governors direct Governors' staff and the WGA Staff Advisory Council 

to participate with WGA staff in the development of the action/work plans. Those 

action/work plans shall be presented to, and approved by, Western Governors prior to 

implementation. The first work/action plan shall be presented to the Western Governors 

not later than three months after adoption of this resolution. WGA staff shall keep the 

Governors informed, on a regular basis, of their progress in implementing approved 

annual action/work plans. 

Western Governors enact new policy resolutions ond amend existing resolutions on a bi-onnuol basis. 

Please consult www. westqov.org/oolicies for the most current copy of a resolution and o list of all 

current WGA policy resolutions. 

Western Governors' Association Page 8 of8 Policy Resolution 2016-08 
191 

Western Governors' Species Conservation and ESA Initiative Work Plan 

Background 

As Chairman of the Western Governors' Association, Wyoming Governor Matt Mead launched 

the Species Conservation and Endangered Species Act Initiative (Initiative) in June 2015. Efforts 

of the Initiative have included four workshops, five webinars and a series of questionnaires in 

the pursuit of: creating a mechanism for states to share best practices in species management; 

promoting the role of states in species conservation; and exploring options for improving the 

efficacy of the Endangered Species Act (ESA). 

Workshops and webinars were designed to foster an inclusive and bipartisan dialogue on how 

to improve the efficacy of the ESA, and how to incentivize species conservation efforts to avoid 

the need to list a species in the first place. Thousands of stakeholders representing diverse 

interests provided input to WGA under one or more of the following six themes: 

• lncentivizing Voluntary Proactive Conservation; 

The Role of State and Local Governments in Species Conservation and ESA 

Implementation; 

Landscape Level Conservation and Ecosystem Management; 

Investing in Science and Measurable Outcomes; 

Listing, Recovery and Delisting Process of the ESA; and 

Law and Policy Recommendations. 

WGA's efforts to conduct an inclusive and bipartisan dialogue in the first year of the Initiative 

culminated in the adoption of WGA Policy Resolution 2016-08, Species Conservation and the 

Endangered Species Act. It requires WGA to develop a work plan to further the policy positions 

and goals contained in the resolution. Elements of the proposed work plan are detailed below. 

Element 1: Identify Predicate Issues for Future Success 

Extensive research and documentation of state competencies in funding, research and species 

management will be foundational to policy recommendations for regulatory and/or statutory 

improvements to the ESA. 

WGA staff will work with appropriate groups (e.g. AFWA/W AFW A) to document state 

conservation funding for non-game species, success stories and best practices. 

WGA will also work with the Staff Advisory Council (SAC) to develop a document detailing 

year-one successes for delivery to the incoming Administration and Members of Congress. The 

transition document will focus on the Governors' policy statements in the resolution and how 

those statements were informed by a broad bipartisan discussion. 
192 

Element 2: Stakeholder Engagement- Work Sessions, Webinars and Questionnaires 

Facilitating discussion and building trust among an array of diverse groups through a series of 

facilitated workshop sessions was fundamental to the success of the first year of the Initiative. 

Keeping these groups engaged will be pivotal to promoting and further refining 

recommendations for species conservation efforts and ESA improvement. WGA proposes to 

accomplish this through hosting a series of intimate work sessions, webinars and survey 

instruments on the key themes stated above and in the resolution. 

Work sessions will help WGA refine key themes and develop an understanding of the hurdles 

that may impede implementation of policy recommendations. Stakeholders will provide 

recommendations for improvements to the ESA that can be accomplished through regulatory or 

statutory means. Work sessions will serve as a mechanism for WGA to discuss real-world 

obstacles and implications to advancing the Governors' policy recommendations. 

Work sessions will differ from year one workshops in that they will; 

Be limited in size to 40-50 individuals per work session; 

Not include media; 

Not feature roundtable or panel discussions; and 

Focus on exhaustively exploring a narrow band of issues previously identified by 

Governors and stakeholders. 

Work sessions will not necessarily be held in a diversity of locations across the West. WGA will 

determine work session locations that are economically prudent and convenient for both 

participants and staff. 

Participants in work sessions will be predicated on an initial round of extensive outreach by 

WGA staff. A year two questionnaire will be developed to expand upon findings and 

recommendations from year one, then sent to those who have indicated interest and been 

engaged in the Species Conservation and ESA Initiative. WGA staff will also reach out to key 

partners in each sector from year one, and field recommendations on additional groups to 

receive the year two questionnaire. 

Maintaining a balance between sectors and interests will be imperative to the success of work 

sessions. Invitation lists will also strive to balance the continued engagement of groups from 

year one with the goal of expanding the reach of the Initiative and cultivating interest from 

groups that have not yet provided input. 

Work session findings will be recorded for gubernatorial consideration. Key questions 

identified during work sessions will inform the evolution of the year two questionnaire that will 

be distributed to interested individuals to encourage a wide range of stakeholder input on 

specific policy issues. 
193 

Given the limited size of work sessions, WGA proposes to utilize webinars to broadcast 

progress and findings to a broader audience. Webinars can be used to highlight case studies in 

proactive species conservation or serve as "virtual town halls" for groups to provide feedback 

on the development of policy issues. Panelists will be drawn from a diversity of interests and 

sectors. 

Element 3: Policy Recommendations for Species Conservation and ESA Implementation 

Policy proposals emerging from this process can be discussed and further refined at work 

session meetings. This process will position WGA to facilitate constructive engagement between 

the Services, states and interested stakeholders with the ultimate goal of improving the efficacy 

of species conservation efforts and the ESA through regulatory and administrative action. 

In advancing mutually identified policy priorities, it is likely that certain proposals will be 

unable to be enacted through regulatory means. Any possible statutory recommendations that 

emerge will need to be vetted through the regular review process for Governors' approval. 

Element 4: Communications 

WGA will maintain and expand upon the existing website for the Initiative through continued 

publication of case studies and best practices in species management. This will include the 

Species Spotlight feature, case studies that illustrate success stories developed in collaboration 

with key partners. The case studies will be expanded beyond their current scope to include 

species outside of the West in an effort to begin engaging groups east of the Mississippi River. 
194 

WESTERN 

GOVERNORS' 

ASSOCIATION 

Matthew H. Mead 

Governor of Wyoming 

Chairman 

Steve Bullock 

Governor of Montana 

Vice Chair 

James D. Ogsbury 

Executive Director 

Headquarters 

1600 Broadway 

Suite 1700 

Denver, CO 80202 

303-623-9378 

Fax 303-534-7309 

Washington. D.C. 

400 N. Capitol Street, N.W: 

Suite 376 

Washington, D.C. 20001 

202-624-5402 

Fax 202-624-7707 

www.westJ,J()v.org 

June 30, 2016 

Dan Ashe, Director 

U.S. Fish and Wildlife Service 

U.S. Department of the Interior 

1849 C Street, N.W., Room 3331 

Washington, D.C. 20240 

Re: Docket FWS-HQ-ES-2015-0016 

Eileen Sobeck, Assistant Administrator 

NOAA Fisheries 

U.S. Department of Commerce 

1315 East West Hwy., SSMC3, Rm. 14636 

Silver Spring, MD 20910 

Dear Director Ashe and Assistant Administrator Sobeck: 

Western Governors respectfully submit these comments on Endangered and 

Threatened Wildlife and Plants; Revisions to the Regulations for Petitions (ID....EE 

23448, April21, 2016). We appreciate that the U.S. Fish and Wildlife Service 

(FWS) and the National Marine Fisheries Service (NMFS) (referred to 

collectively as "the Services") have initiated a rulemaking to clarify the petition 

submission process, but are concerned with the withdrawal of several 

important provisions contained in the initial version of the proposed rule 

released on May 21, 2015 (80 FR 29286). Western Governors recommend the 

Services reinsert portions of the initial proposed rule that invites greater 

engagement with states when implementing the Endangered Species Act (ESA 

or the Act). 

States should be full partners with the Services in listing, recovery and delisting 

decisions. This includes using state fish and wildlife data and analyses as 

principal sources in ESA decisions. WGA Policy Resolutions 2016-08, (Species 

Conservation and the Endangered Species Act); 2014-11, (Species of Concern and 

Candidate Species), 2014-14, (State Wildlife Science, Data and Analysis) and 2014-09 

(Respecting State Authority and Expertise) memorialize relevant WGA positions in 

that regard. 

WESTERN GOVERNORS' ANALYSIS AND RECOMMENDA TJONS 

In comments dated September 18, 2015, Western Governors expressed support 

for the proposal requiring petitioners to: provide a copy of the petition to 

affected state(s); attempt to collect any existing state data regarding the 

petitioned species; and include data collected from the state(s) in the petition to 

the Services. The Governors further expressed support for an extension of the 

time line for state review from 30 days to at least 60 days. 
195 

Mr. Dan Ashe 

Ms. Eileen Sobeck 

June 30, 2016 

Page 2 

The Services' revision of §424.14(b)(9) (81 FR 23450) significantly departs from the initial 

proposal and fails to promote the utilization of state information and expertise to the benefit of 

species within their borders. The proposed revision now only requires the petitioner notify 

affected states of their intention to file a petition at least 30 days prior to submitting it to the 

Services. 

Notice of filing without providing information contained in the petition will not improve the 

efficacy of the ESA. States will not know the basis of the petition, nor have an opportunity to 

evaluate the scientific information it is based on for completeness. Consequently, states will 

need to direct resources to provide all available species data- some of which may already be 

contained within the petition- to the Services. The Services will benefit from substantive 

engagement with states at the time of a petition given that all fish and wildlife and their habitat 

(except to the extent limited by the Marine Mammal Protection Act) are under state 

management authority at that time. 

The Apri121, 2016 revision makes the consideration of state data optional. The revision asserts 

that following a petition notification to a state, the Services then have "the option, in 

formulating an initial finding, to use their discretion to consider any information provided by 

the States" (emphasis added). This approach is inconsistent with the mandate in Section 6 that 

the Services cooperate with the states to the maximum extent practicable in implementing the 

ESA. 

Western Governors are committed to working with the Services to improve the efficiency and 

effectiveness of the petition process, but calling for state data early in the process and then 

making its consideration discretionary offers no meaningful change to the process. 

We recommend the Services reinsert language from the initial proposal that: 

Requires state data and information be directly appended to petitions prior to the 

consideration of the petition by the Services. 

Makes the consideration of state data and information by the Services in an initial 90-

day finding mandatory and includes state agencies in preparing 12-month findings. 

Requires petitioners to provide copies of their petitions to state agencies prior to 

submitting them to the Services. 
196 

Mr. Dan Ashe 

Ms. Eileen Sobeck 

June 30, 2016 

Page3 

Allowing states the ability to include relevant information and data into the petition process 

will improve efficiency by allowing the Services to identify and reject unsubstantiated or 

incomplete petitions early in the process. This would benefit the Services, states and the listed 

species in need of attention and resources. 

CONCLUSION 

Western Governors appreciate the Services' work to refine the petition process and promote 

utilization of state data and expertise. We also appreciate the ongoing partnership of the 

Services in the Western Governors' Species Conservation and ESA Initiative (Initiative). The 

petition process is one of the areas that received particular focus by stakeholders engaged in the 

Initiative. We would refer you to the Initiative's Special Report and Appendix for more 

information. 

Thank you for your attention to these comments and we look forward to continuing to work 

with the Services on this and other common sense improvements that will make the ESA 

function better for species and people. 

Sincerely, 

Matthew 

~~ H. Mead 

Governor of Wyoming 

Chairman, WGA 

~ Governor of Montana 

Vice Chair, WGA 

cc: Gary Frazer, Assistant Director for Endangered Species, U.S. Fish and Wildlife Service 

cc: Donna Wieting, Director, Office of Protected Resources, NOAA Fisheries 
197 

WESTERN 

GOVERNORS' 

ASSOCIATION 

Steve Bullock 

Governor of Montana 

Chair 

Dennis Daugaard 

Governor of South Dakota 

Vice Chair 

James D. Ogsbury 

Executive Director 

Head;marters 

1600 Broadway 

Suire 1700 

llenvec, CO 80102 

JOJ-623-9378 

Fax JOJ-534-7309 

Waffiimron. D.C. 

400 N. Capitol Street, N.W. 

Suire 376 

Washington, D.C 20001 

202-614-5402 

Fax 201-624-7707 

www.westgov.org 

October 17, 2016 

Dan Ashe, Director 

U.S. Fish and Wildlife Service 

c/o Division of Policy, Performance, and Management Programs 

MS: BPHC; 5275 Leesburg Pike 

Falls Church, VA 22041-3803 

Docket No.: FWS-HQ-ES-2015-0165 

Dear Director Ashe: 

The Western Governors' Association (WGA) appreciates the opportunity to 

comment on the U.S. Fish and Wildlife Service's (Service) draft Endangered Species 

Act Compensatory Mitigation Policy (81 FR 61031. September 2, 2016). 

STATEMENT OF INTEREST 

Under the U.S. Constitution, states have trust authority over natural resources 

and wildlife. Consequently, Governors bear management responsibility for all 

fish and wildlife within their states' borders. Further, state agencies possess a 

wealth of knowledge and scientific expertise on the status and distribution of 

endangered, threatened and at-risk species. Moreover, because of their close 

working relationships with local governments and landowners, they are in a 

unique position to assist the Service in implementing the ESA. 

For these reasons, Western Governors, in a letter dated January 21, 2014, 

requested that Department of the Interior (DOl) mitigation requirements that 

may affect state and private land be: 

Developed in coordination with Governors in whose states where DOl 

lands are sihlated; and 

Clearly defined and implemented so proper and reasonable mitigation 

can be incorporated in project planning. 

COORDINATION WITH STATES 

Section 4.8 of the proposed policy calls for collaboration with affected 

stakeholders and governments in the development of landscape-scale 

conservation programs designed to achieve a net gain, or at a minimum, no net 

loss in conservation for listed and at-risk species. The policy defines at-risk 

species as candidate species and other unlisted species that are declining and at 
198 

Dan Ashe 

October 17, 2016 

Page2 

risk of becoming candidates for listing under the ESA. Under this definition, states retain 

primary management authority for candidate and at-risk species within their borders. 

Western states are proactively engaged in species conservation. Among other things, they 

develop state and multi-state conservation plans to manage species at the local level. For this 

reason, we urge the Service to expand and clarify guidance to agency staff on state agencies' 

lead role in coordinating compensatory mitigation efforts for at-risk species as defined in the 

proposed policy. 

LANDSCAPE-SCALE PLANNING 

Pursuant to President Obama's November 3, 2015, memorandum, Mitigating Impacts on Natural 

Resources from Development and Encouraging Related Private Investment (Presidential 

Memorandum), the Service's proposed policy calls for a landscape-scale approach to 

development and conservation planning, including mitigation. 

Western Governors recognize that landscape-scale approaches to compensatory mitigation- if 

designed and implemented appropriately- may promote better project planning and help to 

achieve species conservation goals and species recovery under the ESA. Accordingly, the 

Governors support the Service's efforts to encourage the use of market-based compensatory 

mitigation programs such as conservation banks and habitat exchanges. 

Whether a landscape-scale approach to species management can fulfill this promise will 

depend, to a significant degree, on how the concept is delineated and implemented by the 

Service. As the WGA Species Conservation and ESA Initiative identified, the term "landscapescale" is multi-faceted and can have different meanings to different stakeholders. Questions 

persist regarding how landscape-scale conservation efforts are defined in terms of scale, scope, 

funding and scientific consistency. We refer you to the Initiative's Special Report and Appendix 

for more context in that regard. 

NET CONSERVATION GAIN I NO NET LOSS 

A primary focus of the proposed policy is a goal of "net conservation gain" to guide 

compensatory mitigation efforts, or, at a minimum, a goal of no net loss in conservation. 

Western Governors are concerned by the lack of definition provided for the "net conservation 

gain" goal. For example, the proposed policy does not delineate how the Service will determine 

that "net conservation gain" has occurred, or is likely to occur. 

Western Governors request that the final rule include a definition of "net conservation gain" 

and the basis on which the Service will assess mitigation plans for net conservation gain 
199 

Dan Ashe 

October 17,2016 

Page3 

outcomes. Western Governors also request that the Service identify the factors to be taken into 

account in assessing the net conservation gain of specific mitigation efforts. 

Clearly defining "net conservation gain" will benefit projects that must comply with proposed 

policy, although the Service recognizes their limited authority to require mitigation under the 

ESA. It will also benefit Service representatives responsible for implementation of the proposed 

policy. Substantive consultation with Governors and state representatives regarding the 

definition will ensure appropriate parameters for compensatory mitigation under the ESA. 

CONCLUSION 

Western Governors request that the Service engage in substantive and ongoing consultation 

with Governors and state regulators to create clarity around landscape-scale compensatory 

mitigation in the West and the definition of "net conservation gain." Such an approach would 

comport with the Governors' view of what a real and substantive consultative process should 

entail.l 

Sincerely, 

~ Steve Bullock 

Governor of Montana 

Chair, WGA 

~ugava~r~d~~~~~ Governor of South 

Vice Chair, WGA 

1 WGA Policy Resolution 2014-09, Respecting State Authority and Expertise: "Western Governors 

support early, meaningful and substantial state involvement in the development, prioritization 

and implementation of federal environmental statutes, policies, rules, programs, reviews, 

budget proposals, budget processes and strategic planning." 
200 

WESTERN 

GOVERNORS' 

ASSOCIATION 

Matthew H. Mead 

Governor of Wyoming 

Chairman 

Steve Bullock 

Governor of Montana 

Vice Chair 

James D. Ogsbury 

Executive Director 

Heclllquarrers 

1600 Broadway 

Suite 1700 

Denver, CO 80202 

.103-623-9.178 

F·,xJOJ-534-7309 

Washington. D.C. 

400 N. Capitol Street, N.W. 

Suite376 

Washington, D.C. 20001 

202-624-5402 

Fax 202-624-7707 

www.westgov.org 

February 16, 2016 

Mr. Douglas Krofta 

United States Fish and Wildlife Service 

Division of Conservation and Classification 

5275 Leesburg Pike 

Falls Church, VA 22041-3803 

Re: Docket FWS-HQ-ES-2015-0169 

Dear Mr. Krofta: 

The Western Governors' Association (WGA) appreciates the opportunity to 

provide comments on the United States Fish and Wildlife Service's (FWS) 

proposed methodology for prioritizing status reviews and accompanying 12-

month findings on petitions for listing species under the Endangered Species Act 

(ESA) [81 FR 2229. January 15, 2016]. 

STATEMENT OF INTEREST: 

WGA represents the Governors of 19 western states and 3 U.S.-flag islands. The 

association is an instrument of the Governors for bipartisan policy development, 

information exchange and collective action on issues of critical importance to the 

western United States. 

States have primacy over fish, wildlife and water within their borders. They 

have developed a tremendous body of science and expertise on these resources. 

States conduct research and on-the-ground analysis of species' status. States 

adopt policies and take steps to prevent species from becoming imperiled. 

Western Governors support voluntary proactive conservation measures and, in 

many cases, actively implement conservation measures in concert with local 

governments and private parties to aid the recovery of at-risk-species. 

Governors recognize the important role of FWS in administering the petition 

process under the Endangered Species Act. Governors appreciate the recent 

efforts by FWS and the National Marine Fisheries Service (NMFS) to initiate a 

rulemaking to clarify the petition submission process and enhance the role of 

states in the process. The proposed rule notes that states have substantial 

expertise, and information relevant to species conservation and that states are 

generally responsible for species management unless the species is federally 

listed. Accordingly, the FWS should utilize state data and expertise in 

conducting status reviews and 12-month findings on petitions for listing species 

under the ESA. 
201 

Mr. Douglas Krofta 

February 16, 2016 

Page2 

ESA Section 6 requires the Services to cooperate with states to the maximum extent practicable 

in implementing the Act. States should be full partners in listing, recovery and delisting 

decisions. Additionally, Governors encourage federal agencies to use sound science in ESA 

decisions with state fish and wildlife data and analyses as principal sources in species status 

assessments and listing decisions. WGA Policy Resolutions 13-08: Endangered Species Act, 14-

11: Species of Concern and Candidate Species, 14-14: State Wildlife Science, Data and Analysis, 

and 14-09: Respecting State Authority and Expertise memorialize WGA positions. 

WESTERN GOVERNORS' ANALYSIS AND RECOMMENDATIONS: 

The FWS proposes five categories to better identify and prioritize pending status reviews and 

accompanying 12-month findings on petitions for listing species under the ESA. 

Available State Data 

In situations where the FWS does not have adequate data to support assigning an action the 

correct priority, the FWS proposes to consult with state fish and wildlife agencies. These 

agencies have management responsibility for petitioned species or relevant scientific data. 

Western Governors urge the use of state data in status reviews and accompanying 12-month 

findings. This state data should, however, be a principal source and not limited to instances 

where the FWS is lacking complete data. 

Highest Priority - Critically Imperiled 

The FWS states that the highest priority will be given to species experiencing severe threat 

levels across a majority of their ranges, resulting in severe population-level impacts. Western 

Governors encourage the FWS to add certainty to definitions by clarifying currently ambiguous 

terms. These include: "severe threat levels," "severe population-level impacts," and "majority 

of its range." 

Conservation Opportunities in Development or Underway 

The FWS states that a species receiving the fourth highest priority must have conservation 

efforts organized, underway, and likely to address the threats to the species. Western 

Governors applaud the recognition of voluntary proactive conservation in the status review 

process, but urge the FWS to move this to the fifth highest priority to allow full consideration of 

voluntary conservation measures. Voluntary conservation programs must be provided 

adequate time to fully develop and subsequently implement conservation measures on-theground to be successful. 
202 

Mr. Douglas Krofta 

February 16, 2016 

Page3 

Limited Data Currently Available 

The draft methodology states, "Species for which we know almost nothing about its threats or 

status will be given fifth highest priority." Western Governors urge the FWS to strike priority 

bin five from its Draft Methodology. The FWS should not be conducting 12-month findings or 

status reviews for species with almost no data. The ESA requires the FWS to conduct a 12-

month status review if "substantial" information shows that a listing "may be warranted." If 

the FWS knows "almost nothing" about the threats to or status of a species, the petition would 

not reach the "substantial" information bar necessary to initiate a 12-month finding. Therefore, 

priority bin five is unnecessary. 

CONCLUSION: 

Western Governors support the FWS work to refine the ESA status review process. They 

appreciate the ongoing partnership of the FWS in the Western Governors' Species Conservation 

and Endangered Species Act Initiative. Western Governors look forward to the continuing to 

work with FWS to identify common sense improvements to make the ESA function better for 

species. 

Sincerely, 

--L-r~ Matthew H. Mead 

Governor of Wyoming 

Chairman, WGA 

~ Steve Bullock 

Governor of Montana 

Vice Chair, WGA 

cc: Honorable Sally Jewell, Secretary, U.S. Department of the Interior 

Dan Ashe, Director, U.S. Fish and Wildlife Service 

Gary Frazer, Assistant Director for Endangered Species, U.S. Fish and Wildlife Service 
203 

WESTERN 

GOVERNORS' 

ASSOCIATION 

Brian Sandoval 

Governor of Nevada 

Chairman 

John A. Kitzhaher, M.D. 

Governor of Oregon 

Vice Chairman 

James D. Ogsbury 

Executive Director 

Headquarters: 

1600 Broadway 

Suite 1700 

Den\'er, CO 80202 

30.3-623-9378 

Fax 303-534-7309 

Washington, D.C. Office: 

400 N. Capitol Street, N.W. 

Suite 376 

Washington, D.C. 20001 

202-624-5402 

Fax 202-624· 7707 

www.westgov.org 

October 9, 2014 

Mr. Douglas Krofta 

U.S. Fish and Wildlife Service 

Division of Conservation and Classification 

4401 N Fairfax Drive, Suite 420 

Arlington, VA 22203 

Dear Mr. Krofta: 

Western Governors respectfully submit to the U.S. Fish and Wildlife Service 

and the National Marine Fisheries Service (collectively, the "Services") the 

following comments on the Notice of Proposed Rulemaking (NOPR) for 

Implementing Changes to the Regulations for Designating Critical Habitat [79 FR 

36284. June 26, 2014 and 79 FR 27066. May 12, 2014]. Thank you for extending 

the public comment period to provide states a reasonable period of time in 

which to respond to the proposed draft. 

Our comments below focus on: 

~ The need to ensure the use of sound science in critical habitat 

designations, drawing in particular from state science and 

coordination with state agencies to do proper modeling of 

scientific trends and economic impacts of potential designations. 

Stressing that critical habitat is, by definition, the areas essential 

for conservation of a species and therefore should not be unduly 

expanded beyond that scope. 

Western Governors request that this proposed rule be reworked in 

cooperation with Western states and utilizing our state data to reach a more 

legally-defensible result and foster partnership. 

Stated Pllll'ose of the Proposed Rule: 

In the Endangered Species Act IESAl Section 3(5)(A), critical habitat is defined 

as: 

(i) the specific areas within the geographical area occupied by the 

species, at the time it is listed in accordance with the provisions of 

section 4 of this Act, on which are found those physical or biological 

features (I) essential to the conservation of the species and (II) which 
204 

Mr. Douglas Krofta 

October9, 2014 

Page2 

may require special management considerations or protection; and (ii) specific areas outside 

the geographical area occupied by the species at the time it is listed in accordance with the 

provisions of section 4 of this Act, upon a determination by the Secretary that such areas are 

essential for the conservation of the species [emphasis added]. 

This definition emphasizes that critical habitat includes specific geographic areas, containing 

particular physical or biological attributes, that are occupied by the species at the time of listing 

or unoccupied areas determined by the Secretary to be essential for species conservation. 

ESA Section 4 says that: 

The Secretary shall designate critical habitat, and make revisions thereto, under 

subsection (a)(3) on the basis of the best scientific data available and after taking into 

consideration the economic impact, the impact on national security, and any other 

relevant impact, of specifying any particular area as critical habitat. 

In the NOPR, the Services state that "the purpose of critical habitat is to identify the areas that 

are or will be [emphasis added] essential to the species' recovery." Designating areas that "will 

be" essential to species recovery requires a determination by the Secretary using the best 

scientific data available. 

The proposed rule notes that "unoccupied areas must be essential for the conservation of the 

species, but need not have the features essential to the conservation of the species .. .In other 

words, the Services may identify areas that do not yet [emphasis added] have the features, or 

degraded or successional areas that once had the features, or areas that contain sources of or 

provide the processes that maintain the features as areas essential to the conservation of the 

species." The proposed rule notes that "best available scientific data" will be used to evaluate 

whether an unoccupied area could develop the needed features and is essential for the 

conservation of a species. At a minimum, the Service should provide a thorough, data-based 

explanation of the basis for the determination that areas outside the range occupied at the time 

of listing are or will be essential habitat. 

Western Governors' Analysis and Recommendations: 

J;> Best Available Scientific Data 

The Governors find it imperative that sound science form the basis for critical habitat 

determinations, with an emphasis on state science, data and analyses. This includes 

using best available economic science data considered in designating critical habitat. 
205 

Mr. Douglas Krofta 

October 9, 2014 

Page3 

The importance of using sound science in ESA decisions, particularly from the states, is 

cited in the Western Governors' Association (WGA\ Policy Resolution 13-08 Endangered 

Species Act. In addition, WGA Policy Resolution 2014-14 State Wildlife Science, Data and 

Analysis urges federal agencies to work directly with states to obtain and use state fish 

and wildlife data and analyses as principal sources to inform land planning decisions. 

Congress, in its FY 2014 Committee on Appropriations report on the Department of the 

Interior's budget, supported the Governors' position by directing Interior to use state 

fish and wildlife data and analyses as principal sources to inform land use, land 

planning and related natural resource decisions. 

The proposed rule states, "The Services anticipate that critical habitat designations in the 

future will likely increasingly use the authority to designate specific areas outside the 

geographical area occupied by the species at the time of listing." 

Use of state expertise and experience on the ground should extend to situations where 

the Services seek to use forward-looking modeling to forecast areas that "will be" 

species habitat in the future. As noted in the WGA Policy Resolution 13-08 Endangered 

Species Act, states should be full partners to federal agencies in developing and utilizing 

mutually acceptable predictive techniques. 

~ Focus on Essential Habitat 

The Services recommend deleting a provision in Section 50 CFR 424.12(e) which 

provides that the Secretary can designate areas outside the geographical area presently 

occupied by a species only when "a designation limited to its present range would be 

inadequate to ensure the conservation of the species." While it may be the case that 

designating unoccupied habitat as critical habitat is beneficial to species recovery, under 

the ESA critical habitat, by definition, should include only those areas "essential" to 

conservation of the species. 

Designation of critical habitat has real repercussions, particularly for landowners who 

may not be able to stay in business when land uses are restricted. As the Governors note 

in WGA Policy Resolution 2014-11 Species of Concern and Candidate Species, the negative 

economic impacts of federal ESA decisions fall solely on states, local communities, 

businesses, jobs and private property owners. 

In this proposed rule, the Services propose that the scale of critical habitat designations 

be "at a scale determined by the Secretary to be appropriate" and give the Secretary the 

discretion to determine the scale used. Here once again we emphasize the need for 

using sound science, relying on state expertise. Although the proposed rule mentions 

information the Secretary may consider such as life history, the scale of available data, 
206 

Mr. Douglas Krofta 

October 9, 2014 

Page4 

and biological and geophysical boundaries, it does not state that this information must 

be drawn from the best available science. 

States have invaluable expertise that the Services should draw upon; coordinating with 

the states is an important part of appropriately designating critical habitat. The Services 

also need to document their rationale as decisions are made throughout the designation 

process. 

Building on the sound science concept, when critical habitat is designated it should be 

tied to a definable objective in a recovery plan. This will help ensure that the habitat 

designated is only the land most essential to recovering a species. 

As emphasized in WGA Policy Resolution 13-08, broad designation of critical habitat 

federalizes state, county, municipal, and private lands, adding unnecessary and uncompensated 

burdens and costs. Since ESA Section 4 calls for the Secretary to consider economic impacts 

when designating critical habitat, we underscore that designation of critical habitat is a costly 

enterprise and should be utilized only to cover the areas essential to conservation of a listed 

species, not the entire species' range. Western Governors look forward to working 

collaboratively to rework this proposed rule such that it meets our mutual interests and 

objectives. 

Sincerely, 

// I • 

'/:_')p.A.....,y<./ 

Brian Sandoval 

Governor, State of Nevada 

Chairman, WGA 

it~~gnn Vice Chairman, WGA 

cc: Honorable Sally Jewell, Secretary, U.S. Department of the Interior 

Honorable Penny Pritzker, Secretary, U.S. Department of Commerce 

Dan Ashe, Director, U.S. Fish and Wildlife Service 

Eileen Sobeck, Assistant Administrator for Fisheries, National Marine Fisheries Service 
207 

[The prepared statement of Senator Johnson follows:} 

STATEMENT OF HON. RON JOHNSON, 

U.S. SENATOR FROM THE STATE OF WISCONSIN

Chairman Barrasso, Ranking Member Carper, and members of the Committee, 

thank you for holding this oversight hearing regarding the Endangered Species Act. 

As an avid outdoorsman, I place a high value on preserving the environment for future generations. Preservation is a goal of the Endangered Species Act that we can 

all agree on, but the Federal Government must carry out its conservation efforts in 

a sensible and balanced manner. 

Since late 2014 former Congressman Reid Ribble, Congressman Sean Duffy, and 

I have been consistently and actively engaged with Wisconsinites regarding a species that now roams over much of Wisconsin—the gray wolf. This species was listed 

as endangered in 1974, when populations were at a record low. Wildlife experts enacted a wolf recovery plan that has far exceeded its Wisconsin goal of 350 wolves. 

According to the Wisconsin Department of Natural Resources, Wisconsin had at 

least 866 wolves in the 2015–2016 winter. 

Due to the gray wolf’s recovery, U.S. Fish and Wildlife Service officials first attempted in 2006 to delist the gray wolf as an endangered species. Wisconsin, Wyoming, and other States were ready and willing to institute detailed management 

plans. In 2011 and 2012 Fish and Wildlife delisted the gray wolf as endangered in 

the Great Lakes and Wyoming. Unfortunately, a lawsuit and subsequent judicial 

ruling in late 2014 reversed the Federal experts on the delisting. 

I am glad the Committee invited Jim Holte from the Wisconsin Farm Bureau to 

provide insights on the Endangered Species Act’s unintended, negative consequences. I strongly agree with what I have heard directly from Mr. Holte and 

other stakeholders including farmers, ranchers, loggers, and sportsmen—that all future gray wolf listing decisions should be made by experts in the field, not judges 

in courtrooms. 

In order to correct the misguided judicial action, I first introduced legislation 2 

years ago with Chairman Barrasso requiring the Department of the Interior to reissue the respective 2011 and 2012 delisting decisions for Great Lakes and Wyoming 

gray wolves. Unfortunately, Congress did not take action on our bill last session. 

I was pleased to reintroduce the Johnson-Barrasso legislation, S. 164, this year with 

the welcome addition of bipartisan support. 

I am hopeful this Committee and Congress will pass S. 164 soon and note our 

bill takes a sensible approach that allows States to manage gray wolf populations 

while not modifying the Endangered Species Act. The bill also does not prevent Fish 

and Wildlife Service experts from ever returning the wolf to the endangered list if 

it determines the population is in need of Federal protection. This legislation provides us an example of how States and the Federal Government can work together 

toward reasonable, common sense solutions for ecosystem preservation. 

Senator BARRASSO. I want to thank all of the witnesses for their 

time and testimony today. 

This hearing is adjourned. 

[Whereupon, at 12:04 p.m., the Committee was adjourned.] 

[Additional material submitted for the record follows:] 
208 

(>NESARC 

NATIONAL ENDANGERED SPECIES ACT 

REFORM COALITION 

1050 Thomas Jefferson Street NW 6th Floor 

Washmgton, DC 20007 

tel 202 333 7481 fax 202 338 2416 

'NWW nesarc org 

INTRODUCTION 

NATIONAL ENDANGERED SPECIES ACT REFORM COALITION 

STATEMENT FOR THE RECORD 

SENATE COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS 

"OVERSIGHT: MODERNIZING THE ENDANGERED SPECIES ACT" 

FEBRUARY 15, 2017 

The National Endangered Species Act Reform Coalition (NESARC) commends Chairman John Barrasso 

and the Senate Environment and Public Works Committee for convening today's oversight hearing to 

address the need to modernize the Endangered Species Act (ESA). The hearing is an important first step 

early in the 115th Congress to inform lawmakers on significant problems with the law, while offering 

opportunities to advance improvements to benefit imperiled species across the nation. 

NESARC is the country's oldest broad-based, national coalition dedicated solely to achieving 

improvements to the ESA and its implementation. NESARC and its members are committed to 

promoting effective and balanced legislative and administrative improvements to the ESA that support 

the protection of fish, wildlife, and plant populations as well as responsible land, water, and resource 

management. 

The Endangered Species Act was signed into law in 1973, and has not been reauthorized since 1988. For 

nearly 25 years, the law has remained unchanged and continues to be enforced, despite the lack of 

Congressional authorization. Since its enactment over 43 years ago, just two percent of species that 

have been listed as endangered or threatened have been successfully recovered. 

RECCOMENDATIONS FOR LEGISLATIVE IMPROVEMENTS TO THE ESA 

NESARC and its members recognize the need for, and support legislative improvements to, the ESA in 

the following areas: 
209 

NATIONAL ENDANGERED SPECIES ACT REFORM COALITION 

STATEMENT FOR THE RECORD 

HEARING: "OVERSIGHT: MODERNIZATION OF THE ENDANGERED SPECIES ACT" 

FEBRUARY 15, 2017 

•:• Encourage Voluntary Conservation Efforts: Voluntary conservation efforts have been at the 

heart of most species' recovery. However, with the exception of habitat conservation plans 

under Section lO(a), the ESA contains no statutory provisions specifically devoted to voluntary 

conservation. Voluntary conservation efforts should be promoted and encouraged by creating 

new avenues for States, local governments, and private property owners to proactively 

participate in species recovery efforts (e.g., creating a habitat reserve program, tax incentives, 

loan or grant programs and other funding initiatives). In addition, existing programs like Safe 

Harbor Agreements, Candidate Conservation Agreements with Assurances, and ESA Mitigation 

Banks should be codified. Finally, participants in voluntary conservation programs need 

assurances that they will be shielded from potential take liability for their activities and that 

additional conservation measures will not be imposed in the future. 

•:• Increase State and local Involvement: State and local governments have unique authorities and 

expertise on the management, protection and conservation of species and habitat within their 

jurisdiction. However, this expertise has been largely marginalized in the implementation of 

listing and critical habitat decisions by the U.S. Fish and Wildlife Service (FWS) and the National 

Marine Fisheries Service (NMFS) (collectively, the Services). Further, the framework for 

interaction with States under Section 6 of the ESA is flawed and must be re-worked. Many 

species have been recovered primarily through voluntary conservation actions as well as 

management programs led by State and local governments, often without support or direction 

under the ESA. On the ground expertise and abilities must be leveraged by providing more 

flexibility so that States and local governments have a stronger role in providing their advice and 

expertise in the listing and critical habitat designation process. Further, the ESA must be updated 

to recognize and better integrate State and local governmental programs that protect and 

enhance species. 

•:• Ensure an Open and Sound Decision-Making Process: The ESA must be open to new ideas and 

data. The decision-making process for listings, critical habitat designations and other decisions 

under the ESA must allow for full public participation, better data collection and transparency, 

and robust independent scientific review. The ESA also needs to reflect that States, tribes, local 

governments, and private parties often have current and accurate data that can be better 

incorporated into listing, critical habitat, and recovery decisions. 

•:• Improve the Critical Habitat Designation Process: The critical habitat designation process 

should be improved by: adopting modern data gathering and analysis tools that increase the 

accuracy and quality of science considered; properly accounting for existing habitat protection 

2 
210 

NATIONAL ENDANGERED SPECIES ACT REFORM COALITION 

STATEMENT FOR THE RECORD 

HEARING: "OVERSIGHT: MODERNIZATION OF THE ENDANGERED SPECIES ACT" 

FEBRUARY 15, 2017 

measures (including voluntary conservation efforts) that render designations redundant; and 

minimizing adverse economic impacts from overbroad habitat designations. The ESA also must 

be clarified to ensure that critical habitat designations only include areas where essential physical 

or biological features for the species are found to occur and their designation as critical habitat is 

essential for the conservation of the species. Moreover, for unoccupied habitat, the Secretary of 

the Interior (Secretary) must affirmatively determine that such area is habitable and that the 

designation of occupied areas, alone, is insufficient for conservation of the species. Finally, the 

scale of any critical habitat designation must be consistently applied and be at a level of 

specificity that ensures that homes, businesses and other areas that do not support the species 

or its preferred habitat are not broadly swept into a critical habitat designation. 

•!• Improve Consultation Procedures: The ESA Section 7 consultation process has proven to be 

unwieldly, with statutory deadlines routinely missed by the Services or avoided by procedural 

maneuvers. Key elements ofthe consultation process are so vaguely drafted that they have been 

the subject of a never-ending stream of litigation, including the scope of impacts to be evaluated, 

definitions for "jeopardy" and "adverse modification," and the establishment of environmental 

baselines for evaluation of potential impacts. Further, the consultation process has proven to be 

too complex for simple permits and inadequate for application to complex regulatory actions, 

such as the pesticide registration process under the Federal Insecticide, Fungicide, and 

Rodenticide Act (FIFRA). The process for consultation on the effects of federal actions on listed 

species and critical habitat must be thoroughly reshaped in a manner that avoids consultations 

for agency actions with only beneficial incremental effects, limits consultations to the footprint 

of the action proposed, requires consultations to be consistent with proposed agency actions, 

takes the current environment as the baseline, facilitates the Services' timely and consistent 

performance of their consultation obligations, and provides greater certainty and reasonableness 

regarding the end-result. 

•!• Establish Delisting Criteria: The ESA requires that, as part of recovery plans, the Services identify 

"objective, measurable criteria" for delisting species. However, many species do not have 

recovery plans and, consequentially, no criteria for delisting. Establishing meaningful and 

enforceable delisting criteria will provide a goal for everyone to work toward, streamline the 

downlisting and delisting process, and ensure that species can be removed from the list when 

recovery is achieved. 

•!• Strengthen Habitat Conservation Planning Procedures and Codify "No Surprises": The HCP 

process has the potential to be a success story, but too often private property owners are 

stymied by the delays and costs of getting HCP approval. HCP approval should be streamlined, 

3 
211 

NATIONAL ENDANGERED SPECIES ACT REFORM COALITION 

STATEMENT FOR THE RECORD 

HEARING: "OVERSIGHT: MODERNIZATION OF THE ENDANGERED SPECIES ACT" 

FEBRUARY 15, 2017 

including removing the unnecessary and redundant application of NEPA to a federal action that 

already has been thoroughly and exhaustively examined by the Services in its HCP review and 

approval process. Further, landowners involved in conservation efforts need to be certain that a 

"deal is a deal." The "No Surprises" policy must be codified under the ESA and cover all 

commitments by private parties to voluntary protection and enhancement of species and 

habitat. 

•:• Clarify the Scope and Application of Section 4(d) Rules: Section 4{d) rules are valuable tools that 

allow the Services to determine how the ESA take prohibition will apply to threatened species. 

Section 4{d) should be expanded to also apply to endangered species, and its use should be 

required for all listed species on a species-specific basis. In addition, the scope of a 4{d) rule 

needs to be limited to defining what constitutes a prohibited take, preventing the use of the rule 

as a mechanism to impose management restrictions on the use and enjoyment of land. 

•:• Implement Petition Litigation Reforms: The ESA's deadlines for acting on petitions to list species 

and designate critical habitat are so inflexible and unrealistic that the Services routinely fail to 

meet their statutory deadlines and foster a sue-and-settle environment that further usurps an 

orderly management of species decision making. The Services have no ability to prioritize actions 

for imperiled species, lack the resources to act in a timely manner, and are forced to act without 

full and thorough consideration of scientific data. These petition deadlines are enforced through 

litigation and settlements, without public involvement, which further perpetuates the underlying 

problem. The Services need additional flexibility to allow for the proper prioritization of ESA 

petitions and for full consideration of the petitioned action as expeditiously as possible. 

CONCLUSION 

On behalf of the agricultural interests, cities and counties, commercial real estate developers, 

conservationists, electric utilities, energy producers, farmers, forest product companies, home builders, 

landowners, oil and gas companies, ranchers, water and irrigation districts, and other businesses and 

individuals throughout the United States represented by NESARC, the Coalition looks forward to working 

with Chairman Barrasso, as well as all interested lawmakers on both sides of the aisle, to identify and 

implement long overdue changes to the law. 

4 
212 

(>NESARC NATIONAL ENDANGERED SPECIES ACT 

REFORM COALITION 

1050 Thomas Jefferson Street NW 6th Floor 

Washington. DC 20007 

tel. 202 333 7481 fax 202 338_2416 

www nesarc org 

NESARC Membership Roster 

American Agri-Women 

Manhattan, KS 

American Farm Bureau Federation 

Washington, DC 

American Forest and Paper Association 

Washington, DC 

American Petroleum Institute 

Washington, DC 

American Public Power Association 

Washington, DC 

Association of California Water Agencies 

Sacramenta, California 

Basin Electric Power Cooperative 

Bismark, North Dakota 

Central Electric Cooperative 

Mitchell, South Dakota 

Central Platte Natural Resources District 

Grand Island, Nebraska 

Charles Mix Electric Association 

Lake Andes, South Dakota 

Coalition of Counties for Stable 

Economic Growth 

Glenwood, New Mexico 

Codington-Ciark Electric Cooperative, Inc. 

Watertown, South Dakota 

Colorado River Energy Distributors Association 

Phoenix, Arizona 

Colorado River Water Conservation District 

Glenwood Springs, Colorado 

Colorado Rural Electric Association 

Denver, Colorado 

County of Eddy 

Carlsbad, New Mexico 

County of Sierra 

Truth or Consequences, New Mexico 

Crop life America 

Washington, DC 

Dixie Escalante Rural Electric Association 

Beryl, Utah 

Dugan Production Corporation 

Farmington, New Mexico 

Eastern Municipal Water District 

Perris, California 

Edison Electric Institute 

Washington, DC 

Frank Raspo & Sons 

Vernalis, California. 

Empire Electric Association, Inc. 

Cortez, Colorado 

Garrison Diversion Conservancy District 

Carrington, North Dakota 

Guadalupe Blanco River Authority 

Seguin, Texas 

High Plains Power, Inc. 

Riverton, Wyoming 
213 

Idaho Mining Association 

Boise, Idaho 

NAIOP 

Herndon, Virginia 

National Alliance of Forest Owners 

Washington, DC 

National Association of Counties 

Washington, DC 

National Association of Conservation Districts 

Washington, DC 

National Association of Home Builders 

Washington, DC 

National Association of State Departments of 

Agriculture 

Arlington, Virginia 

National Cattleman's Beef Association 

Washington, DC 

National Rural Electric Cooperative Association 

Washington, DC 

National Water Resources Association 

Arlington, Virginia 

Nebraska Farm Bureau Federation 

Lincoln, Nebraska 

Northern Electric Cooperative, Inc. 

Both, South Dakota 

Northwest Horticultural Council 

Yakima, Washington 

Northwest Public Power Association 

Vancouver, Washington 

Public Lands Council 

Washington, DC 

NESARC Membership Roster 

Renville-Sibley Cooperative Power Association 

Danube, Minnesota 

San Luis Water District 

Los Banos, California 

Southwestern Power Resources Association 

Tulsa, Oklahoma 

Sulphur Springs Valley Electric Cooperative 

Willcox, Arizona 

Teellrrigation District 

Echo, Oregon 

Washington State Potato Commission 

Moses Lake, Washington 

Washington State Water Resources Association 

Yakima, Washington 

Wells Rural Electric Company 

Wells, Nevada 

West Side Irrigation District 

Tracy, California 

Western Business Roundtable 

Lakewood, Colorado 

Western Energy Alliance 

Denver, Colorado 

Wheat Belt Public Power District 

Sidney, Nebraska 

Whetstone Valley Electric Cooperative, Inc. 

Milbank, South Dakota 

Wilder Irrigation District 

Caldwell, Idaho 

Wyrulec Company 

Lingle, Wyoming 

Y-W Electric Association, Inc. 

Akron, Colorado 

February 2017 
214 

Statement 

On Behalf of the 

American Road and Transportation Builders 

Association 

Submitted to the 

United States Senate 

Committee on Environment & Public Works 

Hearing on Oversight: Modernization of the Endangered Species 

Act 

February 15, 2017 

Chairman Barrasso and Ranking Member Carper thank you for holding this hearing on 

Oversight: Modernization of the Endangered Species Act (ESA). ARTBA, now in its 115'h year 

of service, provides federal representation for more than 6,000 members from all sectors of the 

U.S. transportation construction industry. ARTBA's membership includes private firms and 

organizations, as well as public agencies that own, plan, design, supply and construct 

transportation projects throughout the country. Our industry generates more than $380 billion 

annually in U.S. economic activity and sustains more than 3.3 million American jobs. 

Because of the nature of their businesses, ARTBA members undertake a variety of activities that 

are subject to ESA regulations. ARTBA's public sector members adopt, approve, or fund 

transportation plans, programs, or projects which are all subject to multiple federal regulatory 

requirements. ARTBA's private sector members plan, design, construct and provide supplies for 

federal-aid transportation improvement projects. 

The ESA is a valuable tool in helping to deliver transportation projects in a manner that is most 

beneficial to both the environment and the communities served by those projects. In its current 

state, however, the ESA has achieved less than a one percent rate of success for species recovery. 

At the same time, it has resulted in multi-year delays for transportation construction projects. 

Delayed transportation improvements contribute to greater congestion on existing roads which 

leads to detrimental public health and safety effects, including reduced air quality and increased 

motor vehicle accidents. 
215 

ARTBA urges the committee to pursue ESA reform with the intent to allowing the ESA to be 

used where it is truly needed, rather than as a tool to delay and stop transportation projects. To 

that end, ARTBA offers the following general ESA reforms for the committee's consideration: 

)> Remove the ESA's critical habitat provisions and replace it with a less expansive habitat 

preservation system that focuses on preserving essential species habitat without imposing 

unnecessary and excessive restrictions on development. 

)> Establish a standard to define the "best available" scientific data in decisions concerning 

endangered or threatened species. This standard should provide for independent peer 

review of all ESA determinations. 

)> Reform the species listing process to discourage listing of species not actually threatened. 

Specifically, species should not be able to be listed based on potential threats, only actual 

impacts. Also, the de-listing process should be streamlined to allow for easier removal of 

species once they are no longer threatened. 

)> Curb unnecessary ESA litigation by disallowing litigation based on possible development 

occurring as the result of a proposed transportation project. Only disputes involving the 

effects of the potential project itself should be considered. 

One specific area which ARTBA would direct the committee's attention to is the determination 

of critical habitat under the ESA. Proper determination of critical habitat is a very important 

issue for state and local governments, as well as businesses located in areas impacted by ESA 

activity. A determination of critical habitat can literally remove hundreds of miles from the 

possibility of any type of development. Currently, regulatory agencies can even make this 

designation based on the "historical" presence of a species, years in the past. In the 

transportation arena, the critical habitat designation is especially relevant as states promulgate 

transportation plans years, if not decades, in advance. If a regulatory agency summarily declares 

an area "off limits" through an overly broad critical habitat designation, then it can unnecessarily 

jeopardize carefully designed plans for economic development. At a minimum, all economic 

analysis necessary for a critical habitat determination should be based on the best data available 

and incorporate an area's planned transportation improvements. 

Recently, the need for reform of the critical habitat process was spotlighted by regulatory 

proceedings involving the long-eared bat. In the case ofthe long-eared bat, the United States 

Fish & Wildlife Service (FWS) determined the habitat to be: 

"The range of the northern long-eared bat includes much ofthe eastern and north central 

United States, and all Canadian provinces from the Atlantic Ocean west to the southern 

Yukon Territory and eastern British Columbia. Within the United States, this area 

includes the following 37 States and the District of Columbia: Alabama, Arkansas, 

Connecticut, Delaware, Georgia, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, 

Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, 

Nebraska, New Hampshire, New Jersey, New York, North Carolina, North Dakota, Ohio, 

2 
216 

Æ 

Oklahoma, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, 

Vennont, Virginia, West Virginia, Wisconsin, and Wyoming. 1

" 

Thus, the area potentially impacted by the "critical habitat" of the northern-long eared bat could 

have potentially been a majority of the land in the continental United States. 

Further, the main concern leading to FWS leading to the ESA being applied to the long-eared bat 

was a condition known as "white nose syndrome." While this disease has caused a significant 

impact on the long-eared bat's population, it has not been linked to any specific type of human 

activity. Thus, by listing the long-eared bat under ESA, FWS took the risk of hindering 

development for a vast portion of the country without any direct benefit for the species the 

critical habitat was meant to protect. 

While FWS ultimately decided that it was "not prudent" to place severe development restrictions 

on long-eared bat habitat, the episode demonstrates the need for ESA refonn to prevent broadbased unintended consequences that can arise under the current system. ARTBA looks forward 

to working with the committee in a manner to constructively update the ESA in a manner which 

effectively balances species protection with responsible transportation development. 

1 United States Fish and Wildlife Service, Northern Long-Eared Bat, available at: 

http://www.fws.gov/midwest/endangered/mammals/nlba/nlbaFactSheet.html, last updated January 22, 2015. 

3