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93-346 PS 2003

H.R. 2933, A BILL TO AMEND THE 

ENDANGERED SPECIES ACT 

OF 1973 TO REFORM THE 

PROCESS FOR DESIGNATING 

CRITICAL HABITAT UNDER 

THAT ACT.

LEGISLATIVE HEARING

BEFORE THE

COMMITTEE ON RESOURCES 

U.S. HOUSE OF REPRESENTATIVES

ONE HUNDRED EIGHTH CONGRESS

SECOND SESSION

Wednesday, April 28, 2004

Serial No. 108-91

Printed for the use of the Committee on Resources

(

Available via the World Wide Web: http://www.access.gpo.gov/congress/house 

or 

Committee address: http://resourcescommittee.house.gov 

(II)

COMMITTEE ON RESOURCES 

RICHARD W. POMBO, California, Chairman 

NICK J. RAHALL II, West Virginia, Ranking Democrat Member

Don Young, Alaska 

W.J. ‘‘Billy’’ Tauzin, Louisiana 

Jim Saxton, New Jersey 

Elton Gallegly, California 

John J. Duncan, Jr., Tennessee 

Wayne T. Gilchrest, Maryland 

Ken Calvert, California 

Scott McInnis, Colorado 

Barbara Cubin, Wyoming 

George Radanovich, California 

Walter B. Jones, Jr., North Carolina 

Chris Cannon, Utah 

John E. Peterson, Pennsylvania 

Jim Gibbons, Nevada, 

Vice Chairman 

Mark E. Souder, Indiana 

Greg Walden, Oregon 

Thomas G. Tancredo, Colorado 

J.D. Hayworth, Arizona 

Tom Osborne, Nebraska 

Jeff Flake, Arizona 

Dennis R. Rehberg, Montana 

Rick Renzi, Arizona 

Tom Cole, Oklahoma 

Stevan Pearce, New Mexico 

Rob Bishop, Utah 

Devin Nunes, California 

Randy Neugebauer, Texas 

Dale E. Kildee, Michigan 

Eni F.H. Faleomavaega, American Samoa 

Neil Abercrombie, Hawaii 

Solomon P. Ortiz, Texas 

Frank Pallone, Jr., New Jersey 

Calvin M. Dooley, California 

Donna M. Christensen, Virgin Islands 

Ron Kind, Wisconsin 

Jay Inslee, Washington 

Grace F. Napolitano, California 

Tom Udall, New Mexico 

Mark Udall, Colorado 

Anı ́bal Acevedo-Vila ́, Puerto Rico 

Brad Carson, Oklahoma 

Rau ́l M. Grijalva, Arizona 

Dennis A. Cardoza, California 

Madeleine Z. Bordallo, Guam 

George Miller, California 

Edward J. Markey, Massachusetts 

Rube ́n Hinojosa, Texas 

Ciro D. Rodriguez, Texas 

Joe Baca, California 

Betty McCollum, Minnesota

Steven J. Ding, Chief of Staff 

Lisa Pittman, Chief Counsel 

James H. Zoia, Democrat Staff Director 

Jeffrey P. Petrich, Democrat Chief Counsel 

(III)

C O N T E N T S 

Page

Hearing held on Wednesday, April 28, 2004 ......................................................... 1

Statement of Members: 

Bordallo, Hon. Madeleine Z., a Delegate in Congress from Guam ............... 25

Prepared statement of ............................................................................... 26 

Cardoza, Hon. Dennis A., a Representative in Congress from the State 

of California ................................................................................................... 16

Prepared statement of ............................................................................... 17

Gilchrest, Hon. Wayne T., a Representative in Congress from the State 

of Maryland ................................................................................................... 19

Prepared statement of ............................................................................... 21 

Grijalva, Hon. Raul M., a Representative in Congress from the State 

of Arizona, Prepared statement of ............................................................... 171 

Pombo, Hon. Richard W., a Representative in Congress from the State 

of California ................................................................................................... 1 

Rahall, Hon. Nick J., II, a Representative in Congress from the State 

of West Virginia ........................................................................................... 3

Prepared statement of ............................................................................... 4

Statement of Witnesses: 

Clark, Jamie Rappaport, Executive Vice President, Defenders of Wildlife . 71

Prepared statement of ............................................................................... 73

Response to questions submitted for the record ..................................... 76

Crookham, Kathleen M., District 2 Supervisor, Merced County Board 

of Supervisors, Merced, California .............................................................. 115

Prepared statement of ............................................................................... 117

Response to questions submitted for the record ..................................... 119

Doebley, Michael, Deputy Director for Government Affairs, Recreational 

Fishing Alliance ............................................................................................ 143

Prepared statement of ............................................................................... 144

Gray, Joni L., 4th District Supervisor, Santa Barbara County Board 

of Supervisors, Santa Barbara, California .................................................. 150

Prepared statement of ............................................................................... 152

Response to questions submitted for the record ..................................... 155

Kelley, Paul L., 4th District Supervisor, Sonoma County Board of 

Supervisors, Sonoma, California .................................................................. 119

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

Response to questions submitted for the record ..................................... 123

Liebesman, Lawrence R., Esq., Holland & Knight, LLP ............................... 50

Prepared statement of ............................................................................... 53

Response to questions submitted for the record ..................................... 59

Manson, Hon. Craig, Assistant Secretary for Fish, Wildlife and Parks, 

U.S. Department of the Interior .................................................................. 5

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

Response to questions submitted for the record ..................................... 10

Martini, Michael F., Council Member, City of Santa Rosa, California ........ 145

Prepared statement of ............................................................................... 147

Response to questions submitted for the record ..................................... 149

McKeel, Steven L., Executive Director, Martin Marietta Materials, Inc., 

on behalf of the National Stone, Sand & Gravel Association .................... 105

Prepared statement of ............................................................................... 107

Response to questions submitted for the record ..................................... 112

Page

IV

Statement of Witnesses—Continued

Ramey, Rob Roy, II, Ph.D., Department of Zoology Chair and Curator 

of Vertebrate Zoology, Denver Museum of Nature and Science ................ 63

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

Response to questions submitted for the record ..................................... 70

Sheldon, Joseph K., Ph.D., Professor of Biology and Environmental 

Studies, Messiah College, Grantham, Pennsylvania ................................. 156

Prepared statement of ............................................................................... 158

Response to questions submitted for the record ..................................... 164

Sunding, David L., Professor, University of California at Berkeley ............ 44

Prepared statement of ............................................................................... 46

Response to questions submitted for the record ..................................... 49

Walters, Donald B., Jr., President, Primary Systems Services Group, 

LLC., on behalf of the National Association of Home Builders ................ 124

Prepared statement of ............................................................................... 125

Response to questions submitted for the record ..................................... 130

Webster, Steven E., Executive Director, Florida Marine Contractors 

Association ..................................................................................................... 91

Prepared statement of ............................................................................... 93

Response to questions submitted for the record ..................................... 104

Additional materials supplied: 

Society for Conservation Biology, North American Section, Statement 

submitted for the record ............................................................................... 173

(1)

LEGISLATIVE HEARING ON H.R. 2933, TO 

AMEND THE ENDANGERED SPECIES ACT OF 

1973 TO REFORM THE PROCESS FOR DESIGNATING CRITICAL HABITAT UNDER THAT 

ACT. 

Wednesday, April 28, 2004

U.S. House of Representatives 

Committee on Resources 

Washington, DC 

The Committee met, pursuant to notice, at 10:05 a.m. in Room 

1324, Longworth House Office Building, Hon. Richard W. Pombo, 

[Chairman of the Committee] presiding. 

Present: Representatives Pombo, Gilchrest, Calvert, Cubin, 

Radanovich, Jones, Gibbons, Walden, Tancredo, Osborne, Flake, 

Rehberg, Renzi, Cole, Pearce, Bishop, Rahall, Kildee, Inslee, Tom 

Udall, Grijalva, Cardoza, Bordallo, Baca, and McCollum. 

STATEMENT OF THE HON. RICHARD W. POMBO, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF CALIFORNIA 

The CHAIRMAN. Good morning. I would like to call this hearing 

on H.R. 2933 to order. I look forward to listening and gaining 

greater insight from the witnesses today and from my congressional colleagues on how the Endangered Species Act is being implemented by Federal agencies and interpreted by the courts specific to critical habitat. 

The Endangered Species Act has given wildlife very little to 

cheer about as it barrels out of control through its 30th anniversary year. Since its inception, more than 1,300 species have been 

listed as threatened or endangered, yet only seven domestic species 

listed under the ESA have ever been recovered in those 30 years. 

Not one of these species was recovered as a result of the ESA 

alone; their removal from the ESA is to be linked to other vital conservation measures and human intervention. 

Sadly, that is the history of the Endangered Species Act. Born 

of the best intentions, it has failed to live up to its promise and 

species are more threatened today because of its serious limitations. Thirty years of the same prescription have failed. Moreover, 

despite the evidence, some maintain that we can only use one 

treatment, the one prescribed 30 years ago. But for the last 30 

2

years the ESA has remained a law that checks species in, but 

never checks them out. It has been a failing form of managed care. 

Specifically, the diagnosis and treatment aspects of the law are 

fatally flawed. They are ambiguous, open to arbitrary personal 

judgment, and do not rely on sound science or peer-reviewed 

research. 

Known as listing and critical habitat respectively, these key elements of the Act are responsible for the misdiagnosis of species as 

endangered or threatened and the application of a one-size-fits-all 

solution. When a species is listed for protection, treatment comes 

in the form of critical habitat designations which forbid the use of 

lands by or for anything but the species. Critical habitat is one of 

the most perverse shortcomings of the Act. It has been interpreted 

to mean that if an animal is determined to be in trouble, there is 

only one viable option—to designate critical habitat and let nature 

take its course. 

For over a decade Congress has worked to reauthorize the Endangered Species Act so that it both conserves species and the 

rights and needs of Americans. During the same time, designation 

of critical habitat under the ESA has evolved into a source of controversy. Due to the rigorous mandates required, specifically critical habitat designations, many think the program is unworkable. 

Rampant environmental litigation has undermined the already 

broken system at the expense of species recovery. In fact, there 

have been so many lawsuits that the Federal critical habitat program went bankrupt last year. Litigation has left the United States 

Fish and Wildlife Service with a limited ability to prioritize its 

species recovery programs and little or no scientific discretion to 

focus on those species in greatest need of conservation. 

The Administration acknowledges that court orders and mandates often result in leaving the Fish and Wildlife Service with almost no ability to confirm scientific data in its administrative 

record before making decisions on listing of critical habitat proposals. In the wake of this decade-long trend, the current Administration, supported by the previous Clinton Administration, recognizes that critical habitat designations provide the majority of listed species and proposed-to-be-listed species little, if any, additional 

protection. 

Since the last authorization of the Endangered Species Act expired in 1993, there has been great optimism and hope that we 

would be able to amend the Act and implement a process based on 

sound science and common-sense approaches to species conservation and recovery, goals similar to those that the 1973 Congress envisioned when they originally adopted the law. Congress intended 

for this law to be used to recover species and to increase the number of those in need before triggering Federal regulation. 

To merely prevent the extinction of the species is not a long-term 

measurable success. Congress never dreamed that it would turn 

into a tool used by vocal and well-funded special interest groups 

seeking to impose court-ordered Federal land and water controls on 

the majority of Americans. 

Celebrating these failures, as many are doing on this 30th anniversary year of the Act, is not how we should mark this occasion. 

Instead, we must begin to improve it for the immediate and longVerDate 0ct 09 2002 11:21 Sep 24, 2004 Jkt 088533 PO 00000 Frm 00006 Fmt 6633 Sfmt 6633 J:\DOCS\93346.TXT HRESOUR1 PsN: KATHY
3

term health of America’s wildlife. As we are doing here today by 

closely examining H.R. 2933, Congress must focus on legislative 

reforms that foster the science, technology, and innovation that 

have made America successful in other endeavors. 

I realize amendment and reauthorization of the Endangered 

Species Act has dragged on since it expired in 1993. This is not for 

lack of trying and Congress has come close to reaching agreement 

a number of times. But unfortunately, some groups would rather 

play politics and benefit from the current state of dislocation under 

the Act than to agree on what is best for the species. It is this selfish attitude that has resulted in the uncertainty that wildlife is facing nationwide with critical habitat and absentee recovery goals. 

So now that the candles are blown out on the 30th anniversary 

celebrations, it is time for the House Committee on Resources to 

start its work on meaningful reauthorization of the Act. Today we 

begin the process and, as Chairman, I wish for all Committee members to take note that we will finish this this time. 

I would like at this time to recognize the Ranking Member, Mr. 

Rahall. 

STATEMENT OF THE HON. NICK J. RAHALL, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF WEST VIRGINIA 

Mr. RAHALL. Thank you, Mr. Chairman. 

Mr. Chairman, when you became Chairman of this committee 

there were some, and I think it is no secret, who felt deeply that 

you would take a meat ax to the Endangered Species Act, that you 

intended to gut the ESA, but I have to tell you when I heard such 

things I simply could not believe it. Amidst the hand-wringing I 

told anyone who asked, ‘‘Sure, it would be far better if I were chairman of the committee.’’ But in the alternative, I do think Chairman 

Pombo intends to take a much more deliberative approach to the 

ESA than the past rhetoric would lead one to believe. And so far 

to date, my assessment has been correct. 

While supporters of H.R. 2933 and myself have fundamental differences on how we view the Endangered Species Act, this bill represents a piecemeal effort to address what some view as problems 

with the statute and I have said for many years that I do not believe the ESA needs to be amended. Problems do exist with the 

Act’s implementation. This is not a function of the statute itself but 

rather, a lack of adequate funding and the failure of the Fish and 

Wildlife Service to issue instructions to its managers outlining how 

the critical habitat management program should be run. And I 

would note that the GAO twice recommended this. 

And I think some people confuse the situation. Because of real 

or perceived problems with certain aspects of the Act’s implementation due to a lack of funding, they may confuse the issue and believe that the Act itself is in need of reform. 

The Bush Administration’s Fiscal Year 2005 budget would cut 

ESA recovery programs by $10 million below current year levels. 

It would also slash about $2 million from the ESA’s consultation 

and habitat conservation planning program. These shortcomings 

are going to affect real people in the real world, including private 

property owners, developers, Federal agencies, and local units of 

government. 

4

Take, for instance, Snowshoe Ski Resort in the congressional district I have the honor of representing. It is owned by a major corporation, Intrawest. It is an 11,000-acre facility. They are engaged 

in a habitat conservation plan and lo and behold, things are proceeding too slowly. Yet Intrawest is not joining the chorus that the 

ESA is broken and must be amended. You know what their main 

complaint is? The Elkins, West Virginia Fish and Wildlife Service 

field office is overworked and underfunded, and they are right. 

The bottom line is that without critical habitat, species will go 

extinct and who are we to determine which species shall perish? As 

people of faith, and I know that we all are, we should acknowledge 

these words from Ecclesiastes: ‘‘Man’s fate is like that of animals. 

The same fate awaits them both. As one dies, so dies the other. All 

have the same breath.’’

I will conclude by noting how pleased I am that we have a witness today who will bring the Christian perspective to this debate, 

Dr. Joseph Sheldon from Messiah College in Pennsylvania. And 

while I note he has been placed last on the witness list, the word 

of the faithful will refuse to be heard last in our deliberations on 

this issue. Thank you, Mr. Chairman. 

[The prepared statement of Mr. Rahall follows:]

Statement of The Honorable Nick J. Rahall, II, a Representative in 

Congress from the State of West Virginia 

Mr. Chairman, when you became chairman of this committee there were some, 

and I think it is no secret, who felt deeply that you would take a meat axe to the 

Endangered Species Act. That you intended to ‘‘gut’’ the ESA. 

I will tell you, I could not believe it when I heard such things. Amidst the handwringing I told anyone who asked, sure, it would be far better to have a Democrat 

as chairman, but in the alternative, I think Chairman Pombo intends to take a 

much more deliberative approach to the ESA than past rhetoric may lead one to 

believe. 

To date, my assessment has been correct. While supporters of H.R. 2933 and myself have fundamental differences on how we view the Endangered Species Act, this 

bill represents a piecemeal effort to address what some view as problems with the 

statute. 

I have said for many years that I do not believe the ESA needs to be amended. 

Problems do exist with the Act’s implementation. That is not a function of the statute itself, but rather, lack of adequate funding, and the failure of the Fish and Wildlife Service to issue instructions to its managers outlining how the critical habitat 

management program should be run. I would note that the GAO twice recommended this. 

And I think some people confuse the situation. Because of real or perceived problems with certain aspects of the Act’s implementation due to a lack of funding, they 

may confuse the issue and believe that the Act itself is in need of reform. 

The Bush Administration’s Fiscal Year 2005 budget would cut ESA recovery programs by $10 million below current year levels. It would also slash about $2 million 

from the ESA consultation and habitat conservation planning program. 

These shortcomings are going to affect real people in the real world, including private property owners, developers, Federal agencies and local units of government. 

Take for instance Snowshoe Ski Resort in my Congressional District. Owned by 

a major corporation, Intrawest, the resort is an 11,000 acre facility. They are engaged in a Habitat Conservation Plan. And Lo and Behold, things are proceeding 

too slowly. Yet, Intrawest is not joining the chorus that the ESA is broken and must 

be amended. You know what their complaint is? The Elkins, West Virginia, Fish & 

Wildlife Service Field Office is overworked and underfunded. And they are right. 

The bottom line is that without critical habitat species will go extinct. And who 

are we to determine which species shall perish. As people of faith, as I am sure we 

all are, we should acknowledge these words from Ecclesiastes: ‘‘Man’s fate is like 

that of the animals; the same fate awaits them both: As one dies, so dies the other. 

All have the same breath.’’

5

I will conclude by noting just how pleased I am to have a witness today who will 

bring the Christian perspective to this debate, Dr. Joseph Sheldon from Messiah 

College in Pennsylvania. And while he has been placed last on the witness list, the 

word of the faithful will refuse to be heard last in our deliberations on these matters. 

The CHAIRMAN. Thank you. 

I would now like to call up our first panel, which is made up of 

The Honorable Judge Craig Manson, Assistant Secretary for Fish, 

Wildlife and Parks. 

Thank you, Judge Manson. It is nice to have you back before the 

Committee. I think it is appropriate to begin the deliberations on 

this legislation that was introduced by my colleague, Mr. Cardoza, 

with comments from those that are charged with overseeing the 

Act. So Judge Manson, when you are ready you can begin. 

STATEMENT OF THE HONORABLE CRAIG MANSON, ASSISTANT 

SECRETARY FOR FISH, WILDLIFE AND PARKS, U.S. DEPARTMENT OF THE INTERIOR 

Mr. MANSON. Thank you, Mr. Chairman. I appreciate the opportunity to appear once again before this committee, particularly 

today on H.R. 2933, the Critical Habitat Reform Act of 2003. 

Let me begin by saying that we in this Administration are absolutely committed to achieving the primary purpose of the Endangered Species Act, which is the recovery of threatened and endangered species, and to improve the efficiency and effectiveness of the 

Act. 

We believe that the conservation of habitat is vitally important 

to successful recovery and delisting of species, but critical habitat 

is another matter altogether. As you have indicated in your remarks, the Fish and Wildlife Service’s efforts to carry out the ESA 

requirement of designating critical habitat have been a source of 

controversy for many years. As the Clinton Administration noted 

several years ago, in more than 30 years of implementing the Act, 

the Service has found that designation of official critical habitat 

provides little additional protection to most listed species while 

consuming significant amounts of scarce conservation resources. 

The Department of the Interior, the Service, the Congress and 

interested parties must work together to determine how to get the 

most value for species conservation out of available Federal resources. In that regard, we believe that H.R. 2933 is a step in the 

right direction and we would like to continue to work with the author and the Committee on any proposed amendments concerning 

the designation of critical habitat. 

As you pointed out, for more than a decade the Service has been 

embroiled in a relentless cycle of litigation over the implementation 

of the critical habitat and listing provisions of the Act and the 

Service now faces a program in chaos, due not to agency inertia or 

neglect but due to a lack of scientific or management discretion to 

focus available resources on the actions that provide the greatest 

benefit to those species in greatest need of conservation, and the 

keystone of that situation is critical habitat. 

The Service has for a number of years characterized the designation of critical habitat as required under the Act as the most costly 

and least effective class of regulatory actions undertaken by the 

6

Service. It is often counterproductive and can result in negative 

public sentiment toward the designation and toward the Act. 

For these reasons and others, for many years the Service often 

found the designation of critical habitat to be not prudent and did 

not designate it for most listed species, and this approach was formalized under the previous Administration. However, the legislative history is clear that Congress intended the findings of not prudent to be limited to exceptional circumstances and as a result, we 

faced the flood of lawsuits that you alluded to earlier. 

Extensive litigation has shown that the courts cannot be expected to provide either relief or an answer because they are equally constrained by the strict language of the Act. The Department 

of Justice has defended these suits and sought to secure relief from 

the courts to allow the Service to regain the ability to prioritize the 

listing program according to biological need and almost universally 

the courts have failed to grant that relief. 

Now with respect to the issue of funding, the Administration’s 

budget request for 2005 provides funding to meet our resource protection goals and address the growing listing program’s litigationdriven workload. The requested increase includes a total of $13.7 

million for critical habitat for already listed species. That is an increase of $4.8 million over the Fiscal Year 2004 funding level. The 

increased funding will allow the Service to meet its current and anticipated court orders for the designation of critical habitat. In this 

regard I would note that as of April 26 there were 76 lawsuits 

pending or threatened related to critical habitat or other Section 4 

actions. 

With respect to H.R. 2933, it directs that the timing of critical 

habitat be concurrent with the approval of recovery plans, a concept which has been supported over the prior Administration, and 

we recognize that this is one of a number of limited potential solutions to address the problems that we are talking about here today. 

The bill also specifies factors for consideration when conducting 

an economic impact analysis, including the direct, indirect and cumulative impacts associated with the designation. It further modifies the content of required notices for proposed designation to include any municipality having administrative jurisdiction over the 

area in which the species is believed to occur. 

We believe that these steps are in the right direction to address 

several of our concerns about the current designation process. We 

are also pleased that the bill codifies some of the reforms that the 

Administration has carried out over the past 3 years. As I said earlier, we are dedicated to working with the Congress to find the solutions to the problems associated with critical habitat. 

I would note that I have directed the Fish and Wildlife Service 

to strictly construe the provisions of the Endangered Species Act 

with respect to the timing of critical habitat designations and that 

is a measure that we have taken in order to staunch the bleeding, 

if you will, and stem the tide of litigation to the extent that we can. 

I have also issued an endangered species guidance letter on critical habitat to the Fish and Wildlife Service outlining several important points concerning designation of critical habitat. Later this 

week this draft critical habitat guidance will be finalized and the 

Service will begin applying it. 

7

So although we believe that the current system of designating 

critical habitat is broken, the combination of administrative measures and legislative action will work to solve that issue and we are 

prepared again to work with the Committee to identify ways to provide relief and ensure that the legislation clearly and efficiently accomplishes its goals. 

Mr. Chairman, that concludes my prepared testimony. I would be 

pleased to respond to any questions that you or other members of 

the Committee may have. 

[The prepared statement of Mr. Manson follows:]

Statement of Craig Manson, Assistant Secretary for Fish and Wildlife and 

Parks, U.S. Department of the Interior 

Mr. Chairman, I appreciate this opportunity to testify today on H.R. 2933, the 

‘‘Critical Habitat Reform Act of 2003.’’

Let me begin by saying that we are committed to achieving the primary purpose 

of the Endangered Species Act (ESA or Act)—the recovery of threatened and endangered species—and to improving the efficiency and effectiveness of the Act. We believe that conservation of habitat is vitally important to successful recovery and 

delisting of species. 

As discussed in more detail below, the U.S. Fish and Wildlife Service’s (Service) 

efforts to carry out the ESA’s requirement of designating critical habitat have been 

a source of controversy and challenge for many years. As the Clinton Administration 

noted several years ago, in more than 30 years of implementing the Act, the Service 

had found that designation of official critical habitat provided little additional protection to most listed species, while consuming significant amounts of scarce conservation resources. The Department of the Interior (Department), Congress, and interested parties must work together to determine how to get the most value for 

species conservation out of available federal resources. With this in mind, we appreciate the opportunity to comment on H.R. 2933. We believe that the legislation is 

a step in the right direction, and would like to continue to work with the Committee 

on any proposed amendments to the ESA concerning the designation of critical 

habitat. 

Background 

For well over a decade, the Service has been embroiled in a relentless cycle of litigation over its implementation of the listing and critical habitat provisions of the 

Act. The Service now faces a Section 4 program in chaos due not to agency inertia 

or neglect, but to a lack of scientific or management discretion to focus available 

resources on the listing actions that provide the greatest benefit to those species in 

greatest need of conservation. The keystone of this situation is critical habitat. 

The Service has characterized the designation of critical habitat as required under 

the Act as the most costly and least effective class of regulatory actions undertaken 

by the Service. It is often counterproductive and can result in negative public sentiment to the designation. This negative public sentiment is fueled by inaccuracies 

in the initial area designated when we must act with inadequate information to 

meet deadlines and because there is often a misconception among the public that, 

if an area is outside of the designated critical habitat, it is of no value to the species. 

On the other hand, the designation of critical habitat imposes often burdensome requirements on federal agencies and landowners, or is perceived by them as doing 

so, and the designation process can create significant economic and social turmoil. 

For these reasons, for many years the Service often found designation of critical 

habitat to be ‘‘not prudent,’’ and did not designate it for most listed species; this 

approach was formalized during the previous Administration. However, the legislative history is clear that Congress intended such findings to be limited to exceptional circumstances. In the late 1990s, some critics began challenging these ‘‘not 

prudent’’ findings in court; those successes led to a flood of additional suits which 

continue to this day. These lawsuits have subjected the Service to an ever-increasing 

series of court orders and court-approved settlement agreements, compliance with 

which now consumes nearly the entire listing program budget. This leaves the Service with little ability to prioritize its activities to direct resources to listing program 

actions that would provide the greatest conservation benefit to those species in need 

of attention. The previous Administration recognized this when it said that lawsuits 

which force the Service to designate critical habitat necessitate the diversion of 

8

scarce Federal resources from imperiled,. but unlisted, species which do not yet benefit from the protections of the ESA. 

The accelerated schedules of court-ordered designations have left the Service with 

limited ability to take additional time for review of comments and information to 

ensure the rule has addressed all the pertinent issues before making decisions on 

listing and critical habitat proposals, due to the risks associated with noncompliance 

with judicially imposed deadlines. This, in turn, fosters a second round of litigation 

in which those who will suffer adverse impacts from these decisions challenge them. 

This cycle of litigation appears endless, is very expensive, and, in the final analysis, 

provides relatively little additional protection to listed species. 

Extensive litigation has shown that the courts cannot be expected to provide either relief or an answer, because they are equally constrained by the strict language 

of the Act. The Department of Justice has defended these lawsuits and sought to 

secure relief from the courts to allow the Service to regain the ability to prioritize 

the listing program according to biological need. Almost universally, the courts have 

declined to grant that relief. 

In 2001, a federal district judge, in Center for Biological Diversity v. Norton, No. 

CIV 01-0258 PK/RLP (ACE), observed that ‘‘the Secretary is caught in a quandary’’ 

in trying to ‘‘fulfill the myriad of mandatory [ESA] duties.’’ The judge opined that 

‘‘[m]ore lawsuits will inevitably follow’’ unless, among other things, the Service regains its discretion to prioritize its workload. The judge suggested that a legislative 

solution is necessary; otherwise ‘‘tax dollars will be spent not on protecting species, 

but on fighting losing battle after losing battle in court.’’

Other courts have agreed with this assessment. Simply put, the listing and critical habitat program is now operated in a ‘‘first to the courthouse’’ mode, with each 

new court order or settlement taking its place at the end of an ever-lengthening 

line. We are no longer operating under a rational system that allows us to prioritize 

resources to address the most significant biological needs. I should note that it is 

as a direct result of this litigation that we have had to request a critical habitat 

listing subcap in our appropriations request the last several fiscal years in order to 

protect the funding for other ESA programs. At this point, compliance with existing 

court orders and court-approved settlement agreements will likely require funding 

into Fiscal Year 2007. 

In short, litigation over critical habitat has hijacked the program. Former Secretary Bruce Babbitt wrote in an op-ed piece in the April 2001 N.Y. Times that, in 

its struggle to keep up with court orders, the Service has diverted its best scientists 

and much of its budget for the ESA away from more important tasks like evaluating 

candidates for listing and providing other protections for species on the brink of extinction. We also believe that available resources could be better spent focusing on 

those actions that benefit species by providing the protection of the Act to those 

species that need it, and then pursuing effective conservation of these species 

through improving the consultation process, the development and implementation of 

recovery plans, and voluntary partnerships with states and private landowners. 

For example, other more significant, and more efficacious, elements of a modern 

conservation strategy than critical habitat designations might include habitat conservation plans, conservation banking, voluntary agreements with landowners such 

as through the Service’s Partners for Fish and Wildlife Program, incentive-based actions such as those carried out under the Service’s Landowner Incentive Program, 

partnerships with states, tribes, and nongovernmental organizations, and private 

stewardship efforts by individuals and businesses. These programs, which consist of 

combined private and governmental action, improve the health of our lands, forests, 

rivers, and other ecosystems. Their implementation provides far greater conservation benefits than the designation of critical habitat while avoiding the regulatory, 

economic, and social disadvantages of critical habitat designations. 

Congress added the strict deadlines to the Act to ensure that listing actions are 

completed in a timely manner. However, absent some measure to allow for a rational prioritization of the workload based on a consideration of the resources available, 

those strict deadlines will only worsen the current untenable situation. It cannot be 

overstated that managing the endangered species program through litigation is ineffective in accomplishing the purposes of the Act. 

The Administration’s budget request for FY 2005 provides funding to meet resource protection goals and address the growing listing program litigation-driven 

workload. The requested increase includes a total of $13.7 million for critical habitat 

for already listed species. This is an increase of $4.8 million over the FY 2004 funding level. The increased funding will allow the Service to meet its current and anticipated court orders for the designation of critical habitat for already listed species. 

In this regard, I would note that as of April 26, 2004, there were 76 lawsuits pending or expressly threatened related to critical habitat or other section 4 actions. 

9

Within the Department and the Service, we are taking those limited administrative steps available to us to address these issues. For example, I have directed the 

Fish and Wildlife Service henceforth to comply strictly with the statutory provisions 

for designation of critical habitat. This measure, reversing prior practices, will 

staunch the bleeding off of resources in ‘‘deadline’’ litigation. It is, however, an incomplete and less than sufficient step. That is because it may indeed spark a different form of litigation. These drawbacks remain to be seen and at least in the 

meantime, the Service will regain some degree of control over its program. Nonetheless, this highlights the need for a specific legislative solution. 

We have made other modest changes to cut costs in the critical habitat designation process. 

H.R. 2933 Provisions 

H.R. 2933 directs that the timing of designation of critical habitat be concurrent 

with approval of recovery plans, a concept which the previous Administration supported. We recognize that this is one of a number of potential solutions by which 

Congress could address this difficult problem. The bill makes additional changes to 

the ESA to facilitate the process of designating critical habitat and potentially provide relief from the current litigation cycle that we have been facing. 

It amends section 4(a)(3) of the Act by requiring that designation be practicable, 

economically feasible, and determinable. In addition, the measure prohibits the designation of an area that is subject to a habitat conservation plan or state or federal 

land conservation if the Secretary determines that these protections are substantially equivalent to the protection provided by critical habitat designation. 

H.R. 2933 also specifies the factors for consideration when conducting an economic impact analysis of critical habitat designation, including the direct, indirect, 

and cumulative impacts associated with such designation. Additional factors in the 

economic impact analysis would also include consideration of lost revenues to landowners and Local/State/Federal governments, as well as the costs associated with 

reports, surveys, and analyses required to be undertaken, as a consequence of a proposed designation, by landowners seeking permits and approvals. 

The proposed measure further modifies the content of the required notice for proposed designation to include any municipality having administrative jurisdiction 

over the area in which the species is believed to occur. In addition, the bill requires 

the Secretary to maintain, on a publicly accessible Internet page of the Department 

of the Interior, a Geographical Information System map of the proposed designation, 

including coordinates of the area. Each required notice of the proposed designation 

shall also include reference to this Internet page. 

We believe that these provisions are steps in the right direction to address several 

of the Department’s concerns about the current designation process. We are also 

pleased that the bill codifies some of the reforms that the Administration has carried out over the past few years. As I have stated before, the Department is committed to working with the Congress to find a solution to the problems associated 

with critical habitat and other related issues. I want to reiterate that offer here 

today. 

Summary 

In sum, the present system for designating critical habitat is broken. The designation process provides little real conservation benefit, consumes enormous agency resources, and imposes social and economic costs. Rational public policy demands serious attention to this issue in order to allow our focus to return to true conservation 

efforts. We are optimistic that this bill will encourage a meaningful, bipartisan discussion on reforming the designation of critical habitat, and we are prepared to 

work with the Committee to identify ways to provide necessary legislative relief and 

ensure that any legislation clearly and efficiently accomplishes its goals. 

Mr. Chairman, this concludes my prepared testimony. I would be pleased to respond to any questions you and other members of the Committee might have. 

[Mr. Manson’s response to questions submitted for the record 

follows:]

10

Response to questions submitted for the record by The Honorable Craig 

Manson,, Assistant Secretary for Fish, Wildlife and Parks, U.S. 

Department of the Interior 

Questions from Chairman Richard Pombo 

Question 1: At the Imperial Sand Dunes Recreation Area, located in 

southern California, the BLM has been working for the last decade to develop a Recreation Area Management Plan (RAMP) to manage the Dunes, 

and is very close as you know to signing a final ROD that would implement 

that RAMP. The absence of a Management Plan for the dunes has affected 

tens of thousands whose access has been restricted by temporary closures 

put in place as part of a settlement agreement to a lawsuit brought under 

section 7 of ESA for the endangered Pierson’s milkvetch, a plant native to 

the Imperial Sand Dunes. As we stand today, the final Record Of Decision 

for the RAMP cannot be signed by the BLM until the U.S. FWS issues a nojeopardy Biological Opinion (BO) for the 15-year RAMP. Although the FWS 

has in their possession a study that was funded by the off road recreation 

industry, and conducted by a well respected independent scientist, Dr. Arthur Phillips, FWS has mandated their own redundant and expensive study 

that has only delayed the finalization of the RAMP. Mind you, BLM has endorsed the findings of the Phillips study and uses his findings as part of 

their baseline data in their own biological opinion. So my question is this, 

with proposed monitoring provisions called for in the RAMP, and recommendations backed by current data made by BLM that FWS issue a nojeopardy opinion, why is it necessary that FWS conduct their own independent study? And further, with proposed monitoring contained in the 

RAMP, and current data that backs up the finding of a no jeopardy opinion 

for the RAMP, can we get your personal commitment to encourage the FWS 

to evaluate the BLM recommendations and if appropriate, forego a FWS 

study for its own sake? 

Response: The Fish and Wildlife Service (Service) is close to completing its review 

of the existing April 3, 2003 Biological Opinion for the Bureau of Land Management’s (BLM) Recreation Area Management Plan, and the Service expects to respond to the BLM’s request for clarification in the near future. In evaluating the 

Recreation Area Management Plan, the Service is not developing an independent 

study. The rigorous monitoring and research plan, designed cooperatively by the 

BLM and the Service, and approved by the Service in the April, 2003 Biological 

Opinion, is designed to support the plan’s proposal to optimize various multiple use 

opportunities, including off-highway vehicle use and listed species conservation. 

Question 2: The BLM’s new Northern & Eastern Colorado Management 

Plan lists 22 unlisted species that are being treated as if they are listed. 

They call this list ‘‘sensitive species’’, and again these are not listed as endangered or threatened on any federal or state species list. As you might 

imagine, this management practice is having a drastic negative impact on 

access to public lands by the public, and it creates pseudo-ESA list of 

species that have the same land use and economic impacts as listed species. 

What are your plans to stop the FWS practice of treating non-listed species 

as though they are listed? 

Response: Only those species listed as endangered or threatened receive statutory 

protection under the Endangered Species Act (ESA). We do encourage voluntary, 

proactive, and collaborative approaches with our partners, such as BLM’s program, 

to keep species from declining to the point that they warrant listing under the ESA. 

Specifically, through the Candidate Conservation program, the Service works to 

identify species that face threats that make listing a possibility, provide information, planning assistance, and resources to encourage voluntary partnerships for 

conservation of such species, and prioritize non-listed species, so that those species 

most needing protection or additional study are addressed first. In our experience, 

this collaborative, voluntary approach is an essential tool for proactively addressing 

species at risk. The public also benefits because land use options can be more flexible than would occur if a species were listed, critical habitat does not have to be 

designated, permits authorizing ‘‘take’’ do not have to be obtained, recovery plans 

do not have to be prepared and implemented, and section 7 consultations are not 

required. 

Question 3: H.R. 2933 would establish a recovery plan concurrent with 

the designation of critical habitat; A linkage, so-to-speak. I support what 

the author is getting at. It is only right to establish recovery plans and 

goals first. Then from that put on the table what components can be used 

to successfully meet the recovery goal. If critical habitat is scientifically 

11

shown to have a roll in this recovery plan, then the science will back that 

up. However, if it is not then it should be able to be taken off the table. 

This way we get away from 30 years of the cookie cutter approach and onesize fits-all actions that has led us to be here today. 

• However, in some of the testimony today there is concern with the 

drafting of that provision. Can you comment on this and discuss how 

we may be able to edit that language to accomplish the author’s goal 

of linking the two while ensuring that recovery is primary and the Act 

does not continue to lock up lands that are not scientifically proven to 

provide any benefit to the species in question? 

Response: Given the controversy that has surrounded the issue of designation of 

critical habitat for more than a decade, I believe that H.R. 2933 is a step in the 

right direction toward solving many of the current issues involved in this process. 

For example, the Administration believes that designating critical habitat concurrent with a recovery plan, as H.R. 2933 proposes, is one alternative to designating 

critical habitat at the time of listing. Often at the time of listing, insufficient information is available to determine what may be required to conserve a federally listed 

species. Currently, the Service is statutorily required to designate those areas 

known to be critical habitat, using the best information available, at the time of listing. This process can result in designations of critical habitat that may, after sufficient information is available to determine what is necessary to conserve a species, 

prove to be incomplete or erroneous. While we do not have any specific changes to 

offer at this time, we are reviewing the provisions and are committed to working 

with the Committee to develop the best possible legislation. 

Question 4: FWS has indicated that it will follow the 10th Circuit’s decision in New Mexico Cattle Growers. 

• What steps have been taken to ensure compliance? 

• How has FWS considered the costs of both listing and C.H. to come up 

with total cost? 

Response: Pursuant to section 4(b)(2) of the ESA, the Service is required to take 

into consideration the economic impact of specifying a particular area as critical 

habitat. The court’s decision in N.M. Cattle Growers Ass’n v. USFWS, 248 F.3d 1277 

(10th Cir. 2001) required the Service to look at all of the costs of critical habitat, 

whether or not they are coextensive with the costs of listing or with other factors. 

As a result, we conduct economic analyses to estimate all of the potential economic 

impacts of designating critical habitat. These analyses include other economic impacts of species listing and conservation to the extent that those impacts are co-extensive with the designation. The analyses quantify these impacts, to the extent determinable, given the nature of the data available. 

This information is intended to assist the Secretary in determining whether the 

benefits of excluding particular areas from the designation outweigh the benefits of 

including those areas in the designation (see section 4(b)(2)). In addition, this information allows the Service to address the requirements of Executive Orders 12866 

and 13211, and the Regulatory Flexibility Act (RFA), as amended by the Small 

Business Regulatory Enforcement Fairness Act (SBREFA). 

Specifically, the economic analyses that we now carry out consider both the economic efficiency and distributional effects that may result from designation of critical habitat. Economic efficiency effects generally reflect ‘‘opportunity costs’’ associated with designation of critical habitat. For example, if activities that can take 

place on a parcel of private land are limited as a result of the designation, and thus 

the market value of the land is reduced, this reduction in value represents one 

measure of opportunity cost or change in economic efficiency. Similarly, the costs 

incurred by a Federal action agency to consult with the Service under section 7 represent opportunity costs of designation. 

The economic analyses also address how the impacts of a critical habitat designation are distributed, including an assessment of any local or regional impacts and 

the potential effects of designation on small entities, the energy industry, or governments. This information can be used by decision-makers to assess whether the effects of a designation might unduly burden a particular group or economic sector. 

The economic analyses also consider indirect effects associated with a designation, 

including the economic impact associated with project delays due to a reinitiation 

of a section 7 consultation or due to compliance with other regulations. Consideration is also given to costs associated with regulatory uncertainty (e.g., the cost to 

retain outside experts of legal counsel to better understand a party’s responsibilities 

with regard to critical habitat) and changes to private property values associated 

with public attitudes about the limits and costs of critical habitat, which are termed 

as ‘‘stigma’’ impacts. 

12

Question 5: What is the current position of the FWS in response to the 

5th Circuit’s Sierra Club decision in which it held that Congress intended 

a lower threshold for triggering the duty to assess adverse modifications 

of C.H. than for determining jeopardy to species? When will FWS initiate 

a rule-making to revise the two definitions? 

Response: The Service is still evaluating options and consulting with NOAA Fisheries in response to the 5th Circuit’s decision so that we may make a joint revision 

to the regulatory definition of ‘‘destruction or adverse modification of critical habitat’’ in consideration of the Court’s opinion. 

Question 6: How does FWS justify designating ‘‘unoccupied’’ habitat as 

‘‘critical’’? 

Response: Section 3(5)(A)(ii) of the ESA provides that the Secretary may designate 

critical habitat for a federally listed species outside the geographical area occupied 

by the species ‘‘upon a determination by the Secretary that such areas are essential 

for the conservation of the species.’’

The Service’s implementing regulation further provides: ‘‘The Secretary shall designate as critical habitat areas outside the geographic area presently occupied by 

the species only when a designation limited to its present range would be inadequate to ensure the conservation of the species’’ (50 CFR 424.12(e)). Consequently, 

critical habitat is only designated in unoccupied habitat for a species when it is determined to be prudent, determinable, and essential to the conservation of the subject species, and that the species could not be conserved absent the inclusion of the 

specific unoccupied habitat into critical habitat. 

Question 7: On what basis does FWS justify designating large areas of 

land as ‘‘critical’’ despite having no knowledge of whether or not the 

species or ‘‘primary constituent elements’’ are actually present? 

Response: Pursuant to section 4 of the ESA, the Service is required to designate 

critical habitat in occupied areas only where features essential to the conservation 

are found. In defining critical habitat boundaries, the Service makes an effort to exclude all developed areas, such as housing developments, open areas, and urban and 

other lands unlikely to contain the primary constituent elements essential for the 

conservation of the particular species for critical habitat is being designated. However, due to mapping scale, quality of data available, and in cases where courts have 

established deadlines, time and resource limitations, it is difficult to exclude by 

mapping out all of the areas that do not contain features essential to the species. 

The Service excludes by text those areas that do not contain primary constituent 

elements, such as roads and buildings, parking lots, rail lines and other paved 

areas. In other words, although included on some maps, such features are not critical habitat. 

Question 8: Does FWS feel it is more appropriate to delay C.H. designation until recovery plans have been adopted? To what extent does FWS use 

adopted recovery plans in designating C.H.? 

Response: As mentioned in the response to question 3, The Administration believes that designating critical habitat concurrent with a recovery plan, as 

H.R. 2933 proposes, is one alternative to designating critical habitat at the time of 

listing. Often at the time of listing, insufficient information is available to determine 

what may be required to conserve a federally listed species. Currently, the Service 

is statutorily required to designate those areas known to be critical habitat, using 

the best information available, at the time of listing. This process can result in designations of critical habitat that may, after sufficient information is available to determine what is necessary to conserve a species, prove to be incomplete or 

erroneous. 

It is often during the recovery planning process that the information concerning 

specific features and areas essential to the conservation of a species becomes available. In those cases where current recovery plans or strategies have been in place 

prior to the development of a critical habitat designation, the recovery plan or strategy has been the foundation from which the critical habitat designation is built and 

justified. In these instances, the resulting designation has generally been more precise. Furthermore, in those cases where there has been an outdated recovery plan 

or strategy, there has often been an attempt, with time and resources permitting, 

to update those plans prior to initiating the development of a critical habitat designation. 

Question 9: Is FWS revising any older or outdated recovery plans? How 

many? 

Response: As of September 30, 2003, 1,248 domestic species for which the Service 

has the lead are listed under the ESA. Of these listed species, 1,016 have final recovery plans. Recovery plans are revised or amended as necessary when new information becomes available that makes the existing plan outdated, such as a change 

13

in the species’ status, threats, or recovery needs, or a significant number of recovery 

actions identified in the implementation schedule have been completed or are no 

longer considered appropriate. The Service is currently revising and updating recovery plans for 83 species. 

Question 10: How does the FWS prioritize recovery efforts and what 

mechanisms do they have to implement recovery plans? 

Response: As directed in the 1982 Amendments to the ESA and described in the 

Service’s Recovery Priority Guidelines (48 FR 43098-43105, September 21, 1983 and 

48 FR 51985, November 15, 1983), all listed species are accorded a recovery priority 

number between 1 and 18C, based on the degree of threats, the potential for recovery; taxonomic distinctness; and whether or not they are, or may be, in conflict with 

construction, development projects, or other economic activity. The Service applies 

this priority system to making recovery decisions among listed species. Furthermore, individual recovery actions are identified in recovery plan implementation 

schedules based on a priority system of 1 to 3. Priority 1 actions are those actions 

that must be taken to prevent extinction or to prevent the species from declining 

irreversibly; priority 2 actions are those that must be taken to prevent a significant 

decline in species population/habitat quality or in some other significant negative 

impact short of extinction; and priority 3 actions are all other actions necessary to 

provide for full recovery on the species. 

Implementation of these actions is dependent upon the availability of resources 

and partners. For example, while the Service works with the responsible partner to 

implement a priority 1 action, an opportunity may arise to complete a different priority 2 action first. If taking advantage of this opportunity would not delay the implementation of the priority 1 action, the Service and its partners would likely implement the priority 2 action first. The Service uses a variety of mechanisms in cooperation with other federal, state, and local governments, non-governmental organizations, and private landowners to implement all of the actions necessary to recover threatened and endangered species including, but not limited to: appropriated 

funds, grants, in-kind cost matching, memorandums of agreements and understandings, safe harbor agreements, on-the-ground management actions such as 

habitat restoration or population enhancement, and protective regulations. 

Question 11: Would it be beneficial for the FWS to incorporate delisting 

criteria in recovery plans? If not, how does an affected entity determine 

compliance with recovery standards? 

Response: The ESA requires each recovery plan, to the maximum extent practicable, to provide (i) a description of site specific management actions as may be 

necessary to achieve the plan’s goal for conservation and survival of the species; (ii) 

objective, measurable criteria which, when met, would result in a determination 

that the species be removed from the list; and, (iii) estimates of the time required 

and the cost to carry out those measures needed to achieve the plan’s goal and to 

achieve intermediate steps toward that goal. Service strives to incorporate delisting 

criteria in recovery plans whenever possible. The Service believes delisting, or recovery, criteria are not only essential to determining whether and when a species may 

be eligible to be removed from the endangered species list, but they also help identify what recovery strategies and actions are necessary to achieve recovery. However, the ESA also recognizes (in section 4(f)(1)), that it is not always practicable 

to identify definitive recovery criteria when first developing recovery plans for listed 

species. To the extent that recovery criteria can be approximated, such criteria is 

developed. For other species, recovery plans may include only downlisting or interim 

criteria. In all cases, as new information becomes available and it becomes possible 

to develop, revise, or refine recovery criteria, the Service revises or updates the 

species recovery plan, subject to availability of resources. 

Questions submitted by Representative Barbara Cubin 

Judge Manson, as you know, the State of Wyoming and the Department 

of Interior have been embroiled in a dispute over how and when wolves 

can be de-listed in the three state area of Wyoming, Idaho and Montana. 

In January of this year, when the Department of Interior rejected Wyoming’s wolf management plan, it is my understanding it did so based on political considerations, for fear of lawsuits by environmental organizations 

and speculation regarding future actions by Montana and Idaho to adopt 

plans similar to the one adopted by Wyoming. 

It is also my understanding that this rejection directly contradicts the 

Endangered Species Act, which requires the Secretary of the Interior and 

the Fish and Wildlife Service (FWS) Director to base de-listing decisions 

‘‘solely upon’’ the best science available. In fact, 10 of the 11 scientists on 

14

the FWS’s peer review panel indicated that Wyoming’s plan was scientifically sound. 

Question 1: Would you please comment on the Department of Interior’s 

stance on this issue and whether the decision was in fact based solely on 

science as the Endangered Species Act requires, or upon political considerations? 

It has been my impression all throughout the process of attempting to delist the wolf that the FWS have continually moved the goal line for the 

State of Wyoming. It takes two parties to compromise, but over and over 

again it has seemed to me that it was the State of Wyoming that had to 

make all the compromises. 

Response: Because the Department’s evaluation of the State of Wyoming’s management plan for the gray wolf is the subject of pending litigation, we are constrained in discussing specific details related to the management of plan. However, 

I am enclosing letters from the Service’s Director to Terry Cleveland, Director of 

Wyoming Fish and Game Department, and Michael R. Baker, Chairman of the Wyoming State House Committee on Travel, Recreation, Wildlife and Cultural Resources, which explain the Service’s position on wolf issues. 

Question 2: Could you comment on what the FWS has specifically done 

in the way of compromise with the State of Wyoming in the wolf delisting 

effort? 

Response: I am enclosing letters from the Service’s Director to Terry Cleveland, 

Director of Wyoming Fish and Game Department, and Michael R. Baker, Chairman 

of the Wyoming State House Committee on Travel, Recreation, Wildlife and Cultural Resources, which detail the exchange of information between the Service and 

the State, and explain the Service’s position on the issue. I believe these letters contain much of the information you requested. 

Questions Submitted by Representative Tom Udall 

Question: In your remarks before the Committee you referred to guidance on critical habitat designation that will soon be finalized. Given that 

this is an extremely significant issue, is it your intention to provide public 

notice of this draft guidance and seek public comment? If not, why not? 

Response: The current document is designed for staff use as non-binding guidance 

on an interim basis. Once the full guidance is completed it will be made available 

for public review and comment. 

Question: Can you please provide the Committee with the details of how 

this guidance was developed, including: 

1) the exact time period over which it was formulated; 

Response: The policy guidance has been worked on at various times since the fall 

of 2002. We do not have a specific date at which the first elements may have been 

drafted. 

2) any involvement of the Fish and Wildlife Service including the names 

of individuals who worked on the guidance; 

3) the names of individuals involved at the Departmental level; 

4) the names of any individuals outside the Department of the Interior 

that may have been involved; and 

Response: Numerous individuals on my staff, within the Service, elsewhere within 

the Department, at the Department of Commerce, and elsewhere within the Administration have either drafted, reviewed or commented on all or portions of various 

drafts of the guidance. We did not attempt to maintain a list of those involved. Inasmuch as all drafting, review and comment was predecisional, I see no value in either attempting to collect or in releasing the names of these persons. 

5) any other circumstances related to the development of this guidance. 

Response: It is not clear what information is being sought here. I would be 

pleased to respond to a more specific question. 

The CHAIRMAN. Well, thank you, Mr. Manson. To begin, I will 

just start by asking you a fairly simple question. Do you believe 

that protecting habitat is necessary for the recovery of endangered 

species in order to recover those that ultimately have ended up on 

the list? 

Mr. MANSON. I do believe that the protection of habitat is essential to the conservation and recovery of species. I happen to believe 

that critical habitat, as the Act outlines it presently, is not the best 

15

way to do that. I think that frequently there are far superior methods to do that, including voluntary actions on the part of landowners, in partnership with the Service. In that regard, I have announced today revised regulations that will encourage private landowners to undertake these voluntary conservation measures to benefit species that are listed and that are at risk. And this results 

in the creation of real habitat that one can touch and see and feel 

and it is done all without a legal and administrative process that 

is burdensome and imposes great costs. 

The CHAIRMAN. Previous Administrations, like you, have been 

critical of what the critical habitat designation process has become. 

I have noticed in researching for this hearing that you, this current 

Administration and previous Administrations, never said protecting 

habitat was not important, and yet the process that designation of 

critical habitat has become has become a very real problem for the 

Fish and Wildlife Service and you have been fairly outspoken about 

that, as well as the previous Administration was very outspoken 

about that. And what we are searching for here today and what I 

believe that Congressman Cardoza was attempting to do with the 

introduction of this bill was to change that legal process under the 

Endangered Species Act for the designation of critical habitat so 

that it was something that would work for the administrative process of implementing the Endangered Species Act. 

Mr. MANSON. I think you are exactly right, Mr. Chairman, that 

this is not about the issue of—there is no debate about the role 

that habitat plays in conservation biology. There is simply no debate about that and I have never disputed that. No one else in our 

Administration has ever disputed that. 

The issue is, as you put it, a process which is counterproductive 

and takes resources away from other far superior processes that 

provide a greater conservation benefit. So that process needs to be 

fixed. 

The CHAIRMAN. I know you are attempting to change administratively how this process works and there are some things you can 

do; there are other things that will take Congress to take action. 

But the question that I get repeatedly is that if an area is designated as critical habitat, how does that change the use of that 

land? 

Mr. MANSON. Well, you have to take into account that the designation of critical habitat is part of the listing process as the current law has it set up, and under the listing process a listed species 

is subject to Section 9 of the Act, which prohibits the take of that 

species, which is defined specifically in the law and in the regulations. 

The designation of critical habitat would still allow the issuance 

of incidental take permits under that law but it becomes a particular issue when Section 7 of the Act is applied, which requires 

consultation over actions that may affect a listed species, particularly focused on the adverse modification of habitat. And Section 7 

is often said to refer only to those actions which require a Federal 

nexus but it is very difficult to find actions these days in the ordinary course of business or even life that does not have some Federal nexus, so many things, many activities are tied to the consultation provisions of Section 7 of the Act. 

16

Finally, in your understanding, your reading of Mr. Cardoza’s 

bill, is there anything in there that would lessen the amount of 

protection that there is for endangered species under the Act? 

Would people be allowed to go out and destroy habitat or take endangered species under the definition of the Act? 

Mr. MANSON. I saw nothing in the bill that would weaken the 

protections of the Act. I saw this bill as reforming a process that 

in itself is often counterproductive and the process in and of itself 

is a weakness in the Act as far as I am concerned. But there is 

nothing in this bill that lessens the protections afforded to listed 

species. 

The CHAIRMAN. Thank you very much. 

I would like at this time to recognize the author of the legislation 

on which we are holding this hearing, Mr. Cardoza. 

Mr. CARDOZA. Thank you, Mr. Chairman. Is this the appropriate 

time for my opening statement? 

The CHAIRMAN. Go ahead. 

STATEMENT OF THE HON. DENNIS CARDOZA, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF CALIFORNIA 

Mr. CARDOZA. I would like to thank the Chairman, Ranking 

Member Rahall, and all the members of the Committee. I appreciate the opportunity to have this hearing today on the legislation, 

H.R. 2933, the Critical Habitat Reform Act. I look forward to a 

lively and productive debate on some of the problems involving the 

critical habitat issues under the Endangered Species Act. 

When ESA was adopted in 1973, it was celebrated as groundbreaking environmental legislation. The ultimate goal of ESA was 

to focus sufficient attention on listed species so that in time, they 

could be returned to a healthy state and removed from the list. I 

fully support this goal and believe that recovery and ultimately 

delisting of species should be the Fish and Wildlife Service’s top 

priority. 

Unfortunately, we have been driven off course from a system 

that should have been directed by biology to a system driven by 

litigation. The efforts by the Service to recover species have been 

hampered by litigation, court orders, and unrealistic time lines 

which are preventing the exercise of discretion and frustrate the 

original purposes of the Act. 

The critical habitat program is a poster child of a broken policy. 

I know this from personal experience and my folks back home 

know this from personal experience. A case in point is the Service’s 

recent designation of critical habitat for vernal pool species. The 

original proposal would have designated over 1.7 million acres in 

California and Oregon as critical habitat. Over 330,000 acres in 

Merced County, California located in my congressional district 

would have been designated as critical habitat. That is over one 

third of the entire acreage of the county. Another more recent example is the Service’s proposal to designate over 4.1 million acres 

in California as critical habitat for the red-legged frog. 

These designations defy logic. If the species can be found all over 

1.7 million acres, either the species cannot by definition be considered endangered or the entire zone of habitat cannot by definition 

17

be considered essential to the conservation of the species. It simply 

makes no sense. 

My experience with these designations has convinced me that we 

can do a better job of achieving the original goal of ESA to recover 

the species if we do a few simple things. First of all, we need a system that encourages the gathering of better information to enable 

the Service to make more informed decisions on critical habitat. 

Before designating critical habitat, it is important that the Service 

have a plan for recovery of the species. We are putting the cart before the horse in many instances, designating millions of acres of 

land as critical habitat when we do not have the information as to 

what truly is needed to recover the species. 

The Service should involve local governments and landowners in 

critical habitat designations. They should consider local resource 

data, including maps, when considering areas for possible designation, and they should provide GIS maps when providing public notice of the proposed designations so that folks know if their land 

is actually affected. The Service should consider all economic impacts to a proposed designation, including direct, indirect, and cumulative impacts. 

Second, areas that are already protected under Federal or state 

or local conservation plans, such as habitat conservation plans, 

should be excluded from critical habitat designations. 

And finally and perhaps most importantly, the Fish and Wildlife 

Service needs to be put back in the driver’s seat. We need to let 

them do their job of prioritizing listings, recovery and critical habitat designations. Biology and sound science, not litigation, should 

drive the Service’s critical habitat program. 

Again I wish to reinforce my commitment to ESA and getting us 

back on track to achieving our goal of recovery of the species and 

let me state for the record that I have no intention of gutting, dismantling, or eliminating this important legislation. But the system 

is broken. My constituents are being affected and I was sent here 

to do something about it. 

I understand that there are concerns from both sides of the aisle 

on some of the provisions I have included within my bill. I look forward to discussions today in the hearing and pledge to work with 

all those parties who are seriously interested in moving forward on 

moderate, common-sense changes to the critical habitat designation 

process. 

Again I want to thank you, Mr. Chairman. You have been very 

helpful in this process and I want to thank Ranking Member Rahall and the members of the Committee. 

[The prepared statement of Mr. Cardoza follows:]

Statement of The Honorable Dennis A. Cardoza, a Representative in 

Congress from the State of California 

Thank you Mr. Chairman, Ranking Member Rahall and other members of the 

committee in attendance this morning. I appreciate the opportunity to have this 

hearing today on my legislation H.R. 2933, ‘‘The Critical Habitat Reform Act.’’ I 

look forward to a lively and productive debate to the problems facing the implementation of the Endangered Species Act. 

When the Endangered Species Act, or ESA, was adopted by Congress in 1973, it 

was heralded as a landmark environmental legislation for the protection and conservation of threatened and endangered species. The ultimate goal of the ESA was 

18

to focus sufficient federal attention on listed species so that, in time, they could be 

returned to a healthy state and removed from the list. 

I fully support the goal of species protection and conservation, and believe that 

recovery, and ultimately delisting of species should be the U.S. Fish & Wildlife Service’s top priority in the context of the ESA. 

Unfortunately, over the past 30 years since its passage I believe that we have 

driven off course from a system that should be directed by biology to a system that 

is driven by litigation, thereby causing us to lose sight of the ESA’s original purpose. 

The efforts by the Service to recover species have been hampered by litigation, court 

orders and unrealistic time lines which in total prevent the exercise of discretion 

and frustrate the purpose of the Act. 

The critical habitat program is the poster child of broken policy. 

Once a species is listed as threatened or endangered the ESA directs that habitat 

which is ‘‘essential to the conservation of the species’’ is to be designated by the 

Service. Failure to do so, even when the Service has determined that a designation 

would not be prudent and limited resources would be better spent on other recovery 

priorities, almost always results in the filing of a petition by a third party, thereby 

beginning the cycle of litigation. Currently, compliance with court actions and settlement agreements now consumes nearly the entire listing budget and leaves the 

Service with little ability to prioritize its actions to protect the most vulnerable 

species. 

The Service has been on record for sometime now raising similar concerns that 

the critical habitat system is broken: • In a February 2002 public information memorandum, the Service stated that 

‘‘...critical habitat designation usually affords little extra protection to most 

species, and in some cases it can result in harm to the species. This harm may 

be due to negative public sentiment to the designation, to inaccuracies in the 

initial area designated, and to the fact that there is often a misconception 

among other Federal agencies that if an area is outside of the designated critical habitat area, then it is of no value to the species.’’ • In an August 29, 2003, report, a GAO concluded that ‘‘[t]he Service’s critical 

habitat program faces a serious crisis because of extensive litigation that is consuming significant program resources.’’

A case in point is the Service’s recent designation of critical habitat for 15 wetland 

animals and plants listed as threatened and endangered. The original proposal 

would have designated over 1.7 million acres as critical habitat in California and 

Oregon. Almost one-third of the entire acreage in one of the California counties I 

represent, Merced County, would have been designated as critical habitat. Another 

more recent example is the Service’s announcement just 2 weeks ago in which it 

proposed to designate over 4.1 million acres as critical habitat for the red-legged 

frog. These designations defy logic—if the species can be found in this broad of a 

range, either the species cannot, by definition, be considered ‘‘endangered,’’ or the 

entire zone of habitat cannot, by definition, be considered ‘‘essential to the conservation of the species.’’

My experience with these designations has convinced me that we can do a better 

job of achieving our original goal of protection, recovery and delisting of species if 

we do a few simple things provided for in legislation which I have sponsored: 

First of all, we need a system that encourages the gathering of information that 

will help the Service to make better, more informed decisions about critical habitat 

for threatened and endangered species: 

• Before designating critical habitat, it is important the Service have a plan for 

the recovery of the species. We are putting the cart before the horse in many 

instances—designating millions of acres of land as critical habitat, when we do 

not have the information as to what is truly needed for the recovery of the 

species. Critical habitat designation is not a one-size-fits-all program, some 

species require very specific and sometimes unique conservation tools that must 

be fully vetted and scientifically tested before a designation is proposed. Recovery plans, and therefore recovery of the species, should be tantamount in the 

critical habitat process. 

• The Service should be required to consider local resource data, including maps, 

when considering areas for possible designation. Information from these agencies in many instances is more accurate and can provide crucial information regarding land conservation measures and land use planning. 

• The Service should also be required to consider all economic impacts to a proposed designation, including direct, indirect and cumulative impacts. While the 

Service is directed to consider some economic costs an expansion of this information would provide the Service with a more accurate picture of the costs associated with their proposed designations. Additionally, this information will 

19

provide the Secretary with greater tools in a determination as to whether the 

proposed designation is economically feasible, as provided in the legislation. 

• The Service should be required to provide GIS maps when providing public notice of the proposed designation in order to provide more meaningful information to the public. Often landowners have difficulty deciphering what parts and 

parcels of their land are included within the proposed designation. Having accurate land use maps would help clear confusion on the ground and allow for informed participation in the recovery. 

Secondly, areas that are already protected under other federal, state or local conservation plans such as Habitat Conservation Plans should be excluded from critical 

habitat designation. HCP’s and other similar programs often take years of intense 

collaborative effort to create and implement. All sectors of the affected community, 

including agriculture, the business and environmental communities, as well as federal regulators, participate in crafting a conservation plan that is consistent with 

recovery objectives for listed species. Fostering a continued sense of community involvement and participation is an important and often overlooked component of 

species protection. 

Finally, the Fish and Wildlife Service needs to be put back in the driver’s seat. 

The Service needs to be able to do its job of prioritizing listing, recovery and critical 

habitat programs. Biology and sound science, not litigation, should drive the Service’s determination of areas that are ‘‘essential to the conservation of the species.’’

Again, I wish to reinforce my commitment to the Endangered Species Act and getting us back on track to achieving our goals of recovery of the species. And let me 

state for the record that I have no intention of gutting, dismantling, or eliminating 

this important legislation. 

I understand that there are concerns from both sides of the aisle on some of the 

provisions included within my bill. I pledge to work with all of those parties who 

are seriously interested in moving forward on moderate, commonsense changes to 

the critical habitat designation process the hope of reaching a compromise we can 

all be proud of. Again, thank you Mr. Chairman and Ranking Member Rahall for 

the opportunity to speak today. 

The CHAIRMAN. Thank you. 

Mr. Gilchrest? 

STATEMENT OF THE HON. WAYNE T. GILCHREST, A 

REPRESENTATIVE IN CONGRESS FROM THE STATE OF 

MARYLAND 

Mr. GILCHREST. Thank you, Mr. Chairman. Thank you for calling 

this hearing. 

Secretary Manson, welcome. The Secretary, Mr. Chairman, has 

been in my district many times. We do have some refuges, Federal 

refuges in Maryland. These are beautiful places and the Secretary 

has helped us enormously with a number of our situations and 

problems out there and I hope that the Secretary, as a result of a 

stringent hiking incident sometime ago, is a little bit under the 

weather but we look forward to your full recovery and then maybe 

climbing some of those beautiful mountains around the vast arenas 

of this country. 

Thirty years ago we passed ESA and there is no doubt that we 

know a lot more about the ecological systems than we did 30 years 

ago, so it would be only prudent, I think, for us to take a close look 

at the Act to see where we can improve those provisions in the Act 

to enhance the wildlife that we are trying to protect, enhance their 

habitat, improve recovery plans, have a better understanding of 

what habitat is and a better understanding of what critical habitat 

is and have a better understanding of how to do that with some 

management flexibility for the Fish and Wildlife to reduce the 

problem and the cost, the time of litigation. 

20

I think as we move through this, though, very often when we discuss the Endangered Species Act or when we discuss the Clean 

Water Act or we discuss wetlands or we discuss a whole range of 

statutes in various Acts, we do it in isolation. And just a quick 

comment before a question, Mr. Secretary, about a couple of things. 

One, if we can improve this Act by improving communication between the various Federal agencies, especially when they come into 

conflict with Section 7 and Section 9 and most often both of those 

sections of the Act, in advance of designating critical habitat or 

some type of habitat because you are right, Mr. Secretary; habitat 

loss means species loss. There is no question about it. But improve 

within the confines of the Act the ability and the flow of information between different Federal agencies and certainly the ability of 

local communities to have input into this conversation because we 

need to go broader than just saving a particular type of species in 

California or Oklahoma or Maryland because when you preserve 

forests, you preserve nature’s ability, free of charge, to clean the 

water and clean the air. Above the forest there is less carbon dioxide and there is more oxygen. When you have forested wetlands, 

when you have forests, you have a retention of water, you have a 

cleansing of that water, and you do not have to develop a very expensive prosthesis to do that. It does it by itself and, by the same 

token, it also preserves the species. When you look at wetlands, it 

controls floods, it cleans water, it provides habitat for wildlife. 

So as we go through these things, whether or not to designate 

this area or that area for habitat, there is a whole broader question 

about preserving nature’s infrastructure upon which our infrastructure depends. Whether it is a road, a highway, a school, or whatever it is, a sewage treatment plant, we depend on nature to process our activity to make it clean so that future generations can live 

here. 

I think the question I have is not—and I look forward to looking 

at this legislation and working with the gentleman from California 

to pursue a better process for this particular legislation, to preserve 

habitat, to do it in a way that everybody has a stake in it. 

I think at some point in the near future we are probably going 

to come to a place where we will have to plan that this area is 

going to be habitat for wildlife, this area will be for our industry, 

this area is going to be for commercial activity, this area is going 

to be for residential activity, and this area is going to be for agriculture. That plan will help preserve nature’s infrastructure, habitat for species, and allow human beings to be able to sustain their 

dynamic economy and the quality of their life. 

The Chairman of this committee, and I will close with this statement because I think I am probably over my time—I keep looking 

for the lights and I have a yellow yet—the Chairman, Mr. Pombo, 

helped develop a pilot project on the Delmarva Peninsula as a statute within the Farm Bill for a conservation corridor program and 

we have been working on that for the past year and it helps preserve an agricultural corridor, which is fundamentally our economy 

and it has been that way for 3009 years, along with the fishing 

economy and tourism, a corridor for agriculture, a corridor of forested wetlands and wetlands that preserve the hydrology and 

species habitat, and a corridor where people live. 

21

So we are working on this pilot project to try to understand how 

we as humans can perpetuate our economy, improve the quality of 

our life, protect the air and water and habitat for species. 

So I look forward to working with the author of this bill and certainly, Mr. Secretary, I look forward to continuing to work with 

you. 

And thank you, Mr. Chairman, for the time. 

[The prepared statement of Mr. Gilchrest follows:]

Statement of The Honorable Wayne T. Gilchrest, a Representative in 

Congress from the State of Maryland 

Since Congress passed the Endangered Species Act thirty years ago we have experienced increasing land use changes, development, and loss of ecosystem components and habitat connectivity. We have also experienced a multitude of challenges 

in the listing of species and their recovery under the Endangered Species Act. 

Thirty years ago, we collectively acted to boldly stem the extinction of species in 

the U.S. through this landmark conservation law. Because we knew the pressures 

on land would increase as the nation’s economy and population grew, we put the 

protection of listed species before many other national priorities. We did this because, as we say, extinction is forever. Although we can restore habitats in many 

cases, we cannot restore genetic diversity among populations of species when it is 

lost. It is lost when the number of individuals reaches a point where all progeny 

are too closely related to give a species competitive advantage in the wild or to protect it against disease or congenital defects. The finality of extinction and that inevitable outcome when the number and distribution of a species becomes so limited 

should drive us to do all we can to prevent it. 

Species become endangered in part because their needs are finely tuned to particular habitat resources. For instance, the Florida snail kite requires a certain 

species of snail in order to survive. Many listed bird species in Hawaii are uniquely 

adapted to extract particular kinds of food sources. When the habitat, including 

food, shelter, water and space, is altered, these species cannot adapt. Habitat 

changes not only remove critical sources of food and shelter, but also can provide 

opportunity for native or nonnative invasive species, with more generalist habitat 

requirements, to outcompete listed species. General preventative conservation measures are often not sufficient to protect such species from listing, making the Endangered Species Act and the recovery of listed species an important piece of the nation’s overall fish and wildlife conservation policy. 

In 1976, Congress recognized the powerful connection between habitat protection 

and the recovery of listed species in the House Committee on Merchant Marine and 

Fisheries Report for the reauthorization of appropriations for the act: 

It is the Committee’s view that classifying a species as endangered or threatened 

is only the first step in insuring its survival. Of equal or more importance is the 

determination of habitat necessary for the species continued existence. Once a habitat is so designated, the act requires that proposed federal actions not adversely affect the habitat. If the protection of endangered and threatened species depends in 

large measure on the preservation of the species habitat, then the ultimate effectiveness of the endangered species act will depend on the designation of critical habitat. 

That being said, I share many of the Chairman’s and my colleague’s concerns 

about the process used to protect habitat for listed species through the Endangered 

Species Act and commend Representative Cardoza for starting the Congressional effort to improve this process. The goal of Endangered Species Act improvement will 

be, I hope, full and priority protection for listed species and effective recovery, in 

partnership between federal and state fish and wildlife agencies and private landowners with improved regulatory and flexible programmatic tools. 

However, the goal cannot be an end to the struggle to better understand and meet 

the needs of listed species while fairly burdening public and private landowners 

with recovery efforts. This struggle will continue and we should not be hesitant to 

engage in it—while we use our experience during the past 30 years to improve the 

Endangered Species Act now, this continued struggle will ensure the refinement of 

habitat protection for listed species over the next 30 years. 

The CHAIRMAN. Mr. Inslee. 

Mr. INSLEE. Many of us believe that this is not the time to 

weaken the Endangered Species Act, that this was a fundamental 

22

decision made decades ago by America that we should hue to and 

strengthen, if not anything, rather than weaken it. And many of 

us are very concerned that by attacking the fundamental character 

of critical habitat, that is exactly what will be happening here. 

Now I must express, Judge, I think you have a difficult job this 

morning because you carry a lot of baggage that may not be yours 

personally but it is due to your Administration. You come to us 

with some ideas, you have made some suggestions about this issue, 

but the baggage you carry is working with an Administration that 

many people believe has the worst environmental record of any 

American President in American history. The attempts to weaken 

the clean air laws, the reduction in mercury toxic levels, the 

roadless area, gutting of the roadless area bill, the extension of resource development in critical habitat areas—not critical habitat 

areas but in our interior West—a whole slew of things that have 

simply gone backwards on protecting clean air and clean water. So 

I think you have kind of a difficult row to hoe not due to your personal difficulties but the Administration’s. I just want to make sure 

you are aware of a concern that we have generally. 

But I want to ask you because I understand that you know that 

this may be the sixth period of global extinction ever in world history, that what we are seeing right now where we have in the 

United States 985 endangered species, and that is just the United 

States, and many scientists think that we are in a global occurrence of extinction that really has only happened many five times 

before in global history. Before, it has happened because of asteroids, climate change. Now it is due to some things that we are responsible for. So many of us think we should not be weakening 

America’s fundamental tool used to fulfill this American value of 

keeping species around for our grandchildren. 

Now I understand you are sort of a point person in the Administration for this process and I want to ask you about your beliefs 

because I have read some things that cause me some concern. I 

read in a Grist Magazine article where you had said, ‘‘I don’t think 

we know enough about how the world works to say that,’’ referring 

to extinction of a species. And another place you said that ‘‘Critical 

habitat adds very little additional benefit to the conservation of a 

listed species.’’

I want to tell you, that causes me concern because as the person 

responsible for our government responsible for protecting endangered species who has publicly said that you do not think we know 

enough to know whether that is vital or not, when it is the policy 

of America for 30 years and when you are the person responsible 

for dealing with critical habitat designation and you have said you 

do not think it adds much value apparently, I just want to give you 

a chance to explain that, to tell me where you think the sunny side 

is of extinction. 

Mr. MANSON. Well, first of all, I have never said that there was 

a rosy side to extinction. My point was that we do not know enough 

about how the world works to know A, all the causes of extinction 

and B, whether or not in every case that is necessarily something 

that nature does not have as part of some greater dynamic plan. 

That was the point there. 

23

As for critical habitat, my view is the same as the Fish and Wildlife Service has held for 25 years, that there is little additional benefit added by critical habitat designations. And again the point 

here is not that habitat is not essential. Habitat is essential. The 

question is do we have a process that gets us what we need in 

terms of conservation benefit? And that is where for many years 

various Administrations have felt that we do not have such a 

process. 

Mr. INSLEE. I just want to tell you, with all due respect, that 

those answers really do not wash, and I will tell you why. It is sort 

of like saying the fellow in charge of protecting Fort Knox saying 

well, gold is not everything in life. It is when you are in charge of 

critical habitat designation, which I understand to be your responsibility, and it is when you are in charge of implementing the Endangered Species Act. And I read quotations that you think it has 

some lesser value and with all due respect, I would think a person 

would be aware of the science that human activity is causing—our 

activity, all of us in this room in some sense—is causing massive 

extinction. And to sort of palm it off as this minimalist issue is 

very distressing, particularly when you then come and suggest in 

some form that we weaken the Endangered Species Act by 

reducing—and we will talk about this in length, but this clearly reduces the level of protection that will be provided species, particularly in giving them corridors for travel, and the like. 

So I just want to tell you it is very distressing and if you want 

to make any comment on that, go ahead. 

Mr. MANSON. Well again, I do not see this as a weakening of the 

Act. There still would be critical habitat designated under this particular bill, there still will be all of the other protections of the Act, 

and most importantly from my point of view, we have an opportunity to put resources into other programs which have demonstrated a greater ability to protect actual habitat on the ground 

that you can touch and you can feel and that critters can actually 

live on, and those programs are proving successful. 

Some of those programs are voluntary programs in partnerships 

with landowners, some of them are habitat conservation plans, 

some of them involve conservation banking, all of which I believe 

are superior ways to protect habitat for species which are not only 

endangered but may be not listed but at risk of becoming endangered. 

The CHAIRMAN. Mr. Calvert? 

Mr. CALVERT. Thank you, Mr. Chairman. I want to thank you for 

having this hearing. I want to thank the author of this legislation, 

Mr. Cardoza, for bringing this up and certainly thank you, Judge 

Manson, for coming here, Mr. Manson, for having the time to come 

here. 

I have the privilege to represent a district that has the distinction of having one of the most impacted areas by the Endangered 

Species Act of anywhere in the United States, Riverside, California, 

and certainly Mr. Baca’s district, San Bernardino County, shares 

that distinction. We certainly live every day with critical habitat 

and the distinction of having to deal around that. 

In Riverside County we have been somewhat proactive. We are 

attempting to create a multi-species habitat conservation plan, one 

24

of the largest in the United States. Hopefully we are very close to 

putting this together, which proactively deals with the Endangered 

Species Act in a way that has not been done before. But we have 

found through experience that critical habitat, you are absolutely 

correct, Mr. Manson, in saying that that does not help the situation; it hinders the situation. The complexities of dealing with critical habitat is well known. 

And by the way, the concept of saying science, in fact, weakens 

or law or using science is absolutely, I find, amazing. We have been 

attempting to make sure that science is part of the law as we deal 

with the Endangered Species Act. We have one species that in Mr. 

Baca’s district called the Delhi flower-loving sandfly, which is 

somewhat famous. We cannot find the fly but we have been told 

it is there. They can hear it. They cannot see it. But the community 

that Mr. Baca represents, Fontana, is being, in effect, held hostage 

to this species, which we cannot deal with rationally. 

We have the new Santa Ana suckerfish, again an area where this 

species—we have designated critical habitat where the species does 

not exist and that is a question I want to ask you, Mr. Manson. 

How do we deal with or how do we justify designating unoccupied 

habitat as critical? 

Mr. MANSON. Well, the statute itself has a provision for the designation of unoccupied habitat. The statute says that unoccupied 

habitat may be designated as critical habitat but as I read that 

provision of the statute, that should be done only where the occupied habitat is not sufficient to provide a conservation benefit to 

the species. 

Mr. CALVERT. Now in your experience have you found that people 

designated unoccupied habitat based on objective, scientific information or in many cases based upon subjective information between various parties? 

Mr. MANSON. Well, that is one of the reasons why we are putting 

out this guidance, so that the public can be confident that the folks 

in the field who are doing the work are guided by principles that 

comport with not only the statute but with good sense and good 

science, as well. 

Mr. CALVERT. I would hope so. In our area, again in the Inland 

Empire of California, one of the apparent reasons why this critical 

habitat was put together was not done because of any particular 

study. As we understand it, it was based upon two personal communications with biologists who stated in e-mails to the Service 

that designating that area was important. 

Now we have a similar situation upriver where the Federal government spent several hundred million dollars putting a dam in 

based upon scientific information at the time that, for instance, the 

San Bernardino kangaroo rat habitat would not be harmed and 

now we are getting reports that the Service may require us to go 

ahead and just open the floodgates and not allow for the flood protection that this dam provides. 

And it seems inconsistent to us in government who are in charge 

of trying to use taxpayers’ money logically, to make sure that what 

we are attempting to do is not incompatible with species protection 

and I think science is an important part of that. 

25

Again I want to thank Mr. Cardoza for bringing this legislation 

forward, for having this conversation, for having this hearing, and 

I hope that your legislation is successful and anything I can certainly do to assist you, I will do. 

Thank you, Mr. Chairman. 

The CHAIRMAN. Thank you. 

Miss Bordallo, did you have questions? 

STATEMENT OF THE HON. MADELEINE Z. BORDALLO, A 

DELEGATE IN CONGRESS FROM THE TERRITORY OF GUAM 

Ms. BORDALLO. Thank you very much, Mr. Chairman. 

Members of the Committee and Mr. Cardoza, I am very pleased 

that you have brought this bill up before us and I represent a territory that has impacted by this. I would like to take a few minutes 

to explain to Assistant Secretary Manson why I at this stage will 

be supporting the Cardoza bill, or at least support rectifying many 

of the concerns which it seeks to address. 

The Fish and Wildlife Service has been demonstrating everything 

that is wrong with the current system of critical habitat designation through its management of the Ritidian Point Wildlife Refuge 

in Guam and its proposed critical habitat overlay for substantial 

land on the rest of the island. 

Mr. Chairman, in 1993 the Fish and Wildlife Service took property that was slated to be returned to the people of Guam after it 

was declared excess by the Air Force, thereby effectively cutting off 

those residents who live at the northern end of the island from 

having visitors to their property at Jinapsan Beach. 

For the last decade, the Fish and Wildlife Service has been opposing the right of access through the refuge for these landowners 

to their property. Efforts to resolve this matter have been ongoing 

but the Fish and Wildlife Service continues to either point a finger 

at the Air Force or hide behind their lawyers at the Justice Department, rather than having an open discussion on how to achieve 

land use management that meets the needs of the local population 

and the endangered species. 

Meanwhile, two endangered species in Guam have recently been 

declared extinct—the Mariana Mallard and the Guam broadbill. 

The Fish and Wildlife Service has not adequate managed to control 

the invasive brown tree snake, which is the prime threat to endangered species on the island, not the lack of habitat. And it seems 

pretty clear to me that the Fish and Wildlife Service is not demonstrating effective land use management at Ritidian and critical 

habitat designation would not meet the needs of our community. 

So I support the notion in this legislation of tying critical habitat 

designation to having a recovery plan in place and to considering 

local concerns, such as access to private property. An alternative 

beyond the constraints of critical habitat designation is sorely needed and this bill offers the prospect of alternative land management 

that respects the concerns I have raised and until the Fish and 

Wildlife Service comes to its senses regarding access to Jinapsan 

Beach, I must support the bill. 

[The prepared statement of Ms. Bordallo follows:]

26

Statement of The Honorable Madeleine Z. Bordallo, a Delegate in Congress 

from the Territory of Guam 

Mr. Chairman, I would like to take a few minutes to explain to Assistant Secretary Manson, why I at this stage will be supporting the Cardoza bill, or at least 

support rectifying many of the concerns which it seeks to address. The Fish and 

Wildlife Service has been demonstrating everything that is wrong with the current 

system of critical habitat designation, through its management of the Ritidian Point 

Wildlife Refuge in Guam and its proposed critical habitat overlay for substantial 

land on the rest of the island. In 1993, the Fish and Wildlife Service took property 

that was slated to be returned to the people of Guam after it was declared excess 

by the Air Force, thereby effectively cutting off those residents who live at the 

northern end of the island from having visitors to their property at Jinapsan Beach. 

For the last decade the Fish and Wildlife Service has been opposing the right of 

access through the refuge for these landowners to their property. Efforts to resolve 

this matter have been ongoing, but the Fish and Wildlife Service continues to either 

point the finger at the Air Force or hide behind their lawyers at the Justice Department, rather than having an open discussion on how to achieve land use management that meets the needs of the local population and the endangered species. 

Meanwhile, two endangered species in Guam have recently been declared extinct, 

the Mariana Mallard and the Guam Broadbill. The Fish and Wildlife Service has 

not adequately managed to control the invasive Brown Tree snake, which is the 

prime threat to engendered species on the island, not the lack of habitat. It seems 

pretty clear to me that the Fish and Wildlife Service is not demonstrating effective 

land use management at Ritidian and critical habitat designation would not meet 

the needs of our community. So, I support the notion in this legislation of tying critical habitat designation to having a recovery plan in place and to considering local 

concerns such as access to private property. 

An alternative beyond the constraints of critical habitat designation is sorely 

needed. This bill offers the prospect of alternative land management that respects 

the concerns I have raised, and until the Fish and Wildlife Service comes to its 

senses regarding access to Jinapsan Beach, I must support the bill. Assistant Secretary Manson, I would welcome your comments on this problem and hope you will 

convey my message today to those within your organization responsible for dragging 

this land access issue out for over a decade, so it can be finally resolved. 

Ms. BORDALLO. Assistant Secretary Manson, I would welcome 

your comments on this problem and I hope you will convey my 

message today to those within your organization responsible for 

dragging this land access issue out for over a decade, so it can finally be resolved. 

Mr. MANSON. Well, thank you, Congresswoman. You may know 

that I went to Guam a few months ago and I visited the refuge. 

I had conversations with the Governor and all of the government 

of Guam who are in the natural resources arena. I also convened 

a meeting with the Air Force, the Navy, the Fish and Wildlife Service and the government of Guam and began working through this 

issue. 

The matter is in litigation so I’m constrained as to what all I 

may say about this but I will tell you that about 2 weeks ago we 

received from the government of Guam a proposal that the Fish 

and Wildlife Service has found adequate to meet the needs that we 

discussed in the meetings back several months ago. That plan of 

the government of Guam is now out for public review and comment 

and I am hopeful that that is a pathway forward for all the difficult 

issues on Guam. 

Ms. BORDALLO. I am aware of the plan. 

Mr. Secretary, just how long is the litigation going to continue? 

Mr. MANSON. Well, the court has a schedule and if the plan that 

is out for public notice and comment passes muster with all of the 

27

parties, then there is a good chance that that litigation can be over 

with this summer. 

Ms. BORDALLO. Thank you very much. 

Thank you, Mr. Chairman. 

The CHAIRMAN. Mr. Gibbons? 

Mr. GIBBONS. Thank you very much. 

Judge, welcome to the Committee. We are happy to have you and 

your testimony certainly has been helpful to us. 

I, like my colleagues, am very supportive of this idea about 

amending the Endangered Species Act and I think it is important 

to know that we are in the 31st year of the implementation of the 

Endangered Species Act. I think it is important also to know that 

some people believe that simply by listing a species in the Endangered Species Act will result in its preservation well into the future. I think they would also be surprised to hear that 1,304 and 

rising species are on that list but only 12, less than one one-hundredth of a percent, have been recovered and 9 percent are in the 

recovering phase, or stable. 

I think one of the issues that we have is science. One of the problems we have is science versus emotion. There is no doubt that the 

emotion of a species becoming extinct yields unintended consequences on both sides of the aisle—the debate, I should say—on 

this issue. 

I am a firm believer that before a species is listed it should have, 

or within a period of time after it is listed, say 60 to 90 days, it 

should have a recovery plan, and that recovery plan should indicate 

how we plan to go forward with the recovery and preservation of 

that species because as I look at it today, with 1,304 species and 

only 12 recovered, the plan for the Endangered Species Act has 

been a failure to preserve and protect those species which were 

listed. 

So I would ask what your thoughts are on implementing and requiring a recovery plan as part of the listing of a species and what 

you think should be included in that recovery plan. 

Mr. MANSON. Well, I think it is very important to have a plan 

or a strategy to recover endangered species. I do not know if at the 

time of listing we frequently know enough about a species to do it 

on that short a timeframe, but I do strongly believe that the goal 

of the Act is recovery, that it is not simply sufficient to put a 

species on the list. That would be like saying the analogy would be 

in our health care system that we put people in the hospital and 

never let them out of the hospital. That would be a failure of a 

health care system if we were to do that. 

Mr. GIBBONS. And you do nothing while they are in the hospital 

but just let them lie there. 

Mr. MANSON. Right. That would be a failure of the health care 

system. It is likewise a failure of the Endangered Species Act if we 

do not recover species, because that is the goal, not just to list 

them. 

Mr. GIBBONS. How many of the 1,304 species currently on the 

Endangered Species Act have a recovery plan? 

Mr. MANSON. Only a very small percentage. It could be as many 

as 25 percent. I can get you that figure. 

28

Mr. GIBBONS. Let me ask a question about science because I too 

often hear the mantra of people saying we are weakening the Endangered Species Act by requiring science or we are weakening it 

by requiring a habitat to be protected or listed for the preservation 

and recovery of the species. 

Let me give you an example that occurred in the district I have 

the great fortune to represent with the bull trout. The bull trout 

was listed at the request of a Trout Unlimited group, fishing group, 

at the request to the Fish and Wildlife Service. Yet at the same 

time, the state of Nevada biologist had for the preceding three decades studied the bull trout in the very location where the issuance 

of the Endangered Species Act limitation was to take place. 

As a result, the state of Nevada provided the Fish and Wildlife 

Service with the information in their biologic data, which was summarily disregarded. The species was listed as endangered despite 

what the biologist of the state of Nevada had said, that it was not 

an endangered species, yet today we are engaged in a very long 

and expensive process, much of which has gone through litigation, 

over the status of the bull trout in this area. 

I am concerned that we too often let emotion rather than science 

drive the indication of whether a species should be listed. It is 

often listed for purposes other than recovery. In other words, oftentimes a species is listed to block, stall or delay any kind of use or 

development of land in its adjacent areas. 

What are your thoughts on science as a criteria for listing an endangered species? 

Mr. MANSON. Well, the law makes that a very firm criteria. In 

the guidance that we are issuing this week, we address the quality 

of information that is used to find the best available science and 

the guidance that we issued this week makes clear that there are 

different qualities of information and that we want to use the highest quality of information that we have on any particular species. 

So I think that the issue that you raise is one that we are addressing now. 

Mr. GIBBONS. Well, thank you, Judge. I look forward to working 

with you on this issue. I thank Mr. Cardoza for introducing this 

bill. I thank the Chairman for giving me the extra time because the 

light is red, and I look forward to making common sense work in 

this very important piece of legislation. Thank you. 

The CHAIRMAN. Mr. Grijalva? 

Mr. GRIJALVA. Thank you, Mr. Chairman. Not any questions for 

the witness but a couple of comments, if I may. 

In my community, the area I represent, Pima County, we had the 

pygmy owl that was listed as an endangered species. What has resulted from that listing is a multi-government—state, Federal, 

local—effort and a multi-species habitat recovery plan for the 

species. And in the process of doing that, all the essential players 

in that decisionmaking process—development interests, environmental interests—have come together to work on a plan that now 

has broad-based support and broad-based support from the voters 

in terms of passing bond elections for land acquisition and habitat 

protection. 

I mention that because I believe to this day that if that listing 

had not occurred, there would not have been the impetus to bring 

29

all those people together at the table to begin to discuss protection 

and recovery but also how to balance economic development needs 

with the needs to protect the environment. 

I think the bill that we have before us today will render ESA’s 

critical habitat provision toothless and no longer able to provide 

help to species, as it was intended to do 34 years ago. I cannot support this legislation because it will do nothing to further the goals 

of ESA and will instead, make it more difficult and less likely that 

we will be able to recover species. 

The proposed legislation will limit habitat designations to areas 

where species currently live. This will preserve the smallest possible area. It will make it impossible to recover species to a point 

where they no longer need listing. 

This bill would also prioritize economic impacts over environmental impacts in the designation process, thus robbing us of an 

opportunity to create balance in those decisionmaking processes. 

And I think this bill takes us backwards in our goal of recovery 

of endangered species. It will result in less protection for species 

and a reduced likelihood that species will recover. 

As the bill stands today, I cannot support it and I believe this 

bill takes us back to a time that 34 years ago this country in its 

wisdom and this Congress in its wisdom set aside as the time to 

begin to protect our critical habitats and in doing that, protect the 

species. 

So with that, Mr. Chairman, I don’t have any further comments. 

Mr. INSLEE. Mr. Grijalva, would you yield a moment? 

Mr. GRIJALVA. Absolutely. 

Mr. INSLEE. Thank you. I appreciate it. 

I wanted to ask the judge about an issue of guidance on designation of critical habitat. We have already had a little bit of discussion about that. 

It is my understanding that one of the concerns is the lack of definition of critical habitat and apparently the definition of ‘‘destruction or adverse modification of critical habitat,’’ which I believe is 

the language out of the statute. The old regulations were thrown 

out in 2001 by a court. The court ruled that the Federal government was not abiding by the statute. 

Now it is 2004. I am told that your agency still has not issued 

guidance or regulations for that definition, despite the passage of 

3 years. Is that correct? 

Mr. MANSON. You are talking about the issue of the definition of 

‘‘adverse modification of habitat’’ in Section 7 of the Act? 

Mr. INSLEE. Correct. 

Mr. MANSON. And yes, for the last 3 years the Fish and Wildlife 

Service and NOAA Fisheries have worked on such a definition. We 

are coming closer to closure on that but we are not quite there yet. 

That is true. 

Mr. INSLEE. You know, this is just extraordinary. Here we are 

talking about weakening the fundamental American protection for 

endangered species but the agency charged with the responsibility 

both to recover species and to be fair with property owners so property owners will know what the rules of the game are, has spent 

3 years—we fought World War II in 4 years—to come up with some 

guidance to Americans about what the rules were. 

30

Now it is no wonder that people are griping about the Endangered Species Act when the agency responsible for telling Americans how to play the game has not told us what the rules are. I 

find that totally unacceptable. The only possible explanation for 

that is that you do not have the budget to get a rule adopted, but 

that is not much of an excuse, either, when your Administration 

wants to cut the budget by $10 million to deal with recovery of 

species. 

So can you give me some explanation of what you are going to 

do to solve this problem without gutting the Endangered Species 

Act? 

Mr. MANSON. Well, as I said, first of all, we are dealing not with 

the issue of guidance on critical habitat but with a definition that 

the court found in its view did not comport with the statute. We 

have taken a very deliberate approach to creating such a rule. It 

is not a simple process. 

Mr. INSLEE. You have been deliberative like a glacier is deliberative. Thank you. 

The CHAIRMAN. Mr. Renzi? 

Mr. RENZI. Thank you, Mr. Chairman. 

Judge, I appreciate your coming today. I want to take advantage 

of your legal mind here. 

I have great respect for the congressman from Southern Arizona; 

I consider him a friend. There is a lot of debate over the pygmy 

owl. One of the issues that has come up in Southern Arizona has 

to do with geographical area. The pygmy owl in its northern migration pattern comes up into what is Southern Arizona. It is said to 

be a flourishing species in Mexico. 

So as you look at geographical area and in particular in the language of this legislation, which I do support, will there be an understanding as to migratory patterns, particularly from foreign soil 

into those areas like border states? 

Mr. MANSON. I am not entirely sure I get the gist of your question. 

Mr. RENZI. When we look at geographical area we look at habitat. When we look at the idea of critical habitat and of a species 

and we have a situation where that species may be rare in Southern Arizona or in Southern California, but it is plentiful in Mexico. 

Will there be an ability to weight or will there be an ability to 

take into consideration the species’ primary habitat in foreign soil? 

Mr. MANSON. Well, the question that you ask is really one of listing. The critical habitat provisions as they currently exist do not 

allow us to designate critical habitat outside the United States. So 

when we look at what is essential for the conservation of the 

species, we are constrained to look at that which is in the United 

States itself, as opposed to what may—

Mr. RENZI. Thank you. Here is where I am going with this. As 

we see data that shows a species may be moving north and has not 

entered the United States or is just entering the United States and 

we are looking at the possibility of critical habitat being further 

north, the idea that oh, we may have heard the bird fly over this 

area or we may feel that as the bird continues its northern migration it may inhabit this area, under the language here, ‘‘occupied 

31

and used,’’ we would not be in a situation where the speculation 

would occur as to species that would be moving north, would we? 

In other words, geographical area is really defined as occupied or 

used, not so much may occupy or may be projected to use as a 

species moves north. 

Mr. MANSON. Right, that is the definition. 

Mr. RENZI. So this language would actually bring a definition as 

to that speculation that is occurring in our backyard in Arizona. 

Mr. MANSON. It definitely puts sideboards on the issue of which 

habitat ought to be designated as critical habitat. 

Mr. RENZI. I appreciate that. 

When we look at the issue of economic impact and the balancing 

and the weighting of that in comparison to the designation, in Arizona we have the Tonto Forest, which used to support 50,000 head 

of cattle. We have a willow flycatcher bird that we are able to see 

exactly where the nesting sites are but we have also designated 

now five miles within that area, even close to that area, because 

the cowbird may go in and lay its eggs, so we are kicking cattlemen 

off the ranch. We have gone from 50,000 head of cattle down to less 

than 1,500 head of cattle in an area where John Wayne used to 

own his own ranch. 

So the Arizona beef industry is essentially almost decimated in 

the Tonto National Forest, which has millions of acres. 

When you look at economic impact, how do you see it balancing 

and how do you see it being weighted in consideration of the 

species itself? 

Mr. MANSON. Well, there is a provision of the statute know as 

4(b)(2), which allows us to weigh the economic impact of designating critical habitat, as we are not allowed to do with respect to 

listing. In fact, that provision says we can weigh economic impact 

or any other relevant impact and the limit is the extinction of the 

species. 

Mr. RENZI. So it is an equal weighting, an equal balancing, in 

comparison to the species itself, economic impact, or is it a threelegged stool or is it equally weighted? 

Mr. MANSON. We balance the benefit of including an area in critical habitat versus the benefits of excluding it and that provision 

has been used only sparingly until this Administration and we 

have made more robust use of that provision. 

For example, in Mr. Cardoza’s district and throughout California 

with respect to vernal pool species, we used that. We looked at the 

economics of the situations in various counties and based upon the 

greater economic impact versus the limited conservation benefit, 

we excluded a number of counties from that designation. 

Mr. RENZI. Thank you. 

The CHAIRMAN. Mr. Baca. 

Mr. BACA. Thank you very much, Mr. Chairman. 

First I would like to thank Mr. Cardoza for introducing this legislation, which I believe is very much needed and I am a cosponsor 

of it, so I am on the opposite side of some of our members out here. 

And the reason why, as Mr. Calvert also mentioned, the problems 

that we have had in the Inland Empire, especially as it pertains 

to the Endangered Species Act and the Delhi Sands Flower-loving 

32

fly and, of course, the Kangaroo Rat that have impacted both of our 

areas. 

Before making additional statements I would like to thank the 

judge for working with us in trying to solve a particular problem 

that we had in Fontana and the immediate area. But what has 

been very controversial in the Inland Empire is the Endangered 

Species Act and the definitions, especially of the Delhi Sands Flower-loving fly. It has only been in existence for sometime. We do not 

even know if it even currently exists right now. It may be extinct. 

We have Santa Ana winds that are blowing. We do not know when 

the Santa Ana winds are blowing, where it is at, and if it is still 

there, yet it has cost millions and millions of dollars, especially for 

the City of Fontana and some of the surrounding areas like Colton 

with this particular fly in revenue and default bonds that have 

stalled even commercial development and preserved pockets of 

lands in connecting the corridor for this fly. 

It is hard to imagine a fly. I mean if all of us saw a fly right 

now we would slap it. I mean if it came right now and I had a fly 

swatter, I would swat it and I would not know if it had a little yellow on it and if it is distinct and when it even comes up, but yet 

we have this as part of the Endangered Species Act, in the definition. We do not even know if it is still alive but yet the blight, the 

surrounding areas, so many things that can be done that has cost 

millions of dollars. 

And because of this designation of both the fly and also the kangaroo rat, we have designated between San Bernardino and Riverside Counties, 33,000 acres of critical habitat just for the kangaroo 

rat alone and the economic impact—people have to understand the 

costs. It has cost us up to $130 million over 10 years. That is a 

heck of a lot of money that you have for a fly that we do not know 

if it exists, a fly that most of us would slap, a kangaroo rat that 

exists that is part of Endangered Species Act; it is there. I believe 

the Congress also has the responsibility not to burden, beyond the 

financial responsibility, to protect not only our communities but 

also as we look at this fly and this rat. 

That is why one of the questions that I have and I would like 

to ask as we begin to work in our area, Judge, as you know, there 

is a difference between habitat conservation plan and critical habitat designation. As the Endangered Species Act stands now, the 

Fish and Wildlife Service can exclude HCPs from critical habitat. 

In dealing with the endangered Delhi sandflower-loving fly in my 

district, an HCP was created but no critical habitat designated, 

which is most likely a good thing. This was not allowed under the 

law. 

Is there any current law that would prevent HCP from being 

turned into a critical habitat in the future? Question one. And 

question two is would H.R. 2933 be effective in making sure that 

habitat conservation plans are prohibited from becoming a critical 

habitat? 

Mr. MANSON. Well, as to your first question, any party can petition to have critical habitat revised under the current statute. So 

it is possible that someone could petition to have the HCP areas 

included in critical habitat under the existing statute. 

33

That is not going to happen during our Administration because 

the guidance that we have issued, HCPs which conserve the species 

are to be excluded from critical habitat. That is in our guidance 

which is coming out. But at some other point someone might well 

be able to do that. 

Mr. BACA. That is why it is important to have the law and the 

definition be explicit, correct? 

Mr. MANSON. Well, that is right. And our guidance is based upon 

our analysis of the current law and our belief in the strength of 

HCPs as a superior way to conserve habitat, as compared with critical habitat designations because critical habitat designations are 

more of a legal exercise, although they have consequences, where 

as habitat conservation plans provide real conservation benefit to 

species. 

Under this bill in the definition of critical habitat, this bill would 

revise the definition of critical habitat to explicitly provide that 

habit conservation plan areas are not part of critical habitat definitionally. 

Mr. BACA. Good. Thank you. 

Thank you, Mr. Chairman. 

The CHAIRMAN. Mr. Cole? 

Mr. COLE. Thank you very much, Mr. Chairman. And I, too, 

want to thank Mr. Cardoza for introducing this legislation. It is 

frankly very important legislation. I appreciate it. I sat in the hearing on it, as well. 

Secretary Manson, if I could I want to ask you a series of questions. I am particularly interested by the amount of litigation that 

the Endangered Species Act seems to generate. Am I correct in my 

opinion that it seems to be an inordinate amount of litigation particularly for a piece of legislation that is now over 30 years old and 

ought to be pretty well understood? 

Mr. MANSON. Well, lawyers are always finding new aspects of the 

statute and new areas in which to litigate and it may be that that 

is part of the process of a statute maturing. I do not know. I do 

know, though, that the current tide of litigation which is about 

eight or 9 years old has really hampered the Fish and Wildlife 

Service’s ability to carry out discretionary actions. When you have 

biologists writing declarations and spending more time with their 

lawyers than with the critters, then that is not the way to run a 

conservation agency. 

Mr. COLE. Again that would suggest if we are having that degree 

of litigation that either there is something defective in the law or 

the Fish and Wildlife Service is not doing their job. I mean one of 

the two would be the logical surmise. Do you have an opinion on 

that as to which it is. 

Mr. MANSON. Well, the current amount of litigation is generated 

in the listing and the critical habitat program and it is my belief 

that the critical habitat process, the provisions designating critical 

habitat, are defective and need to be fixed. 

Mr. COLE. Last year we had testimony before this committee and 

before the Armed Services Committee about the application of the 

Endangered Species Act on military reservations and training reservations and during the course of that, in both committees there 

was testimony that actually the military had done a pretty good job 

34

in its military reservations of enforcing the Endangered Species Act 

but was constantly running into litigation and a very slow process 

in terms of getting critical decisions done that it needed. We took 

action, as I recall, in the DOD bill, with the concurrence of this 

committee, to try and deal with that problem. 

Are you telling us, in effect, that we have this problem across the 

board, that we really are having a hard time administering the law 

because we are involved in so much litigation about the law? 

Mr. MANSON. Well, I think there are two things. I gave some of 

that testimony on the DOD bill. 

The process itself is defective when it comes to designating critical habitat and one of the defects is the strict time lines which 

necessarily create a hook for litigation. And the second problem 

then is the ligation itself because it has caused a diversion of resources from core missions and it has resulted in court orders that 

stretch out through the year 2007 or so in order to be complied 

with. That means that other things which might be a higher priority in the view of the biologists do not get done because they do 

not have discretion to do those things without running afoul of the 

court orders. 

Mr. COLE. I just want to thank you and thank again Mr. 

Cardoza. I do not think we have a debate, certainly not in this committee, about protecting endangered species. I think we would find 

agreement. The real question is a process whereby we can achieve 

that goal that is efficient and that is expeditious, which I think 

both the species themselves, not to mention the rest of us that are 

dealing with this could benefit from. 

So I appreciate very much your efforts in that regard and again 

thank my friend Mr. Cardoza for his efforts in focusing on this critical problem. 

Thank you, Mr. Chairman. 

The CHAIRMAN. Mr. Udall. 

Mr. UDALL. Thank you, Mr. Chairman, and thank you, Judge, for 

being here today with us. 

Clearly, Judge, we must find a better way to implement the Endangered Species Act and I think that is the thrust of many of the 

questions you are hearing today about implementation, about the 

failure of your agency to really move forward in an aggressive way 

and issue regulations and implement where you could resolve some 

of these issues in terms of litigation. 

But let me just start with the proposition that we have a piece 

of legislation that my colleague Mr. Cardoza has introduced back, 

I believe, in July of 2003 and you are the political appointee that 

is over this Fish and Wildlife Service, this whole agency, and we 

are approaching—if it were this July it would be a year since this 

legislation is pending and is the Administration taking a position 

on this piece of legislation? Are you supporting it? Are you opposing it? Are you suggesting changes? What are you doing as far as 

this piece of legislation that we are hearing today? 

Mr. MANSON. We are prepared to work with Mr. Cardoza and the 

rest of the Committee on the legislation. We think that it solves 

many of the issues that we have been talking about over the last 

year in terms of critical habitat designation. 

35

Mr. UDALL. Is this an unqualified support, then, of this piece of 

legislation? 

Mr. MANSON. I am not authorized to state an Administration 

position. 

Mr. UDALL. So you do not have a position, then, on this piece of 

legislation? 

Mr. MANSON. In the terms that we talk about positions, that is 

correct. 

Mr. UDALL. Judge, could you explain to me the period of time we 

have gone through here where this legislation has been pending? 

You folks have the scientists to look at this kind of legislation. I 

mean occasionally on a congressional staff we will have the ability 

to hire a Ph.D. scientist or have a fellow come in but you have 

under you, in the Fish and Wildlife Service, all the professionals 

that understand this and have been working with it for years and 

yet I do not see any effort on your part to come forward and enlighten us on these kinds of provisions. And now you tell me today 

that you are not taking a position on this, that the Administration 

is not taking a position on this piece of legislation. I personally do 

not understand it. 

Could it be that you do not want to take a position on such a 

controversial piece of legislation in an election year? Is that part 

of what is going on here? 

Mr. MANSON. I think I said last year I am not in charge of developing positions on legislation. I can tell you what I think of the bill, 

which I have, which is that it addresses most of the issues. 

Mr. UDALL. Are you supporting the legislation? You are not taking a position, right, on the legislation? 

Mr. MANSON. That is right. 

Mr. UDALL. OK. More than a year ago, Judge, you made a statement to the Senate, and this is a quote: ‘‘The present system for 

designating critical habitat is broken.’’ I would like to know what 

have you done to improve the situation? Have you proposed legislation? Is there any legislation that your scientists and your people—

I mean we all want to get the science right here. The career people 

that are working on this issue in your department, have they suggested changes based on science? Have you come forward with 

some legislation in this critical habitat area? 

Mr. MANSON. We have not proposed any legislation. We have 

taken administrative steps that are within our ability to take to 

improve the administration of the critical habitat provisions. Those 

steps have been somewhat on an ad hoc basis over the last year 

but this week they are now compiled in a single guidance document 

that the Fish and Wildlife Service will begin applying. 

Mr. UDALL. Now is that the one that it has taken 5 years to get 

out, that we are talking since 1999? We are talking 5 years to get 

some guidance out? 

Let me ask you; in August of 2003 the GAO issued a report 

called ‘‘The endangered species Fish and Wildlife Service uses best 

available science to make listing decisions but additional guidance 

needed for critical habitat designations.’’ It says in the footnote on 

page 15, ‘‘The Service is currently drafting interim peer review 

guidance that will provide objectives and procedures for implementing the 1994 peer review policy.’’

36

When will this guidance be issued on peer review? 

Mr. MANSON. We have a peer review policy. In the interim, OMB 

has developed peer review guidelines to be applied throughout the 

government, so we are not actively looking presently at peer review. We are concentrating right now on the critical habitat guidance, which is going to be started to be applied this week. 

The CHAIRMAN. The gentleman’s time has expired. 

Mr. UDALL. Thank you, Judge. I will be back on the next round. 

Thank you very much, Mr. Chairman. 

The CHAIRMAN. Mr. Osborne. 

Mr. OSBORNE. The very much, Mr. Chairman. And thank you, 

Judge, for being here. I would like to thank Mr. Cardoza. You have 

been thanked profusely today. 

I represent a district that is almost entirely rural, 85 percent of 

Nebraska. The Endangered Species Act has been a real problem to 

landowners in this area, so I appreciate the judge’s comments on 

involving landowners and state groups in this designation more 

thoroughly. 

At the present time I think the feeling that I pick up from so 

many of my constituents is that there has been an inordinate 

amount of power accorded sometimes to a relatively few number of 

biologists in making designations of species and also habitat. 

Also, a major concern has been the almost total lack of consideration of economic impact. For example, one process that is now 

under way would involve taking 150,000 acre-feet of Platt River 

water each year and designating that as water that should be used 

in ways that would preserve the whooping crane in the Central 

Platt and there is also some indication that that might go to 

400,000 acre-feet, which comprises almost all of the irrigation 

water used in the Platt River on an annual basis. 

Now if that happened, then we would have an awful lot of farmers completely put out of business. So we think that certainly some 

consideration of economic impact needs to be done. 

And, of course, the last issue and I think it has been addressed 

by Mr. Cole and you, also, Judge, is just the litigation issue, which 

I would hope that everyone here could agree on, that so many of 

the funds that you need to implement the Endangered Species Act 

in terms of preserving species is now being tied up in court. 

With that, let me just ask one question that may be somewhat 

peripheral to what Mr. Cole asked earlier but can you tell me what 

best practices exist in other agencies for managing the impact of 

litigation on programs and work priorities? In addition, what additional administrative or managerial actions could Fish and Wildlife 

take more effectively to manage the impact of litigation on programs and work priorities? Can you amplify or discuss that particular question? 

Mr. MANSON. I cannot really say much about the first part of the 

question because I am just not familiar enough with that. What we 

have done this year is a couple of things with respect to critical 

habitat litigation. One is we did increase the budget for critical 

habitat designations. Second, I have directed the Fish and Wildlife 

Service to comply with the provision of the law that requires critical habitat designation to be done at the time of listing and the 

idea there is to prevent further lawsuits over deadlines. And third, 

37

we have new guidance out this week that Fish and Wildlife Service 

will apply in designating critical habitat. It addresses the various 

definitions that are in the law. It addresses the issue of economic 

impact, although there will be further guidance on that issue. And 

it also addresses the matter of information quality. And all of those 

things taken as a whole should serve to reduce the amount of litigation that will result in the future. 

Mr. OSBORNE. Thank you, Judge. I am glad to hear that you 

have taken those steps. It seems to make sense to me and hopefully it will bear some fruit. 

With that, Mr. Chairman, I yield back. 

The CHAIRMAN. Mr. Cardoza. 

Mr. CARDOZA. Thank you, Mr. Chairman. 

I would like to start by thanking Judge Manson for coming 

today. While I cannot attest to things that happened—Mr. Udall 

raised the issue of a 5-year period of time it has taken to get some 

of these clarifications—I cannot attest to that whole period because 

it predates my service but I can attest to the fact that I have been 

assisted a great deal by Judge Manson’s input on this bill and I 

appreciate information that I have gotten from him and his Service. 

My question goes to a report. In October 2003 a report on critical 

habitat was issued by the Center for Biological Diversity. I have it 

here in my hand. The center states that the populations of endangered species with critical habitat designations are more than twice 

as likely to improve as species without critical habitat designations. 

I have reviewed this report and do not see how the center arrived 

at this conclusion. The center states that it relied upon the data 

provided by Fish and Wildlife Service. 

Sir, could you please comment upon the report and its findings 

and conclusions and whether you agree with them or not? 

Mr. MANSON. Yes. Well, I do not agree with it and my disagreement is based on having asked the career scientists in the Fish and 

Wildlife Service about the methodology of that particular study. 

First of all, there was no data provided by the Fish and Wildlife 

Service for the purposes of that study. My understanding is that 

what the center did was they took a look at other reports, other 

data prepared for other purposes, and somehow extrapolated this 

conclusion out of those other reports and used the Fish and Wildlife Service data and those other reports for a purpose that it was 

not intended to be used for. The career scientists in the Fish and 

Wildlife Service that I asked about this said that that methodology 

was flawed and that they do not believe the conclusion is correct. 

Mr. CARDOZA. Thank you, sir. 

Some have stated that the problem that we are dealing with is 

one of implementation and that regulatory and legislative changes 

are not necessary. I understand, however, that the courts have actually stated that a legislative solution is necessary and can you 

provide us with any information as to court rulings on the need for 

a legislative fix? 

Mr. MANSON. Several Federal judges have commented in the 

course of litigation that they believe, as one judge put it, that the 

Service is in a quandary trying to comply with the existing provisions on critical habitat designation and they have suggested that 

38

a legislative fix is the proper way to go in addressing the issues 

that create this box that is bounded by strict deadlines on the one 

hand and the lack of available information at the outset of the listing process on the other hand. 

Mr. CARDOZA. I concur. Looking at what has happened in Merced 

County, we have had wide swaths that were designated that you 

then went back and corrected in the process. I recall in one case 

there was a parking lot that had been paved over. In the information that the Fish and Wildlife Service had on its maps it indicated 

that there was an endangered species there when, in fact, we were 

parking cars on it. 

So certainly it is difficult. We need accurate information and you 

need that information in order to be able to make the best call possible. Is that not correct? 

Mr. MANSON. That is right. 

Mr. CARDOZA. Thank you for your help, sir. 

The CHAIRMAN. Mr. Pearce. 

Mr. PEARCE. Thank you, Mr. Chairman. And I thank Mr. 

Cardoza for bringing this bill. 

We have some questions about it but mostly we will work 

through those. I am appreciative that we are talking about the 

common sense of the legislation because sometimes that appears to 

be lost. As soon as I was elected I visited all 18 counties in a vast 

rural, sprawling district that every county said one of the most difficult things for them to deal with are the losses of property rights 

and private property rights, community property rights caused by 

the Endangered Species Act. 

One example is that along the Rio Grande River that cuts right 

down through the middle of the big square state of New Mexico the 

silvery minnow is declared endangered and in times of drought we 

were not able to sustain the flow of water through the river that 

normally it had and in order to keep the minnow alive, we dumped 

50 years worth of storage of water in upstream reservoirs to sustain a flow that nature will not sustain now that we have emptied 

that. 

So my question, Mr. Manson, is why do we not breed that minnow in captivity? Why do we not have hatcheries? You used the 

word, that we have a failure if we do not recover the species and 

why do we not use fish hatcheries to do that? 

Mr. MANSON. Well, with respect to silvery minnows, there is a 

program that is going down that road. 

There is a lot of controversy about the use of captive breeding 

and hatchery-produced creatures to count with respect to endangered species. It has been the subject of litigation. There is biological disagreement about it. And those are some of the reasons why 

it is not a widespread—

Mr. PEARCE. Basically what you are saying is that there is objection to doing that? 

Mr. MANSON. There is in some quarters, yes. 

Mr. PEARCE. Mr. Manson, also in my district the agency follows 

the practice of not breeding in captivity minnow pairs but it does 

follow in my district—the same district, the same economic impact—it follows a practice of breeding wolves in pairs in captivity 

39

and then releasing them. Why do we have one standard for one 

species and another standard for another species? 

Mr. MANSON. Well, the difference has to do with the biology of 

the species. 

Mr. PEARCE. I see. So the wolf is more needed and it is better 

to breed them in captivity but the minnow is not. That is the common sense that I am talking about, Mr. Manson. We just seem to 

have lost that. 

We have in my district, also, the lesser prairie chicken and we 

shut down—we are dying for jobs in this country, we are dying for 

affordable energy, and we shut down drilling rigs so that the lesser 

prairie chicken can procreate. Is that not true? 

Mr. MANSON. I am not aware of—

Mr. PEARCE. Just be aware that there is a moratorium on drilling and activities that create noise in order that the lesser prairie 

chicken might breed. I wonder if maybe we should not be piping 

in Bolero or maybe some Vivaldi to help these poor chickens—now 

keep in mind that the day after the moratorium lapsed, and it 

lapses at the same time every day, that people on these rigs were 

watching the thumping and the grinding and the booming of the 

breeding pairs, still with the noises going on and I suspect that the 

people in the agency who write up the rules either have not 

watched breeding pairs of many species, including homo sapiens, 

that possibly noise does not always interrupt. 

That is the lack of common sense that would take away jobs and 

would take away economic activity, especially the endangered 

species of the silvery minnow along our Rio Grande River. We have 

400 years of cultures. The Hispanics moved in, the Native Americans were there and 400 years of culture on that river that cannot 

get access to the water because it is being left in the river. They 

cannot irrigate their small 10- and 12- and 15-acre plots and we 

have economic destruction occurring in a very poor state. New Mexico ranks about 47th and if you want to put us back to even further, then we will continue to eliminate common sense from this 

whole idea. 

But just the three examples I a citing here—we cannot breed 

minnows in captivity but we can breed wolves. We cannot have 

noises because the chickens might not mate. Where is the common 

sense? Where is the economic reality? When do we get to the realization that nature in drought years—and we have had 2,000 years 

of recorded moisture history—2,000 years and sometimes the Rio 

Grande was dry for 10 years at a stretch and the silvery minnow 

somehow made it through and I suspect that in those years when 

the river had no flow of water that it did not reach the CFS, cubic 

feet per second, that your agency is prescribing now. 

The common sense is absolutely gone. I would hope that we can 

get some common sense. None of us would watch any species go extinct but one of my farmers on the Rio Grande said, ‘‘Please put 

in the Rio Grande farmers as an extinct species or endangered 

species.’’

So if you would kindly list them in your agency and maybe get 

some treatment for the endangered farmers of America, I would appreciate it. Thank you very much. 

The CHAIRMAN. Mr. Inslee. 

40

Mr. INSLEE. Thank you. 

I want to thank Mr. Pearce for working on our ratings here, too. 

The question we have here is whether the Act is broken or 

whether the actors or in this case nonactors are broken, meaning 

the agencies. You have just told us that your agency has failed now 

for somewhere between three and 5 years to adopt a needed guidance that your agency recognized in 1989 was needed for a definition of critical habitat. 

But there is another one I am concerned about. Twenty Nobel 

laureates wrote some time ago to the President expressing a concern about a repeated failure to level with the American public and 

give scientific information. In fact, they pointed out repeated circumstances where the Administration had suppressed information 

from the American public. I want to ask you about one of those. 

Recently Fish and Wildlife released an economic impact analysis 

of designating critical habitat for the bull trout and suppressed 

from the final government report issued by your Administration 

were 55 pages that detailed $215 million in economic benefits primarily from the reestablishment of a sport fishery stemming from 

critical habitat designation. 

The press reported, saying ‘‘The removal was a policy decision 

made at the Washington level, did not come out of Denver or Portland.’’

Now it seems to me in working with the Endangered Species Act, 

leveling with the American public and sharing information should 

be a value rather than its suppression. Could you tell us why the 

department removed this analysis of economic benefits of designating critical habitat and the economic contribution of sports fishing? 

Mr. MANSON. You know, the first I heard about that was when 

I read it in the newspaper. And subsequently I found out that 

those 55 pages or so were removed by the Fish and Wildlife Service 

at a midlevel, a midcareer level. The chief of the branch in Arlington of the Fish and Wildlife Service that does this said that she removed those pages because they did not comply with OMB guidelines for economic analysis. 

I signed that critical habitat rule and I signed the notice putting 

out the economic analysis for public comment but she had not told 

me that 55 pages had been removed from the economic analysis. 

So I do not think this is a case of suppression. I think it is a case 

of a public servant who looked at something, said this does not 

comport with the guidelines put out by OMB for economic analysis, 

so she took the action that she thought she needed to take. 

Mr. INSLEE. So did she call the local agency then and say this 

does not comply with the rules; we need a legitimate analysis of 

the economic benefits of bull trout sports fishery; let us redo it so 

that Americans can make sure they know about the benefits of recovering this species? Or did she just put it in the trash can? 

Which did she do? 

Mr. MANSON. I do not know what she did. 

Mr. INSLEE. Well, she put it in the trash can, did she not? She 

did not go back to the agency and say look, you did not comply with 

the OMB rules, you need to redo this, because I do not want to 

keep the American public in the dark about the economic benefits 

41

of species recovery; that would not be the right thing to do. She put 

it in the trash can, did she not? 

Mr. MANSON. I have no idea what she did with us. I can tell you 

this, though. I have looked at those pages subsequently, after I 

heard about this in the press, and I have looked at the OMB guidelines and she was correct. There are methodologies in those pages, 

which were done by the contractor, which do not comport with 

OMB guidelines. 

Mr. INSLEE. So do I understand that it is your policy—you think 

it is good leadership in your agency to encourage people to keep 

Americans in the dark about the benefits of recovering species 

when you get economic benefits of a sports fishery? You think that 

is good public policy to not go back and do an honest appraisal of 

that benefit and then tell Americans about it? Is that your testimony? 

Mr. MANSON. No, my testimony is that it is good work on the 

part of a public servant who sees something that is not correct and 

takes action to correct it. 

Mr. INSLEE. Well, my point is I want to make sure you understand the nature of my question. If she saw that this was not done 

according to OMB analysis, she had a choice, did she not? And she 

had a choice under your leadership to do what she should have 

done if that was the case, which is to go back and ask them to do 

it right, to come up with the right number of the economic benefit. 

But the economic benefit that you want Americans believe in the 

recovery of endangered species is zero because that is the economic 

benefit that your agency told the American public would get from 

the recovery of bull trout and that is wrong, is it not? There is an 

economic benefit of the recovery, is there not? 

Mr. MANSON. I can honestly tell you that as I sit here today, I 

do not know. That analysis has not been done. 

Mr. INSLEE. You do not know that the recovery of having a sports 

fishery is a major economic benefit to the western and eastern 

United States? You have not seen the development of these rural 

communities coming back from the development of recreational industries? You do not know that? 

Mr. MANSON. The question is whether there was an economic 

benefit from the designation of critical habitat, not from the recovery of the fishery. 

The CHAIRMAN. Mr. Walden. 

Mr. WALDEN. Thank you, Mr. Chairman. 

So Judge, what you are saying is that the analysis that was done 

did not meet the legal guidelines that your agency was supposed 

to follow. 

Mr. MANSON. That is right. 

Mr. WALDEN. And a career public servant followed the law. 

Mr. MANSON. That is correct. 

Mr. WALDEN. And that the issue here is not about whether you 

have an economic benefit by the species being recovered to a point 

where it could be harvested, then. What that analysis was was 

whether declaring this habitat had an economic benefit. Is that 

right? 

Mr. MANSON. Whether the designation of critical habitat had an 

economic benefit or not; that is the question. 

42

Mr. WALDEN. Not the recovery of the species to the point where 

it could be harvested and eaten. 

Mr. MANSON. Right. 

Mr. WALDEN. Mr. Chairman, it seems to me in 30 years the Endangered Species Act has been on the books we have really had few 

recoveries. I think something on the order of 12 of 1,304 species 

have been recovered, according to Fish and Wildlife Service’s own 

data. 

Judge, does that sound right? 

Mr. MANSON. That sounds about right. 

Mr. WALDEN. So the percentage is pretty small, a hundredth of 

a percent that we are getting. If this were any other law would we 

not say that there is a problem that in 30 years we are not getting 

results? 

Mr. MANSON. Well, I have said that the results have been good 

for a handful of species and not so good for many of the rest. 

Mr. WALDEN. And I guess I want to make sure the actions this 

government is taking are based on sound science and peer-reviewed 

science. It is what we demand out of medical journals and Clean 

Water Act and elsewhere, that we rely on really peer-reviewed 

science. Is there that requirement in the law today for the work 

your agency does, that everything you do has to be peer-reviewed? 

Mr. MANSON. There is not an explicit requirement in the statute 

itself for peer review. There are policies in place for peer review. 

Mr. WALDEN. But they change Administration to Administration. 

They are subject to change. 

Mr. MANSON. They are. 

Mr. WALDEN. And there is no requirement that your agency do 

outside independent peer review with, say, the National Academy 

of Sciences. 

Mr. MANSON. No such requirement in the statute, no. 

Mr. WALDEN. And it seems to me, as I have looked through this 

information brought forward as a result of Mr. Cardoza’s legislation, that your agency is really driven by whatever species happens 

to have an attorney that wants to file a suit to protect it, regardless of how threatened that species is with extinction. 

Mr. MANSON. Well, that is one of the problems that we have 

pointed out, that the biologists lack the discretion to make those 

determinations anymore because they have to follow the orders 

prescribed by the courts. 

Mr. WALDEN. Well, given the emphasis in this legislation by this 

committee on legitimate science-based and supported evaluations 

for determinations of species habitat, we are obviously watching 

the Central California tiger salamander decision with great 

interest. 

How is the Fish and Wildlife Service utilizing and incorporating 

the scientific information provided to you and your staff in the fall 

of 2003 demonstrating the stability of the CTS’s range and population in the Central Valley, the existence of suitable CTS habitat, 

and importantly, the aggressive application of mitigation and habitat replacement activities where human activity impacts CTS 

habitat? 

Mr. MANSON. Well, that species is currently the subject of a 

rulemaking that will be complete in several weeks, so I would be 

43

reluctant to comment specifically about that. I can tell you this, 

however, that I expect the Fish and Wildlife Service to utilize all 

of the best available science, as the statute requires, and when it 

comes to critical habitat, the information quality guidelines that 

are included in our new guidance that is out this week. So I have 

every confidence that the Service will apply that in whatever rulemaking they are currently engaged in. 

Mr. WALDEN. A few years ago—I think it was May of 1999—your 

predecessor from the Clinton Administration, Jamie Rappaport 

Clark, said, and I quote, before a hearing in the Senate. ‘‘In 25 

years of implementing the ESA we found that designation of official critical habitat provides little additional protection to most listed species while it consumes significant amounts of scarce conservation resources. We believe the critical habitat designation 

process needs to be recast as the determination of habitat necessary for the recovery of listed species.’’

Further, in 2001 Jamie said, ‘‘Critical habitat has turned our priorities upside down. Species that are in need of predication are 

having to be ignored. This is a biological disaster.’’

Mr. MANSON. That is the same situation that exists today. 

Mr. WALDEN. And what needs to be done to fix that? 

Mr. MANSON. Well, we have taken the limited administrative 

steps that are available to us but ultimately it is a legislative fix 

that needs to happen. 

Mr. WALDEN. Thank you, Mr. Chairman. 

The CHAIRMAN. Mr. Bishop. 

Mr. BISHOP. In view of the time and the vote that is going on, 

let me just submit any questions by writing and you can move on. 

The CHAIRMAN. Mrs. Cubin, did you have questions? 

Mrs. CUBIN. Thank you, Mr. Chairman. I do have some questions 

about the wolf delisting or not in Wyoming, Idaho and Montana. 

I will submit those in writing. 

But could you just briefly sum up for me what is happening with 

Idaho and Montana? Obviously Wyoming has filed suit and they 

are different but what is the status of the other two? 

Mr. MANSON. In Idaho and Montana—we have to delist the wolf 

as a complete population, so we cannot delist Idaho and Montana 

separately under the law. 

Mrs. CUBIN. Will conditions or requirements, restrictions be different in Montana and Idaho than they are in Wyoming? 

Mr. MANSON. Yes, we have proposed a rule that would apply in 

Idaho and Montana that gives those two states more flexibility in 

terms of managing the wolf populations than those states—

Mrs. CUBIN. Why is that? Why should they be managed differently in Wyoming? We are talking about one population. 

Mr. MANSON. Right. The issue is whether or not—ultimately 

when delisting occurs the states will have management authority 

over those species, so the issue is how can we give them some flexibility at this point, although we cannot completely delist? 

Mrs. CUBIN. That does not answer my question. My question is 

why should the restrictions or the treatment of the wolves be different in Wyoming than in the other two states? Why? 

44

Mr. MANSON. The difference is the management schemes that 

those states have proposed, as opposed to the management plan 

that Wyoming has proposed. 

Mrs. CUBIN. But that does not answer the question. We are talking about preserving the species and we are talking about one population of wolves, so why would the management be different in 

those states? It is not because there is a state plan. Is it not because we are being punitive toward Wyoming? 

Mr. MANSON. No, not at all. It has to do with the fact that the 

law in Wyoming is different than the law—

Mrs. CUBIN. But the ESA is a Federal law. 

Mr. MANSON. Well, except in terms of—the issue is how much 

flexibility do the states get under the rules we have proposed or 

under a scheme of delisting. 

Mrs. CUBIN. But how they are treated, how the states are treated 

differently, it makes no sense. 

I do not want to take any more time but we will be submitting 

questions and I hope you will answer that question more directly 

than you have today when we submit it in writing. Thank you. 

The CHAIRMAN. Thank you. 

I know that Mr. Udall had additional questions and because we 

have been called to a vote—there are two votes and we are going 

to recess just very shortly and allow the members to go vote and 

come back. But I would ask Mr. Udall if he would submit those 

questions in writing. 

Mr. UDALL. I would be happy to, Mr. Chairman. 

The CHAIRMAN. Thank you. 

I know there were several members of the Committee that had 

additional questions. We would submit those to you in writing, 

Judge. If you could answer those in a timely fashion so that they 

could be included in the hearing record? 

Mr. MANSON. We would be pleased to do that. 

The CHAIRMAN. Thank you very much. Thank you for your perseverance with all the questions. I am going to release you at this 

time. When the Committee returns from recess from the votes we 

will seat the second panel. 

Mr. MANSON. Thank you, Mr. Chairman. 

The CHAIRMAN. We stand in recess. 

[Recess.] 

The CHAIRMAN. I call the Committee back to order. 

I would like to call up our second panel. David L. Sunding, 

Lawrence R. Liebesman, Rob Roy Ramey, II, Ph.D., and Jamie 

Rappaport Clark. 

I am going to begin with Mr. Sunding. Before you start I just 

wanted to, in advance, apologize to the panel for the delay. I know 

that the first panel, Judge Manson, was a long time and I appreciate all of you sticking with us here and Mr. Sunding, if you are 

ready you can begin. 

STATEMENT OF DAVID L. SUNDING, PROFESSOR,

UNIVERSITY OF CALIFORNIA AT BERKELEY 

Mr. SUNDING. Thank you, Mr. Chairman. 

My name is David Sunding. I am a Professor of Environmental 

and Natural Resource Economics at Berkeley, where I am also the 

45

Director of the University’s Center for Sustainable Resource Development. 

As a threshold comment, I would like to point out that I am not 

here to represent any particular group but simply to represent the 

results of research that my colleagues and I, working with our fantastic graduate students, have conducted at Berkeley. 

I would like to refer in particular to two types of studies, first 

some studies that deal specifically with the question of the economic impacts of critical habitat designation. These studies include 

the red-legged frog, vernal pools, and the gnatcatcher. I would also 

like to refer to the results of some more general studies on the impact of environmental regulation on regional housing markets. In 

the interest of time I would like to limit my remarks here today 

to the impacts of designation on housing for a couple of reasons, 

first recognizing the fact that an enormous amount of the wealth 

in the United States is held in the form of real estate, upwards of 

70 percent, and also realizing that critical habitat designation does 

have the ability to profoundly impact the development and completion of housing projects. 

Having said that, I would also like to point out that critical habitat designation has the potential to touch a variety of economic activities, ranging from agriculture to mining, transportation to utility industries, especially in the provision of water. I would also like 

to note and I am sure we will hear from the witnesses later today, 

given their affiliations, that critical habitat designation can also 

impact the activities of state and especially local governments. 

Now with respect to the research, I would like to begin at the 

project level where critical habitat designation can have three general types of impacts on housing projects. First, critical habitat designation increases the cost of development. It can cause the developer to redesign the project, can create a need to hire outside experts to get through the permitting process, these experts including 

attorneys and biologists. Critical habitat designation also imposes 

a requirement in many cases to perform needed mitigation at some 

expense. 

Taken in total, the increase in development costs can easily be 

in the thousands of dollars per housing unit and can in some cases 

exceed $10,000. 

The second type of impact critical habitat designation has on 

housing projects is to reduce the output of the project. This is 

caused by the necessity to avoid onsite impacts, and I will speak 

in a second about the market or regional implications of a reduction in housing availability. 

Third, critical habitat designation delays completion of projects. 

This is what I tell my students is a very good example of the hidden costs of regulation. It is often overlooked but it is of great practical importance. Delay imposes costs on consumers, developers and 

landowners alike and these costs can in some cases account for 

some, if not the majority, of total impacts of designation. 

Now having spoken a little bit about the project-level impacts of 

critical habitat designation, the main role of economic analysis, 

moving beyond just description, is to take these project-level impacts and convert them into market impacts and in particular, the 

incidence of impacts to different groups in society. At the market 

46

1 New Mexico Cattlegrowers Assn. v. U.S. Fish and Wildlife Service, 248 F.3d 1277 (10th Cir. 

2001). 

level, critical habitat designation can decrease housing availability 

in a region and thereby increase its price. This implies a large 

wealth transfer and it is something that is worth discussing at 

some point today. 

Second, marginal consumers, those with the lowest ability or 

willingness to pay for housing at a particular location, can find 

themselves pushed to a suboptimal location or, in some cases, out 

of the housing market altogether. In fact, I think it is fair to argue 

that most impacts of critical habitat designation are borne by consumers of housing, since developers have some capacity, which varies from project to project, to pass along costs to consumers. 

In closing and again in the intersect of time, I would simply like 

to note that where we come to with respect to the economic analysis is that the costs of critical habitat designation can easily run 

to the millions of dollars per acre actually conserved as a result of 

the designation process. Whether or not that is a good policy decision is a larger question. What I am trying to do here today is simply point out the magnitude of the wealth transfer that can result 

from designation of critical habitat. Thank you. 

[The prepared statement of Mr. Sunding follows:]

Statement of David L. Sunding, Professor,

University of California at Berkeley 

Mr. Chairman and Members of the Committee, it is a pleasure to provide you 

with information on the economic costs of critical habitat designation. In these remarks, I will focus on the housing industry since it is the sector of the economy 

most impacted by designation of critical habitat. It should be borne in mind, however, that critical habitat designation affects other industries including commercial 

development, transportation, mining, agriculture and utilities, as well as the activities of state and local governments. 

Section 4 of the Endangered Species Act authorizes the Secretary of the Interior 

to take economic impacts into account when designating critical habitat. I have authored a series of studies describing how the economic impacts of critical habitat 

designation should be measured and identifying the groups who are most likely to 

be impacted. I will summarize my findings to date in this written statement. 

Regulatory Baseline 

A crucial step in any present calculation of the impacts of CHD is a definition 

of the regulatory baseline. When defining the regulatory baseline, it one must confront the admonition of the Tenth Circuit in its widely cited New Mexico 

Cattlegrowers decision. 1 Plaintiffs in the case challenged the Fish & Wildlife Service’s designation of critical habitat for the southwestern willow flycatcher arguing, 

inter alia, that the Service’s ‘‘baseline’’ approach to measuring the economic impacts 

of critical habitat designation was an erroneous construction of the ESA. Under this 

approach, the Service would consider the initial listing of the species to be part of 

the baseline and thus would not analyze the economic impacts of listing, but only 

the economic impacts attributable directly to the critical habitat designation. Applying this baseline approach to the critical habitat designation for the flycatcher, the 

Service relied on its Section 7 regulations to conclude that no economic impacts 

would have occurred ‘‘but for’’ the critical habitat designation, and that the impacts 

of critical habitat designation and listing of the flycatcher were co-extensive. 

The Tenth Circuit rejected this ‘‘baseline’’ approach, holding that the Service is 

required to analyze all impacts of critical habitat designation, regardless of whether 

those impacts are co-extensive with those of listing. The court acknowledged that 

the ESA ‘‘clearly bars economic considerations when the listing determination is 

being made.’’ However, the court stated, the ESA also plainly requires ‘‘some kind 

of consideration of economic impact’’ at the critical habitat designation phase. The 

Service’s regulatory ‘‘definition of the jeopardy standard as fully encompassing the 

adverse modification standard renders any purported economic analysis done 

47

utilizing the baseline approach virtually meaningless.’’ Thus, the court concluded, 

the baseline approach failed to give effect to the congressional directive that economic impacts be considered at the time of critical habitat designation and was not 

in accord with the language or intent of the ESA. Accordingly, the costs of CHD are 

properly defined as all of the costs that flow from the listing of the gnatcatcher as 

threatened. 

Project-Level Impacts of CHD 

In the context of housing, the most obvious effects of CHD are to increase the cost 

of development and to reduce the size of individual projects as a result of land setasides. However, there are other, more subtle economic effects of CHD. The process 

of land development is complex and conditioned by numerous factors. If land is set 

aside or if the scale of projects is reduced by CHD, there may well be market and 

regional effects from this designation. Other land cannot always be brought into production to make up for losses due to designation, and even if it can, it may be in 

a suboptimal location. CHD also delays the development process, which imposes additional costs on developers, consumers and others in the affected region. 

This process of site selection is often exhaustive since a large number of factors 

are relevant to the site selection process. In fact, the National Association of Home 

Builders has developed a list of over 1,000 factors that should be considered before 

acquiring land for development. Among the factors that make a site suitable for development are the following: 

• Location and neighborhood 

• Size and shape 

• Accessibility and visibility 

• Environmental conditions 

• Legal constraints 

• Utilities 

• Zoning and regulation 

The cumulative effect of these factors is that while an area may appear to have 

a large amount of vacant land available for development, in reality there can be little land actually or realistically available for development. Imposing additional regulation through CHD may effectively reduce the amount of land available for development in a region, reduce the regional stock of housing and create unintended consequences on other resources (such as agriculture) and local planning processes. 

Other factors constrain the development process. Local governments often impose 

density restrictions that work to limit the number of housing units that can be constructed in a particular location. ‘‘Leapfrog’’ development is increasingly problematic 

since local governments often seek to confine development within defined boundaries. Further, nonsequential development requires utilities, roads and other infrastructure to be extended longer distances, thereby increasing project costs. Thus, 

land away from the urban boundary may be at best an imperfect substitute for land 

on the boundary that is set aside for habitat protection. 

It is also important to note that CHD can significantly delay completion of a 

project, imposing potentially large costs on the developer, consumers and others affected by project completion. Delay reduces the supply of housing by reducing the 

present value of the developer’s return on investment. In extreme cases, delay can 

lead to bankruptcy if the developer is highly leveraged. Delay also imposes costs on 

consumers who must live in a suboptimal location for some period of time. 

Market Implications 

The economic impacts of CHD depend as well on the nature of the regional housing market. There are two basic theories of housing market equilibrium. The most 

common approach is to assume that the price of housing reflects the marginal cost 

of construction and development. Accordingly, in this approach, housing is expensive 

because, say, land (an input to housing) is expensive. In this view, commonly called 

the neoclassical approach to housing market equilibrium and taught to every graduate student in urban economics, density will adjust to equate the price of land with 

its marginal value to consumers. This view also holds that developers do not earn 

excess profits from their activities. 

An alternative approach stresses the importance of regulation such a zoning and 

density controls that limit the supply of housing. In this approach, the marginal cost 

of construction and development can be far below the market price of a house since 

houses are rationed among a number of consumers and their price is bid up accordingly. Thus, in the regulation-focused approach, housing prices reflect scarcity more 

than costs of production. In this view, the value of land with a house on it can be 

far above the willingness of consumers to pay for an additional unit of lot size. 

48

This distinction between the neoclassical and regulation-focused explanations of 

the price of housing is important to the impact of CHD on the housing industry. 

As discussed earlier, CHD perturbs the housing market in three basic ways: it increases the cost of development, it reduces the output of the project, and it delays 

completion and delivery of the housing units. In markets where housing prices reflect marginal costs, the impact of CHD on costs of construction and development 

and on completion time will be of most importance; the marginal welfare costs of 

output restrictions are negligible since marginal cost equals marginal utility in the 

pre-regulation equilibrium. 

When housing supply is limited and houses are rationed as a result, the supplyreducing effect of environmental regulation takes on major significance. By further 

restricting supply, environmental regulation imposes costs on consumers and results 

in losses to landowners and developers undertaking projects on conserved land. 

Recently, UC Berkeley graduate student Aaron Swoboda and I implemented a statistical test to identify regulation-constrained housing markets. The approach exploits the fact that in regulation-constrained markets the price of housing is above 

the costs of construction and development. In such situations, the value of land with 

a house on it (called the ‘‘extensive margin’’ value) will exceed the marginal willingness of consumers to pay for an additional unit of land (the ‘‘intensive margin’’ 

value). This line of reasoning suggests a statistical test of price formation: if the intensive and extensive margin values of land are equal, then the neoclassical model 

best describes the housing market. If, however, the extensive margin value exceeds 

the intensive margin value, then the market is constrained by prior regulation and 

these distortions must be accounted for when calculating the cost of additional regulations. 

The main difficulty in executing the test to categorize housing markets is how to 

measure consumers’ willingness to pay for land. Mr. Swoboda and I collected information on over 18,000 new home sales in the ‘‘Inland Empire’’ region of Southern 

California, one of the nation’s fastest-growing areas. The study area was divided 

into 14 subregions along lines used by the regional metropolitan planning agencies. 

Controlling for other factors, they estimated the contribution of a unit of lot size to 

the sales price of a home separately for each subregion. In 11 of the 14 areas considered, the extensive margin value of land was above the intensive margin value at 

a high level of statistical significance. The neoclassical model held only in the most 

remote, least politically organized areas. Thus, in the study area, housing is rationed by prior regulation and imposition of further regulation can cause large increases in the price of housing. 

Nationwide, the work of other economists suggests that housing is rationed by 

regulation in a number of regions. In a less formal study than my work with Mr. 

Swoboda, researchers at Harvard University and the University of Pennsylvania 

have found that around 20 percent of the nation’s housing is sold in markets where 

supply is artificially limited by regulation and other non-market factors. It is in 

these markets (largely on the West and East Coasts) where setting aside land for 

habitat is likely to have the largest economic impact 

Who Bears the Costs of CHD? 

In previous work, I have developed simulation models to measure the total economic effects of CHD, as well as its impact on particular groups. A typical simulation scenario envisions a 1,000-unit housing project that is reduced to 800 units as 

a result of CHD. The demand for the project’s units has an implied elasticity of 

minus-1.67 evaluated at the initial price and quantity. The pre-regulation cost of development and construction is $200,000 per unit, and CHD adds $10,000 to the price 

of each unit. The rate of interest is 10 percent, and CHD is assumed to delay completion of the project by 1 year. 

Before designation of critical habitat, the equilibrium price of each house in the 

development is $250,000 and 1,000 units are sold. CHD increases the price of a 

house to $280,000, and decreases output by 200 units. The increase in price and the 

reduction in the number of homes built cause a loss to consumers with a present 

value of $27 million. The effects on producers are subtler. While producers lose from 

the reduction in quantity and the increase in development and construction costs, 

they also gain from the increase in selling price. 

This surplus loss is a present-value loss from a permanent reduction in consumption and production. The effects of delay are temporary. While social surplus loss 

stems largely from a reduction in output, delay cost stems from postponing construction of the units that do get built plus regional and indirect costs. Thus, delay costs 

are equal to post-construction consumer and producer surplus plus external costs 

multiplied by the interest rate for each period of delay. 

49

Taking short- and long-run effects together, the total economic impact of CHD is $33 million for this hypothetical project. As a group, consumers lose the most from 

CHD in this scenario. This finding is quite robust to permutations of market conditions. 

An important lesson from the simulation analysis is that permitting costs and 

land price decreases are a poor guide to the total impacts of CHD. These indicators 

underestimate true costs and give a biased impression with respect to the incidence 

of CHD costs. In cases where land is scarce and where housing is rationed by prior 

regulation, it is important to consider the market effects; in all cases it is important 

to recognize the costs of delay. 

[Mr. Sunding’s response to questions submitted for the record 

follows:]

Response to questions submitted for the record by David L. Sunding,

Professor, University of California at Berkeley 

Questions from the Majority Members: 

Question: The current ESA allows for an economic analysis to coincide 

with a critical habitat designation. Sometimes this hasn’t been done or has 

been done belatedly. Communities deserve a ‘‘right to know’’ how critical 

habitat will affect them. This bill requires the agency to do a comprehensive economic impact statement. 

• How do you react to those who say that the bill’s economic impact provisions undermine the ESA? 

Answer: The economic analysis provisions do not undermine the ESA. Economic 

analysis can help to shape critical habitat by identifying the areas where designation would cause the greatest economic losses while providing little additional benefit to the species. In this way, economic analysis can help to minimize unnecessary 

conflicts between species and human activities, and can help to make the ESA less 

controversial. 

Questions from the Minority Members: 

Question: Are there any economic benefits, such as enhanced probability 

of recovery for a species, to critical habitat designation? In some of the economic impact analyses the FWS has prepared prior to critical habitat designation, benefits are discussed. Yet, you do not address this. How come? 

Answer: My understanding is that economic analysis plays only a limited role in 

the designation of critical habitat. Economic analysis can be used to shape the region of critical habitat, but cannot preclude the designation of any critical habitat. 

Ideally, economic analysis should be used, together with biological analysis, to identify land that is of minimal benefit to the species in question, but of great benefit 

to the economy. By excluding such land from critical habitat, there would be only 

a small change in the species’ recovery possibilities (perhaps none that are measurable at all), but a great savings to landowners and others. 

I see some danger in expanding the benefits analysis beyond biology. The ESA 

should not be used as a mechanism to second-guess the land use choices of state 

and local governments. I would be very circumspect about conducting a benefits 

analysis that looked at factors such as aesthetics, amenity values, recreation possibilities for local residents, or other factors that could have been considered by state 

and local governments. Again, I see CHD benefits estimation as mainly a biological 

question, and thus not one that I am qualified to answer. 

Additional Questions from Rep. Udall: 

Question 1: In the sections of your testimony dealing with Project-Level 

Impacts of CHD and Market implications, where is the empirical data that 

demonstrate that CHD, and only CHD, perturbs the housing market in 

three basic ways: 1) increases in the cost of development; 2) reduced output 

of housing; and 3) delays in housing completion and delivery. We want 

information that these impacts are based on real data. 

Answer: My characterization of how CHD impacts housing projects is widely accepted. In fact, it is accepted by the FWS’s own economists and now used in their 

analyses of economic impacts of CHD. 

With respect to the magnitude of cost changes, output reductions and other effects, it is hard to give an acontextual answer to this question. Recent work, however, suggests that the parameters I use in the hypotheticals are conservative. In 

their recent economic study on the gnatcatcher CHD, FWS economists reviewed 

50

biological opinion from Southern California and concluded that land set-asides were 

well over 50 percent of the total project area, and that the cost of off-site mitigation 

was often over $75,000 per acre impacted. The Service’s economists also concluded 

that the Section 7 consultations triggered by CHD will delay completion of projects 

by an average of 6 months. 

Question 2: How did you separate out the impacts of the CHD from other 

regulatory impacts? 

Answer: Other regulations are treated as part of the baseline, or status quo. For 

example, local land use controls such as minimum lot size restrictions, zoning or 

growth controls can constrain new housing supply and create the wedge between the 

price of housing and the marginal cost of construction and development to which 

I refer in my testimony. My analysis focused on the incremental impacts of CHD 

on landowners, developers and consumers, keeping all other regulations constant. 

In reality, other regulations may change once CH is designated. The effect of this 

endogeneity can cut both ways. For example, if a city relaxes density restrictions 

in response to CHD effectively removing some land from development, then my 

model overestimates impacts. If, however, CHD triggers additional regulation by 

state and local governments (as FWS acknowledges is the case), then my model actually underestimates impacts. 

Question 3: On the section of ‘‘Who Bears the Costs of CHD,’’ you use a 

simulation model to measure total economic effects of CHD and on its impact on particular groups. This is a hypothetical project, in your own 

words. What were the assumptions and data used in the simulation model? 

We already know that this model was rejected by the FWS’s own economists in your comments on the Draft Economic Impact Analysis for the 

Vernal Pool CHD. 

Answer: Actually, my approach was not rejected by FWS’s economists. To the contrary, in their final report released after they had read my study, they accepted all 

of my major criticisms, and modified their analysis along the lines I suggested. 

Interestingly, the modifications changed the FWS’s final calculations of economic 

impacts just as I had predicted. In my report I made rough calculations suggesting 

that if housing market and consumer impacts were considered, then FWS’s estimate 

of economic impacts would underestimate true costs by a factor of anywhere from 

7 to 14 times. In their final report, the FWS concluded that their earlier calculations 

underestimated actual impacts by 11 times. 

The CHAIRMAN. Thank you. 

Mr. Liebesman. 

STATEMENT OF LAWRENCE R. LIEBESMAN, ESQ.,

HOLLAND & KNIGHT, LLP 

Mr. LIEBESMAN. Good afternoon, Chairman Pombo and members 

of the Committee. My name is Lawrence Liebesman. I am a partner in the Washington, D.C. office of Holland & Knight. I am here 

and it is a privilege to be here to testify in support of House bill 

2933. 

By way of background, I have been practicing environmental law 

for over 30 years, including 13 years from the Federal government, 

with the Department of Justice, where I was a senior trial attorney 

handling many different cases under various environmental statutes. Over the last 15 years I have been very involved in the Endangered Species Act through litigation and policy matters, particularly critical habitat. Recently I co-authored the Endangered 

Species Desk Book published by the Environmental Law Institute 

with Rafe Peterson from our firm, and I am also planning co-chair 

for the American Bar Association’s ESA course next year. 

H.R. 2933 will address many of the very serious problems we 

have heard about today in critical habitat. It will provide clear direction by more precisely defining how critical habitat is designated, by setting forth clear criteria for considering and balancing 

economic impacts. Most significantly, the bill will especially 

51

advance the basic goal of the Act, and that is to get species delisted 

through sound science and a fair process. 

When you look at the various provisions of the bill, I think they 

help achieve that result. Section 2 of the bill, designation of critical 

habitat, will mesh the timing of critical habitat designation with 

the development of recovery plans. Recovery has got to be fundamental to getting species off the list and unfortunately we have 

seen a terrible disconnect between critical habitat designation and 

the approval and development of recovery plans. 

As a matter of fact, the Alameda whipsnake case in California 

is a prime example where the Service’s designation of over 400,000 

acres in four California Central Valley counties for critical habitat 

was struck down, where that occurred 2 years before the adoption 

of a recovery plan for the snake. It was overturned on several 

grounds and particularly the court stated, and I quote, ‘‘If the Service has not determined at what point the protections of the ESA 

will no longer be necessary, how can it possibly determine and 

identify the features of habitat that are indispensable in getting 

the species off the list?’’ The bill’s linkage will help alleviate that 

kind of disconnect and problem. 

It is also consistent with sound science and I point the 

Committee to the 1995 National Academy of Sciences report on 

science and the ESA that specifically recommended the critical 

habitat designation be meshed procedurally with the approval of 

recovery plans. 

The bill will also recognize what I think is a very important commonsense objective, and that is if there is an existing plan that 

achieves substantially the same results as critical habitat, that the 

Service does not need to go through the designation process; that 

is, if there is a habitat conservation plan or some other kind of plan 

in place. And what this does, in my judgment, is that it elevates—

what we have now is form over substance, as opposed to focusing 

on what protections are being provided by a management plan and 

the flexibility in place is really essential. 

We have seen problems in litigation with this that has not been 

recognized. The Mexican spotted owl case, for example, is a prime 

example where the judge said you still have to designate critical 

habitat despite extensive and very well defined management plans 

for both public and private land in Arizona. 

The clarification, Section 5, the clarification of the definition of 

critical habitat will also go a long way toward promoting sound 

science and fair gathering of data and information. What we have 

seen unfortunately is that unoccupied areas are often swept into 

the critical habitat definition, the idea of a blurring of a distinction 

between ordinary habitat and critical habitat, and it is important 

that we get it right, that science be sound and carefully defined because critical habitat should not encompass all possible habitat. It 

is only the habitat that is essential to bring the species to the point 

of recovery. 

In that regard, I think the language of the bill, while it is good, 

needs to be thought through because the language defining essential as absolutely necessary and indispensable may be subject to 

some confusion and potentially some abuse by regulators, albeit 

well meaning, in the field. So I would recommend looking more 

52

precisely toward kind of biological criteria that would allow that 

kind of sound science approach to be applied to that definition. 

Now the basis for the determination, Section 3, again some very 

important points I think in this bill that the Committee should seriously consider. Getting information from local governments is essential. Oftentimes local agencies are the best repository of information on habitat. But I would go a step further. You need to look 

at state agencies. I do a lot of work in Maryland. Very good Department of Natural Resources, great repository of information. That 

can help ease the information-gathering and provide a sounder scientific basis to gather information. 

Economics, and we have heard a lot of talk about economics. The 

New Mexico Cattle Growers case is a very, very significant case 

and what it says is you have to consider the full range of economic 

effects. Unfortunately, the Service for years has not done that and 

with all due respect, I think they are trying to do it right now but 

they still have not gotten it right in that they have to look at the 

total effects of both listing and critical habitat because for years 

they said there is no distinction, so essentially the increment above 

listing is nil and therefore there is no adverse economic consequences. 

Court after court has rejected that principle. The Service has 

taken remands on that regard. So I think looking at both direct 

and indirect effects is very important. Working with clients and 

landowners—by putting critical habitat essentially in many ways 

use redline property; you affect property values, as Professor 

Sunding pointed out. You cannot look at economics strictly on the 

number of Section 7 consultations that may occur. So the bill’s 

broader approach is very important in the whole balancing process 

of making sound judgments. 

But that has got to be also coupled, in my view, with the Service 

revising the definition of adverse modification and jeopardy out of 

the Sierra Club opinion that Congressman Inslee mentioned and 

asked in a question to Judge Manson. It is very important to recognize, in my view, that there is a lower threshold for critical habitat. 

It will trigger more of an impact and the Service has got to go 

back, in my view, and go through a rulemaking to recognize that 

and formalize that. And I think hopefully the bill will encourage 

that. 

Final point. Information to the public. Section 4 is very important in providing clear guidance, requiring designations to be posted on the Internet. The public right now is confused. I work with 

landowners. A lot of them have no real commonsense understanding of what is critical habitat and what is not so people can 

make rational decisions. 

Property owners are not out there to kill species. They want to 

manage species in many ways, deal with government agencies in 

a fair and sound approach, and they cannot do that right now. It 

is very, very frustrating. 

So in conclusion, I would say that H.R. 2933 provides an excellent vehicle to address this most contentious issue today and get 

to the fundamental purpose of the Endangered Species Act. Let us 

get these species delisted through sound science, fairness to the 

53

1 United States Fish & Wildlife Service, Critical Habitat—Questions and Answers 1 (May 

2003). 2 Id. See also CRS Issue Brief for Congress ‘‘Endangered Species: Difficult Choices,’’ September 

1, 2003, at CRS-13. 3The Designation of Critical Habitat Under the Endangered Species Act: Hearing Before the 

Subcommittee on Fisheries, Wildlife and Water of the Senate Committee On Environment and 

Public Works, 108th Cong. (Apr. 10, 2003) (testimony of Craig Manson, Assistant Secretary of 

Fish and Wildlife and Parks, Department of Interior). 

public, to everybody out there, and let us follow through in a concerted effort and a bipartisan effort to make this happen. 

I will be very happy to take questions from the Committee. 

Thank you. 

[The prepared statement of Mr. Liebesman follows:]

Statement of Lawrence R. Liebesman, Esq.,

Partner, Holland & Knight, LLP, Washington, D.C. 

INTRODUCTION

Good morning—my name is Lawrence R. Liebesman, and I am a partner in the 

Washington, D.C., office of Holland & Knight LLP, a national law firm with offices 

in 24 cities, and 7 foreign countries. It is a pleasure to be here today to testify in 

support of H.R. 2933, the ‘‘Critical Habitat Reform Act of 2003.’’ I have practiced 

environmental law for over 30 years including 13 years with the Federal Government at EPA and the Justice Department’s Environment Division. I was also detailed to the President’s Council on Environmental Quality in the Carter Administration, helping to develop CEQ’s NEPA regulations. Over the past 15 years, I have 

been heavily involved in issues under the Federal Endangered Species Act, including Critical Habitat Designation. I recently co-authored the ‘‘Endangered Species 

Deskbook’’ with Rafe Petersen of our firm, published by the Environmental Law Institute. (See The Endangered Species Deskbook, written by Lawrence R. Liebesman, 

Rafe Petersen and other Holland & Knight attorneys, and published by the Environmental Law Institute, Washington, D.C. (2003)) I am also a planning co-chair for 

the first ALI-ABA Course of Study on the ESA, scheduled for April 2005. 

The thirty-year history of the Endangered Species Act (ESA) is mottled with a 

give-and-take between the United States Fish & Wildlife Service (FWS), the National Marine Fisheries Service (NMFS), and the federal courts. Disagreements over 

the substance of the ESA’s requirements traditionally has focused on the listing of 

threatened and endangered species. Unfortunately, increased contention over the 

species listing process occurred to the detriment of the ESA’s critical habitat (CH) 

designation requirements. Disregard for Critical Habitat designation reached its 

apex in the mid-1990’s, when the Clinton Administration determined that most potential CH designations were ‘‘not prudent’’ and thus exempt from the ESA’s designation requirement. 1 Consequently, the FWS had designated Critical Habitat only 

about one-third of the 1200 listed domestic species. 2

In the past few years, however, litigants and courts alike have recognized the past 

neglect over Critical Habitat designation and the issue has come center stage in the 

world of environmental litigation. This recognition has produced a steady stream of 

litigation in which parties bring claims against the FWS alleging its failure to designate Critical Habitat violates the Act, the agency scrambles to throw together a 

general designation before the statutory deadline expires, and then subsequent 

claims are brought by other parties because the hastily-created designations fail to 

satisfy the ESA’s CH requirements. Indeed, last year Assistant Secretary of the Interior, Craig Manson, testified in Senate Committee hearings that ‘‘the listing and 

Critical Habitat program is now operated in a ’first to the courthouse’ mode and, 

as a result, [CH] budgets into Fiscal Year 2008 are being dedicated to compliance 

with existing court orders and court-approved settlement agreements.’’ 3

H.R. 2933, ‘‘The Critical Habitat Reform Act of 2003’’ will address many of the 

problems arising over Critical Habitat. While it may not stop the recent ‘‘flood’’ of 

litigation, it will provide clear direction by more precisely defining how Critical 

Habitat is designated and by setting forth clearer criteria for considering and balancing economic impacts. Most significantly, the bill would especially advance the 

basic goal of the ESA—the conservation and eventual delisting of imperiled 

species—by linking the designation of Critical Habitat to the approval of recovery 

plans. 

54

SUMMARY OF COMMENTS ON H.R. 2933

Section 2—(Designation of Critical Habitat Concurrent with Approval of Recovery 

Plan Standard) 

This section would amend ESA Section 4(a) to require the establishment of critical 

habitat concurrent with the approval of recovery plans under Section 4(f). Present 

law, has often resulted in hastily prepared CH maps without adequately considering 

overall economic impacts as courts have recognized. Under H.R. 2933, CH designation will fit into its logical place in the Act—at the time that the Services approve 

a recovery plan to eventually remove a species from the list. There is little evidence 

that CH designations have aided in species recovery efforts. The only way to reverse 

this trend is to ensure that CH is integral to the development of a plan which provides ‘‘concise and measurable recovery criteria.’’ Further, the bill would provide 

more discretion to designate critical habitat ‘‘to the maximum extent practicable, 

economically feasible and determinable’’ as compared to the current law (‘‘maximum 

extent prudent or determinable’’). H.R. 2933 would allow consideration of factors 

such as whether it is practicable or feasible to even designate critical habitat as part 

of the overall recovery planning effort. Section 2(a)(3)(B) also grants discretion not 

to designate CH if the Secretary determines that either a ‘‘substantially equivalent’’ 

Habitat Conservation Plan under section 10(a)(2) or a State or federal land conservation program is in place. This recognizes a commonsense principle—it is the 

substance of the management protections in place, not the formality of a CH designation, that should control a decision whether to designate CH. 

Section 5—Clarification of Definition of Critical Habitat 

This Section would define key terms in the CH definition (‘‘geographic area occupied by the species’’ as meaning ‘‘the specific area currently used by the species for 

essential behavioral patterns’’ and ‘‘essential to the conservation of the species’’ as 

‘‘areas absolutely necessary and indispensable to conservation.’’) This language will 

help cure one of the problems in the CH process—despite the ESA’s direction that 

CH should not encompass all actual or potential habitat for a species unless the Secretary specifically finds that such designation of unoccupied habitat is essential to 

the conservation of the species, the Services often appears to ‘‘sweep in’’ unoccupied 

habitat on the theory that species may have frequented the area at some point in 

the past and may do so in the future. Often such a conclusion is based on questionable or incomplete data. However, H.R. 2933’s use of ‘‘absolutely necessary and indispensable to conservation’’ language in defining ‘‘essential’’ could be problematic. 

In the absence of biological criteria, officials at the Services could easily apply value 

judgments and sweep in larger areas than justified by objective field data—even including unoccupied areas that might some day acquire the Primary Constituent Elements (PCEs) for creation of suitable habitat. While the language directs agency officials to restrict CH only to very limited ‘‘essential’’ areas, any legislation should 

provide objective criteria for both the decisionmakers and the public. 

Section 3—Bases For Determination 

This section would provide the Secretary with more complete and accurate information for determining under section 4(b) if the benefits of exclusion of an area 

would outweigh the benefits of designation. It would require consideration of information from local governments as well as direct and indirect economic impacts and 

costs. This language will greatly advance the goal of ensuring that CH decisions are 

based on the most accurate and up-to-date technical and economic information. The 

duty to ‘‘seek and consider, if available, information from local governments in the 

vicinity of the area, including local resource data and maps’’ should help since there 

is no consistent approach to seeking and utilizing local information in CH decisions. 

Many state natural resource agencies have excellent habitat inventory data that 

could greatly assist in CH decisions and help fill the data gaps. The bill’s articulation of the range of scope of economic and cost data that should be considered in 

CH decisions highlights perhaps the most contentious CH issue and will be consistent with the Supreme Court’s interpretation of the ESA in Bennett v. Spear that 

economic considerations are ‘‘mandatory’’ in the CH process. In my judgment, the 

bill will lead to a more accurate assessment of the true economic impact of CH designations by looking beyond the mere costs of section 7 consultations and assessing 

all direct, indirect and cumulative costs including those costs associated with reports, surveys and analyses. However, in my view, the economic factors in the bill 

must also be accompanied by FWS addressing the holding of the Fifth Circuit in 

Sierra Club v. Norton—namely, that the ‘‘adverse modification’’ standard under section 7 creates a much lower threshold of potential impacts than the section 7 

‘‘jeopardy’’ standard given that Critical Habitat is defined as areas ‘‘essential to the 

55

4 New Mexico Cattle Growers Assn. v. USFWS, Civ. No. 02-0461 LH/RHS, slip op. (D.N.M. 

2003) 5 U.S. General Accounting Office. (Aug. 2003). Endangered Species: Fish and Wildlife Service 

Uses Best Available Science to Make Listing Decision, but Additional Guidance Needed for Critical Habitat Designation (Pub. No. GAO-03-803) at 25. 6 CRS Issue Brief for Congress,’’Endangered Species : Difficult choices,’’ Sept. 12, 2003 at 

CRS—13 7GAO Report at p. 28 and National Research Council’ Science and the Endangered Species 

Act, Washington DC National Academy Press, 1995 at 71-73 8 Home Builders Assn. of Northern California v. U.S. Fish & Wildlife Service, 268 F.Supp.2d. 

1197 (E.D.Cal. 2003). 9Draft Recovery Plan for Chaparral and Scrub Community Specific East of San Francisco 

Bay, California (Reg. 1, USFWS, Portland, Ore.) (Nov. 2002) 10 Vol. 65 Fed. Reg. 58933 (Oct. 3, 2000) 

conservation of a listed species’’ whereas the focus of the jeopardy standard is the 

‘‘survival’’ of the species. 

Section 4—Contents of Notices Of Proposed Designation of Critical Habitat 

This section would provide a key tool for the public to access CH areas maps and 

data through requiring GIS maps and coordinates to be posted on the Department’s 

Internet page. Internet data is often the primary source for the public to obtain information from the federal government. Under the current system, the public often 

cannot easily access CH data. Further, this change will also help facilitate meaningful public comment on proposed CH designation by providing the specific Internet 

page with the proposed designation. In this manner, landowners, local governments 

and the public will not only be able to better participate in the CH process but will 

also be able to make better land use decisions based on accurate and easily accessible GIS maps of the CH area. 

DETAILED COMMENTS ON H.R. 2933

Section 2—(Designation of Critical Habitat Concurrent with Approval of Recovery 

Plan Standard) 

This section would amend section 4(a) to require the establishment of Critical 

Habitat concurrent with the approval of recovery plans under section 4 (f). Present 

law, requires Critical Habitat designation ‘‘concurrent with the listing of a species 

as endangered or threatened’’ to the maximum extent prudent or determinable.’’ The 

Services’ failure to designate Critical Habitat concurrent with the listing decisions 

has triggered numerous lawsuits imposing court-ordered schedules for Critical Habitat actions. This has often resulted in hastily prepared and poorly drawn CH maps 

without adequately considering overall economic impacts, as the New Mexico Cattle 

Growers 4 and other courts have recognized. 

Under H.R. 2933, the CH designation will fit into its logical place in the Act—

at the time that the Services approve a recovery plan to eventually remove a species 

from the list. Indeed, the ESA has not worked to recover very many species. A recent GAO report indicates that, as of March 2003, ‘‘The Service had delisted 25 

threatened and endangered domestic species of the more than 1,200 listed and only 

7 delistings resulted from recovery efforts.’’ 5 However, Critical Habitat has been 

designated for approximately one-third of listed domestic species. 6 Clearly, there is 

a disconnect between Critical Habitat designation and recovery of imperiled species. 

The only way to reverse this trend is to ensure that CH is integral to the development of recovery plans. In fact, as the GAO Report notes, ‘‘the Service and others, 

including the National Research Council, have recommended delaying designations 

until recovery plans are developed.’’ 7

Of course, it could be argued that, given the slow pace and extensive resources 

involved in recovery plans, such delay would leave important habitat unprotected 

for a much longer period than present law allows. Yet, it could also be argued that 

poor CH designations to meet court-imposed deadlines and that are later struck 

down actually do more harm than good for recovery because they often are done 

without the benefit of the detailed biological analysis and clear goals of an up-todate plan, as seen in the court’s decision in Home Builders Assn. of Northern 

California v. FWS (HBANC), overturning the critical habitat designation for the 

Whipsnake in Central California 8 where the draft recovery plan was released in November 2002 9 more than two years after the final CH designation on October 3, 

2000. 10 There, the court faulted the FWS for designating large areas of Alameda, 

San Joaquin, Santa Clara and Contra Costa Counties in central California as CH 

for the snake on several grounds including (1) failure to identify specific areas within the geographic area occupied by the snake with physical or biological features 

essential to species conservation; (2) failure to articulate a reasonable basis for 

56

11 268 F. Supp 2d. at 1212. 12 U.S. Fish & Wildlife Service, Piping Plover: Charadrius Melodus, available at http://endangered.fws.gov/i/B69.html (site visited on April 13, 2004). Following 1992 storms, a beach nourishment project was constructed with the approval of the FWS requiring the Village to implement predator control and other measures. The plover population then flourished to a level of 

26 pairs along just two miles of the beach. In 1997, these plovers made up 14.4% of the breeding 

pairs located in the State of New York. See American Coastal Coalition ‘‘Beach Nourishment 

and the Coastal Environment’’. 13 Center for Biological Diversity v. Norton, 240 F.Supp 2d. 1090 (D.Az. 2003) 14 National Defense Authorization Act for Fiscal Year 2004, H.R. 1588’ 108th Cong. § 318 

(P.L. 108-136) (2003). 

including disputed areas despite information indicating that some of those lands 

were not, in fact, occupied by the snake; (3) including areas where available biological information indicated that essential physical or biological features did not exist; 

(4) failure to examine the economic effects of CH designation that were co-extensive 

with those of the listing of the snake as threatened; and, (5) failure to make a finding prior to designation that the area in question might require special management 

considerations and protections at some time in the future. In particular, the court 

held that ‘‘if the Service has not determined at what point the protections of the 

ESA will no longer be necessary for the whipsnake, it cannot possibly identify the 

physical and biological features that are an indispensable part of bringing the snake 

to that point.’’ 11

H.R. 2033 will help prevent the kind of ‘‘disconnect’’ cited by the HBANC court. 

Assuming sufficient funding in the budget, the linkage in H.R. 2933 will create incentives for more rapid development and revisions of recovery plans. The bill should 

also help facilitate more meaningful public comment by providing clear context for 

channeling public comment to address how critical habitat will advance specific recovery goals. 

Further, the bill would provide more discretion to the Services to designate critical habitat ‘‘to the maximum extent practicable, economically feasible and determinable’’ as compared to the current law (‘‘maximum extent prudent or determinable’’). Under current law, courts have largely rejected FWS ‘‘prudent or determinable’’ arguments and imposed unworkable deadlines for designation. H.R. 2933 

would allow the Secretary to consider a host of factors such as whether it is practicable or feasible to even designate critical habitat as part of the overall recovery 

planning effort. For example, in certain cases, the recovery goals could be achieved 

through other methods such as seen on coastal Long Island (Westhampton, NY) 

which has seen record piping plover numbers in due largely to local property owner 

stewardship. 12 In other cases, insufficient biological data may not even be available 

for such designation. H.R. 2933 would defer to the informed expertise of the Secretary in making these judgments. 

Section 2(a)(3)(B) would also grant discretion not to designate CH if the Secretary 

determines that either a ‘‘substantially equivalent’’ Habitat Conservation Plan 

under section 10(a)(2) or a State or federal land conservation program is in place. 

This language recognizes a commonsense principle—it is the substance of the protections in place, not the formality of a CH designation, that should control a decision whether to designate CH. The recent Mexican Spotted Owl decision is an example of one court elevating form over substance in mandating CH for large land areas 

in Arizona despite the existence of a comprehensive management plan. 13 Congress 

has also recognized this principle under section 4(a)(3) of the Defense Authorizations 

Act of 2004 prohibiting the inclusion of military lands within CH if there is an Integrated Natural Resources Management Plan in place that provides substantial benefits to the species. Just as Congress included certain criteria for such a plan to be 

‘‘substantially equivalent’’ so too should Congress consider similar criteria here for 

sanctioning a decision not to designate. 14

Section 5—Clarification of Definition of Critical Habitat 

This section would define certain key terms in the critical habitat definition (‘‘geographic area occupied by the species’’ as meaning ‘‘the specific area currently used 

by the species for essential behavioral patterns’’ and ‘‘essential to the conservation 

of the species’’ as ‘‘areas absolutely necessary and indispensable to conservation.’’) 

This language will help cure one of the real problems in the CH process—despite 

the ESA’s direction that CH should not encompass all actual or potential habitat 

for a species unless the Secretary specifically finds that such designation of unoccupied habitat is essential to the conservation of the species. The Services often appear to ‘‘sweep in’’ unoccupied habitat on the theory that species may have frequented the area at some point in the past and may do so in the future. Often such 

57

15See court’s analysis in the Whipsnake case, Home builders Association of Northern 

California v. FWS’ 268 F. Supp. 2d. 1197 ( E.D. Cal. 2003) 16 758 F. Supp. 621, 623 (W.D. Wash. 1991). 17For example, ‘‘indispensable’’ is defined as ‘‘that cannot be dispensed with or neglected.’’ 

(Webster’s New World Dictionary). 18 U.S. General Accounting Office. (Aug. 2003). Endangered Species: Fish and Wildlife Service 

Uses Best Available Science to Make Listing Decisions, but Additional Guidance Needed for 

Critical Habitat Designation (Pub. No. GAO-03-803) at 27. 19 520 U.S. 154, 176-177 (1997) 

a conclusion is based on questionable data. 15 This ‘‘blurs’’ the distinction between 

ordinary and critical habitat and diverts resources away from protecting those areas 

that are truly necessary for species recovery. Indeed, courts have held that the ESA 

envisions a narrow application of CH, reasoning that ‘‘even though more extensive 

habitat may be essential to maintain the species over the long term, critical habitat 

only includes the minimum amount of habitat needed to avoid short-term jeopardy 

or habitat in need of immediate intervention.’’ Northern Spotted Owl v. Lujon. 16

H.R. 2933 would force the Services to ensure that FWS has the most accurate and 

current data for CH designation because it must demonstrate that an area is ‘‘currently used’’ for ‘‘essential behavioral patterns.’’ It would also force the Secretary to 

better justify including unoccupied habitat by requiring her to provide a detailed 

and specific biologically-based rationale for why inclusion is necessary for species 

recovery—all tied to the development of recovery plans. 

However, H.R. 2933’s use of ‘‘absolutely necessary and indispensable to conservation’’ language in defining ‘‘essential’’ could be problematic. Those terms are 

vague. 17 In the absence of biological criteria, officials at the Services could very easily apply their own value judgments and sweep in larger areas than might be justified by objective field data—even including unoccupied areas that might some day 

acquire characteristics for creation of suitable habitat (known as Primary Constituent Elements (PCEs)). While the language certainly directs agency officials to 

focus on limited areas, it should be further modified to provide objective criteria for 

both the decision-makers and the public. 

Section 3—Bases For Determination 

This section would provide the Secretary with more complete and accurate information for determining under section 4(b) if the benefits of exclusion of an area 

would outweigh the benefits of designation. It would do so by requiring consideration of information from local governments as well as direct and indirect economic 

impacts and costs as a consequence of the designation. This language will greatly 

advance the goal of ensuring that the CH decisions are based on the most accurate 

and up to date technical and economic information. 

The duty to ‘‘seek and consider’’ if available, information from local governments 

in the vicinity of the area, including local resource data and maps should help cure 

a significant problem because currently there is no consistent approach to seeking 

and utilizing local information in CH decisions. As the recent GAO report on ESA 

listing and CH decisions stated, ‘‘Experts and others we spoke to explained that the 

amount of scientific information available on a species habitat needs often may be 

limited, affecting the Service’s ability to adequately define the habitat area required.’’ 18 Local land use agencies often assemble good area-wide and site-specific 

natural resource data that could be of great use to the Services in defining habitat 

limits. Such data often is included in the development of County area-wide plans. 

Without question, use of such data will advance the scientific accuracy of CH designations, given the expert opinion reflected in the GAO Report about the general 

scarcity of habitat data. Moreover, the agencies should also seek out relevant state 

data as well. Many state natural resource agencies have excellent habitat inventory 

data that could greatly assist in CH decisions and help fill the data gaps that exist 

at the federal level. 

The bill’s articulation of the scope of economic and cost data that should be considered in CH decisions highlights perhaps the most contentious CH issue—a question that has been heavily litigated over the past few years. The Supreme Court in 

the Bennett v. Spear decision recognized that, in adopting the ESA, Congress not 

only declared an overall goal of species conservation, but also a mandate to pursue 

that goal without creating unnecessary economic impacts. As the Court stated, ‘‘we 

think it readily apparent that another objective (if not, indeed, the primary one) is 

to avoid needless economic dislocation produced by agency officials zealously but unintelligently pursuing their environmental objectives.’’ 19 The Bennett court also 

stressed that under the ESA there is a ‘‘categorical requirement’’ to ‘‘take into 

consideration the economic impact and any other relevant impact’’ in designating 

58

20 Id. 21 New Mexico Cattle Growers Assn. v. FWS’ 248 F.3d 1277’ 1280 (10th Cir. 2001). 22 Amy Sinden, The Economics of Endangered Species: Why Less is More In the Economic 

Analysis of Critical Habitat Designations, 28 Harv. Envtl. L. Rev. 129 (2004). 23 Id. at 163. 24 U.S. General Accounting Office. (Aug. 2003). Endangered Species: Fish and Wildlife Service 

Uses Best Available Science to Make Listing Decisions, but Additional Guidance Needed for 

Critical Habitat Designation (Pub. No. GAO-03-803) at 36. 25David Sunding, The Economic Impacts of Critical Habitat Designation, Univ. of Cal. 

Giannini Foundation of Agricultural Economics, vol. 6 n. 6 at 7 (2003). 26 Id. at 10. 27Sierra Club v. U.S. Fish & Wildlife Service, 245 F.3d 434, 441 (5th Cir. 2001). 28 Amy Sinden, The Economics of Endangered Species: Why Less is More In the Economic 

Analysis of Critical Habitat Designation, 28 Harv. Envtl. L. Rev. 129, 164 (2004). 

CH. 20 Yet, historically the Service has essentially ignored this mandate by relying 

on the ‘‘incremental baseline’’ theory to minimize the economic impact of CH designation over listings. This approach has been strongly rejected by New Mexico Cattle Growers 21 (NMCG) and other courts. The Service has attempted to comply with 

that decision in taking voluntary remands in several cases but has not issued any 

regulations or guidance addressing the true economic costs of CH designations. Indeed, a recent study of economic analyses since NMCG by Prof. Amy Sinden of Temple Law School 22 found ‘‘in the vast majority of the thirty five or so critical habitat 

designations completed since the Cattle Growers opinion was issued, FWS has answered this question (that the costs of inclusion outweigh the benefits for any particular area of critical habitat) in the negative. In most instances, the basis for this 

conclusion has been FWS’s finding that the ’critical habitat impacts’—or the cost figure derived form the original baseline—are ’not significant’.’’ She further states that 

‘‘in the final analysis, FWS’s economic analysis continues to turn on the same critical habitat baseline that the Tenth Circuit held invalid in Cattle Growers.’’ 23 These 

findings give greater force to the GAO report’s conclusion that, ‘‘it is imperative that 

(the FWS) clarify the role of Critical Habitat and develop guidance for how and 

when it should be designated and seek regulatory and/or legislative changes that 

may be necessary.’’ 24

In my judgment, the factors identified in the bill will lead to a more accurate assessment of the costs and economic impact of CH designations by looking beyond 

the mere costs of section 7 consultations and assessing all direct, indirect and cumulative costs including those costs associated with reports, surveys and analyses required to be undertaken as a consequence of the designation. As the recent study 

by Prof. David Sunding entitled ‘‘The Economic Impacts of Critical Habitat Designation’’ states ‘‘The economic effects of CHD go well beyond these costs (of development by making it more difficult to obtain necessary permits and to reduce the size 

of individual projects)’’.If land is set aside or if the scale of projects is reduced by 

the CHD there may well be market and regional effects from this designation.’’ 25

Significantly, he notes that the Service ‘‘emphasizes only the most obvious costs, 

namely the direct out-of-pocket expenditures needed to complete the section 7 process, and ignores the potential for regional market impacts’’. Thus, the Service seriously underestimates the impacts of critical habitat designation (in some cases by 

more than 90 percent) and also mischaracterizes their incidence.’’ 26

However, in my view, the economic factors in the bill must also be accompanied 

by FWS addressing the holding of the Fifth Circuit in Sierra Club v. Norton—namely, that the ‘‘adverse modification’’ standard under section 7 creates a much lower 

threshold of potential impacts than the Section 7 ‘‘jeopardy’’ standard since critical 

habitat is defined as areas ‘‘essential to the conservation of a listed species’’ whereas 

the jeopardy standard focuses on the ‘‘survival’’ of the species. As the Sierra Club 

court stated, ‘‘Conservation is a much broader concept than mere survival.’’ 27 Indeed, as Prof. Sinden suggests, ‘‘FWS should revise its definitions so as to give independent meaning to the concept of adverse modification.’’ She notes that such a 

change would reflect the ‘‘real world’’ consequences of CH designations—that the 

direct and indirect costs for ‘‘adverse modification’’ exceeds the costs of avoiding 

‘‘jeopardy.’’ She even cites the example of where, after the court vacated the 731,000 

acre CH designation for the endangered ferruginous pygmy-owl in the Tucson area 

but kept the listing in place, the ‘‘Corps and the EPA promptly responded by terminating Section 7 consultations with FWS on several major development projects 

within the former critical habitat area.... Thus in this instance, critical habitat designation seems to have made a significant difference for the pygmy-owl, imposing 

added restrictions on development and, therefore, economic costs over and above 

those imposed by the listing.’’ 28 This is but one example of the greater direct economic impacts flowing from CH designations, not to mention the indirect impacts. 

59

Section 4—Contents of Notices Of Proposed Designation of Critical Habitat 

This section will provide a key tool for the public to access CH areas maps and 

data through requiring GIS maps and coordinates to be posted on the Department’s 

Internet page. Internet data is often the primary source for the public to obtain information from the federal government. Under the current system, the public often 

cannot easily access CH data. Under this amendment, it will be easier to access specific CH mapping data by simply accessing the Department’s world wide web home 

page. Further, this change will also help facilitate meaningful public comment on 

proposed CH designation by providing the specific Internet page with the proposed 

designation. In this manner, landowners, local governments and the public will not 

only be able to better participate in the CH process but will also be able to make 

better land use decisions based on accurate and easily accessible GIS maps of the 

CH area. 

CONCLUSION

H.R. 2933 provides an excellent vehicle to address perhaps the most contentious 

issue under the ESA today. The Critical Habitat debate has spurned extensive litigation and technical and policy scrutiny without any clear guidance from the executive branch. In my judgment, Congressional action is absolutely necessary to clarify 

the role of critical habitat in achieving the ultimate goal of the Act—the conservation and eventual recovery of imperiled species. 

NOTE: An attachment (Exhibit A) to Mr. Liebesman’s statement has been 

retained in the Committee’s official files. 

[Mr. Liebesman’s response to questions submitted for the record 

follows:]

Response to questions submitted for the record by Lawrence R. Liebesman, 

Esq., Holland & Knight, LLP 

Questions from Chairman Pombo 

I am writing to respond to the follow-up questions for the hearing on H.R. 2933. 

Due to other pressing deadlines, I am first responding to the Chairman’s questions 

and will follow up with responses to the minority’s questions next week. 

1. Most everyone can agree that there are too many ambiguities and gray 

areas in the ESA. That is why we have all these lawsuits that suck money 

away from species protection. In fact, the last two Administrations, including one of our witnesses here today talked about the impacts of these lawsuits during her tenure as Director of FWS. The Cardoza legislation seeks 

to reduce these lawsuits and tighten up vague definitions. 

Question: Do you believe that linking a recovery plan to critical habitat 

will improve scientific gathering? 

Response: Yes. The current disconnect between critical habitat (CH) designations 

and recovery plans often results in CH designations that lack a strong scientific 

foundation. Often, CH designations are made under the pressure of court imposed 

deadlines without the benefit of the rigorous scientific analysis from recovery plans 

as recognized by the court in the Alameda Whipsnake case, Home Builders Ass’n 

of Northern California v. FWS ( HBANC), where the court held, in part, that ‘‘if 

the Service has not determined at what point the protections of the ESA will no 

longer be necessary for the whipsnake, it cannot possibly identify the physical and 

biological features that are an indispensable part of bringing the snake to that 

point.’’ 240 F. Supp 2d. 1090, 1098-99 (D. Ariz. 2003). Indeed, because recovery 

plans must (1) Describe any site specific management actions to conserve species; 

(2) identify objective and measurable criteria necessary to result in delisting of the 

species; and (3) set time and cost estimates for carrying out the plan, 16 

U.S.C.1533(f) (1)(B)(i)- (iii), any critical habitat designation would, of necessity, have 

to be justified on the basis of whether it furthered then de-listing criteria. This will 

promote the gathering of rigorous objective data and avoid the chance that CH will 

be based on subjective opinion. Further, the linkage concept in H.R. 2399 must recognize that recovery planning is not a static effort. According to the recent GAO Report, ‘‘the Service has a goal of developing recovery plans within 1 year and having 

approves plans within 2 and 1/2 years of species listing’’ and ‘‘the Service periodically reviews approved recovery plans to determine of updates or revisions are needed. As of June 2003, the Service has approved recovery plans for 1000 species’’ (GAO 

Report at page 45). However, while some of these plans have been revised within 

the past decade (e.g., Breeding population of Wood Stork, Jan 27, 1997) others are 

60

older ( e.g., Delmarva Fox Squirrel Plan last revised in 1993). Thus, in order for 

the linkage concept in H.R. 2399 to be meaningful, Congress should consider language that directs the Service to determine if current plans need revisions and to 

revise plans, where appropriate, by specified dates unless not practicable and to provide FWS with sufficient budget to do so. 

Question: If this linkage allows better science, will this improved science 

help insulate the Service from some of the more frivolous lawsuits? 

Response: Yes. Court decisions overturning CH designations have particularly focused on lack of factual scientific support in the administrative record on such 

issues as identifying Primary Constituent Elements for CH, including unoccupied 

areas and failure to identify specific management measures. See Home Builders 

Ass’n of Northern California (Whipsnake); Middle Rio Grande Conservancy District 

v. Babbitt (Silvery Minnow) 206 F.Supp 2d. 1156 (D.N.M. 2000). Even the Supreme 

Court in Bennett v. Spear held that one of the objectives of the ESA ‘‘ is to avoid 

needless economic dislocation produced by agency officials zealously but unintelligently pursuing their environmental objectives.’’520 U.S.154, 176- 177( 1997) Under 

H.R. 2399 linkage, the FWS CH record support will presumably be based on sound 

peer reviewed science since recovery plans are issued after the submission of comments from state and federal agencies, experts and the public. Potential plaintiffs 

would then have to ‘‘think twice’’ about challenging such decisions knowing that 

courts would likely defer to the sound expert judgment of the Service. 

2. Many scientists have complained that the broad definitions under the 

ESA lead to open interpretations. Some have equated ESA science to 

skewed polls: You ask the question and you get the answer you want. The 

Cardoza bill tries to improve the underlying ESA science. It tightens the 

critical habitat criteria and better defines critical habitat. However, some 

have said that the Cardoza bill creates more vague definitions. 

Question: Do you think the Cardoza bill brings better and tighter science 

and less discretion to the process? 

Response: The bill does bring better and tighter science, provided that certain 

terms in the critical habitat definition are clarified, either through this bill or by 

regulation. Certainly, by requiring data on ‘‘current use by species ‘‘ for the specific 

area, the Services will have to rely on the most up to date sampling data and cannot 

simply assume presence based on past historic data. Further, the requirement to 

consider information from local governments will also advance the quality of the 

data. This mandate should also extend to consideration of state and regional agency 

data since many state wildlife agencies have excellent data bases. Further, 

H.R. 2933’s use of ‘‘absolutely necessary and indispensable’’ to define ‘‘essential’’ 

should require a more rigorous, objective data gathering exercise and further the 

original intent of congress under the ESA that ‘‘even though more extensive habitat 

may be essential to maintain the species over the long term, critical habitat only 

includes the minimum amount of habitat needed to avoid short term jeopardy or 

habitat in need of immediate intervention.’’ Northern Spotted Owl v. Lujon, 758 F. 

Supp. 621, 623 ( W.D. Wash. 1991). Service biologists will be forced to carefully 

evaluate data to separate ordinary habitat from habitat that meets such a rigorous 

test. However, this terminology could also be subject to abuse if biologists subjectively assume that no habitat can be eliminated. Therefore, the Services should be 

directed to conduct a rulemaking on the kinds of scientific criteria and the importance of peer review needed to make these judgments in evaluating often extensive 

and conflicting data. 

Question: Will this improved science lead to better recovery chances? 

Response: Subject to the suggestions outlined above, the improved science from 

this ‘‘linkage’’ approach will most certainly lead to better recovery chances. The designation of CH is a basic cornerstone in the recovery process. Therefore, the stronger 

the scientific basis for the designation as linked to the recovery plan, the better the 

agencies can evaluate whether a plan’s ‘‘objective and measurable’’ criteria can be 

met. 

3. Congress expressly directed (in the Committee report for the bill that 

created the current critical habitat process, H. Rept. 95-1625, page 18) that 

the Secretary should be ‘‘exceeding circumspect’’ in designation of unoccupied habitat as critical habitat. 

Question: How could unoccupied habitat provide significant benefits if it 

was not intended to be extensively designated? 

Response: Unoccupied habitat should only be designated as ‘‘critical’’ in exceptional circumstances where the Service has made very scientifically rigorous, peer 

reviewed findings that such an area is so essential that must be included. See 

Northern Spotted Owl v. Lujon. Linking CH designation to recovery plans, should 

facilitate such a scientific determination. Otherwise, the distinction between CH and 

61

ordinary habitat becomes blurred and subject to abuse by field biologists who are 

unwilling to make the necessary scientific judgments required to truly further 

recovery. 

4. One of the ways to make the ESA work is to provide landowners with 

incentives to protecting the species. HCP’s can provide incentives through 

some amount of certainty. Yet, current law allows bureaucratic discretion 

to overlap HCP’s with more critical habitat designations. 

Question: Does this overlapping reduce the HCP incentives for landowners? Will this bill fix this problem? 

Response: Yes. The Service has been pursuing a policy of encouraging HCP’s for 

the past ten years. The concept is that such a private party conservation agreement 

negotiated with the Service will allow a landowner a certain ‘‘take ‘‘ of the species 

in return for private party commitment to implement the HCP. The landowner 

when receives ‘‘no surprises’’ protection against any future land use restrictions. Indeed, the FWS has noted that the benefits of including HCP lands within Critical 

Habitat are normally small.’’ As the Service stated in its final CH designation for 

the wintering population of piping plover: 

The principal benefit of any designated critical habitat is that Federal activities in such habitat that may affect it require consultation under section 

7 of the Act. Such consultation would ensure that adequate protection is 

provided to avoid adverse modification of critical habitat. Where HCPs are 

in place, our experience indicates that this benefit is small or non-existent. 

Currently approved and permitted HCPs are already designed to ensure the 

long-term survival of covered species within the plan area. Where we have 

an approved HCP, lands that we ordinarily would define as critical habitat 

for the covered species will normally be protected in reserves and other conservation lands by the terms of the HCP and its implementation agreements. The HCP and implementation agreements include management 

measures and protections for conservation lands that are crafted to protect, 

restore, and enhance their value as habitat for covered species. 

(Fed. Reg. 36081, Vol. 66, 7/10/2001) 

However, despite this analysis, the courts have not necessarily agreed with FWS 

interpretation, as especially noted in Judge Bury’s ruling regarding the Mexican 

Spotted Owl case. See Center for Biological Diversity v. Norton 240 F. Supp 2d. 

1090 (D. Az. 2003). H.R. 2399 should help fix this problem and avoid the disincentive by allowing an HCP or State plan to substitute for CH if the Secretary finds 

that it provides protection for habitat that is ‘‘substantially equivalent’’ to protection 

provided by the designation.’’ However, defining ‘‘substantial equivalence’’ could be 

problematic since, under the bill, CH must further specific conservation goals in a 

recovery plan. While this distinction may seem semantic, property owners may object to FWS demands that HCPs must go far beyond merely sanctioning a limited 

‘‘take’’ of species and also impose an affirmative duty to further the conservation 

goals of the Act which include meeting recovery plan goals—duties which are now 

only imposed on Federal Agencies under section 7 (a) (1) of the ESA. Thus, Congress 

should consider directing the Secretary through rulemaking to reconcile these concerns in defining ‘‘substantial equivalence.’’

Questions from Minority Members 

I am writing to respond to the follow-up questions from minority members on 

H.R. 2933. These responses supplement those I provided on May 18 to Chairman 

Pombo’s questions. 

Question 1: Do you agree with what the GAO said in August 2003 that 

courts have overturned few of the Service’s critical habitat decisions because they were not supported by the best available science? Instead, most 

of the challenges have dealt with non science issues, such as the Service’s 

failure to designate habitat for a listed species. [Page 4, GAO report August 

2003] 

Response: While I agree that the vast majority of court decisions overturning critical habitat (CH) designations have been based on procedural missteps (e.g., refusal 

to designate based on a ‘‘not prudent’’ finding) as opposed to faulty science, a number of recent significant court decisions have focused on the science behind the 

Service’s decisions. For example, in 2002 the 10th Circuit upheld the lower court’s 

decision to set aside the designation of 163 miles of the Rio Grande River as CH 

for the Silvery Minnow in part, on scientific grounds, including failure to specifically 

define the Primary Constituent Elements (PCEs) for the species and to identify 

where they actually were found along the River. Middle Rio Grande Conservancy 

Dist. v. Norton, 294 F.3d 1220 (10th Cir. 2002). In turn, the designation of CH for 

the Alameda Whipsnake was set aside after an in depth probing of the scientific 

62

support for the designation. See Home Builders Ass’n of Northern California v. 

USFWS, 268 F.Supp.2d 1197 (E.D. Calif. 2003). The court cited such improprieties 

as failure to identify PCEs and improper inclusion of areas where available biological information indicated that the essential physical or biological features did not 

exist. In particular, the HBANC court noted the agency’s failure to complete the 

Whipsnake recovery plan prior to the CH designation as a major scientific failing. 

Question 2: In your statement you express support for the change that 

would direct the Secretary of the Interior to designate critical habitat as 

practicable, economically feasible and determinable. How would the Secretary define practicable? Couldn’t it mean that if the Fish and Wildlife did 

not have the budget, it would not be practicable to designate critical 

habitat? 

Response: Unlike other environmental regulatory regimes, the ESA does not define ‘‘practicable.’’ Currently, section 4 requires CH designation only to the extent 

that it is ‘‘prudent and determinable’’ but does not define those terms. Thus, the 

Services are already working with somewhat broad terms that are undefined. The 

concept of ‘‘practicability’’ does appear in the section 10 Incidental Take permitting 

provisions. Section 10 requires that before the Service may issue an incidental take 

permit, it must find that the applicant will minimize the impacts of the ‘‘take’’ of 

the species ‘‘to the maximum extent practicable.’’ Recently the DC Circuit found that 

the Service improperly deferred to the applicant’s definition of ‘‘practicable’’ and 

faulted the Service for not conducting its own independent analysis. Gerber v. Norton, 294 F. 3d 173, 184-86 (D.C. Cir. 2002). Thus, this term is not completely foreign 

to the ESA. In addition, current CH designations are based on a ‘‘prudence’’ analysis 

that, in many ways, is no more clear. 

I believe that the Committee may take comfort in the fact that there are other 

similar environmental statutes that are also based on an underlying ‘‘practicability’’ 

analysis. For example, the Clean Water Act section 404 permitting program (known 

by practitioners as the Environmental Protection Agency’s section 404(b)(1) guidelines) creates a presumption against impacting wetlands and other ‘‘Waters of the 

United States’’ if the project is not ‘‘water dependent’’ unless the applicant can clearly demonstrate that there are no practicable alternatives to such impacts. The 

guidelines define practicability as an alternative that is ‘‘available’’ and ‘‘capable of 

being done after taking into consideration cost, existing technology and logistics in 

light of overall project purposes.’’ 40 C.F.R. § 230.10(a)(3). The goal of this provision 

is to avoid unnecessary destruction of wetlands and other aquatic resources while 

nonetheless preserving the applicant’s overall project purpose. 

Thus, the approach to ‘‘practicability’’ in the above examples focuses on balancing 

an over-riding statutory or regulatory goal—e.g., minimizing the ‘‘take’’ of listed 

species (in section 10 permitting and minimizing wetlands impacts 404 program)—

with the reality that meeting such goal is not always possible and that the Service 

must be given some level of flexibility when the science or other factors do not favor 

designation. Indeed, most of the litigation concerning CH designations could probably have been avoided if the Service was not forced to designate simply for the 

sake of meeting an inflexible mandate. 

I do not believe that this bill would allow the Service to avoid designating CH 

if it lacked the budget for the necessary work. The existing cases to deal with this 

issue have made clear that the Service may not raise such a defense. See e.g., Forest Guardians v. Babbitt, 164 F.3d 1261 (10th Cir 1998) (ordering U.S. Fish and 

Wildlife Service to designate critical habitat for species under Endangered Species 

Act despite claims that Congress had not appropriated sufficient funds for such action). Ensuring that Congress appropriates sufficient funding for CH designations 

will remain essential in light of the current fiscal climate. However, given that the 

central goal of H.R. 2399 is to ensure that CH designations are linked to recovery 

plans (so that the best available science is used towards de-listing), I do not believe 

that, absent strong compelling evidence that CH designation would prevent FWS 

from carrying out other vital ESA priorities such as failing to take action on pending 

listing petitions that are overdue under ESA time frames, budget priorities could 

be used to avoid designation. However, my understanding of this bill is that it would 

still allow the Secretary to determine, based in part on economic factors, that CH 

should not be designated under the criteria in section 4(b)(2) based on a finding that 

the benefits of denial outweigh the benefits of designation. This language would 

clarify that if the designation would have a significant economic impact within the 

area to be designated, then the Secretary should exercise her discretion not to designate such an area. 

Question 3: Also, what does economically feasible mean? Here again, does 

it mean that if Fish and Wildlife Service is not well funded it will not be 

economically feasible for the Secretary to designate critical habitat? Or 

63

does it mean it is not economically feasible for the State or some other entity to have land designated as critical habitat? 

Response: The term ‘‘economically feasible’’ is a rather vague term and should be 

clarified so that it cannot be used to avoid CH designation based on a range of economic factors even where CH may otherwise be justified. I do not believe that the 

Secretary should be able to invoke FWS funding constraints in finding that CH designation is not ‘‘economically feasible.’’ Given the Service’s historic antipathy towards CH designations, such an interpretation should not be allowed to provide a 

convenient excuse for the Secretary to not designate even where scientifically justified. Rather, the focus of ‘‘economic feasibility’’ should be the direct and indirect 

costs on both land owner, the affected local government and the public as a whole. 

Professor Sunding’s study, finding that CH designation’s impacts go far beyond the 

immediate land owner, provides a good model for FWS to apply in considering economic feasibility. FWS should be able to weigh and balance those kinds of economic 

impacts with the benefits CH will provide in furthering recovery goals in making 

an ‘‘economic feasibility’’ determinations. 

Question 4: Many FWS announcements on critical habitat say ‘‘In most 

cases, protection of a species from critical habitat designation duplicates 

the protection provided by Section 7 of the ESA.’’ Yet court cases have 

begun to disagree with this thinking. In the Endangered Species Deskbook 

which you authored you state that ‘‘...the FWS has begun to recognize that 

its prior policy is not correct and that critical habitat designation could 

have an incremental effect above that of the ‘‘baseline’’ of listing. Can you 

explain what benefits critical habitat provides above and beyond the jeopardy prohibition? 

Response: As noted in my testimony, the Fifth Circuit’s Sierra Club v. USFWS, 

245 F.3d 434 (5th Cir. 2001),decision provides an excellent analysis of why Congress 

intended the section 7 ‘‘adverse modification’’ standard for CH to create a lower 

threshold of potential impacts than the section 7 jeopardy standard. This is because 

CH was intended to focus on protecting areas ‘‘essential to the conservation of a listed species’’ whereas the jeopardy standard focuses on the ‘‘survival’’ of the species. 

That is, once CH is designated, any activity with a federal nexus would arguably 

impact the conservation of the species (i.e., adversely modify habitat) whereas in the 

absence of CH it would be necessary to demonstrate that the proposed federally-authorized activity would ‘‘take’’ the species to such an extent as to lead to its potential extinction. Mere habitat modification would not be sufficient to make that showing. Arizona Cattle Grower’s Ass’n v. USFWS, 273 F.3d 1229, 1244 (9th Cir. 2001). 

H.R. 2399’s linkage between CH designation and recovery plan approval would be 

consistent with this distinction and the greater protections for the species within the 

CH area. However, it would do so using better science than is now used in the CH 

process because recovery plan goals would become the ‘‘driving scientific force’’ in 

the process. 

I appreciate the opportunity to work with the Committee on these important 

issues. Please feel free to contact me with any questions on my responses. 

The CHAIRMAN. Thank you. 

Dr. Ramey? 

STATEMENT OF ROB ROY RAMEY, II, PH.D., DEPARTMENT OF 

ZOOLOGY CHAIR AND CURATOR OF VERTEBRATE ZOOLOGY, 

DENVER MUSEUM OF NATURE AND SCIENCE 

Dr. RAMEY. I am Rob Roy Ramey from the Denver Museum of 

Nature and Science and the Chair of Zoology and Curator of 

Vertebrate Zoology. I am not speaking on behalf of any group but 

I have 23 years of experience in endangered species research and 

management. That includes research and management on Peninsula Ranges bighorn sheep, Sierra Nevada bighorn sheep, 

California condors, peregrine falcons, African elephants, and argali 

sheep in Mongolia. 

We need to update the Endangered Species Act to meet today’s 

scientific standards and to make use of today’s technologies. Genetic analyses, computer-aided modeling, statistical analyses have 

provided us with powerful analytical and predictive tools. These 

64

are some of the same technologies that have aided advancements 

in medicine, criminal justice, space exploration, and national defense. But more importantly, we need to update the standards for 

what constitutes best available science used in day-to-day ESA decisions. It appears there is a substantial disconnect between accepted scientific standards in mainstream science and how science is 

used in decisions regarding endangered species. 

The Preble’s meadow jumping mouse and bighorn sheep in the 

Peninsula Ranges, both projects I have worked on, provide examples of fundamental ESA science issues—listings made without 

adequate questioning of evidence, hypothetical threats treated as if 

they are real threats. Anecdotes and unsubstantiated opinion are 

created with equal seriousness to conclusions that are reached 

through empirical data and hypothesis-testing. Objective and independent peer review are often lacking. We would never approve 

new drugs or go to the moon or cure cancer and AIDS on the kind 

of evidence which can pass for scientific evidence in the administration of ESA. 

Endangered species management can produce passionate empathy or disdain for some listed species. When passion and the lack 

of critical thinking are coupled with the decisionmaking power 

under the ESA, decisions can easily deviate from having a sound 

scientific basis. The consequences of this can be far-reaching. 

What can we do about this problem? The solution is to raise the 

bar on scientific standards used in support of ESA decisions and 

more clearly defined disputable terms. I urge the Committee to 

support bills like H.R. 2933. This bill raises the bar on the definition of critical habitat and therefore represents a significant step 

along the path of ESA reform. It also allows us to calculate the real 

cost of critical habitat designations or the benefits. 

By delaying the designation of critical habitat until there is a recovery plan, H.R. 2933 provides the Fish and Wildlife Service with 

more time to gather evidence on species occurrence, and also it provides time for communities to develop alternative strategies for 

habitat conservation, including those with incentives. 

In addition to the proposed changes in H.R. 2933, I urge the 

Committee to consider requirements for scientifically defensible 

tests of genetic uniqueness for candidate species on this and other 

ESA bills. This question should be asked before listing petitions are 

considered or critical habitat is designated. 

Furthermore, protection of species should deal with real observable threats and not hypothetical threats. Recovery goals should be 

realistic and achievable. Empirical evidence and predictive models 

should be utilized to define critical habitat. Objective and independent peer review should be sought for listings, recovery plans, 

critical habitat, biological opinions and delistings. 

And finally, it is presently difficult for the Service to admit and 

revise some errors on critical ESA decisions. In the field of science, 

however, all hypotheses are potentially falsifiable with new evidence or new analyses. A good scientist is a good skeptic, especially 

their own hypothesis. As an example, I provide for the record correspondence and manuscript review that I solicited from Dr. Phillip 

Krutzsch, the scientist who originally described the Preble’s meadow jumping mouse as a new subspecies in 1954. I did a research 

65

project where we tested that utilizing genetic data and morphologic 

data. Krutzsch is 84 years old, underwent open heart surgery in 

January, and is still an active scientist. Regarding the taxonomic 

reevaluation of this subspecies he wrote, ‘‘The study clearly invalidates Z.h. preblei and demonstrates its relationship to Z.h. 

campestris. Perhaps most significant is the model you provide to 

unequivocally establish the uniqueness of an organism and its relationships before declaring it in danger of extinction. Such an analytical approach would prevent the implementation of a process to 

support an agenda or a point of view. I can think of other listed 

species that could have benefited from a prior, detailed, scientific 

appraisal.’’

In conclusion, Congress and the people expect much from science 

in protecting and preserving existing species. Many of the choices 

contained in the ESA use vague and broad words to convey a desire 

but not a path to achieve that desire. Litigation has been the chosen method to describe that path and has led to the misallocation 

of resources and unnecessary limitation on many benign activities. 

Congress needs to define the path more precisely, place better and 

more limited definitions on disputable terms, and ensure that decisions are based on scientific evidence. Thank you. 

[The prepared statement of Dr. Ramey follows:]

Statement of Rob Roy Ramey II, Ph.D., Department of Zoology Chair and 

Curator of Vertebrate Zoology, Denver Museum of Nature & Science 

My current position is Chair of Zoology and Curator of Vertebrate Zoology at the 

Denver Museum of Nature & Science. I earned a master’s degree from Yale University in Wildlife Ecology and a Ph.D. from Cornell University in Ecology and Evolutionary Biology. As a field biologist and conservation geneticist, I have 23 year of 

experience in conservation, research and management of threatened and endangered wildlife. I have worked on peregrine falcons, California condors, bighorn sheep 

in the Peninsular Ranges of California, Sierra Nevada bighorn sheep, African elephants in Zimbabwe, and argali sheep in Mongolia. It was my doctoral dissertation 

research (Ramey 1993, 1995) and subsequent research (Wehausen and Ramey 1993, 

2000) that refuted much of the old taxonomy on mountain sheep (Cowan 1940) and 

prevented the U.S. Fish and Wildlife Service (USFWS) from listing bighorn sheep 

from the Peninsular Ranges as an invalid subspecies. My most recent project has 

been to test the taxonomic validity of the Preble’s meadow jumping mouse, a currently listed threatened subspecies in Colorado and Wyoming. These experiences 

have given me a unique perspective on the Endangered Species Act (ESA), and led 

to my concern with the standards of evidence and strength of scientific inference 

that are often used in management decisions for threatened and endangered species. 

Why the Endangered Species Act is outside the scientific mainstream 

When the ESA was drafted thirty years ago, many of the scientific tools and concepts that are now basic to the field of conservation biology did not exist. We need 

to update the ESA to meet today’s scientific standards and to make use of today’s 

technologies. For example, genetic analyses are now routine, and can be easily used 

to test hypotheses about the genetic uniqueness of populations and subspecies. Also, 

the Internet now provides unprecedented opportunities for public access to information that was not available thirty years ago. 

While the ESA is in need of updating to keep pace with the tools of science, I 

see a more fundamental problem with the application of the ESA, one that has become a major source of controversy and litigation. That is the wide latitude for interpretation of what constitutes best available science in making ESA decisions. 

There can be a substantial disconnect between accepted scientific standards and 

how science is used in decisions regarding endangered species management. 

The scientific method requires that when there are clear-cut criteria laid out in 

advance of data collection, and as a result there is less room for bias through the 

selective interpretation of the information. In other words, the more precisely we 

draw the line of demarcation for testing a hypothesis, the more objective the decision. This is the basic scientific method (Platt 1964). 

66

Yet, when it comes to ESA decisions, opinions, interpretations of limited anecdotal 

observations, and hypothetical threats are sometimes given equal or greater weight 

than conclusions reached through hypothesis testing. Much discretion is left in the 

hands of the USFWS biologist(s) making the decisions. These biologists are given 

the difficult task of assimilating large amounts of information from disparate 

sources in a limited amount of time. Although there are many competent and dedicated biologists at the USFWS, their effectiveness may be compromised by being 

overworked and unfamiliar with the specialized fields from which they are evaluating evidence (General Accounting Office 2001). 

In my experience, when USFWS biologists issue decisions on listings or biological 

opinions, they rarely have the benefit of a truly independent peer review. In fact, 

until the Office of Management and Budget recently proposed federal standards for 

peer review (Office of Management and Budget 2003), this process itself was undefined and open to interpretation. In the mainstream of scientific investigation, independent peer review is the standard by which the quality of science is evaluated. 

This process involves evaluating claims on the basis of their falsifiability, logic, comprehensiveness, honesty, repeatability, and sufficiency (Lett 1990, Lipps 1999). 

Independent peer reviewers are technically competent and have no real or perceived conflict of interest. The comments and questions they generate are used by 

an equally independent editor, who acts in the role of a judge, to request the author 

to make changes suggested by the peer reviewers, and then ultimately decides 

whether to accept or reject the paper. In the current ESA decisionmaking process, 

this task of editor can also fall on the shoulders of the USFWS biologists. It has 

been my experience with the USFWS peer review process that a document may 

carry the claim of being peer reviewed but the peer reviews were less than ideal. 

In one case, the peer reviewer comments were ignored and in another case, the peer 

reviewers did not appear to be independent. As a result, critical ESA decisions do 

not always benefit from a truly objective and independent review. 

The reasons outlined above could help explain why many ESA decisions end up 

being challenged in the courts. These may also be some of the same reasons that 

critics of the ESA perceive that recovery plans and goals are not realistic or achievable. If science is not guiding the direction of conservation efforts under the ESA, 

then what is? In a recent paper by Restani and Marzuluff (2002), the authors show 

that lawsuits or the threat of lawsuits drive the allocation of resources to listing and 

recovery effort. 

The progress that H.R. 2933 represents for the ESA 

What does the above scientific discourse have to do with H.R. 2933? This bill is 

a solid step in the right direction towards meaningful ESA reform. Public support 

for the ESA, and long term effectiveness of species recovery under the ESA can be 

strengthened if we raise the bar on scientific standards used in support of decisions. 

More rigorous scientific standards must be applied at each level of the endangered 

species recovery process, including: listings, critical habitat designations, recovery 

plans, biological opinions, habitat conservation plans, and delistings. We can save 

billions of dollars and needless lawsuits by being more specific about the scientific 

criteria used in the ESA. Our goal should be to prevent decisions from going to the 

courts in the first place. 

H.R. 2933 proposes specific changes that would more precisely define critical 

habitat, and therefore can do more for species preservation by focusing effort where 

it will make the greatest difference. This is an important departure from the wide 

latitude currently found in the ESA for declaring critical habitat. 

H.R. 2933 delays the designation of critical habitat until there is a recovery plan, 

and therefore provides the USFWS with more time to gather evidence on species 

occurrence. This time can allow the USFWS to make critical habitat designations 

that will provide long term benefit to species and be scientifically defensible. 

H.R. 2933 excludes areas with Habitat Conservation Plans (HCPs) or alternative 

conservation plans from critical habitat designations, therefore providing an incentive for communities to be proactive in habitat conservation efforts. The potential 

for new, innovative habitat conservation strategies to be developed under this provision is one of the most positive aspects to this bill. One such strategy could be incentive-based habitat conservation programs at a state or county level. 

H.R. 2933 proposes important changes to the process of designating critical habitat and involving the public in this process. 

While I agree with the proposed changes, I offer the following as examples of some 

fundamental ESA science issues that need to be addressed for H.R. 2933 to have 

a full measure of effectiveness. 

67

Test for genetic uniqueness before listing 

What happens to critical habitat if new information comes along that suggests 

part of the original listing was in error? In the case of the Preble’s meadow jumping 

mouse, our scientific team determined that the mouse was not genetically distinct 

for the DNA sequences examined, or morphologically unique relative to a nearby 

subspecies. In simple words, the threatened subspecies was not really a valid subspecies and when combined with the populations of the genetically and 

morphologically indistinguishable nearby subspecies, the Preble’s meadow jumping 

mouse is not a threatened subspecies (Ramey et al. 2004). This discovery came 

about six years after Preble’s meadow jumping mouse was listed as threatened (U.S. 

Fish and Wildlife Service 1998), and one year after critical habitat was declared. 

Therefore, H.R. 2933 does not address the larger issue of: ‘‘Is this population of organisms genetically unique in the first place?’’ This question should be asked before 

listing petitions are considered. 

There is good reason to view as suspect the taxonomic work on species and subspecies prior to the late-twentieth century. Species and subspecies descriptions relied on small sample sizes, had little or no quantitative basis, and were based largely on opinion. Essentially, a species or subspecies was what a good taxonomist said 

it was. For example, the only quantitative measures to support the designation of 

Preble’s meadow jumping mouse as a new subspecies in 1954 were skull measurements from three adult specimens (Krutzsch 1954). No statistical tests were done 

to compare it to a nearby subspecies. In contrast, our study utilized substantially 

larger sample sizes for skulls and DNA sequences. Both data sets were subject to 

multivariate statistical analyses and these results were used to test the hypothesis 

of genetic uniqueness. 

A great deal of conservation effort and resources can be put to better use if 

species, subspecies and distinct population segments are tested for genetic uniqueness prior to listing. Similar proof should be provided in consideration of delisting 

petitions. We now have the conceptual and analytical tools to more cleanly distinguish species, subspecies, and distinct population segments (DPS). I hope future 

drafts of this or other bills will require scientifically defensible tests of genetic 

uniqueness. 

Why the designation of critical habitat should be based on quantitative evidence 

I agree with H.R. 2933’s clarification of Critical Habitat and I hope that this definition can be made even more specific. In some cases, critical habitat has been 

based on unverifiable opinion and not quantitative evidence, such as physical evidence or documented observations of species presence. Critical habitat designations 

that are not based on quantitative evidence can potentially result in misdirected 

conservation effort. For example, the recovery plan for bighorn sheep in the Peninsular Ranges (listed as a Distinct Population Segment) specifically called for a quantitative habitat analysis, and an extensive database of 21,055 observations was compiled. However, critical habitat was based upon the opinions of recovery team members (U.S. Fish and Wildlife Service 2000) and not on a quantitative analysis of the 

available data. There was no incentive or requirement that critical habitat should 

be based on anything more substantial. I know this situation well because I was 

a peer reviewer on the recovery plan, and I am a co-author on a soon to be published paper that used that USFWS database to develop a quantitative model of bighorn habitat use (Turner et al., in press). In that paper, we describe how approximately 66% of the critical habitat in the North Santa Rosa Mountains has a near 

zero probability of bighorn sheep occupancy. 

Much of the area with a near zero probability of bighorn sheep use is subject to 

extensive recreational trail use restrictions. This begs the question: Should we be 

denying public access to public lands, or subject private landowners to restrictions 

on the basis of unverifiable opinion and a remote possibility that an endangered 

species may pass through an area? This example illustrates the impact that an erroneous critical habitat designation can have on the public. It also demonstrates how 

a quantitative analysis of available data can increase the probability of protecting 

the highest value habitat to an endangered population while reducing the scale of 

unneeded restrictions on nearby public and private land. 

Why Habitat Conservation Plans (HCPs) do not always result in the reduction of 

threats to listed species 

I agree with H.R. 2933 in excluding areas covered by HCPs from critical habitat. 

This change to the ESA could be a powerful incentive for communities to be 

proactive in conservation planning and to involve the public in this process. However, HCPs do not automatically guarantee that demonstrated causes of species decline will be addressed or that decisions will be made based upon the best available 

68

scientific information. Thus, communities may view HCP’s with suspicion unless the 

HCPs prioritize the mitigation of threats, with the highest priority going to those 

based on verifiable scientific evidence. 

For example, the current draft of the Coachella Valley Multiple Species Habitat 

Conservation Plan in Southern California substantially overlaps the critical habitat 

for bighorn sheep from the Peninsular Ranges. This HCP includes an interagency 

plan that imposes restrictions on backcountry trail use by hikers and horseback riders, based on the hypothetical threat of human disturbance. This presumed obstacle 

to bighorn sheep recovery is supported by nothing more than speculation in the literature. Like some other purported threats to endangered species, it lacks a plausible cause and effect mechanism. Some areas cited for closure or restrictions have 

no credible evidence of bighorn sheep use at all. 

Demographic data collected on the bighorn sheep population show that it has increased well in recent years with the trail use that is now proposed to be curtailed. 

In contrast, the primary demonstrated causes of bighorn sheep decline in this 

DPS, that are supported by empirical evidence, disease (DeForge et al. 1982, Turner 

and Payson 1982a, b, Elliot et al 1994) and predation by mountain lions (Hayes et 

al. 2000), were not given the same priority in the Recovery Plan or the HCP. For 

example, not a single mountain lion had been removed from this area since the listing and three potential sources of exotic respiratory disease have not been double 

fenced. 

This is an example of the lack of action on known causes of mortality and a focus 

of effort on hypothetical causes, such as human disturbance. It illustrates the extent 

to which opinion, and selective citation and interpretation of the literature can influence HCP actions and potentially violate the public’s confidence in the ability of the 

ESA to assure recovery of a species. 

Endangered species management can produce passionate empathy for some listed 

species. When passion and a lack of critical thinking are coupled with decision making power under the ESA, decisions easily deviate from having a sound scientific 

basis. Firmly held beliefs about the hypothetical threats to or genetic uniqueness 

of listed species are similar to those found in believers of paranormal phenomena. 

While additional evidence is always called for, critical tests that could potentially 

falsify the belief are typically lacking. Like-minded authorities are called in and 

their opinions are used in support of those beliefs. Time and money are wasted, because courses of action are followed on the basis of belief instead of science. This 

lack of critical thinking jeopardizes the recovery of endangered species and undermines public support for the ESA. 

Conclusions 

The solution to each one of the examples above is to raise the bar on the scientific 

standards used in support of ESA decisions. 

H.R. 2933 raises the bar on the definition of critical habitat. This more precise 

definition allows science to better inform the policy choices which the ESA requires. 

I offer the following specific suggestions that could further improve the science 

used in support ESA decisions: 

Require that candidate species, subspecies, and distinct population segments be 

tested for genetic uniqueness before listing. In some cases that will not mean gathering new data but analyzing existing data in order to test the hypothesis of uniqueness. 

Require that critical habitat, specifically the ‘‘geographical area occupied by the 

species’’ and ‘‘essential to the conservation of the species,’’ be based on a quantitative analysis of reliable data, and the data used for such determination be publicly available. 

Protection of species should deal with real, observable threats and not hypothetical threats. In recovery plans and HCPs, the presumed threats to endangered 

species need to be cast in terms of questions and the questions ranked in order of 

importance. Each question should then receive a problem analysis and be broken 

down into component parts that can be treated as testable hypotheses. In this manner, hypothetical threats can be properly prioritized and investigated as testable 

hypotheses. 

Require that recovery goals be realistic and achievable. 

Require objective and independent peer review of proposed listings, recovery 

plans, critical habitat, biological opinions, and delistings. Require reviewers to disclose potential conflicts of interest. These same requirements should be applied to 

key evidence used in support of these proposed ESA decisions. 

Congress and the people expect much from science in protecting and preserving 

existing species. Many of the choices contained in the ESA use vague and broad 

words to convey a desire but not a path to achieve that desire. Litigation has been 

69

the chosen method to describe that path and has led to misallocation of resources 

and unnecessary limitation on many benign activities. Congress needs to define the 

path more precisely, place better and more limited definitions on disputable terms, 

and insure that decisions are based on scientific evidence. 

Thank you very much. 

Literature Cited 

Cowan, I.M. 1940. Distribution and variation in the native sheep of North America. 

American Midland Naturalist 24:505-580. 

DeForge, J. R., D. A. Jessup, C. Jenner, and J. E. Scott. 1982. Disease investigations 

into high lamb mortality of desert bighorn in the Santa Rosa Mountains, 

California. Desert Bighorn Council Transactions 26:76-81. 

Elliot, L. F., W. M. Boyce, R. K. Clark, and D. A. Jessup. 1994. Geographic analysis 

of pathogen exposure in bighorn sheep (Ovis canadensis). Journal of Wildlife 

Diseases 30:315-318. 

General Accounting Office. 2001. Challenges to managing the Carlsbad, California, 

Field Office’s endangered species workload. GAO-01-203. 56pp. 

Hayes, C.L., E.S. Rubin, M.C. Jorgensen, R.A. Botta, and W.M.Boyce. 2000. Mountain lion predation of bighorn sheep in the Peninsular Ranges, California. Journal of Wildlife Management 64(4):954-959. 

Krutzsch, P. H. 1954. North American jumping mice (genus Zapus). University of 

Kansas Publications, Museum of Natural History, 4:349-472. 

Lett, J. 1990. A field guide to critical thinking. Skeptical Inquirer 14:153-160. 

Lipps, J.H. 1999. Beyond reason: science in the mass media. In: Evolution! Facts 

and Fallacies. pp 71-90. Academic Press. 

Office of Management and Budget. 2003. Proposed Bulletin on peer review and information quality. Federal Register 68(178):54023-54029. 

Platt, J.R. 1964. Strong inference. Science 146:347-353. 

Restani, M. and J.M. Marzuluff. 2002. Funding extinction? Biological needs and 

political realities in the allocation of resources to endangered species recovery. 

BioScience 52(2) 169-177. 

Ramey, R. R. 1993. Evolutionary genetics of North American mountain sheep. Ph.D. 

dissertation, Cornell University, Ithaca, New York. 

Ramey, R.R. 1995. Mitochondrial DNA variation, population structure and evolution 

of mountain sheep in the southwestern United States and Mexico. Molecular 

Ecology 4:429-439. 

Ramey, R.R., H.P. Liu, and L. Carpenter. 2004. Testing the taxonomic validity of 

the Preble’s meadow jumping mouse (Zapus hudsonious preblei). Report to the 

Governor of Wyoming and the U.S. Fish & Wildlife Service (Revised). Denver 

Museum of Nature & Science. 27pp. 

Turner, J. C., and J. B. Payson. 1982a. The occurrence of selected infectious diseases 

in the desert bighorn sheep, Ovis canadensis cremnobates, of the Santa Rosa 

Mountains, California. California Fish and Game 68:235-243. 

Turner, J. C. and J. Payson. 1982b. Antibody prevalence against selected infectious 

disease agents in desert bighorn sheep, Ovis canadensis cremnobates, herds of 

the Santa Rosa Mountains, California. Journal of Wildlife Diseases 18:243-245. 

Turner, J.C., C.L. Douglas, C.R. Hallum, P.R. Krausman, and R.R. Ramey (in press, 

Wildlife Society Bulletin). Determination of critical habitat for the endangered 

Nelson’s bighorn sheep in southern California. 

U.S. Fish & Wildlife Service. 1996. Policy regarding the recognition of Distinct 

Vertebrate Population Segments under the Endangered Species Act. The Federal Register 61:4722. 

U.S. Fish & Wildlife Service. 1998. Final Rule to list the Preble’s meadow jumping 

mouse as a Threatened Species. The Federal Register 53(92):26517-26530. 

U.S. Fish & Wildlife Service. 2000. Recovery Plan for bighorn sheep in the Peninsular Ranges, California. U.S. Fish and Wildlife Service, Portland, OR. 

xv+251pp. 

Wehausen, J.D. and R.R. Ramey. 1993. A morphometric reevaluation of the Peninsular bighorn subspecies. Desert Bighorn Council Transactions 37:1-10. 

Wehausen, J.D. and R.R. Ramey. 2000. Cranial morphometric and evolutionary relationships in the northern range of Ovis canadensis. Mammalogy 81(1):145-161. 

[Dr. Ramey’s response to questions submitted for the record 

follows:]

70

Response to questions submitted for the record by Rob Roy Ramey II, 

Ph.D., Department of Zoology Chair and Curator of Vertebrate Zoology, 

Denver Museum of Nature & Science 

Questions from Chairman Richard Pombo 

(1) Dr. Ramey, you mentioned that you hope future drafts of this bill will 

address the need for scientifically defensible tests of genetic uniqueness. 

• Can you explain why this is so important? 

• Do you have any specific examples? 

RESPONSE: 

Look Before You Leap -- Genetic Testing and Objective Peer Review 

The Application of ‘‘Best Available Science’’ to Determine Uniqueness of Species, 

Subspecies or Distinct Population Segment as a Prerequisite to Listing as a ‘‘Threatened’’ or ‘‘Endangered’’ Species. 

The Problem: 

The public has a finite amount of resources for protection of species that are 

threatened with extinction. Listings under the ESA currently occur without a critical review of genetic uniqueness of the species, subspecies or distinct population 

segment prior to being listed. This can lead to a misallocation of recovery effort, 

unneeded economic costs, and erosion of public confidence in the administration of 

the ESA if, at a later date, a listed species is discovered not to be genetically unique. 

Potential Solutions: 

(1) Genetic Testing—A Prerequisite of Listing 

Require outside petitioners and internal listing proposals to provide reliable evidence that the proposed entity to be listed is genetically unique. In some cases that 

will not mean gathering new data but analyzing existing data in order to test the 

hypothesis of uniqueness. Evidence would have to meet modern scientific standards 

in the fields of evolutionary genetics and systematics. This is especially needed 

where original taxonomic inference was weak and based primarily on opinion rather 

than reliable data. This requirement would winnow out substandard science and 

opinion in the initial phase of listing a species. 

(2) Independent Peer Review to Assure Objectivity and Scientific Integrity 

In considering a proposed listing, the USFWS should either (a) be required to organize an independent peer review of the information by qualified scientists who 

conduct research in appropriate fields, or (b) convene a permanent panel of appropriate scientists that reviews all proposed listings relative to evidence of genetic 

uniqueness. This latter panel might be made up entirely of qualified scientists from 

various governmental agencies, or a mixture of government and academic scientists. 

Where appropriate, this panel might solicit input from outside experts. A mandated 

written review of the evidence for each proposed listing would force serious scrutiny. 

This could be similar to a Supreme Court decision. In some ways it carries similar 

weight in that the future of a potentially unique population of organisms lies in the 

balance. That written review might serve importantly in some cases as impetus for 

the development of further data. 

Examples of Listings Based on Weak Evidence of Genetic Uniqueness: 

(1) The Preble’s meadow jumping mouse (Zapus hudsonius preblei) was described 

by Krutzsch (1954) as a new subspecies that he split from Z.h. campestris to the 

north. The weakness of the original subspecies description included: limited numbers of specimens used to describe the subspecies (3 adult skulls measured, 4 adult 

skins examined), qualitative descriptions that would not meet modern standards, 

and overlap in physical appearance to other Zapus species and subspecies. 

That subspecies was petitioned for listing in 1994, listed in 1998, and critical 

habitat was designated in 2003. Although various genetic and morphometric studies 

were conducted, none rigorously tested the uniqueness of the Preble’s meadow jumping mouse until the Denver Museum of Nature & Science did so beginning in 2002. 

The results strongly refuted the genetic and morphological uniqueness of the 

Preble’s meadow jumping mouse and were released in December 2003. Delisting petitions that cite this and other new information were filed and a decision by the 

USFWS about this is now pending. 

The most fundamental failure in this process was the lack of a critical independent review that would have revealed the weakness of the original subspecies 

description on which the listing was based. Such an independent review would have 

requested a more rigorous test of the genetic uniqueness prior to listing. 

71

(2) Bighorn sheep in the Peninsular Ranges were proposed to be listed as a subspecies (O. c. cremnobates) in 1991, but mitochondrial DNA and morphological testing revealed that they were not a unique (Wehausen and Ramey 1993, Ramey 1995) 

and this subspecies was synonymized with (Ovis canadensis nelsoni). A subsequent 

paper (Boyce et al. 1997) using data from two different nuclear DNA markers produced apparently conflicting results for one set of genetic markers and that equivocal result and interpretation became the support for the genetic distinctiveness 

cited in the listing as a distinct population segment in 1999. I know that data set 

well because I was a coauthor on the paper. 

I detailed my concerns about the lack of specific genetic tests for the presumed 

distinctiveness of this population in the listing in a letter dated 19 January 1999 

and hand delivered to Secretary Babbitt. I never received a reply to that letter. In 

2000, a recovery plan was completed for bighorn sheep in the Peninsular Ranges, 

as was critical habitat designation. Lawsuits, subsequent settlement agreements, a 

General Accounting Office investigation, and a draft multispecies habitat conservation plan are all actions that have occurred consequent to that listing. 

The failure in this case was that selective citation of the literature was used as 

the basis of listing, whereas apparently conflicting data sets would have caught the 

attention of independent peer reviewers. The unsupported notion that this population is genetically distinct from others in the desert is a firmly-held belief that 

limits affects future conservation options. 

(3) Other Recent Examples: 

Other, more recent examples of new genetic data sets refuting genetic uniqueness 

of listed subspecies or distinct population segments can be found with the California 

gnatcatcher and Western snowy plover. An example of genetic and morphological 

data confirming the genetic uniqueness of an subspecies prior to listing can be found 

with Sierra Nevada bighorn sheep. 

The CHAIRMAN. Thank you. 

Ms. Clark? 

STATEMENT OF JAMIE RAPPAPORT CLARK,

EXECUTIVE VICE PRESIDENT, DEFENDERS OF WILDLIFE 

Ms. CLARK. Mr. Chairman and members of the Resource Committee, thank you for the opportunity to testify today on 

H.R. 2933, the Critical Habitat Reform Act of 2003. I am Jamie 

Rappaport Clark, Executive Vice President of Defenders of Wildlife, 

a 501(c)(3) nonprofit organization with more than 475,000 members 

and supporters. Our mission is the protection of all fish, wildlife 

and plants and the habitat that sustains them. 

Today loss of habitat is widely considered by scientists to be the 

primary cause of species extinction and endangerment. And while 

the Act has successfully prevented hundreds of species from going 

extinct, loss of habitat continues to threaten scores of plants and 

animals, including many species that are already protected under 

it. 

Despite its billing as a critical habitat reform act, there is, in reality nothing reforming about H.R. 2933. It would effectively eliminate one of the Endangered Species Act’s central tenets—the designation and protection of critical habitat, and replace it with absolutely nothing. H.R. 2933 would fundamentally weaken the protection of habitat by effectively making the designation of habitat discretionary, by requiring critical habitat only ‘‘to the maximum extent practicable, economically feasible, and determinable.’’ This 

would have the practical effect of making the designation of critical 

habitat the exception, rather than the rule. 

H.R. 2933 would also move the designation of critical habitat 

from the time of listing to the time a recovery plan is approved by 

72

the Secretary, a shift that Defenders does not oppose. But by requiring the designation of critical habitat concurrently with the approval of the recovery plan without imposing a deadline for such 

plans, H.R. 2933 would not only greatly diminish if not eliminate 

meaningful enforcement of the provision; it would further delay development of any blueprint for species recovery. 

And finally, H.R. 2933 also fails in that it neglects to address at 

all the grave problems regarding this Administration’s implementation of the act’s critical habitat provisions, problems that are severely undermining and exacerbating the challenges associated 

with the conservation of endangered and threatened species habitat. 

But let us take a step back for a minute and look at the broader 

issue. What we are ultimately talking about today is the kind of 

world we will be leaving to our children. Unfortunately, our nation 

has not always succeeded in protecting a conservation legacy as 

rich and diverse as the one we inherited. Often we sacrifice tomorrow’s bounty for today’s gains. Some of these failings are reversible 

but others are not and the most permanent of them is extinction. 

In 1973 our nation’s government passed the Endangered Species 

Act with wide bipartisan support. Our leaders realized then what 

the years since have only confirmed—that we owe it to future generations to be good stewards of the environment and that good 

stewardship includes the prevention of species extinction. 

Congress also realized how vital habitat was to species recovery, 

so much so that they highlighted in the original construction of the 

Endangered Species Act the protection of habitat as one of its key 

purposes. Since then, the ideals behind the Endangered Species Act 

and the Act itself have continued to enjoy broad bipartisan support. 

A recent poll done by a coalition of conservation groups, including Defenders, revealed some astonishing numbers. Ninety percent 

of voters subscribe to the view that they owe it to their children 

and grandchildren both to be good stewards in the environment 

and to avoid causing species to go extinct. The Endangered Species 

Act itself enjoys the support of 86 percent of voters and a full 95 

percent agree and understand that one of the most effective ways 

to protect species is to protect the places in which they live. 

Clearly any suggestion that there is a groundswell of support for 

weakening the Endangered Species Act is unfounded. Voters are 

strongly supportive of species protection in general and the Act 

specifically, especially with regard to protecting habitat essential to 

species recovery. 

In summary, the Endangered Species Act with its central tenet 

of habitat protection continues to stand as one of our nation’s most 

important and effective instruments for preserving and restoring 

the conservation legacy we pass on to our children. We must never 

forget the central purpose of the Act and the extraordinary foresight of the act’s original authors, who saw the wisdom in both 

species conservation and habitat protection. After all, it hard matters what you do for a species on the brink of extinction if you do 

not protect their habitat. It is clear that if we are to recover species 

on the brink and prevent additional species from suffering a similar fate, we simply must do a better job of protecting the habitat 

they depend on. 

73

I challenge all of us as we discuss any proposed changes to the 

Endangered Species Act or its implementation to answer the question: Will it improve and ensure the conservation of habitat? It is 

only when affirmed with a positive answer that we have meaningful reform that will guarantee a rich legacy for future generations. 

Thank you. 

[The prepared statement of Ms. Clark follows:]

Statement of Jamie Rappaport Clark, Executive Vice President,

Defenders of Wildlife 

Mr. Chairman, Mr. Ranking Member and members of the Resources Committee, 

thank you for the opportunity to testify today on H.R. 2933, the ‘‘Critical Habitat 

Reform Act of 2003.’’ I am Jamie Rappaport Clark, Executive Vice President of Defenders of Wildlife. Defenders of Wildlife is a 501(c)(3) nonprofit organization with 

more than 475,000 members and supporters; our mission is the protection of all native wildlife, fish and plants and the habitat that sustains them. 

Before I address the specifics of H.R. 2933, I would like to say two things. 

First, as a rule, Defenders of Wildlife generally does not support piecemeal reauthorization of the Endangered Species Act. Reauthorization is best considered in the 

context of the Act’s entire framework in order to ensure all aspects of threatened 

and endangered species conservation are adequately addressed. 

Second, let’s take a step back and put the issue at hand today in context. What 

we are really talking about today is the kind of world that we will be leaving to 

our children. The greatest gift one generation leaves another is a better world. And 

it is the hope of all parents that the world they leave their children is as rich and 

diverse as the one they inhabit today. This is the lasting legacy that bonds one generation to the next. And in America, that legacy has always included a deep and 

abiding appreciation for the natural world. 

Whether one is a hiker or a hunter, a fisherman or environmentalist, liberal or 

conservative, we have all benefitted from our nation’s rich and abundant environment and the conservation legacy passed on to us by those who came before. And 

we bear a responsibility—a duty—to ensure that some measure of what we have received is there to be enjoyed by tomorrow’s children. 

Unfortunately, we have not always succeeded in protecting that legacy. Often we 

have sacrificed tomorrow’s bounty for today’s gains. Some of these failings are reversible, others are not. The most permanent of them is extinction. 

In 1973, our nation’s government embraced this truth and passed the Endangered 

Species Act. The bill sailed through both the House and Senate by wide bipartisan 

majorities. And it was a Republican President, Richard Nixon, whose signature 

made the Act law. 

Our leaders then realized what the years since have only confirmed: that we owe 

it to future generations to be good stewards of the environment—and that good 

stewardship entails the prevention of species extinction. This is a weighty responsibility—once species are gone, we cannot bring them back. 

The Endangered Species Act is the safety net for wildlife, plants, and fish on the 

brink of extinction. In so many ways, Congress was prescient in the original construction of the Endangered Species Act when it included the protection of habitat 

as one of its key components. After all, the very best way to protect species is to 

conserve their habitat. Indeed, today, loss of habitat is widely considered by scientists to be the primary cause of species extinction and endangerment. 

More than 30 years ago Congress recognized the impact habitat loss was having 

on wildlife and plants when it enacted the Endangered Species Act with the express 

purpose of ‘‘provid[ing] a means whereby the ecosystems upon which endangered 

species and threatened species depend may be conserved.’’ And while the Act has 

successfully prevented hundreds of species from going extinct, the fact is that loss 

of habitat continues to threaten scores of plants and animals, including many that 

are already protected under it. It is clear that if we are to recover currently listed 

species and prevent additional species from becoming endangered or threatened, we 

simply must do a more effective job of conserving the ecosystems (i.e., habitats) 

wildlife and plants depend on for their survival. 

Any proposed changes to the Endangered Species Act or its implementation, 

whether legislative or administrative, must ultimately be judged against that standard: Will it improve and ensure the conservation of habitat? When measured against 

this standard, H.R. 2933, the ‘‘Critical Habitat Reform Act of 2003,’’ fails miserably. 

Despite its title, there is in reality nothing reforming about H.R. 2933 and certainly 

74

not if one considers meaningful reform of the Endangered Species Act to be that 

which further improves the conservation of endangered and threatened species and 

provides a sure pathway to species recovery. Rather, H.R. 2933 would effectively 

eliminate one of the Act’s central habitat protections—the designation and protection of ‘‘critical habitat’’—and replace it with absolutely nothing. In other words, 

H.R. 2933 not only fails to improve the conservation of habitat under the Endangered Species Act, it actually would make the situation worse by effectively eliminating any protection for much if not most of the habitat endangered and threatened species need to recover. 

As currently required under the Endangered Species Act, the designation of critical habitat could provide several potential benefits for endangered and threatened 

species. I emphasize ‘‘could’’ and say ‘‘potential’’ because for most currently listed 

species, critical habitat has never even been designated, much less protected, and 

because, as discussed in greater detail below, the current Administration is now perversely using critical habitat as a tool to undermine, rather than advance, species 

conservation. 

But let us start by examining some basic truths about critical habitat designation 

as envisioned in the Endangered Species Act. • First, defined as that habitat which is ‘‘essential to the conservation’’ of endangered and threatened species, the designation of critical habitat should be important because it identifies, both geographically and in terms of physical and 

ecological features, that habitat an endangered or threatened species needs to 

recover. Thus, critical habitat should serve as an important recovery planning 

tool. • Second, the designation of critical habitat is the only provision under the Endangered Species Act that expressly requires the protection of unoccupied habitat, which is particularly important for migratory species. Since the single 

greatest cause of species endangerment is loss of habitat, most listed species 

will not recover to the point where the Act’s protections are no longer necessary 

unless the loss of habitat is not only stopped, but is actually reversed and sufficient areas are conserved to enable the species’ current population to expand. • Third, by encompassing unoccupied habitat, critical habitat also benefits species 

by often ensuring that federal actions with the potential to impact listed species 

habitat are reviewed by the U.S. Fish and Wildlife Service and/or National Marine Fisheries Service pursuant to the Act’s section 7 consultation provision. 

The section 7 consultation requirement is absolutely essential to ensuring that 

federal agencies do not undermine the conservation of listed species and, instead, actively utilize their existing authorities to promote species’ recovery and 

survival. • Finally, the designation of critical habitat is important because it triggers a 

substantive regulatory protection for species’ habitat—the prohibition on federal 

actions which are likely to result in the ‘‘destruction or adverse modification’’ 

of critical habitat. 

Defenders of Wildlife opposes H.R. 2933 as much for what it does not do as for 

what it does. H.R. 2933 would fundamentally and significantly weaken the protection of habitat under the Endangered Species Act by effectively making the designation and protection of habitat discretionary. With only two exceptions, current law 

requires the designation of critical habitat at the time an endangered or threatened 

species is listed. More importantly, the designation of critical habitat can be excused 

entirely only in the rare situation where it would actually harm the species. 

H.R. 2933, on the other hand, by requiring critical habitat only ‘‘to the maximum 

extent practicable, economically feasible, and determinable,’’ would effectively make 

the designation of critical habitat the exception, rather than the rule, and turn what 

is now a mandatory requirement into one that is almost entirely discretionary with 

the Secretary. Because it is the current Administration’s position that the designation of critical habitat is never ‘‘practicable’’ or ‘‘economically feasible,’’ H.R. 2933 

would effectively write the designation and protection of critical habitat out of the 

Act, thereby condemning species already in a precarious state to further decline and 

possible extinction. 

H.R. 2933 would also move the designation of critical habitat from the time of 

listing to the time a recovery plan is approved by the Secretary and eliminate any 

enforceable deadline regarding critical habitat. Making the designation of ‘‘recovery’’ 

habitat part of or at least concurrent with the development of a recovery plan makes 

sense and is something Defenders supports, but only if the Endangered Species Act 

is amended to provide for an enforceable recovery planning deadline. Currently, the 

Act does not impose a deadline for the development of recovery plans. Accordingly, 

by requiring the designation of critical habitat ‘‘concurrently with the approval of 

a recovery plan’’ but without imposing a deadline for such plans, H.R. 2933 would 

75

not only greatly diminish if not eliminate meaningful enforcement of this provision, 

it would further delay development of any ‘‘blueprint’’ for species recovery. 

H.R. 2933 also fails in that it neglects to address at all the grave problems regarding this Administration’s implementation of the Endangered Species Act’s critical habitat provisions which are severely undermining the conservation of endangered and threatened species habitat. Congress plainly intended the designation of 

critical habitat to be a central tool in achieving the Endangered Species Act’s goal 

of conserving endangered and threatened species. At the same time, Congress also 

provided that the Secretary take ‘‘into consideration the economic impact, and any 

other relevant impact’’ of designating critical habitat. This Administration, however, 

has turned the critical habitat provision entirely on its head; instead of a tool for 

conserving endangered and threatened species, the designation of critical habitat 

has become a mechanism for actually eliminating any meaningful protection for 

habitat deemed essential to species conservation. 

We have seen, for example, areas determined by Fish and Wildlife Service biologists to be essential to a species conservation excluded from or eliminated as officially designated critical habitat, only to then have other federal agencies, including 

the U.S. Army Corps Engineers, refuse to even consult with the Fish and Wildlife 

Service under section 7 of the Endangered Species Act regarding actions that will 

destroy and fragment such habitat. In a case involving the endangered cactus ferruginous pygmy-owl, this Administration has taken the extreme position that a federal 

agency has no obligation to even consult with the Service under section 7 of the Act 

unless its actions will directly impact habitat that is either occupied by an endangered species or formally designated as critical habitat, even though the agency’s action will result in the destruction of habitat determined by the Fish and Wildlife 

Service to be important to the species’ survival and recovery. 

This pattern is becoming increasingly worrisome as this Administration continues 

to exclude vast areas of essential habitat using flawed, one-sided economic analyses 

and other arbitrary reasons. For example, this Administration has steadfastly refused to consider the economic benefits associated with the designation of critical 

habitat, and even has gone so far as to delete from its published analysis a section 

on the economic benefits of designating bull trout critical habitat included in the 

original analysis by the Fish and Wildlife Service’s own economic consultant. This 

is not only bad economics, but it highlights in stark terms this Administration’s real 

agenda regarding critical habitat and species conservation under the Endangered 

Species Act. 

Under this Administration, the designation of critical habitat is no longer about 

protecting species and guiding species recovery, but instead has become simply a political opportunity to assault the Endangered Species Act, to make a mockery of the 

importance of habitat to species recovery and to make baseless assertions that ‘‘the 

Endangered Species Act is broken.’’ For example, despite continually complaining in 

press releases that its priorities are being dictated by court-ordered critical habitat 

designations rather than science, in reality, this Administration has failed to develop its own priorities at all regarding the backlog of overdue critical habitat designations. 

As the General Accounting Office recently found, ‘‘[t]he Service has been aware 

of problems with its critical habitat program for a number of years,’’ and has previously ‘‘announced its intention to streamline the process for designating critical 

habitat to be more cost-effective,’’ and to develop a much less labor-intensive process 

for describing the areas proposed for designation as critical habitat.’’ GAO, Endangered Species: Fish and Wildlife Service Uses Best Available Science to Make Listing Decisions, but Additional Guidance Needed for Critical Habitat Designations 35, 

36 (August 2003). Yet, according to GAO, ‘‘no additional guidance or revisions were 

issued, and the Service continues to follow the same unworkable system’’ for designating critical habitat. Id. (emphasis added). Thus, this Administration’s repeated 

claim that critical habitat is broken is spurious given that it has done absolutely 

nothing to administratively address the critical habitat backlog or reform the process. Plainly, this Administration seems much more interested in publicly criticizing 

the ESA and fomenting controversy than it is in meaningful reform. 

This Administration’s implementation of critical habitat designation and 

H.R. 2933 have moved the focus of the debate from where it rightfully belongs, and 

it is time to take the discussion to a different level: how can we move forward to 

keep the conservation of endangered and threatened species and their habitats the 

central focus of the Endangered Species Act so we can meet our responsibility to 

leave a rich and abundant natural legacy to future generations? 

In keeping with this view, any meaningful reauthorization of the Endangered 

Species Act’s critical habitat provision should encompass the following elements. 

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1. First and foremost, critical habitat’s original intent and purpose of identifying 

and protecting habitat needed for species’ conservation (i.e., recovery) must be 

maintained. There must be a transparent and scientifically rigorous process for 

identifying, both geographically and ecologically, a species’ recovery habitat. 

For example, the current distinction between occupied and unoccupied habitat 

makes no sense from a scientific or species conservation standpoint and should 

be eliminated. In addition, once identified, there must be regulatory protection 

for such habitat. The Act’s current prohibition on federal actions that are likely 

to result in the ‘‘destruction or adverse modification’’ of critical habitat, is, on 

its face, a reasonable standard, but one that must be defined to reflect the ultimate goal of recovery. 

2. The designation of critical habitat should become part of, or at least occur concurrent with, the development of a recovery plan, provided that the recovery 

planning process becomes subject to an enforceable deadline. 

3. Species recovery must be the primary focus and goal of identifying and protecting critical habitat. The current Administration’s fixation on speculative 

analyses of the potential economic costs of designating critical habitat as a 

means to effectively eliminate protections for habitat species need to recover 

is incompatible with this goal. Economic considerations should play a role in 

determining how best to protect habitat and achieve species recovery, rather 

than as a means to effectively foreclose even the chance of recovery, as is the 

case now. 4. Incentives must be provided to encourage private landowners to conserve habitat determined to be important to species’ recovery. 

5. Finally, a scientifically based and rational system or set of criteria for addressing the current backlog of species without critical habitat or any other meaningful habitat protections, together with adequate funding to administer the 

program, must be developed. 

In closing, let me say that the Endangered Species Act, with its central tenet of 

habitat protection, continues to stand as one of our nation’s most important and effective instruments for preserving and restoring the conservation legacy we pass on 

to our children. We must never forget the central purpose of the Act and the extraordinary foresight of the Act’s original authors, foresight that saw the wisdom in 

both species conservation AND habitat protection. Thank you. 

[Ms. Clark’s response to questions submitted for the record 

follows:]

Response to questions submitted for the record by Jamie Rappaport Clark, 

Executive Vice President, Defenders of Wildlife 

Questions from Chairman Richard Pombo 

1) Congress expressly directed (in the committee report for the bill that 

created the current critical habitat process, H. Rept. 95-1625, page 18) that 

the Secretary should be ‘‘exceeding circumspect’’ in designation of unoccupied habitat as critical habitat. • How could unoccupied habitat provide significant benefits if it was not 

intended to be extensively designated? 

So-called ‘‘unoccupied’’ habitat provides essential benefits for many species and is, 

in fact, from a biological and ecological standpoint, indistinguishable from ‘‘occupied’’ 

habitat. This fact is perhaps most evident with respect to migratory species which 

may only utilize a specific habitat to meet an essential life function (e.g., breeding) 

for a short period of time each year. The fact that such habitat is unoccupied for 

much if not most of the year, nonetheless, in no way diminishes its critical importance to the species’ sustainability. Moreover, because loss of habitat is the single 

greatest cause of imperilment for most threatened and endangered species, for these 

species to ever recover, which of course is the fundamental goal of the Endangered 

Species Act (ESA), sufficient habitat must be protected to enable their existing populations to expand and to ensure their long-term viability in the wild. On the other 

hand, simply protecting habitat where individual members of these endangered and 

threatened species are currently found will only condemn a species to the status quo 

at best and potential extinction at worst, in direct violation of the spirit and intent 

of the ESA. 

It should come as no surprise, therefore, that Congress explicitly affirmed the central importance of protecting ‘‘unoccupied’’ habitat in meeting the ESA’s central goal 

of recovering threatened and endangered species when it drafted the critical habitat 

provisions. Thus, the plain language of the ESA provides that ‘‘unoccupied’’ habitat 

77

is ‘‘critical habitat’’ if it is ‘‘essential to the conservation [i.e., recovery] of the 

species,’’ which is the same standard that governs the designation of ‘‘occupied’’ 

habitat. Accordingly, when considered in light of the ESA’s unambiguous language 

that critical habitat is that habitat, whether occupied or unoccupied, which is ‘‘essential to the conservation of the species,’’ the language in the legislative history 

referenced above stating that the Secretary should be ‘‘exceedingly circumspect’’ in 

the designation of unoccupied habitat, at most means that the Secretary should generally not designate more habitat than is essential to the species’ recovery. 

As Chief Justice Rehnquist has said, ‘‘reference to legislative history is inappropriate when the text of the statute is unambiguous.’’ Dept. of Housing and Urban 

Development v. Rucker, 535 U.S. 125, 132 (2002). 

2) In your testimony you allege that Congress plainly intended for the 

designation of critical habitat in achieving the ESA’s goals? • If this is what Congress intended, why did you not designate it while 

you were Director? • Why did you find it ‘‘not prudent’’ in almost all cases? 

When I became Director of the U.S. Fish and Wildlife Service in 1997, the agency 

was still trying to emerge from the impossible situation in which it had been placed 

when a year-long moratorium was placed on new listings and designation of critical 

habitat. In April 1995, Senator Kay Bailey Hutchison (R-TX) added the moratorium 

to P.L. 104-6, the Emergency Supplemental Appropriations and Rescissions Act. 

That moratorium remained in place through the budget battles of the FY 1996 appropriations process, extended by the numerous continuing budget resolutions necessary until the final FY 1996 Omnibus appropriations bill was enacted as 

P.L. 104-134. While the FY 1996 Omnibus appropriations bill retained the moratorium, final negotiations on the bill had resulted in the inclusion of provisions giving 

President Clinton the authority to suspend through waivers some of the most egregious anti-environmental riders in the bill, including the moratorium. The President 

exercised this authority and waived the moratorium when he signed the final bill 

into law in April 1996. 

During the year that the moratorium was in place, the listing program was effectively shut down, Fish and Wildlife employees were reassigned to other program 

work and more than 500 species slid closer to extinction, denied the legitimate protections of the Endangered Species Act. Final listing determinations for more than 

250 species formally proposed for listing by the Fish and Wildlife Service were precluded. An additional 270 species that had been determined by the Fish and Wildlife 

Service to possibly warrant protection could not be proposed for listing under the 

moratorium. The situation for many species in significant decline was truly desperate. An internal agency memo at the time stated, ‘‘Elimination of the listing program will mean that species which would have been listed as threatened will continue to decline, and may become endangered and are more likely to become extinct. 

Species which would have been listed as endangered will continue to decline and 

many will likely disappear altogether.’’

Once the moratorium was finally lifted, the agency was therefore in a true ‘‘emergency room’’ situation get these species under the Act’s protection before their status 

deteriorated even further. As the Fish and Wildlife Service realigned employees 

back into the listing program and we completed an evaluation of the situation, we 

decided it was of greater importance and more beneficial biologically to address the 

biological status of as many species as possible with the meager funding at our 

disposal—giving them at least the bare bones protection of the Act—rather than list 

fewer species so that we could designate critical habitat for those few. If the agency 

had had more funding at its disposal we could have done both. But it would have 

been irresponsible to ignore the serious backlog that existed as a result of the moratorium under the circumstances. 

The ripple effects of the moratorium are still being felt today. I believe the moratorium put the agency into a hole from which it is still trying to emerge, with a 

serious backlog of candidate species that still await consideration of Endangered 

Species Act protections. I hope Members of Congress will look to the impacts of the 

moratorium and consider its consequences when contemplating any such ill-advised 

anti-environmental riders in the future. 

The CHAIRMAN. Thank you. I want to thank the entire panel for 

your testimony. 

Miss Clark, in your testimony you talked about the results of a 

poll and where 80 plus percent of the American people are in terms 

of the Endangered Species Act and protecting habitat. And in lisVerDate 0ct 09 2002 11:21 Sep 24, 2004 Jkt 088533 PO 00000 Frm 00081 Fmt 6633 Sfmt 6602 J:\DOCS\93346.TXT HRESOUR1 PsN: KATHY
78

tening to the questions, I have not seen the poll but in listening 

to the questions the way that you testified, I would have been personally with the 80 percent plus if those questions were asked of 

me in the way that you presented them to the Committee. 

One of the problems that we have in trying to reform the Act and 

make changes is that is not what we are talking about. I do not 

think that Mr. Cardoza is trying to introduce a bill or is trying to 

amend the Endangered Species Act in a way that would remove 

protecting habitat. 

Now we may have a difference of opinion in terms of how do we 

do that, how do we have a system that works better than what we 

currently do, and you have testified before this committee many 

times, I have always had a great working relationship with you 

and I have always felt that in your time of service as part of the 

previous Administration, even though we may have disagreed, I always felt that you were doing what you felt was right and within 

the boundaries of the law, regardless of what the issue was. I always appreciated that and I think that is why we always got along 

when we were trying to work together on this. 

But what Mr. Cardoza is attempting to do is, I think, in line with 

what you said when you were the Director of Fish and Wildlife 

Service and that is to make the system work better than what it 

currently does, and there are ways to do that. And I would make 

an open invitation to you to work with you. If there are specific 

parts of this bill that you think go too far or are wrong in the way 

that they try to approach it, I would be more than happy to work 

with you to try to find that. But I do believe that this is the right 

direction to go in terms of trying to reform the critical habitat provisions that are in the bill. 

Ms. CLARK. Well, we would welcome working with the Committee 

to assure that any reforms, including critical habitat but since we 

are discussing critical habitat today, that it meet that test of sustainability of habitat protections for the long haul. I do not think 

anybody would disagree with that. 

The CHAIRMAN. I do not believe they do and I think that is what 

brought us to where we are today. I do not think it is helpful to 

the debate or the discussion. I have read some of the stuff in the 

paper over the last few days saying that this bill guts the Act and 

all this other stuff, which is blatantly untrue and everybody knows 

that it is untrue, but that is the level of debate that we have devolved into when it comes to the Endangered Species Act. 

I believe this is an honest attempt to try to make the Act work 

within the boundaries that we all have. You, as the former Director 

of Fish and Wildlife, repeatedly pointed out the shortcomings in the 

critical habitat process and that we needed to change that and reform that. Quotes from you have been put out there and we can 

spend all day doing that but at least point I do not think it is helpful. I just am trying to move forward in a bipartisan way of trying 

to come up with a way to fix this better and I appreciate you being 

here today and your testimony. 

I did want to ask Mr. Sunding a couple of questions in terms of 

his testimony and this is something that I think there is a lack of 

education or a lack of understanding when it comes to the Endangered Species Act and what some of the impacts are. 

79

I am assuming that you live near the university in what is probably one of the most expensive housing markets in the country, if 

not in the world. 

Mr. SUNDING. Yes, that is right. 

The CHAIRMAN. And my district, which is very close to the university, I have cities in my district where the average house is 

$650,000 plus. And most of the people that are your typical middle 

class working family could not afford to buy the house that they 

are living in because of those costs and the result of that. 

As a result, we are getting more and more people that are moving out into the Central Valley and into my home town of Tracy. 

We have just exploded in terms of population in my home town and 

now our average housing price is $350,000 plus and we are pricing 

people out of that market. 

In the context of all of that, the Endangered Species Act has 

played a major role in that and I would like to ask you if you could 

share with the Committee what role the Endangered Species Act 

has played in terms of those housing costs and the impact on your 

average middle class family that happens to live in that area. 

Mr. SUNDING. Yes, I would be happy to talk about that. Let me 

say first I had the very good fortune to attend a conference here 

last week sponsored by the Department of Housing and Urban Development on regulatory barriers to housing affordability and one 

of the main areas of focus of that gathering was the role of environmental regulations in decreasing housing affordability for some 

particularly vulnerable groups. 

So I will just say to begin, in general, that this is an area where 

researchers are beginning to connect the dots. There does appear 

to be a very strong connection. Having said that, I will also say 

that the connection is going to vary a lot from place to place. In 

particular, the role of environmental regulation in driving up housing prices and, by inference, the role of the ESA in driving up housing prices is going to vary a lot from place to place. The Bay Area, 

the Inland Empire area of Southern California, coastal areas of 

Southern California, those are three cases where I think you can 

make a very strong general argument that environmental regulations are both driving up housing prices and also, as you point out, 

pushing consumers to more and more distant locations, forcing 

them to commute longer and longer distances to their jobs, which 

causes all kinds of other regional economic and environmental 

problems. 

So I think the connection is quite strong even if, in fairness, it 

is just beginning to be understood by people at the university. 

The CHAIRMAN. Thank you. I appreciate your testimony and I 

would like the opportunity to continue to discuss that with you. 

Mr. Inslee. 

Mr. INSLEE. Thank you. 

There was a suggestion earlier during our discussion that because only a relatively small number of species have actually been 

recovered—I think someone used the number 12; I do not know if 

that is accurate or not—that somehow the Act is a failure; it has 

not provided Americans with substantial benefits. But it would appear to me that, at a minimum, it had given an opportunity for 

80

many, many species that probably or at least a significant chance 

would have been extinct by now had this Act not been in place. 

And just to give people a flavor of what we are talking about, if 

you look at the Act now, the woodland caribou, gone; the Columbian whitetail deer, gone; the jaguar, gone; the mountain beaver, 

the Point Arena Mountain beaver, gone; the ocelot, gone; the 

Sonoran pronghorn, gone; pygmy rabbit, gone; Hawaiian monk 

seal, gone; the bighorn sheep, gone; the Hawaiian duck, gone; the 

northern Apple Meadow falcon, gone. That is just the beginning of 

the list. 

It appears to me that the Act has had, at a minimum, a benefit 

of assisting the preservation of these species while we work on 

their recovery and at least has given a significantly better chance 

of at least keeping the genetic stock available while we work on 

these recovery plans. 

Would the panel pretty much agree with that? Would you all 

agree with that assessment? If anyone disagrees with that, feel free 

to—I am seeing mostly yesses and one quizzical look. So if you 

think of some other idea, let me know. 

I wanted to ask about this new guideline. I am told today after 

three plus years without guidance, after a court struck down what 

the Administration or the agency was doing, that the agency finally 

got around to doing something here and that is really troublesome 

to me because we really are trying to figure out whether the Act 

is broken or the actors are broken; namely, the agencies that implement the law. 

There was a GAO report—I do not know if you folks have seen 

it; it was requested by Mr. Pombo and others. It came out last year 

on the Endangered Species Act and what its conclusion was, I will 

just cite the title because it kind of says it in a nutshell. ‘‘Fish and 

Wildlife Service uses best available science to make listing decisions but additional guidance needed for critical habitat designations.’’

Basically the GAO study said the agency needs to get off the 

dime and issue some guidance. That is the problem here. The agency under this Administration has not acted. 

Now the question I have is some of you supported this bill, have 

you been on the agency’s case, in a polite way of saying it, since 

the Bush Administration came into office to get off the dime to 

issue some guidance here? 

Mr. LIEBESMAN. I will be the first to respond, Congressman. I, 

too, have been very troubled by the lack of guidance over the last 

couple of years. I think it is very unfortunate when courts are running the program and the Administration does not respond effectively to address some of those issues. I mean a case in point deals 

with the consideration of economics. The Cattle Growers case out 

of the Tenth Circuit basically took the Service historically to task 

for not adequately considering the broad-based economic effects of 

listing critical habitats. The message quite clearly out of that case 

is you really have to come up with clear-based guidance about how 

economics enters into the analysis, and now we are just beginning 

to see something. 

The other issue that I mentioned in my testimony that you 

picked up on in your questioning earlier is the Sierra Club case out 

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of the Fifth Circuit, which basically struck down the uniform 

standard that is applied by the Service historically for jeopardy, as 

well as adverse modification, saying that Congress intended a 

lower threshold when you are dealing with adverse modification of 

critical habitat, as opposed to jeopardy. You know, adverse modification goes toward the idea of recovery of the species, as opposed 

to jeopardy going to the issue of survival. And clearly the message 

from that decision is to go through a rulemaking. 

So indeed I have been on that case. I think it is very important 

that the Service move forward. It is good to see the guidance. But 

I do want to say one other thing. I do not think guidance is the 

only way. I feel very strongly that we need some clear legislative 

mandate to make this happen. 

Mr. INSLEE. I want to ask you about that mandate. Basically the 

thrust of the bill in a variety of ways—this is my characteristic and 

you may challenge it—I think weakens in a significant way the 

method of adopting critical habitat. For instance, it makes concurrent designation for recovery plan that does not have any deadline 

for that occurring. It restricts the critical habitat to the range of 

currently occupied area of the species but if you conclude scientifically that that is going to result in the extinction of the species, 

you have not solved the problem. 

On economic benefit, it does not define economic conditions. It 

could mean that just if the Administration does not appropriate 

enough money economically for the administration to do this, this 

problem does not get solved. 

Does anyone want to comment on those concerns that I have 

about this proposal? 

Ms. CLARK. If I could, and while I do not support the current 

form of the bill, I still have an opinion on the guidance that Judge 

Manson referred to. 

What I find most troublesome about his announcement about the 

guidance that nobody has seen and that I think is interestingly 

timed to today’s hearing is that for an issue that seems to have 

been as controversial, dating back to my time even with the Fish 

and Wildlife Service, I find it a bit curious and troubling that it is 

a guidance of such magnitude to provide guidance or policy for how 

the Service will move forward in critical habitat determination that 

it is not subject to public notice and comment? I had never heard 

of that before. Or that indeed, from what I understand, the Fish 

and Wildlife Service was not even involved in the development of 

the guidance. 

So I would just bring that to your attention. I am very interested 

in looking at how this Administration has determined that they 

would move forward with critical habitat determination. 

The concerns that you raised with the current bill are very real 

because at the end of the day it becomes a question not only of priorities but available resources. The notion of shifting the determination, science-based determination of habitat that is essential 

for recovery to the recovery planning stage, which would suggest 

an open, collaborative fashion for figuring out what is necessary to 

ensure safe passage to recovery, makes clear sense. But I can tell 

you after many years of implementing the Act in my former life 

that absent some kind of affirmative deadline and a hammer if you 

82

will to getting a recovery plan completed and over the finish line, 

not only will you not have recovery plans completed because of 

whipsawing of priorities but neither will you have habitat articulated and it becomes a double jeopardy problem. 

Mr. INSLEE. Just one very brief comment. I just think that is 

really an important point. Given the budgetary pressures that the 

agency is under, we have to have something to make sure these decisions get made in a timely fashion. Thank you. 

Dr. RAMEY. I wanted to disagree with your comment, the first 

blanket comment that all these species would be gone if it were not 

for the ESA. Let me speak specifically—

Mr. INSLEE. I want to make sure you understand my premise. I 

did not say they would all be gone. I wanted to say there would 

be a significantly increased opportunity for them to survive. I just 

want to make sure you understand. I did not say that they would 

all be gone. 

Dr. RAMEY. OK, but let me point out that in the case of Sierra 

Nevada bighorn sheep, they were specifically listed to gain Federal 

supremacy over state law to control mountain lion perdition, which 

was causing the significant decline in the population. The mountain lion population has crashed in the Eastern Sierra Nevada and 

the bighorn sheep population has increased dramatically in recent 

years and they have only removed two or three mountain lions 

from this area under the Act, but the mountain lions did it on their 

own. 

In the Peninsula Ranges, the primary causes for decline of that 

population initially from empirical evidence is mountain lion perdition, respiratory disease, and yet the effort is actually going to 

other areas for hypothetical threats, such as human disturbance. 

So in that particular case the real causes that are demonstrated 

are not being dealt with. 

Mr. LIEBESMAN. Can I comment very briefly? One of the things 

that I think is going to have to be thought through is that the 

Service has adopted a lot of recovery plans already. I do not have 

the numbers, but a lot of them have been in place and I understand that a lot of them are out of date and need to be updated. 

So I would agree in many ways with the premise that you raise, 

that you need to have some action-forcing mechanism to adopt 

these plans, but you have to put that in sort of a realistic context; 

that is, if plans have actually been adopted, do they need to be updated, when would they be updated, how would critical habitat tie 

into an updating of a plan, what plans have not been updated and 

need to move forward? So it is not so simple as saying well, let us 

just put a deadline for recovery plans. 

Resources are important. I could not agree with you more. If you 

are going to really achieve the goal of the Act you have to ensure 

that there are sufficient resources to develop recovery plans and to 

mesh all this together in a commonsense way, and we cannot do 

it in bits and pieces. 

So it is not an easy issue to say let us just have a deadline. 

There is a lot involved in this process. 

The CHAIRMAN. Mr. Walden. 

Mr. WALDEN. Thank you, Mr. Chairman. 

83

I think my colleague from Washington sort of made the case for 

why we need to fix what is wrong with the Endangered Species 

Act. We are losing species. We are not recovering them as fast as 

a lot of us would like to see. But it seems to me in this debate that 

designating critical habitat up and down a system, whatever it is, 

without having a recovery plan first is like trying to build a house 

without a plan. You can go to Home Depot and lock up everything 

that is there in the building but you only may need half of it and 

we do not know what we are going to end up with if we do not ever 

have a plan. 

And it seems like in the recovery planning process you could both 

develop a plan that would better for recovery of the species and 

produce more public support because then the public would know 

what it is we are trying to do and how we get there and how there 

is an end point. 

I face this problem in the Klamath Basin. When the scientists 

declared we had to keep a high lake level in Upper Klamath Lake 

to protect the suckerfish when, in fact, the biggest die-offs occurred 

during the highest lake level years and they cannot tell us how 

many fish were ever in the lake, how many are there now, or how 

many they want there when the plan is done. That, to me, forget 

deadlines; there is not even a plan and that is nuts. 

What we have to do is update this law so that we have a recovery plan, gather the information, and then decide what is necessary 

to achieve that plan. I mean it is a pretty simple planning process. 

I mean is it just me or does it look like all this is driven by whoever has a lawyer or wants to do fund-raising somewhere out there 

to support and featherbed their own nest oftentimes, rather than 

dealing with what is at the top of the threatened list? Is this not 

litigation-driven? Does anybody want to tackle that? 

Mr. LIEBESMAN. Since I am the only lawyer on the panel, I guess 

by default I have to respond to your comment. 

I think there has been a tremendous amount of litigation that 

unfortunately has driven the process and I think a lot of it is because you have deadlines in the bill, in the original Act, that were 

unrealistic. Critical habitat has deadlines about within a year of 

listing and the Service historically, in my view, did not think critical habitat was that important. They said let us put our resources 

elsewhere. They said that basically the standard for adverse modification, same as jeopardy, Section 7, no difference. 

So what happened is that smart plaintiffs in the environmental 

community and elsewhere said well, here are deadlines; we can 

force that by going in and filing a citizen suit and working out settlements and that, of course, starts the cycle of a schedule. Then, 

of course, the plan comes out oftentimes not tied to a recovery plan, 

inadequate, and then folks unhappy with that sue to challenge the 

substance of that. 

So it creates an endless cycle where there are entre points for 

litigation to drive the process and there are not enough resources 

on the part of the Service to respond effectively and judges are 

forced to grapple with a statute that is very clear with deadlines 

and a process that is broken. So I think that is where we have 

come unfortunately, where this has all evolved over these many 

years and why this kind of legislation, in my view, is essential to 

84

try to put a halt to that process and create some rationality so that 

judges and courts are not running the program. 

Mr. WALDEN. And you are not alone. The Tulane University Environmental Law Journal says, and I quote, ‘‘The entire ESA budget runs the risk of being consumed by the bottomless pit of litigation driven by listings and designations. And which habitat is most 

vulnerable and should be designated as critical, litigation-driven 

actions prioritize only those species that have a plaintiff behind 

them and often a larger political objective, rather than those 

species that are most endangered.’’

It seems to me that the professional biologists and scientists 

should be looking at what is most threatened and endangered and 

trying to save it first and the resources that we have ought to be 

applied to those species in a constructive way that has a recovery 

program in mind, you get the data, it is peer-reviewed, it is scientifically sound, we put parameters, we involve local communities 

and the state. 

One of you mentioned how states and localities often have some 

of the best data. Why would we not try to seek out the best data 

when we are talking about whether or not a species is going to go 

out of existence or not? We should open this process, make it transparent, and then come up with the best peer-reviewed recovery 

plan we can, taking into account all the other parameters, as outlined in this bill. 

I appreciate your testimony and thank you, Mr. Chairman. With 

that, I yield back. 

The CHAIRMAN. Mr. Cardoza. 

Mr. CARDOZA. Thank you, Mr. Chairman. I would like to submit 

this question to Ms. Rappaport Clark. 

Ms. Clark, you have made some broad, in my mind unfair statements regarding the bill, that my bill devastates ESA. You claim 

that critical habitat will not be declared by the Secretary. I would 

like to have you look at page 2 of the bill, Section 3, which states, 

‘‘The Secretary shall, in accordance with subsection B, to the maximum extent practicable, economically feasible, and determinable, 

shall concurrent with approval of the recovery plan for the species 

under subsection F, designate any habitat of such species that is 

then considered critical habitat.’’

My question to you is if you are Secretary and you feel that there 

is critical habitat needing to be designated, you do not think you 

can designate it under that regulation? 

Ms. CLARK. If I am Secretary it might be different. 

Mr. CARDOZA. So it is a question of who is Secretary? 

Ms. CLARK. And because what is laid out in this construct is 

when you have words like practicable, economically feasible, and 

the economic analysis debates that are ongoing now are pretty serious, so—

Mr. CARDOZA. That is exactly my second question that I wanted 

to ask you because the point of that terminology being in this bill 

is by your logic, conversely, if we determine it is unpracticable, uneconomically feasible and undeterminable, we would still have to 

declare that critical habitat. We would have to turn logic on its 

head and we would have to determine critical habitat even though 

it is undeterminable. 

85

Ms. CLARK. No, that is not correct. 

Mr. CARDOZA. Well, that is the way I understand it. 

Ms. CLARK. What I was linking here is the factors of practicable, 

economically feasible and determinable concurrent with the development of a recovery plan. Now I absolutely agree with all of the 

comments that have been made prior to this conversation about 

shifting the designation of habitat essential to recovery to the recovery planning stage, but having worked as a biologist all the way 

up to the Director in the Fish and Wildlife Service, my frustration, 

their frustration will continue to be and I suggest it is probably 

this current Administration’s frustration that if there is not a deadline with commensurate appropriate resources to fill that by which 

to compel the recovery planning process to be completed, the debate on habitat, whether it is practical, economically feasible, determinable, will not occur. 

Mr. CARDOZA. I am perfectly willing to engage in a dialog with 

regard to deadlines because I think that there may be some issue 

that we have to deal with there, but it is my feeling that if you 

do not have a plan, how can you designate critical habitat if you 

do not have a plan? That is one of my concerns. 

Ms. CLARK. I do not disagree. 

Mr. CARDOZA. Also, I am concerned that the discussion is more 

political than biological and that is one of the problems I have with 

some of your testimony because it is who is Secretary is your concern. When we are dealing with the law, that is part of democracy. 

We cannot write the law for when you are Secretary versus when 

Mr. Manson is Secretary. We have to write a law that is fair all 

the time. 

Ms. CLARK. And I do not disagree with that, so let me if I could 

just clarify what I meant. I think there has been a lot of discussion 

and debate over the years, regardless of whether it was Secretary 

Babbitt or Secretary Norton sitting in the chair of the Interior Department. Regardless of who sits in the chair, what is troubling to 

me is how the discussion of ‘‘critical habitat’’ is shifted away from 

being the notion of habitat essential to recovery of listed species to 

try to counter this ongoing rhetoric and attack about how the Act 

has been a failure and has not recovered any species to one of costs 

and economics. So there has to be a balancing there. 

What I have seen in the last few years is a serious shift to economics and economic analysis and I find interesting that when the 

economic analysis work that is being done today only addresses 

economic costs and per OMB I sat in a meeting with a Fish and 

Wildlife Service economist within the last 3 months where they 

told me they were forbidden from evaluating economic benefits, I 

think that is half an evaluation. 

Mr. CARDOZA. Mr. Chairman, I have a number of questions that 

I would like to submit, including some to Mr. Liebesman, that I 

would like to do in writing after the hearing. 

The CHAIRMAN. We will hold the record open to allow members 

to prepare further questions to be submitted to the panel in writing 

because I know there are a lot of questions of this panel. 

Mr. CARDOZA. Thank you. 

The CHAIRMAN. Mr. Tancredo. 

Mr. TANCREDO. Thank you, Mr. Chairman. 

86

I would like to ask the members of the panel, and I know some 

of you have addressed this at some point in time, but in the 30 

years, over 30 years, since this last has been on the books, has 

nothing changed in terms of our ability to make better assessments 

as to exactly what is critical habitat, what is the nature of the 

process that would bring something to the point of being listed as 

endangered? Has nothing changed in the science in that period of 

time? 

Dr. RAMEY. Let me speak to that. Yes, quite a bit has changed 

and we have new standards in the judicial system for evidence and 

we have computer-aided modeling for making predictions about 

where species are occurring. So we can take evidence from where 

they presently occur and make predictions where they could occur 

or could have occurred in the past that are far more certain than 

just simply based upon opinion. 

So yes, we do have the tools but it is not a requirement to apply 

those tools presently. We have a paper coming out in about 2 

months in the Wildlife Society Bulletin where we utilize a large 

data set from the Fish and Wildlife Service on observations that 

they did not use and we used it to develop a model for asking how 

much of this critical habitat area has a low probability of sheep use 

and 66 percent had a near zero probability. So it is really a question of picking your battles and putting your resources where they 

count most. 

Mr. TANCREDO. Go ahead, sir. 

Mr. LIEBESMAN. I just wanted to follow up, not being a scientist 

but being a lawyer and having seen the process go on. I think that 

policy has evolved to be hopefully a little more rigorous in how you 

make these decisions but still because there is no clear guidance 

and no way to pull together the best science in a rational, clear 

way, we are seeing sort of a crazy quilt of decisions going on all 

over the place. 

For example, I talked about the Alameda whipsnake case, which 

is a very interesting example. A recent decision came out within 

the past year where the critical habitat designation of over 400,000 

acres in Central Valley, California was overturned in many ways 

on bad science, basically saying that the Service had presumed that 

habitat was critical based upon a theory that the snake might be 

there and were trying to make some connection based upon data 

that may not be scientifically supportable and the judge basically 

said the record was not sufficient to make that judgment. 

What was very important about that case is the court jumped on 

the fact that a recovery plan had not been adopted, basically saying 

it is like shooting in the dark; it is like shooting darts against a 

wall. Without a recovery plan with clear goals, with science laid 

out, how can you make a judgment about what part of that habitat 

is essential to the survivability of the species? 

You need to have some clear guidance and that is where I think 

the linkage issue is so critical to this bill. And maybe we need to 

think through about deadlines and timing and how you deal with 

past recovery plans that may be out of date; I think that is an important part of the debate and we cannot just leave it hanging. 

But, at the same time, the recovery plan has got to be the driving 

force. And I think that is the way to pull science together and, from 

87

what I have seen and the way courts are looking at this, judges are 

having to jump in and make decisions in many ways beyond their 

capability because they are being thrust a statute that is so hard 

to interpret. 

These court decisions are the biggest I have seen in many ways 

in 30 years of litigating environmental cases. They go on 50, 60 

pages because judges are just trying to understand the process and 

they should not be administering a statute that way through litigation. 

So that is sort of my assessment about where we are and why 

recovery plans are so essential. 

Dr. RAMEY. May I give you one more specific example? In the 

Preble’s meadow jumping mouse case private landowners will often 

be asked to have a survey done for the mouse on their property. 

In one case a consulting group with Haligen Reservoir in Northern 

Colorado sent us five ear punches from a mouse and asked if we 

would run DNA testing on those. Two of those specimens the DNA 

sequences came out wildly divergent from the rest of our data set 

and I realized that there was a problem. So I called the consultants 

up and said, ‘‘Can you tell me about these two samples?’’ It turns 

out once they had examined the photographs they had taken of the 

mouse that it was a hispid pocket mouse and that they actually 

caught three Prebles and not five. 

Well, everybody laughs about this example except it is very serious. These individuals used the best practices for physical evidence 

for a species’ occurrence. A lot of what is occurring out there is consultants with a certain level of training and experience saying yes, 

I caught it, but when they are asked to produce the physical evidence, they cannot produce it. So a species’ occurrence is being 

based upon opinion instead of experimental evidence. 

The Service at one time required ear punches and photographs 

to be taken. They dropped that requirement several years back. I 

do hope they consider it again and that it be considered in other 

cases. 

Mr. TANCREDO. Thank you all. My time has expired but I also 

would have questions, Mr. Chairman, that I would like to submit 

for the record since there are plenty of issues here to develop that 

time just does not allow us to do so. 

The CHAIRMAN. Mr. Bishop. 

Mr. BISHOP. Thank you. Let me ask a couple of quick ones if I 

could. 

Dr. Sunding to begin with, your testimony was interesting. You 

talked about how some of this Act can shape urban areas. I think 

you used the phrase leapfrog development. Are you telling us that 

this critical habitat designation can lead then to urban sprawl situations? 

Mr. SUNDING. Essentially, yes. It can push development further 

out as land is set aside for habitat protection closer to the center 

of the urban area. 

Mr. BISHOP. Thank you. 

Dr. Ramey, I recognize how sometimes vague definitions create 

some problems. I realize the gentleman from California is attempting to try to tie those definitions down as best as possible so that 

88

it is not the old if you ask the right question you get the right kind 

of answer syndrome that may be coming up here. 

In your opinion, having looked at this bill, do you think the 

Cardoza bill brings better and tighter science and less discretion to 

the process? 

Dr. RAMEY. Yes, it tightens up definitions. And by also giving 

more time to make a decision and specifying that critical habitat 

has to be that area that is occupied with the species or found to 

be absolutely essential to their existence, it does help. I do think 

it could go farther, however. 

Mr. BISHOP. As far as the definitions? 

Dr. RAMEY. As far as the definitions and also requiring some 

more specific standards for what constitutes evidence of species occurrence. Is it a vague recollection from the 1970’s that you wrote 

down 30 years later or is it actual physical evidence of them being 

there or a vouchered museum specimen, which would obviously be 

of great value? 

Mr. BISHOP. So if we go down that road is it your opinion then 

that you actually improve the science? 

Dr. RAMEY. Yes. Any time you are able to define the question 

more clearly, the terms more precisely, I think that you reduce the 

amount of dispute and unnecessary controversy on the subject. Scientists will often argue a lot about terms and definitions but that 

is a part of the process that you can get a cleaner result later. 

Mr. BISHOP. So the assumption is that once you can do that, you 

move past the point which could bring litigation in, which sucks up 

the resources necessary to the program and therefore you would actually, by being able to tighten those definitions, you would actually be able to have a better recovery opportunity in the future. 

Dr. RAMEY. Correct. It is all about an allocation of resources. We 

are in a situation of triage on species, so it is better that the money 

go to the species instead of to legal fees. 

Mr. BISHOP. And Miss Clark, if I could also ask you a question. 

The gentleman from California actually went to the crux of it. I 

will give you a couple of softballs here. They will be easy. 

One dealt with the phrase of his bill which talked about the maximum extent practicable, economically feasible, determinable as the 

standards we use. It just seems difficult to understand why that 

becomes a portion of the bill to be criticized because, as I think he 

said, the opposite of that means something that is impracticable, 

that is economically infeasible and vague. I thought those would be 

the pluses of his particular bill in some particular way. 

So if you want to have another crack at that, answering that 

question, I would appreciate it. 

The second one, and maybe I can lump all these together and 

then just let you run wild with them, I am assuming you were here 

earlier when the representative from Oregon was quoting some 

statements you have made in the past about the ESA and I am assuming that you still stand by those statements you made earlier, 

that that was nothing that was inaccurate. 

I guess the other quote, to go along with his defense of that language, which I kind of like, was during your service in this particular agency both you and Secretary Babbitt seemed to be supVerDate 0ct 09 2002 11:21 Sep 24, 2004 Jkt 088533 PO 00000 Frm 00092 Fmt 6633 Sfmt 6602 J:\DOCS\93346.TXT HRESOUR1 PsN: KATHY
89

porting critical habitat reform. As I am listening to the testimony 

now, I guess the question becomes what happened? 

Ms. CLARK. Can I run wild now? 

Mr. BISHOP. Go for it. 

Ms. CLARK. A couple of things. On the terminology practicable, 

economically feasible, and determinable, in my mind it sets up a 

presumption that there could be cases where there is no linkage or 

no importance of habitat necessary for recovery of species. What 

this bill does do that is very positive is it links the articulation of 

critical habitat if you will to the recovery planning stage. 

So again, as I mentioned to Mr. Cardoza, it is the connection of 

these two issues because I would be concerned that when you have 

a term to the maximum extent practicable, economically feasible 

and determinable, it could make, would make the designation of 

critical habitat an exception, rather than a rule. And because you 

link it to recovery which then becomes not mandatory, it turns 

what is now a mandatory requirement for the Secretary to evaluate 

and determine or to decide whether or not critical habitat is prudent into one that is totally discretionary. So it becomes a snowball 

effect. 

Now regarding what I said before, the gentleman from Oregon 

quoting me, yes, I stand behind I think what I heard him say in 

my quotes in that any time that you take an agency full of, I think, 

highly competent and highly trained biologists like the Fish and 

Wildlife Service and you totally upset the apple cart and rearrange 

their biological priorities, that is a recipe for problem. And it was 

very frustrating during my time and I am sure it is very frustrating now, the amount of litigation that surrounds the Endangered Species Act and we worked very hard to try to assert biological priorities for addressing the listing program, which includes 

critical habitat. I cannot speak to what this Administration has 

done to try to assert those priorities. 

I have been on record agreeing that reform of critical habitat is 

important and could be positive and, in fact, worked with the late 

Senator John Chafee and Senator Domenici in the last Administration, the last Congress, which gave rise to Senate 1100 that addressed a lot of what Mr. Cardoza is trying to address, I believe, 

with his bill. 

So any kind of reform that will guarantee safe passage for 

species recovery, that will highlight the importance of habitat and 

anchor the importance of habitat conservation for species recovery 

can only lead to a positive outcome. 

Mr. BISHOP. I appreciate your saying especially that last part because as I am listening to what I am hearing going on here with 

the judicial intervention basically supplementing their decision for 

others that are professionals, the failure of sound science, the collateral issues that are coming on here, any step to try and define 

this, narrow the definitions, to move it forward, to make it more 

obvious the direction should be a step forward in the process. I am 

actually very much dismayed about the lack of what the status quo 

has been doing and dismayed about any kind of efforts not to try 

to make something to change that status quo so we are moving forward. 

90

Mr. Chairman, the bell rang on me. I am done, right? I knew all 

those years in school would pay off. 

The CHAIRMAN. Thank you. 

Before I dismiss this panel there were a couple of things that 

came up in the questioning and I asked to clarify on a couple of 

issues. In terms of the new regulations that are being issued, Fish 

and Wildlife Service was included and consulted in the matter of 

drafting those new regulations. 

And in terms of an economic analysis, economic benefit, Fish and 

Wildlife Service or the Administration is not banned from including 

the economic benefit in their analysis. I do not believe that any economic analysis that does not include the benefits, as well as the 

costs, is complete and that is something that I wanted to follow up 

on and got an answer to. 

In terms of previous quotes, former Interior Secretary Bruce Babbitt said, ‘‘The best alternative is to amend the Endangered Species 

Act, giving biologists the unequivocal discretion to prepare maps 

when the scientific surveys are complete. Only then can we make 

meaningful judgments about what habitat should receive protection.’’ And I believe that that is the spirit, if not the essence, of 

what Congressman Cardoza is attempting to do in the legislation 

that sits before us. 

Also, in terms of the written testimony, Mr. Liebesman in his 

prepared testimony, in talking about the Alameda whipsnake, 

quoted the court that held that ‘‘If the Service has not determined 

at what point the protections of the ESA will no longer be necessary for the whipsnake, it cannot possibly identify the physical 

and biological features that are an indispensable part of bringing 

the snake to that point.’’

I think that was an extremely important point that was made 

earlier in that I think a lot of the struggles that the members have 

talked about, a lot of the anecdotal evidence that they bring forth 

from their districts, the problems that they have had, that their 

constituents are having to face, are rooted in that one quote right 

there. I cannot expect the Administration, whether it is the current 

Administration or the previous Administration, to come up with 

critical habitat, court-ordered critical habitat, unless they have the 

scientific evidence in front of them. You cannot expect them to do 

that. 

In my district, as well as Congressman Cardoza’s, we have had 

the whipsnake, we have had the kit fox, we have had the redlegged frog. We have had all of these different things that have 

come out and when the red-legged frog came out there were places 

in my district that were listed as on the critical habitat map where 

it is physically impossible for the frog to live, yet it was included 

as critical habitat. 

I do not blame the Service for that. They have a court-ordered 

critical habitat map that they have to release, so they do things 

without all of the evidence in front of them. And I think what 

Congressman Cardoza is attempting to do with this legislation is 

give them the tools that they need to make the right choices. That 

does not mean they are always going to make the right choices. 

That does not mean we are still not going to complain, but at least 

91

we can make things better. We can at least give them the tools 

that they need to do their job. 

So I appreciate the testimony of this panel. It was very informative, very educational, and I look forward to working with all of 

you in the future as this legislation moves forward. Thank you very 

much. 

I would like to call up our third panel—Steven E. Webster, 

Steven L. McKeel, Kathleen M. Crookham, Paul L. Kelley and Donald B. Walters, Jr. 

I want to thank this panel for sticking around with us. We are 

trying to get through this as quickly as we can but obviously it is 

an important issue to a lot of members. 

Mr. Webster, we are going to begin with you. I will remind the 

panel that your entire written testimony will be included in the 

record. If you could contain your oral statements to the 5 minutes 

allotted. Mr. Webster? 

STATEMENT OF STEVEN E. WEBSTER, EXECUTIVE DIRECTOR,

FLORIDA MARINE CONTRACTORS ASSOCIATES 

Mr. WEBSTER. Chairman Pombo and members of the Committee, 

I welcome this chance to speak in support of H.R. 2933 and I am 

very grateful to Representative Cardoza for his sponsorship of this 

very good bill. 

In Florida where what we call manatee madness has so afflicted 

the state that this book, ‘‘The Florida Manatee Conspiracy of Ignorance,’’ is becoming a political bestseller, the Endangered Species 

Act is the enemy. Yes, we all agree that the Act is well intentioned 

but for over 30 years some very well heeled Washington lawyers 

have subverted and corrupted the Act to the point where it does 

not protect endangered species but it does harass, injure and sometimes even kill innocent Americans. 

In Florida the manatee is the poster child for regulatory excess. 

The farther you get from Florida the more endangered the manatee 

becomes and since none of you are from Florida, you probably believe that the manatee is highly endangered and that small, fast 

powerboats are literally slicing and dicing the poor things into extinction. Wrong. I cannot tell you how many visitors think 

manatees are either extinct already or that the rivers and estuaries 

are full of their floating carcasses. The truth is they are all over 

the place. 

I am the Executive Director of Florida Marine Contractors Association and Vice President of Citizens for Florida’s Waterways and 

we know there have never been more manatees than there are 

today, both in terms of range and density. And I am not talking 

about one every square mile. I am talking about sardines. Near our 

home 2 months ago a tiny block-long drainage ditch was filled with 

more than 120 manatees and since they weigh a ton or more each, 

well, there was more manatee than water. 

Now speaking of our home, back in 1996 when manatee slow 

speed zones were first proposed for our area, they were planned for 

the western shore, but when the zones were ordered, after a court 

settlement, the zones were built along the eastern shore, my family’s shore, and to this day I wonder what happened between 1996 

and 2001 that completely flip-flopped the plan. And the only anVerDate 0ct 09 2002 11:21 Sep 24, 2004 Jkt 088533 PO 00000 Frm 00095 Fmt 6633 Sfmt 6602 J:\DOCS\93346.TXT HRESOUR1 PsN: KATHY
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swer I have found is that instead of science-based rules, a Washington lawyer and a Washington Federal judge are now in charge 

of manatee protection in Florida. The lawyer has made bagfuls of 

money suing the Fish and Wildlife Service and the judge—well, he 

is wrong. He is terribly wrong. 

They have used the ESA to close down factories, shut down permitting, wreck boating, endanger our kids, and sacrifice jobs. They 

have not reduced the rate of manatee mortality. They have not 

found a way to count manatees accurately. They have not helped 

reduce increasingly frequent manatee dust from disease. They have 

blocked important scientific research and they do hamstring state 

programs. They would not know science if it kissed them on the 

lips and if it did, they would accuse science of being a whore. 

Thanks for the laugh. I was worried about that line. 

They have not allowed responsible program managers to do what 

should be done. They have ham-handedly demanded what the law 

says can be done. I represent an industry that contributes $4 billion a year to Florida’s economy, $1 in sales and another 3 in multiplier effects. 

Dock-building is big industry. It is huge, even, a substantial part 

of Florida’s economy. But while it is a big industry, it is all small 

business. Every single member of the association is a small business and the Endangered Species Act is endangering us. Even in 

the midst of a real estate boom we already have members who 

have been forced out of business and more are ready to go. 

Last year in my home county of Brevard not a single dock-building permit was issued until December. Why? Because the Fish and 

Wildlife Service and lawsuit plaintiffs, including the Defenders of 

Justice who were here earlier, were having a fight with state agencies over how many slow speed zone signs are required before 

Brevard manatees can be deemed adequately protected. Because of 

the settlement agreement, if there is not adequate predication then 

Army Corps permits will not be issued. How many small businesses do we know that can survive a year without work? 

This sort of nonsense happens day in and out in Florida. Similar 

events are being played out in counties across the state. And truthfully I could keep you here all day and still not adequately discuss 

everything that is wrong with the implementation of the ESA in 

Florida because literally everything about the implementation is 

wrong. And let us face it; government is big. It is a lot of ground 

to cover. 

But I will leave you with one specific request. In the packet of 

information we provided we have seven additional recommendations and suggestions for reform and clarification. If I could pick 

just one, it would be that this committee help clarify the relationship between the Endangered Species Act and the Marine Mammal 

Protection Act so that the requirements of the ESA are satisfied, 

then so, too, the requirements of the MMPA will be satisfied. I 

swear there would be a street celebration in Tallahassee if we 

could get that passed. 

I greatly appreciate this opportunity to speak in support of Representative Cardoza’s bill. Thank you and later I will be happy to 

answer any questions. 

[The prepared statement of Mr. Webster follows:]

93

Statement of Steven E. Webster, Executive Director,

Florida Marine Contractors Association 

Introduction 

My name is Steven Webster and I am Executive Director of Florida Marine Contractors Association, a not-for-profit association of dock-builders, and businesses 

that provide goods and services to dock-builders. I am also the Vice President of 

Citizens For Florida’s Waterways, a not-for-profit association of conservation-minded 

Florida family boaters. I am pleased to be here to speak in support of the Critical 

Habitat Reform Act of 2003. 

Because of Federal interference in the State of Florida’s manatee protection program, brought about by a lawsuit in 2000 that effectively put control in the hands 

of a Federal judge here in Washington1, you could say that I represent the people 

of Florida who can no longer enjoy a boat ride, and people who can no longer earn 

a living by building a dock. 

Don’t for a second think this is hyperbole. Manatee madness has so afflicted 

Florida that a book entitled ‘‘The Florida Manatee Conspiracy of Ignorance’’ 2 is on 

its way to becoming a best seller, in the hands of government staff, office holders 

and ‘‘radical go-fast boaters’’ 3 across the State. 

Marine construction is a billion dollar a year industry in Florida, employing more 

than 10,000 people and generating three billion dollars in additional economic activity each year from the goods and services dock-builders purchase 4. It’s a significant 

piece of Florida’s economy, entirely composed of small businesses, yet the Federal 

government, enforcing the Endangered Species Act, is killing this industry and its 

member small businesses in the name of manatee protection. 

In Florida, ‘‘mitigation’’ to ‘‘protect’’ manatees has three steps: 

1) Speed zones—restricting pleasure boats to slow or idle speed 

2) Signage—double-piling, fixed signs roughly outlining the zones 

3) Enforcement—state and local officers charged with manatee zone ticket writing. Very little Federal enforcement takes place and for that we are grateful, 

as the Federal agents are ill-trained and often ill-mannered. 

If the Service—or the Judge—says that any one of these three steps is inadequate, 

then the Service will not concur and Army Corps will deny permits. In some parts 

of Florida, no permits have been issued for years. In most cases, permit moratoriums have nothing to do with actual ‘‘take’’ of manatees by boats, but rather with 

arguments between various government units over how much is enough and who 

pays for it all. Last year, permits statewide were held up for five months because 

the Service was unable to process a new type of form that its own Washington headquarters had begun requiring. In Brevard County, permits were held for a year 

when the Service demanded 50 new signs to mark State—not Federal—zones. 

The plain truth is: docks don’t kill manatees 5. But Federal policies are killing 

dock builders. Over the next two months, I sadly suspect three of our contractor 

members will go out of business because U.S. Fish & Wildlife Service and the Army 

Corps won’t allow them to do business. Several members have already given up 

since I took over as Executive Director in 2003. 

I grew up in a mechanical contracting family. My father would never bid on Army 

Corps projects. I asked him why, and it wasn’t just the piles of paperwork. ‘‘They 

are so antiquated that some of the materials they require aren’t even made today,’’ 

he said. ‘‘Their specs are usually wrong and even violate local building codes. I won’t 

build anything that’ll break the first day it’s used,’’ he said. 

Today, it’s even worse. The manatee program in Florida is at best broken, and 

at worst is responsible for more manatee deaths, more danger to people, more job 

loss, and it even causes air and water pollution. 

Reform is needed before more damage is done. We enthusiastically endorse 

H.R. 2933 and the amendments proposed by Representative Cardoza. 

Sustainable Population 

In my position, I work closely with many biologists and wildlife managers and 

have asked for their opinion and recommendations. In section 5 of H.R. 2933’s proposed changes, we recommend including the phrase ‘‘sustainable population’’ in the 

clarified definitions of critical habitat. For example: 

(II) the term ‘‘essential to the conservation of the species’’ means, with 

respect to a specific area, that the area has those physical or biological features that are absolutely necessary and indispensable to conservation of the 

sustainable population of the species concerned. 

‘‘(ii) For purposes of subparagraph (A)(ii), the term ‘‘essential for the conservation of the species’’ means, with respect to a specific area, that the 

94

area is absolutely necessary and indispensable to conservation of the sustainable population of the species concerned.’’

Such a change will help wildlife managers better define the purpose of identifying 

critical habitat. 

I would briefly like to discuss other critical areas where we believe the true intent 

of the Endangered Species Act has been perverted and abused, and suggested resolutions for each. I would welcome questions on any of these issues and proposals, 

particularly those regarding the horrific misuse of science by Federal agencies 

charged with manatee protection. 

Critical Natural Habitat 

Since 2001, the Fish & Wildlife Service has declared that hundreds, if not thousands, of man-made canals, channels, dredge areas, warm water discharges from 

power plants and factories, and even sewage treatment facilities are now critical 

habitat for the Florida manatee 6. 

If you’re unfortunate enough to have bought your dream home on a deep water 

canal, odds are your boat today sits on a trailer in your driveway, because your 

canal has become a Federal manatee ‘‘refuge.’’

Unbelievably, old, inefficient power plants—some listed as the worst polluters in 

Florida—are required to heat water inhabited by manatees during the winter. 

Power plants must generate electricity that’s not needed, waste expensive fuel and 

pollute the air, if the water grows too cold for manatees to survive. 

Is this what Congress intended? 

The fact is, manatees wouldn’t be in any of these man-made places if we hadn’t 

built them. Lands and waters that were created by, or substantially altered by, 

human activity should not be considered ‘‘critical habitat.’’

This change, virtually a ‘‘technical correction,’’ may be added to (II) above: 

(II) the term ‘‘essential to the conservation of the species’’ means, with 

respect to a specific area, that the area has those natural physical or biological features that are absolutely necessary and indispensable to conservation of the sustainable population of the species concerned. 

ESA-MMPA Relationship 

If there is one reform to the Endangered Species Act we consider of greatest 

value, it is to clarify the relationship between the ESA and the MMPA. Today, the 

Service contends that the manatee could be fully recovered under the ESA, but 

‘‘take’’ would still be prohibited under MMPA, which would mean no boating and 

no dock-building, despite recovery. The Service admits this relationship is illogical 7. 

No kidding! 

An amendment stating that compliance with the ESA will be considered compliance with MMPA can resolve this illogical and damaging dilemma. 

Pursuant to such a proposed amendment, applicants would not have to conduct 

an independent MMPA analysis to obtain an incidental take permit if the ESA’s 

Section 7 consultation is triggered. Specific language for such an amendment in included in our presentation package. For Florida, or indeed for any coastal state, this 

is without doubt our highest priority. 

Exemptions for Economic Hardship 

Incredibly, the ESA contains no allowance for economic hardship. The Small Business Administration’s Office of Advocacy has repeatedly challenged the accuracy of 

Service economic impact statements, and the Service has ignored every single challenge 8. Factories have been shuttered. Marinas closed. Downtown redevelopment ruined. Jobs lost. 

In several areas of Florida, there are overlapping State and Federal manatee 

zones. In one such zone, the Brevard County Barge Canal, Sea Ray boats asked for 

an exemption to planned slow speeds in a small area of the Canal so they could 

continue to test newly built boats. The State agreed, but the Service refused, stating 

it had no authority to give an exemption for economic hardship 9! Incredibly, the 

Service now refuses to rescind its duplicate zone, on the grounds that the State exemption to Sea Ray would unacceptably reduce protection. 

By the way, more manatee carcasses have been recovered in Brevard in the years 

since the Federal zones went in than occurred before. You would be correct to question how an ineffective program provides ‘‘protection.’’

95

Year 10

2001

2002

2003

Boat-Strike Mortalities

7

17

8

Challenging the Service’s lamentably bad economic impact statements is nearly 

impossible. While the Office of Advocacy is a valued friend of small business, when 

the Service rejects its findings, small businesses’ only recourse is to sue under the 

RFA. That’s a lengthy and costly process. The litigant will succumb long before the 

case is decided. 

To remedy, it should be the Service’s obligation to disprove Office of Advocacy 

findings. 

Measurable Rules & Goals 

Since none of you are from Florida, you are probably wondering just what do we 

do to protect this highly endangered animal, brought to the brink of extinction by 

the slicing propellers of small, fast boats? The three-part answer is: 

One—They aren’t endangered 

Two—Small fast boats have not and are not pushing manatees toward extinction, 

and 

Three—Federal programs and lawsuits in Federal courts have done nothing to 

protect manatees, but they do harass, injure and sometimes even kill innocent 

Florida family boaters. 

Seriously, the manatee becomes more endangered the farther you get from 

Florida. In truth, there are more manatees than ever, and their population over the 

past 25 years has been growing about 5 percent a year, which is several times faster 

than the human population of Florida is growing 11. Just last year, the State of Florida’s marine research institute concluded the manatee barely qualifies as ‘‘threatened,’’ and that status has nothing to do with the 

consequences of deaths caused by boats. Rather, the manatee is possibly threatened 

by the long-term risks from those power plants that are literally keeping manatees 

in hot water. When those older, polluting, plants are inevitably shut down, how will 

manatees stay warm through the winter? Because of the power plants, the 

manatee’s range has quadrupled or more in the past 30 years—and not surprisingly, 

the increase in population matches the increase in range. Many manatees now winter far north of their historic range, and many no longer migrate, as they all once 

did, when northern Florida waters cool. Without the power plants, half of manatees 

could die because of starvation and cold. By requiring power plants to warm these 

waters, Federal agencies are priming manatees for the biggest die-off in history. 

Clearly, the future risk to manatees has nothing to do with boats, but in planning 

for this inevitability, the Service remains focused on preventing boat deaths. An increasing worry is the rising number of manatees killed by red tide events. In 2003, 

more manatees died from red tide than from boat strikes and the frequency of red 

tide episodes may be increasing. 

Yet, the Federal response is not to focus efforts on power plant dependency and 

red tide deaths. It is to slow boats down. Chairman Pombo’s excellent analogy about 

health care and the ESA fits perfectly with Florida’s manatee madness. It’s as if 

we decided to respond to the obesity epidemic by slowing down cars. Rather than 

invest in education and research, let’s lower the speed limit and raise the fines! 

After all, if we reduced vehicular deaths, that would mitigate the deaths caused by 

obesity, wouldn’t it? 

The Service, in those lengthy biological opinions it just learned to prepare last 

year, and in its inches-thick Manatee Recovery Plan 12, claims that slow boat speed 

can ‘‘drastically reduce’’ take by boats and cites a small study as proof. But, they 

are making that up, and seriously misrepresenting the only quantitative study that 

even suggests slow speed is productive mitigation. More startling, the best scientific 

evidence says that slow speed can exacerbate risk, because manatees can’t hear 

large vessels traveling at slow speed. So why does the Service insist on slow speed? 

Because a Federal judge told them to. 

This past year in Florida, our Association and other organizations concerned 

about the lack of sound science, proposed a bill that would seek answers to many 

unknowns—such as how many manatees are there, how effective are speed zones, 

and how can we make speed zones safer for boaters and for manatees? The Florida 

Wildlife Commission and the Florida Marine Research Institute support the bill. 

But the Save the Manatee Club—one of the batch of regulatory extremist organizations whose lawsuits have caused this mess—opposed it. They actually opposed a 

science bill! They actually opposed using the very measurable biological goals they 

helped write to determine whether more ‘‘protection’’ is needed in a specific area. 

96

What does sound science say is causing manatee/boat collision deaths? According 

to a peer-reviewed study that the Service itself cites as evidence, almost all propeller deaths—which account for at least 35 percent of total watercraft deaths—are 

caused by vessels over 25 feet in length. Smaller boats have propellers too small 

to inflict fatal wounds 13. Meanwhile, these same experts say they cannot tell the 

size of vessels that caused death by impact, which occurs about half the timex 14. 

(The other 15 percent of deaths are combination impact and propeller.) 

Less than 10 percent of Florida boats are less than 25 feet in length 15. If we were 

serious about reducing boat strike mortality, why not focus on the 10% that we 

know cause at least one-third of deaths, rather than the 90% that cause an unknown and immeasurable portion of deaths? 

Given limited resources, and a desire to do the greatest good, which option would 

you pick? Today, without a shred of evidence to prove their position, the Service continues to maintain that boat strike deaths are caused by small, fast boats 17. It is 

a tragic waste compounded by what everyone in this room realizes. The second 

toughest job in the world is to get government to do the right thing. The toughest 

job is to get government to undo the wrong thing. 

If the science and logic behind slowing down boats is lacking, there is even less 

evidence (none!) to connect dock-building to manatee mortality. Supposedly, if a 

dock is built, a boat will be moored to it and a boat might someday strike a manatee. But in almost every case, a family seeking a dock already owns a boat. And 

when a permit is denied to an honest contractor, odds are the frustrated homeowner 

will find someone else willing to build without it. In truth, the only reason the Service is denying dock permits is because they can do it, not because the should do it. 

I believe that most docks in Florida are built without Army Corps permits, and 

because of increasing cost, complexity, delay and uncertainty, that number is 

trending up. Regulating docks to protect manatees has been a mitigated disaster. 

The ESA says the Service must ‘‘show the relationship of [the best available 

science] to such regulation,’’ but courts grant such incredible leeway that the requirement is toothless. In particular, the Service is under no obligation whatsoever 

to demonstrate that what it does works. Our recommendation is that except in 

emergencies, a Service mitigation strategy must be reviewed and approved by a balanced panel of experts and stakeholders before public hearings are held, and effectiveness evaluations of all regulations must be conducted at least once every five 

years. 

I would welcome any questions about specific instances where the Service has 

misrepresented science, and how we found ourselves in this awful mess. 

Presumption of Adequacy 

Another related problem is that the ESA places no limit on regulatory actions. 

More rules are always better, and no rule is ever undone. This is bad practice. 

There are supposedly four separate manatee ‘‘stocks’’ in Florida, and in three of 

them, the Service’s own Biological Goals are being met or exceeded. Why then do 

we need more restrictions where the goals are being met? Why is the Service allowed to promulgate more restrictions in areas where rules are being met? 

There should be a presumption that, if goals are being met for a species in a given 

area, then no further restrictions are needed in that area. Florida is enacting exactly that language as I speak. Sample language is included in your packet. 

Citizen Suit Provision 

Finally, our Association last year was forced to sue the Service because of its permit delays, and because of its illogical application of MMPA rules to sovereign state 

waters. The Service objects to our suit, claiming we don’t have standing to sue outside an APA claim. 

Currently, the courts have created a barrier forcing citizens to sue pursuant to 

the APA, which prevents such citizens from being made whole by recouping their 

litigation expenses. 

The practical result of this is that citizens must ‘‘pay their own way’’ to compel 

the Secretary to perform his nondiscretionary duties under the ESA. This is an absurd result. Environmentalists who wish to have a species listed or critical habitat 

designated can sue and receive attorney fees, but a citizen wishing to have the clear 

and unambiguous mandate of Congress concerning interagency cooperation followed 

must pay the bill. Simply put, if you wish to expand the ESA, the government will 

foot the bill; however, if you wish to protect your private rights under the ESA, you 

better have deep pockets. 

The practical solution to this judicially created barrier is to complete the efforts 

initiated by Congress in the Citizens Fair Hearing Act of 1997. 

97

Your information packet also includes recommended language to effect such an 

amendment. 

Summary 

What’s my summation? It’s that the manatee population in Florida is growing in 

spite of, not because of, the ESA. The Federal manatee program squanders millions 

of dollars a year on ineffective, even counter-productive, programs that are directed 

not by sound science, but by a Federal judge led by a Washington attorney. 

I realize I’m preaching to the choir about the critical need for ESA reforms. On 

behalf of Citizens For Florida’s Waterways and Florida Marine Contractors Association, thank you again for this opportunity to support your hard work. 

ESA/MMPA Relationship Amendment 

Section 17 of the ESA states, ‘‘except as otherwise provided in this chapter, no 

provision of this chapter shall take precedence over any more restrictive conflicting 

provision of the Marine Mammal Protection Act of 1972.’’ Therefore, even though 

the MMPA may be more restrictive and broader in scope than the ESA, the propose 

amendment would make the ESA paramount to the MMPA once section 7 ESA consultation is triggered. This would be true even if the provisions of the two statutes 

are in direct conflict or would produce different results. The MMPA could only be 

applied independently when the ESA’s section 7 consultation has not been triggered; 

for example, the Service’s creation of speed zones and manatee sanctuaries and 

refuges.

TITLE 16—CONSERVATION 

CHAPTER 35—ENDANGERED SPECIES 

Sec. 1536. Interagency cooperation 

(a) Federal agency actions and consultations 

(b) Opinion of Secretary 

(4) If after consultation under subsection (a)(2) of this section, the Secretary concludes that—

(A) the agency action will not violate such subsection, or offers reasonable 

and prudent alternatives which the Secretary believes would not violate such 

subsection; and 

(B) the taking of an endangered species or a threatened species incidental 

to the agency action will not violate such subsection; and 

(C) if an endangered species or threatened species of a marine mammal is 

involved, the taking is authorized pursuant to section 1371(a)(5) of this title; 

the Secretary shall provide the Federal agency and the applicant concerned, if any, 

with a written statement that—

(i) specifies the impact of such incidental taking on the species, 

(ii) specifies those reasonable and prudent measures that the Secretary considers 

necessary or appropriate to minimize such impact, 

(iii) in the case of marine mammals, specifies those measures that are necessary 

to comply with section 1371(a)(5) of this title with regard to such taking, and 

(iii) sets forth the terms and conditions (including, but not limited to, reporting 

requirements) that must be complied with by the Federal agency or applicant (if 

any), or both, to implement the measures specified under clause (ii). 

Compliance with the requirements set forth in this subsection and in 

subsection (a)(2) of this section and any incidental take authorized thereunder will be considered compliance with the Marine Mammal Protection 

Act of 1972 [16 U.S.C. 1361 et seq.]; including but not limited to, sections 

1361, 1371, and 1374 of this section and constitute a finding of negligible 

impact under that Act.

Presumption of Adequacy ESA Amendment 

Added language is in italics. 

(f)(1) RECOVERY PLANS-.The Secretary shall develop and implement plans 

(hereinafter in this subsection referred to as ‘‘recovery plans’’) for the conservation 

and survival of endangered species and threatened species listed pursuant to this 

section, unless he finds that such a plan will not promote the conservation of the 

species. The Secretary, in development and implementing recovery plans, shall, to 

the maximum extent practicable-

(A) give priority to those endangered species or threatened species, without regard 

to taxonomic classification, that are most likely to benefit from such plans, particularly those species that are, or may be, in conflict with construction or other development projects or other forms of economic activity; 

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98

(i) a description of such site-specific management actions as may be necessary to achieve the plan’s goal for the conservation and survival of the 

species; 

(ii) objective, measurable criteria which, when met, would result in a determination, in accordance with the provisions of this section, that the 

species be removed from the list. Wherever these objective, measurable criteria are being met, additional rules and actions will be presumed to be unnecessary. However, such presumption does not prevent the Secretary from 

addressing unique issues concerning a listed species within such an area; 

(iii) estimates of the time required and the cost to carry out those measures needed to achieve the plan’s goal and to achieve intermediate steps toward that goal. 

(iv) provision for an objective, qualitative annual assessment of the effectiveness of promulgated regulations. This assessment must include a quantitative effectiveness evaluation of the listed species’ mortality rate in each 

regulated area before and after promulgation of the rule. 

Citizen Suit Provision 

16 U.S.C. 1540(g) 

1. (g) Citizen suits 

(1) Except as provided in paragraph (2) of this subsection any person may commence a civil suit on his own behalf—

(A) to enjoin any person, including the United States and any other governmental instrumentality or agency (to the extent permitted by the eleventh amendment to the Constitution), who is alleged to be in violation of 

any provision of this chapter or regulation issued under the authority thereof; or 

(B) to compel the Secretary to apply, pursuant to section 1535(g)(2)(B)(ii) 

of this title, the prohibitions set forth in or authorized pursuant to section 

1533(d) or 1538(a)(1)(B) of this title with respect to the taking of any resident endangered species or threatened species within any State; or 

(C) against the Secretary where there is alleged a failure of the Secretary 

to perform any act or duty under section 1533 of this title which is not discretionary with the Secretary; 

(D) against the Secretary where there is alleged a failure of the Secretary 

to perform any act or duty under section 1536 of this title which is not discretionary with the Secretary; 

2. (g) Citizen suits 

(1) Except as provided in paragraph (2) of this subsection any person may commence a civil suit on his own behalf—

(A) to enjoin any person, including the United States and any other governmental instrumentality or agency (to the extent permitted by the eleventh amendment to the Constitution), who is alleged to be in violation of 

any provision of this chapter or regulation issued under the authority thereof; or and 

(B) to compel the Secretary to apply, pursuant to section 1535(g)(2)(B)(ii) 

of this title, the prohibitions set forth in or authorized pursuant to section 

1533(d) or 1538(a)(1)(B) of this title with respect to the taking of any resident endangered species or threatened species within any State; or 

(C) against the Secretary where there is alleged a failure of the Secretary 

to perform any act or duty under section 1533 of this title which is not discretionary with the Secretary 

(B) against the Secretary where there is alleged a failure of the Secretary 

to perform any act or duty under this title which is not discretionary with 

the Secretary; 

FMCA Information Quality Complaint 

This Complaint against U.S. Fish & Wildlife Service was addressed to Congressman Dave Weldon on March 8, 2004. 

This Request for Correction of Information is Submitted Under DOI/FWS Information Quality Guidelines. Federal law prohibits agencies from ‘‘cherry-picking’’ information to support a pre-determined conclusion (Section 515 of the Treasury and 

General Government Appropriations Act for Fiscal Year 2001 [Public Law 106-554]). 

Unfortunately, distorted Service science claims are being used to withhold building permits from Florida marine contractors. Additionally, biased Service claims are 

being used to deny Floridians constitutionally guaranteed rights to access and use 

waters held in trust for all the people. 

99

At the root is the Service’s belief that ‘‘manatees are especially vulnerable to fast 

moving power boats.’’ (Benjamin, 2003, FWS/R4/ES-JAFL) 

This is a commonly held belief: 

The simple rationale is that at reduced speeds, the force of impact will be 

less deadly, and manatees will be more able to avoid slower boats. (Florida 

Manatees: Perspectives on Populations, Pain And Protection; Thomas 

O’Shea, Lynn Lefebvre, Cathy Beck) 

It is the foundation of the Service’s 2001 Manatee Recovery Plan, 3rd Edition: 

Because watercraft operators cannot reliably detect and avoid hitting 

manatees, federal and state managers have sought to limit watercraft speed 

in areas where manatees are most likely to occur to afford both manatees 

and boaters time to avoid collisions. 

But while this hypothesis has been repeated ad nauseam (there are 90 references 

to watercraft in the 3rd Edition), there is virtually no supporting science. We have 

been able to identify three studies that tested manatee/boat avoidance in the field. 

Two of these studies were included on the disks sent to [Rep. Weldon] by the 

Service—their compilation of the science they say they considered when drafting 

their Plans and Opinions. A third watercraft/manatee study by Dr. Edmund 

Gerstein was not included on the disks, but FWS staff personally communicate they 

are aware of this major study. (Manatees, Bioacoustics and Boats, American Scientist, Vol. 90, No. 2, March-April, 2002, Edmund Gerstein) 

In sum, FWS science is based on just two small studies. Not only is the available 

science scant; FWS misrepresents what little there is. Formal ESA Section 7 Consultations written by FWS to permit or deny marine construction projects routinely 

exaggerate the scientific findings. Here is an example from a Sept. 12, 2003, Biological Opinion written by the Jacksonville Field Office for the Tampa Army Corps of 

Engineers (a continuation of the Benjamin citation above): 

Manatees are especially vulnerable to fast moving powerboats. The slower 

a boat is traveling, the more time a manatee has to avoid the vessel and 

the more time the boat operator has to detect and avoid the manatee. 

Nowacek et al. (2000) documented manatee avoidance of approaching boats. 

Wells et al. (1999) confirmed that at a response distance of 20 meters, a 

manatee’s time to respond to an oncoming vessel increased by at least five 

seconds if the vessel was required to travel at slow speed. Therefore, the 

potential for take of manatees can be greatly reduced if boats are required 

to travel at slow speed in areas where manatees are expected to occur.’’ (my 

italics) 

The two sources cited by the Biological Opinion refer to one study—‘‘Manatee Behavioral Responses to Vessel Approaches: Final Report,’’ conducted near City Island 

in Sarasota, Florida in May, 1999, by Nowacek, Wells and Flamm, researchers with 

Mote Marine Laboratory and Florida Marine Research Institute. It was released in 

1999. 

FWS bases its entire manatee recovery strategy on a single paragraph: 

The timing of responses to vessel approaches is of concern. At an average 

initial response distance of 20 m, the animal has less than 2 sec to respond 

to a planing vessel, and about 7 sec to respond to a vessel moving at slow 

speed. Clearly, boat speed plays a major role in manatee exposure to collision risk. High-speed vessel operations, especially in shallow water or along 

channel edges where the manatee cannot dive safely below the approaching 

vessel create a high-risk scenario (Wells, Nowacek, 1999). 

On the surface, this may seem to be definitive, but FWS, in relying on this 

snippet of comment, has omitted important details about the quality and quantity 

of the study data, which the authors themselves say was insufficient. 

According to the researchers: 

Too few high-speed trials were conducted to provide the basis for statistical 

comparisons to slow speed trials. Of the 12 usable (high speed) trials, six 

(50%) resulted in a response. However, all the high-speed trials that did not 

result in a response involved repeated passes 43 m to 77 m from a single 

individual located in a seagrass meadow. 

In other words, out of 135 trials, just 12 were at high speed and six of those involved the fellow described above. Yet, this tiny sample is the scientific foundation 

for a Federal program that costs untold millions annually and jeopardizes the existence of more than 10,000 Florida marine construction jobs. 

The FWS Biological Opinion flatly stated that slow speed would ‘‘greatly reduce 

take where manatees are expected to occur.’’

But the authors cited by FWS focused their concern about speed specifically on 

shallow waters: 

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...We know that the animals [in channels] were diving to depths greater 

than .69 m to 1.15 m. Such depths would place the manatees safely below 

the propellers and keels of most of the vessels operating in these waters. 

The researchers concluded manatees in channels were reasonably safe from boat 

impacts, but FWS chose to omit this important exception from its Biological Opinion 

and from the Recovery Plan 3rd Edition. 

Sadly, contrary to the research it cites, FWS regularly includes channels in its 

slow speed zones (Barge Canal, 100, 200 and 400 Cocoa Beach channels, the ‘‘emergency’’ Lee County zones, 60-foot deep waters of the St. John’s, etc.). 

The best available science—a decade-long study reported in 2002—opposes such 

a practice. 

A key management strategy used in Florida for protecting manatees over 

the past 20 years has been to slow boats in waters frequented by manatees 

by creating idling and slow-speed zones. This strategy can actually exacerbate the problem when it is implemented in turbid water conditions (which, 

along with tannin staining, are prevalent in Florida). (Manatees, Bioacoustics and Boats, American Scientist, Vol. 90, No. 2, March-April, 2002, Edmund Gerstein) 

Somehow, despite its clear obligation to consider all relevant scientific information, FWS is silent on Gerstein’s well-known study. 

Perhaps most egregious, FWS’ Biological Opinion misrepresents its cited research 

by inflating the conclusions of the authors. The authors did not conclude their research ‘‘confirmed’’ mortality could be ‘‘greatly reduced’’ by slowing down boats. 

Rather, their key conclusions were: 

The effects of vessel speed, type and approach should be examined in greater (sic) detail relative to response distance and timing.

In light of the high degree of variability in the occurrence of responses to 

approaching vessels, further studies of how manatees detect vessels would 

appear to be warranted. Of particular interest would be studies in manatee 

habitats of transmission loss of sounds produced by vessels. 

The researchers cited by FWS clearly recommended more studies, particularly of 

acoustics. 

Other Evidence Also Contradicts FWS 

In the list of files provided to you by Service Regional Director Sam Hamilton was 

a 1994 test that viewed manatees and boats near a St. Pete power plant from 

aboard the airship Shamu. 

This report, ‘‘Responses of Manatees to an Approaching Boat: A Pilot Study,—was 

drafted by three FMRI researchers (Weigel, Wright, and Huff). 

The study analyzed 16 boat passes: eight at slow speed, two at 32KPH and six 

at 48KPH. Despite the small sample, the researchers concluded that manatees became aware of the approaching vessel nearly three times as far away as the ‘‘initial 

response distance’’ of 20 meters (65 feet) cited in the FWS Biological Opinion: 

At slow speed, the average distance to the boat when movement began was 

52 meters ... At 32kph, the average distance was 50 meters ... and at 

48kph, movements were initiated when the boat was an average of 58 meters away. 

Clearly, a manatee may have much more time to evade than FWS states in its 

Biological Opinion. (Manatees can produce bursts of speed up to 15 MPH. A manatee that hears a boat from 58 meters away could move 60 feet at 10MPH before 

the boat reached the manatee start point. Even with two seconds’ warning, a manatee moving only 10MPH can travel 20 feet in any direction. Obviously, there is no 

such thing as a recreational powerboat with a 40-foot beam!) 

FWS is aware of the existence of this Pilot Study, yet this second study is never 

mentioned in the Biological Opinion. 

Clearly, the difference between a 20 m and 58 m response time is hugely significant, even critical. How could FWS not consider and comment on this study? By 

what objective measure did they dismiss this report, and by what transparent process did they make their determination known? 

Indeed, this critical issue looms even larger when Gerstein’s study results are considered: 

Prior to our studies, wildlife officials relied on anecdotal assumptions that 

manatees could readily hear as well as locate the sounds of slow-moving 

boats....

Consider the results from our boat-measurement studies simulating an encounter between an 8.2-meter boat and a manatee. When the boat approaches at high speed, the noise level crosses the manatees’ critical ratio 

approximately 16 seconds before the propellers reach the hydrophone—

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about 198 meters away from impact. The noise of the same boat approaching slowly remains undetectable and does not cross critical ratios until the 

propellers are only 0 to 2 seconds away, less than 3.7 meters from impact. 

Under moderately noisy ambient conditions, the sounds associated with 

slow-moving boats can become acoustically transparent. (Manatees, Bioacoustics and Boats, American Scientist, Vol. 90, No. 2, March-April, 2002, 

Edmund Gerstein) 

Gerstein’s field tests in typically murky Florida water yield a result diametrically 

different from the ‘‘confirmed’’ 20 meters cited by FWS. 

A similarly embarrassing lapse is the omission of any commentary on the seminal 

1983 report by Margaret Kinnaird, ‘‘Evaluation of Potential Management Strategies 

for the Reduction of Boat-Related Mortality of Manatees,’’ Cooperative Fish & Wildlife Research Unit, University of Florida, 1983. Her report (one of two she wrote 

that year), is also part of the documentation you received from Sam Hamilton: 

Slow speed zones may be the most effective short-term strategy for 

reducing—manatee/boat collisions. The establishment of slow and idle speed 

zones throughout all bodies of water important to manatees is an unrealistic endeavor. (my italics) 

At what point did this short-term, ultimately unrealistic strategy, become the 

focal point of FWS mitigation? Even in 1983, the evidence did not demonstrate that 

speed zones were effective: 

An initial evaluation of the first 13 sanctuary zones showed boat/barge collision deaths were infrequent in and around the regulated zones (within 0.5 

km) both before and after sanctuary designation (Kinnaird). 

What studies or evidence contradict Kinnaird? If such studies exist, why are they 

not a part of any FWS documentation? Where is the required transparent, objective, 

analysis of scientific information? 

Identifying Causes of Watercraft Mortalities 

What, then, accounts for all the manatee watercraft mortalities? This is a question FWS is able to answer just 35% of the time. 

Their own experts—ironically, the only watercraft mortality-related study cited in 

the Service’s current Recovery Plan—state that only large vessels (over 25ft) cause 

propeller-caused mortalities. Propellers account for 35% of total manatee watercraft 

mortalities. 

Propeller deaths comprise a significant portion of an ‘‘Analysis of Watercraft-related Mortality of Manatees in Florida 1979-1991 by Scott D. Wright and Bruce 

Ackerman, FMRI; Robert Bonde and Cathy Beck, Sirenia Project; Donna Banowetz, 

FMRI. Here is a key excerpt: 

An important point by Beck et al. (1982) was that differences in propeller 

diameters were distinct between boats powered by inboard engines and 

boats powered by outboard or stern-drive engines. Therefore, they suggested that scar patterns measured on manatees could be used to determine 

the size of the watercraft. The propellers of smaller boats (shorter than 7.3 

m) with outboard and stern-drive engines were too small (average 16.4 cm) 

to inflict fatal wounds, although they probably caused most of the nonfatal 

wounds from propellers. (my italics) 

According to the Florida Office of Boating and Waterways, less than 10 percent 

of the vessels registered in Florida are more than 25 feet (7.6 meters) in length. 

Therefore, more than one third of manatee vessel deaths (>35%) are caused by 

just 10% of boats. 

When asked why FWS ‘‘mitigation’’ doesn’t focus on this 10% of boats responsible 

for at least one third of all watercraft deaths, the typical response is that such a 

focus doesn’t address deaths caused by impact. 

Aside from missing the critical point—wouldn’t a reduction in propeller deaths in 

and of itself be beneficial—the Service’s own experts report they do not know what 

types of vessels are causing impact deaths. 

The same study by Wright, et al. states: 

Because few collisions are witnessed, the only available source of information on the size and type of the boats is the appearances of carcasses at 

necropsies.

However, there were no measurable features and therefore almost no indication of the size of the boat that caused the [impact] mortality. 

FWS’ own experts conclude smaller boats cannot cause propeller mortality. FWS’ 

own experts state they cannot tell the size of vessels causing impact deaths. What, 

then, is the objective, transparent, scientific reasoning that leads FWS to seek to 

slow small boats wherever manatees are found? 

102

FWS’ own researchers are in disagreement over the causes of impact-only deaths. 

Pat Rose, now the Manatee Club’s Tallahassee lobbyist, proposed in 1980 that slowmoving barges and tugs are responsible for many impact deaths. Kinnaird (1983) 

cites him along with others: 

A large percentage of manatee boat/barge deaths result from internal damage without propeller wounds. It is likely that these deaths are caused by 

deep-draft boats operating in shallow water (Beck et al 1982). Rose and 

McCutcheon (1980) suggested that water depth should be maintained such 

that fully loaded barges pass safely over bottom-resting manatees in power 

plant intakes. 

This suggestion neatly ties with the observations from the Wells/Nowacek study, 

which found that manatees in channels are relatively safe from all but the largest 

vessels. 

All these errors and omissions of fact raise a significant question. What percentage of the 10% of vessels that cause propeller deaths and a ‘‘large percentage’’ of 

impact deaths operate at slow speed normally? 

How can a mitigation strategy based on slow speed zones reduce deaths caused 

by vessels that are already traveling slowly? 

These very pregnant questions are ignored. But, as the saying goes, you can’t be 

just a ‘‘little bit’’ pregnant. 

Our test results contradict several long-held beliefs that form the basis of 

current protection strategies. Manatees have good hearing abilities at high 

frequencies, however, they have relatively poor sensitivity in the low frequency ranges associated with boat noise. Ironically, manatees may be least 

able to hear the propellers of boats that have slowed down in compliance 

with boat speed regulations intended to reduce collisions. Such noise often 

fails to rise above the noisy background in manatee habitats until the boat 

is literally on top of the manatee. In addition, near-surface boundary effects 

can cancel or severely attenuate the dominant low-frequency sound produced by propellers. In many situations, ship noise is not projected in directional paths where hearing these sounds could help the animals avoid collisions. Our basic and applied research results suggest that there may be a 

technological solution to address the underlying root causes of the collision 

problem and resolve the clash between human and animal interests. 

(Gerstein, 2002) 

Once again, the best available science—which FWS did not include in its evidentiary submission to you—flatly contradicts FWS policy. 

The amazing conclusion is that FWS has absolutely no evidence to offer, much 

less any proof, that manatees are especially vulnerable to small, fast moving power 

boats. The Service has no proof that slow speed is an effective ‘‘protection’’ and its 

own experts, from data the Service relied upon to formulate its mitigation strategy, 

contradict the Service’s claims, as does research FWS has improperly ignored. 

FWS has violated its Information Quality requirements. It has cherry-picked data 

to support a pre-determined conclusion. That pre-determined conclusion has dire 

consequences. 

Compounding the Error 

FWS compounds its error by extending its errant conclusions into yet another 

realm—its insistence that the absence of speed zones means an area is ‘‘inadequately protected.’’ The result of this inadequacy is the denial of dock-building permits, because FWS argues that more boats equals greater threats. 

But is this necessarily true? From Wright, et al: 

[Boat registration] numbers indicate a potential increase in threats to 

manatees but do not necessarily prove cause-and-effect relations in increased numbers of deaths. One can only speculate about the effect of the 

increase in boating traffic on manatee movement, communication, and other 

key factors in manatee biology. (my italics) 

Actually, we can do better than speculate. Using FWS’ analogy, if more boats 

equal more manatee deaths, then more boats should also equal more human deaths 

and accidents. 

Just the opposite has occurred. According to FWC’s Office of Boating and Waterways, the number of accidents per 100,000 registered recreational vessels has declined from 172.1 in 1996 to 125.6 in 2002 (the most recent data available). The fatality rate dropped from 10.6 in 1994 to 5.6 in 2002. 

No doubt, there are those who will contend that boat injuries are down because 

boats are traveling slower in the 1/4 of Florida inland waters that are now slow 

speed manatee zones. This conveniently ignores the statistical fact that the zones 

have not decreased either the number, or the likelihood, of manatee/vessel mortaliVerDate 0ct 09 2002 11:21 Sep 24, 2004 Jkt 088533 PO 00000 Frm 00106 Fmt 6633 Sfmt 6621 J:\DOCS\93346.TXT HRESOUR1 PsN: KATHY
103

ties. Moreover, if slower speeds truly accounted for a reduction in boating fatalities, 

then automobile deaths, by analogy, should be increasing, as highway speed and vehicle numbers have risen. But here, too, accident and fatality rates have declined 

even as speeds and numbers increased: 

Highway accident statistics indicate that the annual number and rate of 

traffic accident deaths have declined to the lowest levels since the early 

1960’s. (US Department of Transportation website) 

In the real world, there’s not much support for a ‘‘more boats: more take’’ analogy. 

Perhaps the ultimate irony is that the ‘‘confidence level’’ for a registration: take 

ratio is noticeably below the ‘‘confidence level’’ the Service seeks for the manatee 

recovery goals it has decreed. (The registration confidence level is below .90. The 

Service seeks a .95 confidence level for its goals measurements.) 

In other words, the Service sets a higher standard to prove that its goals are 

being met than it does for the goals themselves. This is not merely a matter of ‘‘erring on the side of caution.’’ As Gerstein points out, current Service policy, based on 

this flimsy scientific premise, likely exacerbates danger. 

Requested Corrections 

1) FWS’ justification for speed zones is insufficient and must be readdressed in 

light of all the best available scientific information. 

2) FWS must withdraw its claim that small, fast powerboats are a substantial 

threat to the manatee. 

3) FWS’ own data require that it focus mitigation efforts on the 10% of vessels 

known to cause at least 1/3 of all watercraft mortalities. It has no data to justify mitigation of any other type of vessel by slow speed restrictions. 

4) FWS’ own experts disagree with its contention that registration: mortality is 

a viable measure. This premise, too, must be addressed or withdrawn. 

5) FWS must address the fundamental issue that its mitigation strategy of slow 

speed restrictions is based on anecdote and not science. Why, for example, does 

the release of a boat dock permit require restrictions, and not, for example, research into improved hull or motor designs, acoustic warning, or other technology? 

Summary 

In sum, neither the Service’s own experts, nor a review of accident statistics, nor 

the Service’s own standards for confidence levels supports a conclusion that more 

boats equals more deaths. 

This shaky thread is the only link the Service has to its presumption that docks 

equals deaths. 

Neither a review of all the experts FWS cites, nor a review of experts FWS ignores, supports the Service’s belief that slow speeds provide better protection. 

Nonetheless, the Service flatly maintains: 

Based on the absence of protection measures (e.g., speed zones, signage, enforcement) for manatees, the Service believes that an increase in watercraft 

associated with the proposed actions [new docks] are reasonably certain to 

result in the take of manatees in the form of addition deaths and injuries. 

(Benjamin op cit) 

The Service has failed to comply with the requirements of Federal Information 

Quality standards, and it has failed to comply with its own obligations to utilize the 

best available science. 

FWS has failed to meet its own standards, and it has failed its duty to the people 

it represents. As you are aware, this failure has wrought terrible consequences in 

your district, where Brevard marine construction permits were denied for more than 

a year, and lately in Lee County, where a State court’s removal of unconstitutional 

manatee zones has resulted in a new ‘‘area of inadequate protection’’ where permits 

are being denied. 

While FMCA appreciates that a poorly articulated and unscientific legal settlement (Save the Manatee Club v Ballard) is the sole grounds for stopping dock construction, we find it distasteful that FWS is attempting to hide its legal troubles 

beneath a blanket of science fiction. 

Bibliography & Footnotes 

1Save the Manatee Club vs. Ballard. This case is before Judge Emmett Sullivan in 

the DC District. It was not filed in the Florida district(s) where the alleged 

harm took place. 2 Capt. Tom McGill, The Florida Manatee Conspiracy of Ignorance, RALCO Press, 

2004

104

3 ‘‘radical go-fast boater’’ is a term coined by the Manatee Club to describe anyone 

opposed to its ‘‘go slow/no growth’’ demands. See http://

www.savethemanatee.org/newslmmpa.htm 4The Size and Economic Impact of Florida’s Marine Construction Industry, FMCA, 

Oct. 2003 5 see Federal Register / Vol. 67, No. 4 / Monday, January 7, 2002 / Rules and Regulations: ‘‘...watercraft-related ‘take’ of manatees is a distant indirect effect of the 

authorization of a boat access facility. While we agree that construction of boat 

access facilities is a potential contributing factor to watercraft-related take of 

manatees, in the vast majority of cases a direct cause and effect relationship 

does not exist between the construction of a marina, dock, or boat ramp, and 

watercraft-related take of manatees.’’ 6 see Federal Register / Vol. 67, No. 4 / Monday, January 7, 2002 / Rules and Regulations for a description of Brevard County Federal zones, which includes key 

industrial and commercial waterways and dredged water sports areas. 7FWS Spokesman Chuck Underwood email to Dale Weatherstone, reported in 

FMCA Newsletter, Vol. 4, June, 2003 8 see as example www.sba.gov/advo/laws/comments/fws03—0603.html: ‘‘Advocacy believes the Service has incorrectly certified the proposed rule under the RFA as 

not having a significant economic impact on a substantial number of small entities. Advocacy recommends the Service publish an Initial Regulatory Flexibility 

Analysis (‘IRFA’) for public comment prior to publishing a final rule.’’ 9 in Federal Register / Vol. 67, No. 4 / Monday, January 7, 2002: ‘‘Federal regulations provide exceptions to manatee protection area regulations only in limited 

circumstances (50 CFR 17.105(c)). We do not have the authority under our existing regulations to grant an exception based on economic hardship.’’ 10Florida Marine Research Institute mortality database 11Fraser, Thomas H. 2001. Manatees in Florida: 2001. A report to CCA Florida—

March 29, 2001; see also http://ccaflorida.org/updates/Jan02-why—manatee.htm 12Florida Manatee Recovery Plan, 3rd Edition, 2001 13 Analysis of Watercraft-related Mortality of Manatees in Florida 1979-1991 by 

Scott D. Wright and Bruce Ackerman, FMRI; Robert Bonde and Cathy Beck, 

Sirenia Project; Donna Banowetz, FMRI. Here is a key excerpt: ‘‘An important 

point by Beck et al. (1982) was that differences in propeller diameters were distinct between boats powered by inboard engines and boats powered by outboard 

or stern-drive engines. Therefore, they suggested that scar patterns measured 

on manatees could be used to determine the size of the watercraft. The propellers of smaller boats (shorter than 7.3 m) with outboard and stern-drive engines 

were too small (average 16.4 cm) to inflict fatal wounds, although they probably 

caused most of the nonfatal wounds from propellers.’’ 14 Ibid. 15Office of Boating & Waterways, 2004 16 Conspiracy of Ignorance, page 128, citing the Recovery Plan, 3rd Edition, page 

684

[Mr. Webster’s response to questions submitted for the record 

follows:]

Response to questions submitted for the record by Steven E., Webster, 

Executive Director, Florida Marine Contractors Association 

Questions from Chairman Richard Pombo 

(1) Mr. Webster, you outlined six additional changes. The most important, 

you said, would be to establish the primacy of the ESA over the MMPA. 

Why is this so critical? 

The ESA and MMPA contradict each other. On the one hand, ESA strives to ‘‘recover’’ a species by increasing species population. The MMPA, on the other hand, 

places a general moratorium on the take of any listed species. Thus, as manatee 

population grows (recovers), the likelihood of illegal MMPA ‘‘take’’ increases. The 

MMPA punishes success, complicated by the manatee’s never-demonstrated standing as ‘‘endangered.’’ Because ‘‘endangered’’ species are ipso facto ‘‘depleted stocks,’’ 

it is literally impossible for the Service to develop ‘‘incidental take authorization’’ 

for manatees. 

Chuck Underwood, spokesman for the Jacksonville Field Office, says the outcome 

is ‘‘illogical, but that’s the way the laws relate to one another.’’

105

For example, in Manatee County (along Florida’s West Coast), dozens of dock permits that would have been allowed under ESA have been denied based on MMPA 

assertions. 

Additionally, we believe MMPA jurisdiction is being improperly applied to the inland waters of the State. However, this has been done for so long that a legal resolution is unlikely. Hence our proposed ESA amendment. 

I would be happy to refer to Committee attorneys Frank Mathews and Ted Guy, 

who developed this idea about a year ago. 

(2) You said businesses have closed. Like what? 

Whitley Marine in Cocoa, Florida. This marina served intracoastal waterway boaters for 37 years, but was forced out of business by litigation brought by Save the 

Manatee Club, using ESA and MMPA claims as their ammo. The Whitley’s finally 

sold and the site is now filled by condos. Across Florida, ESA and MMPA hurdles 

are helping cause the conversion of working waterfront—boat repair, boat storage, 

etc.—into condos, usually either eliminating or greatly reducing public access to 

public waters. There are three other boat-yard-to-condo conversions underway within three miles of Whitley Marine. 

In Fort Myers, a multi-million dollar downtown redevelopment centered around 

a new high-speed ferry service to and from Key West was canceled after U.S. Fish 

imposed extensive and unnecessary slow speed zones in the region. ‘‘Fast Cats’’ instead built in Ft. Lauderdale. 

In Jacksonville, a downtown redevelopment project tied to the Super Bowl has 

been tied up in regulatory knots because of ESA and MMPA manatee issues. 

Also in Brevard, a brand new multi-million dollar boat manufacturing plant was 

opened for one day, then shuttered in part because the firm could not gain a Federal 

exemption that would allow it to test its vessels in adjacent waters. Again, MMPA 

and ESA. 

Statewide, lengthy delays and unpredictable demands have resulted in literally 

thousands of docks being built outside the permitting regime, usually with the tacit 

approval of local authorities. It’s to the absurd point where some builders actually 

advertise that they will build without permits! 

Over the past 16 months, five FMCA contractor members have closed shop, all 

stating that the burdens imposed by ESA and MMPA were at least in part responsible. There are three more members I prefer not to name—hopefully they will survive—who are expected to give up in the next few months. As the building boom 

cools (and it will), the pressure will really begin to mount unless realistic reforms 

are made. 

I would be happy to introduce the Committee to Joe and Diane Whitley, past owners of Whitley Marine. 

The CHAIRMAN. Thank you. 

Mr. McKeel? 

STATEMENT OF STEVEN L. McKEEL, EXECUTIVE DIRECTOR, 

MARTIN MARIETTA MATERIALS, INC., TESTIFYING ON 

BEHALF OF THE NATIONAL STONE, SAND AND GRAVEL 

ASSOCIATION 

Mr. MCKEEL. Thank you, sir. Good afternoon. I am Steve 

McKeel, manager of natural resources for there Southeast Division 

of Martin Marietta Materials. We are the second largest producer 

of crushed stone, sand and gravel in the United States. I have a 

degree in geology from the University of North Carolina and I have 

worked in the mining industry since 1982. I expect you will hear 

testimony today on listed animal species but my testimony involves 

two federally listed plant species. 

In 1989 Martin Marietta Materials leased 700 acres in Augusta, 

Georgia containing a 40-acre exposure of granite that was ideally 

suited for crushed stone production. Exposed rock is rare in the 

Southeast but a few granite outcrops resembling a paved parking 

lot do exist. The best known is Stone Mountain, which is domeshaped and rises a few hundred feet above the surrounding Atlanta 

area. 

106

These outcrops also represent an unusual habitat for plant 

species where shallow pools have formed over time. We became 

aware that some endangered plant species found only in these 

pools might be present on our 40-acre granite outcrop. 

My company needed a permit for wetlands crossing to access the 

property. We informed the Corps of the possible endangered plants 

and my written testimony that you have chronicles the permitting 

events that trigger the consultation provisions of the ESA. 

During our informal consultation with the Fish and Wildlife 

Service we conducted at our expense a habitat evaluation survey 

for threatened and endangered plant species. We identified two 

pools containing the threatened Amphianthus pusillus or 

snorklewort and the endangered Isoetes tegetiformans or mat-forming quillwort. The quillwort is known to exist in only eight localities in Georgia. 

We could not avoid these plants during mining. We tried negotiating their possible transplant but the Fish and Wildlife Service 

wanted them to remain intact. Several months of informal consultation transpired without results, so we sought legal guidance. 

We found one, the takings provision of the ESA is more limited regarding listed plant species and does not prohibit the landowner 

from relocating or even destroying the listed plant species; and two, 

the listed plants did not occur on lands under Federal jurisdiction 

or even jurisdictional wetlands. 

The finding triggered formal Section 7 consultation, postponing 

our wetlands permit. Throughout the consultation process we 

stressed our desire and our landowner’s desire to work with agencies and organizations alike to preserve and relocate these plants 

and even proposed both avoiding the plants for 2 years and funding 

a relocation program. 

The Service finally issued a jeopardy opinion for the quillwort, 

drawing heavily from a recovery plan that was still in the agency 

draft stage. The opinion went on to state that the endangered 

quillwort was historically known to occur in both pools, so therefore 

both species should be protected under this Act. 

The jeopardy opinion also recommended reasonable and prudent 

alternatives, which seemed to be neither reasonable nor prudent. 

We were to maintain a permanent fenced buffer for a 100-foot radius around the plants. We were to mount an industrial fan above 

the pools that was to run at all times during quarry operation to 

blow the dust away. And, since we would be mining essentially all 

the way around these pools, we would presumably be leaving a several hundred-foot-tall column of rock rising from the middle of our 

pit and I guess they envisioned something like a butte in Montana, 

so we needed to provide for stairs or some other way to climb up 

and monitor the plants and, of course, maintain the fan. 

These reasonable and prudent alternatives would have been 

laughable if they did not represent so much time and expense to 

us, such a travesty to the private property rights of the landowners, and a continued drawn on taxpayer dollars. 

We withdrew our wetlands permit application, negotiated a separate easement into the site that did not require wetlands crossing. 

I continued to seek to relocate the plants to various agencies and 

botanical gardens. Our landowners then decided it was in their 

107

best interest to relocate their plants themselves. Their explanation 

to me by letter, I quote: ‘‘We feel the delays have cost us a considerable amount of monetary consideration and mental anguish.’’ I 

simply must question a Federal agency process that so stridently 

attempts to regulate plant species that are the sole property of the 

landowner. 

If I can briefly quote Senate Report 100-240’s reference to my report, ‘‘The basis for this differential treatment of plants and animals under the Act was apparently the recognition that landowners 

traditionally have been accorded greater rights with respect to 

plants growing on their lands than with respect to animals. The 

amendment made to the Act does not interfere with the rights traditionally accorded landowners but instead reinforces them in a 

way that also benefits the conservation of endangered plant 

species.’’ If this was the intent of Congress, then the ESA failed 

miserably in our case. 

The aggregate industry produced crushed stone in all 50 states 

and virtually every congressional district and is significantly impacted by the Endangered Species Act. I strongly support 

H.R. 2933, the Critical Habitat Reform Act of 2003 introduced by 

Congressman Dennis Cardoza, especially those provisions found in 

Section 3, which requires an economic impact analysis be conducted prior to designating a species’ critical habitat. Thank you. 

[The prepared statement of Mr. McKeel follows:]

Statement of Steven L. McKeel, Manager, Natural Resources, Southeast 

Division, Martin Marietta Materials Inc., Atlanta, Georgia, on behalf of 

the National Stone, Sand & Gravel Association 

Introduction 

Good morning. I am Steven L. McKeel, Manager of Natural Resources for the 

Southeast Division of Martin Marietta Materials, Inc. Thank you for the opportunity 

to testify before you today in support of H.R. 2933, the ‘‘Critical Habitat Reform Act 

of 2003.’’

Martin Marietta Materials, Inc. is the second largest producer of crushed stone, 

sand and gravel in the United States. Our Aggregates Division operates more than 

300 quarries and distribution facilities in 28 states, the Bahamas and Nova Scotia. 

Our products are used extensively in concrete for road and other construction, asphalt, railroad ballast and numerous other basic products that form the literal foundation of our infrastructure and economy. 

I graduated from the University of North Carolina, Chapel Hill, with a bachelor’s 

degree in Geology in 1982. I worked in the precious metals mining industry for a 

few years before joining Martin Marietta Materials, Inc. as a geologist in 1985. I 

became Manager of Natural Resources of the Southeast District in 1990, and with 

the growth of our company I moved to Atlanta, Georgia, in 1996 into my current 

role of Manager of Natural Resources for the Southeast Division. The Southeast Division currently oversees some 40 quarry and 20 distribution operations. 

In early 1990, I became closely involved with a company project that involved two 

federally listed plant species. Through this experience I was invited to serve on the 

National Stone Association’s Environmental Committee as their Wetlands and Endangered Species Task Force Chairman, which I did for about seven years. I was 

also fortunate to later serve as Vice Chair and also Chairman of the Environmental 

Committee. The National Stone Association subsequently merged with the National 

Aggregate Association in 2001 to become the National Stone, Sand, and Gravel Association, and it is on their behalf that I relate to you this morning the experiences 

I had with the ESA in the early ’90’s. 

The National Stone, Sand & Gravel Association is the world’s largest mining association by product volume, representing companies who produce over 90 percent of 

the crushed stone and 70 percent of the sand and gravel produced annually in the 

U.S. at over 10,000 operations by approximately 120,000 working men and women 

in the aggregates industry. During 2002, a total of about 2.73 billion metric tons 

of crushed stone, sand, and gravel, valued at $14.6 billion, were produced and sold 

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in the United States. The aggregates industry directly and indirectly contributes a 

total of $37.5 billion annually to the nation’s Gross Domestic Product (GDP). 

NSSGA’s Environmental Guiding Principles encourage members to meet all established environmental regulatory requirements, and where possible to do more than 

the law requires. 

Having operations in all 50 states, in virtually every Congressional District, the 

aggregates industry is significantly impacted by the Endangered Species Act (ESA). 

NSSGA supports improving the ESA by incorporating scientifically-based programs 

that implement a balanced approach to protect endangered species while recognizing 

private property rights and the need for continued economic growth and responsible 

utilization of natural resources. 

I would like to commend you on your efforts to reform and clarify a law that has 

become a hazy quagmire for many industries and private landowners alike. During 

my stint with the Environmental Committee of what is now NSSGA, there were a 

number of attempts by Members of Congress to reform a law that, by promulgation 

and interpretation by federal agencies, often treads heavily on the basic private 

property rights of private landowners. This was true for my experience in the early 

1990’s, and it remains true to this day. 

Leasing Private Property 

In 1988, I began negotiations with a family of landowners for Martin Marietta 

Materials, Inc. to lease for the purpose of quarrying a 700-acre parcel of property 

located near Augusta, Georgia. The 700-acre lease property lay adjacent to a property owned by the Nature Conservancy. I learned late in the lease negotiation process that the Nature Conservancy had also entered into negotiations with the family 

in an attempt to buy a portion of this land and have the remaining property donated 

to them for favorable tax considerations. Our lease proposal to the landowners provided for both an annual payment for the leasehold of their property, plus a sum 

for every ton of material mined and sold from their property. This lease arrangement made the most economic sense to the landowners, and we executed a mining 

option and lease in September of 1989. The landowners retained about 300 acres 

of land outside of the 700-acre lease premises. 

The Nature Conservancy’s as well as our own interests lay in the fact that the 

property contained a 40-acre continuous exposure, or ‘‘pavement outcrop,’’ of granite 

rock. The Nature Conservancy also owned the adjacent parcel of land that contained 

a larger, perhaps 100-acre outcrop known as ‘‘Heggie’s Rock,’’ which lay some threefourths of a mile from the 40-acre outcrop under lease. A portion of the 700-acre 

lease premises bounded part of this large granite exposure. Martin Marietta Materials, Inc. owned the 100-acre outcrop, ‘‘Heggie’s Rock’’, in the 1970’s. Company files 

I have from that time indicate that we were instrumental in having this property 

become a nature preserve. 

The Nature Conservancy had also indicated to the landowners during our lease 

negotiations that there were endangered plant species located on the 700-acre lease 

premises. Martin Marietta Materials, Inc. initiated contact and a site visit with the 

Nature Conservancy in July of 1989 to assure them our mining activity would have 

no detrimental impact to their property. It was through this site meeting with their 

consulting biologist that we learned of two federally listed plant species that existed 

on the lease premises, and indeed existed on the 40-acre granite outcrop itself. 

Our initial findings at this planning stage of the process were informative and 

generally cordial. There were discussions involving relocating the listed species 

versus mining around them, and other possible alternatives. I later contacted state 

agencies that assured me plants were treated differently than animals under the 

ESA, and that these two plant species had been successfully transplanted in the 

past. 

Granite Outcrops in the Southeast 

Exposed bedrock of any kind in the southeastern United States is quite rare. 

There are, however, a number of exposed granite bodies, or ‘‘pavements,’’ that occur 

in South Carolina, Georgia, and Alabama. A number of these are concentrated in 

the Atlanta, Georgia, area. These exposed rock bodies are generally semicircular in 

appearance and can range in size from a few square feet to many square acres. The 

most famous of these is perhaps the tourist attraction of Stone Mountain near Atlanta, Georgia, which is a several hundred-acre exposed, dome-shaped granite 

outcrop rising a few hundred feet above the surrounding landscape. 

Granite is generally a well-suited source material for crushed stone. The physical 

characteristics of granite generally exceed all state specifications for road and other 

construction projects. Only about 15 percent of the total crushed stone output in the 

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U.S. is derived from granite, but about 70 percent of this output is mined in just 

five southeastern states. 

In many quarry locations, rock suitable for crushed stone production lies under 

many feet of soil that requires costly removal before processing can commence. This 

40-acre exposure of granite on the lease premises was readily available, quality 

stone, representing a viable resource to our company and a valuable commodity to 

our landowner. Conversely for our landowner, this 40-acres of exposed granite had 

no potential developmental value other than for crushed stone mining purposes. 

Mining was unequivocally the ‘‘highest and best use’’ for this property. 

However, in addition to being a source of crushed stone, these outcrops also represent an isolated and unusual habitat, particularly for plant species. Shallow, saucer-shaped depressions or ‘‘pools’’ have formed over time on the level portions of 

these granite outcrops. These pools are generally no more than five square meters 

in size, and alternately fill with water during rainy periods or completely desiccate 

during dry periods. A number of unique plant species are endemic to these pools, 

including the federally listed endangered Isoetes tegetiformans, or ‘‘mat-forming 

quillwort’’, and the federally listed threatened Amphianthus pusillus, or 

‘‘snorklewort’’. The quillwort is known to exist in some eight localities in Georgia, 

and the snorklewort—some 55 localities in Georgia, South Carolina, and Alabama. 

Wetlands and the ESA Process 

I rezoned the entire 700-acre lease property to an M-1 (Mining) designation 

through provisions of Columbia County, Georgia zoning ordinance in the fourth 

quarter of 1989 and 1st quarter of 1990. The Columbia County Land Use Plan, developed a few years prior to this rezoning, had already, in anticipation, designated 

the general location of this property as crushed stone mining because of its suitability for mining, as demonstrated by one of our competitors located nearby. In 

other words, the county recognized that crushed stone mining on this property was 

both the highest and best use for the property as well as a conforming use. 

The 700-acre lease parcel was completely transected by two significant drainage 

basins. The area between the two drainages, where the 40-acre granite outcrop occurred, was to be the focus of our mining operation. The first of these two drainages 

had to be crossed in order to access the granite outcrop from a public road. 

In July of 1990, I submitted a pre-discharge notification to the U.S. Army Corps 

of Engineers (Corps) for wetlands permitting for separate impacts on the two drainages transecting our 700 acre parcel—one 0.48-acre impact for access into the site 

across the first drainage, and a second 0.92-acre impact for a freshwater pond and 

erosion control measures on the second major drainage. I requested that the two 

areas be treated separately under what was, at that time, separate permits under 

Section 14 and Nationwide 26 of the regulation. Included in that application was 

a wetlands delineation by our consultant for both drainage basins. A Corps of Engineers biologist had verified the wetlands delineation in May of 1990 prior to the 

July notification. We made the Corps biologist aware of the possible presence of listed species on the property. Since each impact was less than one acre, I requested 

that the Corps authorize by letter the use of these permits. 

In response, and in light of the possible presence of endangered plants, the Corps 

recommended by phone that we conduct a biological inventory of the site and begin 

informal consultation with the U.S. Fish and Wildlife Service (FWS). I began to undertake both of these recommendations in late August of 1990. The Corps also indicated they considered the two wetlands impacts to be one impact under Nationwide 

26. 

In November of 1990 I informed both the Corps and the FWS that our outside 

consultant had completed the ‘‘Habitat Evaluation Survey for Threatened and Endangered Plant Species’’ for our 700-acre lease premises. I scheduled a site visit 

with the FWS for early December of 1990. The FWS requested that an outside biologist with expertise also attend the site meeting, and I agreed. I was surprised to 

learn that the consulting biologist in attendance was the same individual employed 

earlier by the Nature Conservancy. 

Two pools within a few feet of each other were identified on the granite outcrop 

by our consultant, one containing Amphianthus pusillus and the other containing 

Isoetes tegetiformans. The FWS consulting biologist also verified these occurrences. 

The pools were located in a portion of the granite outcrop that could not be set aside 

as possible buffer zone. It became painfully transparent from this meeting that I 

had a vastly different view of mitigating impact to these species than the FWS and 

this consulting biologist. The FWS wanted the species to remain intact rather than 

be relocated. 

The informal consultation process with the FWS began to drag on into the first 

quarter of 1991 with no written response or recommendation. It became increasingly 

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clear to me that our corporation needed to establish our legal rights with regard to 

this process. As a larger aggregate producer, we were fortunate to have the financial 

ability to seek excellent legal council on this matter where so many other landowners might not. 

In March of 1991 I informed both the Corps and FWS by letter of our legal findings, i.e., that 1) the takings provision of the ESA are more limited regarding listed 

plants species and do not prohibit the landowner or Lessor from relocating or even 

destroying the plants, 2) the wetland crossing of the first drainage and impoundment on the second drainage should be treated separately by the Corps under Nationwide 14 and 26, respectively, and that for the Corps to call the wetland crossing 

a ‘‘crossing/impoundment’’ in order to place it under Nationwide 26 was inaccurate, 

and 3) the listed plants did not occur in wetlands or lands under federal authority, 

and that the plants were considered the property of the landowners and could be 

essentially removed or destroyed by mining independent of a Corps permit, which 

essentially negated the relevance of FWS consultation. I requested that the Corps 

reply within 20 days as specified under 33 CFR 330.7(3), otherwise we would assume that in light of our legal opinion all conditions of 33 CFR 330.5 (b) (3) regarding listed species had been met, and we would be free to proceed under Nationwide 

14 and 26. I further reiterated our desire and our landowners desire to work with 

agencies to preserve and relocate these species, and went on to outline a plan where 

we would avoid mining the pools for two years as well as fund the relocation of the 

listed species. 

The Corps responded by treating the pre-discharge notification as official, and 

through the agency coordination process the FWS made formal comment to the 

Corps dated March 21, 1990, that, by our own consultant’s findings and the FWS 

site visit, two listed species had been verified on the proposed quarry property. The 

FWS thereby requested that the formal Section 7 consultation process be triggered, 

with a 90-day consultation process and a Biological Opinion to follow within 45 

days. Apparently, none of the progress made during the several months of informal 

process applied in any way towards reducing this time frame. The Corps informed 

us on March 29, 1990, that as per FWS request, the Corps would postpone determination of this application until the consultation process was completed. 

On May 19, 1991, in response to the formal consultation process, I mailed a very 

detailed letter to the FWS outlining crushed stone mining practices and procedures. 

I also illustrated by cross-section and mine reserve calculations the very significant 

economic impact the plants would have on our operation if we were forced to leave 

them in place. A few of the more significant impacts were: 1) the reduction of our 

overall minimal reserves by 15 or more million tons, which represented a market 

value of some $60-70 million; 2) the reduction of the life of our mine by 15 to 20 

years, forcing us to seek another mine location prematurely; and 3) the cost to our 

landowners of several million dollars in royalties on the sales of rock measuring 15 

million tons less than anticipated. 

I also learned in May of 1991, quite by circumstance, that the FWS and State of 

Georgia had entered into a cooperative agreement in April of 1990 for the purpose 

of preparing a Recovery Plan for three granite outcrop plant species—including the 

mat-forming quillwort and the snorklewort. The cooperative agreement was signed 

by the FWS on January 3, 1990, coincidentally just a few short months after I began 

informal consultation with the FWS on these plant species. I requested and received 

a copy of the Technical Draft, which was a thinly veiled attack on the crushed stone 

industry as one of the main factors in the continued demise of outcrop plant species. 

The report was written, coincidentally, by the same consulting biologist who had visited our site with the Nature Conservancy and the FWS the prior year. 

On July 17, 1991, the FWS issued a jeopardy opinion for the Isoetes 

tegetiformans, or mat-forming quillwort, for our wetlands crossing permit application to reach the 40-acre granite outcrop on our lease premises. The opinion drew 

heavily from the Draft version of the Recovery Plan—a plan that had not been subjected to either the Agency Draft review process or the 60-day written public comment period during the Final Draft review process. Due to the less perilous ‘‘threatened’’ status of the Amphianthus pusillus, a non-jeopardy opinion was rendered in 

regard to it. However, the opinion went on to state that the endangered Isoetes 

tegetiformans was historically known to occur in both pools, so therefore both should 

be protected under this action. 

As per the process, the opinion recommended Reasonable and Prudent Alternatives, which were, in brief: 

1. No mining activity could be conducted within a 100-foot perimeter or buffer of 

the two pools, and the buffer area in question to be placed in a permanent conservation easement; 

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2. A six-foot chain-length fence composed of noncorrosive materials with silt fence 

to be placed around the perimeter of the buffer area; 

3. And, by personal communication with the biologist authoring the Recovery 

Plan, it was determined that even a small amount of quarry dust build-up in 

the pools could affect the plant species, therefore an industrial fan should be 

mounted above the fence to blow across the pools during all times of quarrying 

activities; 

4. Since the avoidance of quarrying of the pools will result in a isolated column 

of granite in the pit [I suppose the FWS envisioned we would leave a butte 

in the middle of the pit like you might see naturally in Utah or Montana], 

there needed to be some type of stairway or access up to the pools for monitoring and fan maintenance; 

5. And lastly, the plants were to be monitored and logged on a weekly basis with 

results submitted to the FWS for the life of the quarry. 

The Jeopardy Opinion went on to recommend, under ‘‘Conservation Recommendations,’’ that since the survivability of both species at this site was not predictable, 

a separate site containing both species should be acquired and protected by transference into conservation hands, such as the Nature Conservancy. 

These Reasonable and Prudent Alternatives would be laughable if they did not 

represent so much time and expense to the applicant, a travesty to the private property rights of the landowner, and the continued drain of taxpayer dollars for such 

endeavors by government agencies. 

Resolution 

In the fall of 1991, I began negotiations with our landowners on the 300 acres 

originally omitted from our lease premises. We were able to reach an agreement on 

a right-of-way to the public road that essentially skirted around the first drainage 

basin and all wetlands. This added nearly a mile of additional road construction for 

us, some additional annual rental payments, and also consumed a number of acres 

of land that the landowners might have used for other purposes. 

On January 24, 1992, we formally withdrew our pre-discharge notification to the 

Corps and likewise notified the FWS. I notified our landowners of our decision, and 

of our continued interest in seeking avenues for the possible relocation of these 

species through various agencies and botanical gardens. Groups that had once demonstrated a strong interest now began closing doors on our negotiations; even given 

the fact we had withdrawn the wetlands permit application. 

On March 1, 1992, I received a letter from the property owners, which I will read 

in part: 

‘‘I appreciate your efforts to working out a solution to our problems with 

the endangered or threatened plants with the various organizations that 

should have had an interest in their relocation. After personally discussing 

the problem with several people that have expertise in this area, we concluded we would receive no help from these individuals or their organizations.

‘‘...it was decided it would be in our best interest to transplant the plants 

to [our] outcrop located adjacent to Heggie’s Rock. The plants seem to be 

surviving quite well in the new habitat.

‘‘...It is our hope that Martin Marietta can move forward with the necessary 

permitting to put this property in a state of production. We feel the delays 

have cost us a considerable amount of monetary consideration and mental 

anguish.’’

We then began a two year, strongly contested mining permit process with the 

State of Georgia. A number of opponents to our mining permit were from the ranks 

of individuals that originally not want to see the plant species relocated. Included 

were several negative newspaper articles from the original biologist who was also 

the author of the Recovery Plan. 

In January of 1994, Martin Marietta Materials, Inc. received all mining permits 

from the State of Georgia for this site. We are in continuous operation at this location today. It should be noted that once the species were documented as removed 

from the subject mining area, we were granted in 1995 a Corps permits (i.e., Nationwide 26 under one acre) for an impoundment along the second of the two drainages. 

Conclusion 

After all this effort on the part of landowner and government agency alike, I simply must question a process that encourages federal government agencies to attempt 

to rigidly regulate plant species that are obviously the property of the private landowner. The interests of the wetlands permit applicant were not served, and the interests of the landowner certainly were not served, and, because this delicate species 

112

was relocated by a private landowner with a shovel and bucket rather than by a 

professional botanist, ultimately the interests of the plant species were not served. 

In my research during this project I came across Senate Report No. 100-240 (1988 

U.S.C.C.A.N. 2700 at pages 2711-12) describing the purpose of additional language 

added in 1988 to Subsection B of the ESA, regarding animals and plants under federal jurisdiction. It reads, it part, 

Currently anyone who captures, kills or otherwise harms an endangered 

animal commits a violation of the Act for which substantial criminal and 

civil penalties may be imposed. By contrast, it is not unlawful to pick, dig 

up, cut or destroy an endangered plant unless the act is committed on Federal land; and even on Federal land there is no violation of the Act unless 

the plant is removed from Federal jurisdiction. The basis for this differential treatment of plants and animals under the Act was apparently the recognition that landowners traditionally have been accorded greater rights 

with respect to plants growing on their lands than with respect to animals. 

The amendment made to the Act...does not interfere with the rights traditionally accorded landowners but instead reinforces them in a way that also 

benefits the conservation of endangered plant species...Endangered plants 

have been vandalized or taken from private land against the wishes of landowners. Most private landowners take pride in the presence on their lands 

of unique or rare species and are eager in their protection. 

If indeed this was the intent of Congress, then the ESA failed miserably in our 

case. I seriously doubt if our landowner has much ‘‘pride’’ left in the fact that these 

species occur on his property. 

With almost fifteen years of hindsight, I can look back on this episode and see 

the naivety of my actions. I mistakenly believed for nearly two years that the ESA 

actually worked to protect listed species. I was naı ́ve to believe that, when confronted with the legal rights of ownership afforded the private property owner, governmental agencies and environmental groups alike would be willing to work towards a ‘‘Win-Win’’ solution to transplant and protect the plant species. I came 

away from this episode believing that the ESA has placed an adversarial tool in the 

hands of environmentalists who are bent upon curtailing growth by impinging on 

private property rights. 

I strongly support H.R. 2933, the Critical Habitat Reform Act of 2003, introduced 

by Congressman Dennis Cardoza, especially those provisions found at Section 3, 

which require that an economic impact analysis be conducted prior to designating 

species critical habitat. In the above-mentioned case, economic feasibility should 

have been drawn into question long before the numerous steps taken to issue biological opinions were conducted. The jeopardy opinion rendered in our case should 

have never been allowed to consult a Draft Recovery Plan when making a determination. 

[Mr. McKeel’s response to questions submitted for the record 

follows:]

Response to questions submitted for the record by Steven L. McKeel,

Executive Director, Martin Marietta Materials, Inc. 

Questions from Chairman Richard Pombo 

(1) Mr. McKeel, could you outline the economic impact on your company 

and the landholder of the Jeopardy Opinion issued by the FWS? 

The more tangible impacts to our company were the costs for redesigning our 

overall site plan, the acquisition (annual lease of r/w) of another route into the site 

that did not involve wetlands permitting, the engineering design work for this new 

route, and the construction of an additional approximate 2 mile of roadway beyond 

our original plan. These costs can be calculated in the half-million dollar range. 

More intangible are the costs associated with the lost revenue potential during the 

three-plus year delay in bringing this site into production, the continued maintenance on the extra 2 mile of road footage, the annual lease costs of land for the 

secondary route, the delays and extra effort necessary to obtain a state mining permit because the plant issue was not resolved (i.e., we had to overcome opposition 

to our permit from individuals and special interest groups using the unsupervised 

relocation of the species as a reason to deny our permit), and the negative impact 

to our well-earned company image by attacks from opponents in the print media. 

These costs are largely undefined but can be estimated in millions of dollars. 

The more tangible costs to our family of landowners involve largely the delay in 

bringing the quarry into production. As stated in my written testimony, the property 

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contained a 40-acre expanse of granite not suitable for any other type of development. Our lease arrangement allows for landowner participation in our sale of rock 

products from the site, so that the landowner literally profits greatest from a highvolume sale of rock products. The delay in opening this operation cost this family 

of landowners potentially several hundred thousand dollars annually in lost royalties from sale of rock products. This was significant to many family members, especially those associated with family members who passed away at about that time. 

The more intangible costs to the landowners are derived from the fact that the original access route across wetlands on original quarry lease property remains unused, 

while a new route across the landowners adjacent un-leased property was necessary. 

This previously un-leased property did not contain granite outcrops, but remains 

unsold and undeveloped to this day largely because the family had to give up a r/

w swath through it in order to make the quarry operation viable. Our customer 

trucks now travel this route in and out of the site, rather than over the less conspicuous route originally contemplated with a minor wetlands crossing. This cost is 

largely undefined but represents several million dollars to our landowners. 

The most destructive impacts to both our company and our landowners fall into 

the ‘‘what if’’ category, but are very real even so. In my written testimony, I described a May, 1991 letter to the FWS during the formal consultation process that 

indicated by illustration and calculations that if we are forced to leave the plants 

in situ, we would have to sacrifice some 15 million tons of product reserves on site 

worth some $60-70 million, reducing our mine life by some 15 to 20 years, and reducing the total royalties to our landowners by several million dollars. The FWS did 

not acknowledge that the quarry would have to be mined in this manner, but recommended in their ‘‘Reasonable and Prudent Alternatives’’ that the quarry could be 

developed in a manner that in my opinion would be technically unattainable, violate 

industry safety standards and best engineering practices, and unquestionably be 

prohibited by the Mined Safety Health Administration and the Georgia Department 

of Natural Resources alike. 

If we as a company had failed to gain a separate access into the site that did not 

require wetlands permitting, we may have been forced to abandon the project due 

to insufficient reserves (described above) to justify operation start-up. I had spent 

several years locating and leasing a suitable site in this area of Georgia, and there 

were none other in the county even close to the potential of this property. If we had 

been forced to abandon this project, we would have sacrificed untold millions of dollars in potential from jobs, tax revenues, and of potential revenue for both our company and the landowners. It is doubtful we would be in operation in Columbia 

County today. Our landowners would have had no option for the 40-acre outcrop 

other than to sell it as a conservation area. 

(2) You mentioned in your written testimony that the Draft Recovery 

Plan was a ‘‘thinly veiled attack on the crushed stone industry as one of 

the main factors in the continued demise of outcrop plant species.’’

• Can you elaborate as to how the Draft Recovery Plan singled out your 

industry? 

My written testimony chronicles a series of events, but one common thread remains constant throughout them. The consulting biologist who originally represented the Nature Conservancy at our first site meeting, was the same consultant 

who advised the FWS during our informal site visit, who was the same consultant 

hired by the FWS to write the Recovery Plan, who was the same consultant who 

was quoted in the newspapers as opposing our mine permit efforts even after the 

consultation process had been dropped. In my professional opinion, this relationship 

is far too intertwined to foster objective opinions in our consultation process, which 

was apparently never a consideration for the FWS. 

50 CFR Part 17 of the Federal Register found in Volume 53, No. 24, pg. 3560 (Friday, February 5, 1988) contains the final rule by the FWS for listing three granite 

outcrop plant species, including the federally listed endangered Isoetes 

tegetiformans and the federally listed threatened Amphiantus pusillus. Section 

4(a)(1) of the listing identifies five factors of adverse impact to the species B only 

one of which is quarrying. The Draft (and Final) Recovery Plan for these species 

lists ‘‘Quarrying’’ as statistically the greatest of eight ‘‘Threats’’ (Section 1.F.1) to 

these outcrop species, while also engaging in conjecture about the number of additional unknown populations of the plants that may have been ‘‘destroyed’’ throughout the history of quarrying in Georgia and also speculating on the possible detrimental impact of dust on populations that lie near quarry operations. One of the 

most significant detrimental impacts recognized by the Plan for these species is the 

failure of state and federal agencies to protect these species from recreational overrun even on public lands. Protecting existing publicly owned populations of the 

plants is the number one ‘‘Recovery Objective’’ which identifies six locations in the 

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public domain. Even so, most of the ‘‘Conservation Measures’’ and other recommendations in the Plan repeatedly single out the need for protection from ‘‘destruction from quarrying’’ while conversely stressing the need for seeking landowner 

cooperation on private lands. The Plan goes on to try to link the expenditure of Federal Highway trust monies used for state projects, and the resulting supply of 

crushed stone from quarries that may harbor the listed species, with Section 7 consultation of the ESA. The Plan also calls upon the State of Georgia specifically to 

consider these plant populations while reviewing mining permits of granite 

outcrops, even though neither federal nor state law support such consideration. 

None of the other ‘‘Threats’’ sited for these plants are dealt with in such a specific 

manner. Also, ‘‘Literature Sited’’ for the Recovery Plan sites three unpublished papers written earlier by the author of the Recovery Plan for the Nature Conservancy, 

as well as a number of other unpublished papers, which seems contrived for a federal document that is suppose to incorporate ‘‘Public Review’’ into its formulation. 

As per my written testimony, the confluence of timing between our consultation 

process and the initiation by the FWS of the Draft Recovery Plan, together with the 

negative tone of the Draft Recovery Plan towards quarrying, specifically in the State 

of Georgia, as written by the same consultant who had previously implied during 

our consultation process that he did not want our population of plants disturbed, 

together with the federal listing objective implying that the FWS would regulate 

these species through the section 7 process (see the ‘‘Critical Habitat’’ section of the 

listing) leads me to the personal opinion that our industry in general and our project 

specifically was unfairly censured for listed plants which are recognized by the ESA 

as being the property of the landowner. 

Our company, Martin Marietta Materials, Inc., seeks to protect the environment 

and exceed regulations wherever possible. However, in this instance, the interests 

of neither the endangered plant species, nor our company, nor our landowner was 

well served. The ESA, written for a noble purpose, has been historically administered by federal agencies in a glad-handed manner that violates the most fundamental private property rights of our citizens. The process is in bad need of overhauling. I applaud Congressman Cardoza and those legislators who will take the actions necessary to restore balance and fairness to the ESA. Thank you for allowing 

me to address these questions. 

Questions from Congressman Tom Udall 

In your testimony, you extensively discuss the impacts that two federally 

listed plants, Isoetes tegetiformans and Amphiantus pusillus, had on your 

mining operations. Are you aware that both plants do not have designated 

critical habitat? 

50 CFR Part 17 of the Federal Register found in Volume 53, No. 24, pg. 

3560 (Friday, February 5, 1988) contains the final rule by the FWS for listing three granite outcrop plant species, including the federally listed endangered Isoetes tegetiformans and the federally listed threatened 

Amphiantus pusillus. The ‘‘Critical Habitat’’ portion on pg. 3563 is quoted 

below in its entirety: 

Critical Habitat 

‘‘Section 4(a)(3) of the Act, as amended, requires that to the maximum extent prudent and determinable, the Secretary designate 

critical habitat at the time the species is determined to be endangered or threatened. The Service finds that designation of critical 

habitat is not prudent for these species at this time. Publication of 

critical habitat descriptions and maps would increase public interest and possibly lead to additional threats for these species from 

collecting and vandalism (see threat factor ‘B’ above). Distinctiveness of the outcrops increases their vulnerability since they tower 

above the surrounding vegetation and most are easily accessible. 

No benefit can be identified through critical habitat designation 

that would outweigh these potential threats. All State agencies and 

counties will be notified of the general location of the sites and of 

the importance of protecting these species’ habitat. Protection of 

these species’ habitat will be addressed through the recovery process and through the section 7 jeopardy standard. Therefore, it 

would not be prudent to determine critical habitat for these species 

at this time.’’

Yes, Mr. Udall, it is correct that neither of these two species have critical habitat 

designations. Why? It is clear from the quoted Federal Register that when these 

plants were listed—when Section 4(a)(3) of the ESA mandates that the Secretary 

is to designate critical habitat ‘‘to the maximum extent prudent and determinable—

115

the FWS exorcized its discretion to decide that these plants would be better served 

if their locations remained a mystery to all but a select few individuals who knew 

of their existence. Given that our landowner had never been contacted by any state 

or federal agency regarding the welfare of the listed plants on his private property, 

and given that the state Inventory Program and even a private consultant not associated with the FWS knew their exact location, one must presume that the ‘‘notification’’ courtesy described in the ‘‘Critical Habitat’’ portion of the listing was never extended to the landowner, the owner of the plants. My written testimony quotes Senate Report No. 100-240 describing that intent the 1988 amendment to the ESA was 

to reinforce the traditional rights accorded landowners with respect to plants, and 

that landowners often participate by taking ‘‘pride in the presence ... [of] rare 

species...’’. It is apparent from the listing and the actions of the FWS that our landowner was intentionally never afforded that opportunity. 

The FWS carries this rationale further by stating that protection of these species 

would be addressed ‘‘through the Section 7 jeopardy standard’’. It is clear from this 

that the FWS intended to use Section 7 as a weapon to restrict any activity that 

might impact these plants, irrespective of right of ownership, and clearly did so in 

our case. My testimony documents how our wetlands discharge notification on our leased 

property triggered the Section 7 consultation process of the ESA regarding the federally listed endangered Isoetes tegetiformans and the federally listed threatened 

Amphiantus pusillus, and particularly how the FWS initiated the drafting of a Recovery Plan for these species seemingly as a result of this notification. My testimony 

also documents how the Habitat Survey we conducted at our expense and the Draft 

version of the Recovery Plan B a Plan that had not even passed the public comment 

phase—were both used by the FWS to attempt to regulate these two plant species 

on our landowner’s property in spite of unquestionable legal evidence that plants 

are the property of private landowners. 

Even knowing our landowner’s ownership rights, Martin Marietta voluntarily entered into negotiations to relocate these plant species at our expense. This quickly 

turned into a non-voluntary process where we spent considerable time and resources 

to comply with regulatory agencies. The sad fact remains that, as per my written 

testimony, the FWS ‘‘Reasonable and Prudent Alternatives’’ were so unreasonable 

that, after we negotiated a separate route into the site and dropped our pre-discharge notification, the owner of the plants had little incentive and no longer any 

desire to seek the best solution for the plants. 

The ESA, written for a noble purpose, has been administered by federal agencies 

in a glad-handed manner that violates the most fundamental private property rights 

of our citizens. Federal agencies take an uncompromising ‘‘government knows best’’ 

approach—something that needs to be changed if America is serious about working 

together to help save endangered species. 

The legislation introduced by Congressman Cardoza to reform Critical Habitat 

designation would take the necessary first step by the government to actually start 

working in a collaborative way with landowners. While it is true that the two listed 

plant species in our case did not have critical habitat designation, the fact that our 

landowner and our company voluntarily attempted to save the landowner’s plants 

and were met by a regulatory stonewall that began at the point of listing the 

species, one in which the interests of the FWS and special interests groups were 

so intertwined that the welfare of both plant and owner were ignored, in my opinion, is highly relevant to the committee and is the reason why I wanted to tell our 

story. Our company, Martin Marietta Materials, Inc., seeks to protect the environment and exceed regulations wherever possible. However, in this instance, the interests of neither the endangered plant species, nor our company, nor our landowner 

was well served. I applaud Congressman Cardoza and those legislators who will 

take the actions necessary to restore balance and fairness to the ESA. FOLLOWUP 

The CHAIRMAN. Thank you. 

Miss Crookham? 

STATEMENT OF KATHLEEN M. CROOKHAM, DISTRICT 2 

COUNTY SUPERVISOR, MERCED COUNTY BOARD OF SUPERVISORS, SONOMA, CALIFORNIA 

Ms. CROOKHAM. Thank you, Chairman Pombo and members of 

the Committee. My name is Kathleen Crookham and I am a 

County Supervisor in the County of Merced in California. I appreVerDate 0ct 09 2002 11:21 Sep 24, 2004 Jkt 088533 PO 00000 Frm 00119 Fmt 6633 Sfmt 6602 J:\DOCS\93346.TXT HRESOUR1 PsN: KATHY
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ciate the opportunity today to testify in support of H.R. 2933, Critical Habitat Reform Act of 2003. As a County Supervisor and a private landowner, I have first-hand experience of how important it 

is to reform the current process in designating critical habitat. I 

would like to briefly summarize for you what happened in Merced. 

The Board of Supervisors and the community members were surprised and quite frankly, disappointed to read in the local newspaper on September 25, 2002, that the U.S. Fish and Wildlife Service proposed to designate 1.7 million acres of critical habitat for 

threatened and endangered vernal pool species. A total of 337,514 

acres of this particular proposal were the critical habitat located in 

Merced County, more than twice the amount of any other county 

in California or Oregon. The proposed designation covered 26 percent of our entire county, which in addition to 307,280 acres that 

are already protected as government lands, wetlands, and easements, this would be a total of 50 percent of our county under protected lands, quite a devastating blow to a county whose primary 

industry is agriculture. 

Despite the fact that Merced County had the largest acreage in 

this proposed habitat within the jurisdiction, the Service refused to 

hold a hearing in our county because of time constraints. As a result, many of the landowners in eastern Merced County who had 

been sensitized to the issues surrounding the Endangered Species 

Act were stunned by the proposed designation. They felt the Service was trying to set the critical habitat designation flying in under 

the radar screen hoping that no one would notice. 

The Board finally convinced staff members from the Service to 

make an informal presentation regarding the proposed habitat for 

Merced County. While the presentation was helpful, it was not an 

official public hearing and the information presented stirred up 

more questions than answers. The maps presented were outdated 

and did not provide enough detail for property owners to be able 

to determine if their land was in or out of the proposed habitat. 

The two-month comment period was hardly enough time for landowners to attend a public hearing, gather materials, and then provide thoughtful feedback concerning the impact of the proposed 

designation. 

Clearly the proposed habitat was poorly designed. The proposed 

acreage in Merced County was not scientifically or thoroughly selected and included an already-developed shopping area, parking 

lot, and even Castle Airport. It is evident that the proposed habitat 

would only escalate our economic problems. The community recognized that habitat would devalue their land and increase regulations on land use because individuals would lose their own property 

rights and the government would lose control over local planning 

and growth. 

Granted, Merced County is a rural community, but the residents 

really rallied together. Local residents took it upon themselves to 

quickly raise awareness. They compiled a list of affected property 

owners in the county and paid for the mailing of the information 

to hundreds of individuals. Actually it was about 1,200 people. 

They shouldered the burden of the expense, knowing that someone 

needed to fill the void that the Service had left empty. 

117

While the County of Merced was excluded from the final ruling 

on this particular proposed critical habitat designation, we anticipate finding ourselves along a similar path once again. 

Based on my own personal experience, I would like to reiterate 

two key issues that I have with the current process for critical 

habitat designations. Landowners must be notified and given 

ample time to provide feedback. The Service should consult local 

agencies in order to obtain resource information that is detailed 

and accurate. The Service must sincerely make efforts to communicate with landowners and I support providing a user-friendly 

website mechanism to help landowners determine if they are affected by the proposed designation. 

And second, the economic analysis must include consideration of 

lost revenues to the landowners, as well as to the Federal, state 

and local governments, so that the designation does not protect the 

species at the expense of the people. 

Chairman Pombo and members of the Committee, I appreciate 

this opportunity to share my personal story with you today and I 

am optimistic that this committee will find a positive resolution to 

this issue. 

And I would also like to openly express my appreciation to Congressman Cardoza for his steadfastness in championing this issue. 

He has been a strong support and a guide for our local board. And 

thank you for allowing me to speak to you today. 

[The prepared statement of Ms. Crookham follows:]

Statement of Kathleen M. Crookham, Supervisor, District Two,

Merced County Board of Supervisors, Merced, California 

Chairman Pombo, Ranking Member Rahall and Members of the Committee, my 

name is Kathleen Crookham. I am a County Supervisor for the County of Merced 

in California. I appreciate the opportunity to testify today in support of H.R. 2933, 

Critical Habitat Reform Act of 2003. As a County Supervisor for the County of 

Merced, and a private landowner, I have first-hand experience on how important it 

is to reform current processes for designating critical habitat. 

I would like to briefly summarize for you what transpired in Merced County, 

California. The Board of Supervisors and our community members were surprised 

and, quite frankly, disappointed to read in the local newspaper on September 25, 

2002, that the U.S. Fish and Wildlife Service proposed to designate 1.7 million acres 

as critical habitat for threatened and endangered vernal pool species. A total of 

337,514 acres of this particular proposed critical habitat was located in Merced 

County, more than twice the amount as any other County in California or Oregon. 

The proposed designation covered 26% of our entire County; which is in addition to 

307,280 acres that are already protected as government lands, wetlands and easements. This would have resulted in 50% of Merced County being under protected 

lands—quite a devastating blow for a county whose primary industry is agriculture. 

The Service arbitrarily set five public workshops about the proposed habitat, none 

of which were located in the County of Merced. In fact, the Service refused to hold 

a public hearing in our County because of ‘‘time constraints,’’ despite the fact that 

Merced County had the largest acreage of proposed critical habitat within its jurisdiction. 

To understand how insulting this was to us as the local government entity and 

to our community at large, I need to explain that the Service, the California Department of Fish and Game, University of California, Merced and Merced County jointly 

signed a Planning Agreement in preparation of a Natural Community Conservation 

Plan/Habitat Conservation Plan (NCCP/HCP) in eastern Merced County. This agreement stressed close cooperation among the principal agencies in the preparation of 

this plan, and also stressed the importance of public outreach and involvement of 

private landowners. 

Merced County, as the lead agency in the preparation of this NCCP/HCP plan, 

commenced a series of stakeholder meetings engaging various landowners, agricultural interests, business interests, and environmental interests in the beginning 

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stages of the preparation of this plan. Not only did the U.S. Fish and Wildlife Service fail to actively participate in the stakeholder meetings on a regular basis, it also 

failed to use this process to inform the public about the proposed critical habitat 

designation. 

As a result of the Service’s disregard for adequate public outreach, many landowners in eastern Merced County, who had been sensitized to the issues surrounding the Endangered Species Act, were stunned by the proposed designation because it had never been mentioned in previous stakeholder meetings. They felt the 

Service was trying to set the habitat designation by flying in under a radar screen, 

hoping that no one would notice. 

Despite numerous requests on our part, the Service did not hold a public hearing 

in our area. Our Board of Supervisors persisted and finally committed staff representatives from the U.S. Fish and Wildlife Service to make an informal presentation on the proposed habitat in Merced County. While the presentation was helpful, it was not an official public hearing and the information presented stirred up 

more questions than answers. The maps presented were outdated and did not provide enough details for property owners to be able to determine if their land was 

included or excluded in the proposed habitat. 

It soon became apparent that the main reason the Service proposed the critical 

habitat designation was in response to a lawsuit. The Service’s self-imposed ‘‘time 

constraints’’ included a two-month comment period, hardly enough time for landowners to attend a public hearing, gather materials and then provide thoughtful 

feedback concerning the impact of the proposed designation. I still firmly believe 

that proposals of this nature are too important to be rushed at the expense of adequate public participation. 

It also became apparent that the proposed designation was poorly designed. The 

proposed acreage in Merced County was not scientifically or thoughtfully selected, 

as the proposed land included already developed shopping areas, parking lots and 

even the Castle Airport Aviation and Development Center. After reviewing the economic analysis, it was evident that the proposed habitat would escalate our economic problems. The main industry of our County is agriculture and our County has 

a consistently high unemployment rate between 16-18%. The proposed designation 

would have taken valuable acreage out of agricultural production and also forced 

many of our farmers and their workers into unemployment, further devastating our 

local economy. The community recognized that the critical habitat would devalue 

their land and increase regulation on land use because individuals would lose their 

own property rights and local governments would lose control over local growth and 

planning. 

Granted, Merced County is a rural community, but the residents rallied together 

to ensure that everyone was informed about the proposed critical habitat. As the 

Service did not make any attempts to inform landowners who would be affected by 

the designation, local residents took it upon themselves to quickly raise awareness. 

When the Board of Supervisors finally succeeded in scheduling a presentation by 

Service representatives, it was local residents who compiled a list of all affected 

property owners in the County and paid for the mailing of information to hundreds 

of individuals. They shouldered the burden of this expense knowing that someone 

needed to fill the void that the Service left empty. They also believed that the expense would be worthwhile in comparison to the potential cost if the proposed habitat had been adopted. 

While the County of Merced was excluded from the final ruling for this particular 

proposed critical habitat designation, we have not had time to rest, as the California 

Tiger Salamander is now under consideration to be listed as threatened. If it does 

become listed, we anticipate finding ourselves along a similar path once again. 

Based on my personal experience, I would like to reiterate two key issues that 

I have with the current processes for critical habitat designation. Landowners must 

be notified and given ample access to information as well as ample time to provide 

feedback. The U.S. Fish and Wildlife Service should consult local County agencies 

in order to obtain local resource information that is detailed and accurate. The Service must sincerely make efforts to communicate with landowners and I support providing a user-friendly website mechanism to help landowners determine if they are 

affected by a proposed designation. Secondly, the economic analysis must include 

consideration of lost revenues to the landowners as well as the federal, state and 

local governments so that the designation does not protect the species at the expense of the people. 

Chairman Pombo, Ranking Member Rahall, and Members of the Committee, I appreciate the opportunity to share my personal story with you and am optimistic that 

this Committee will find a positive solution on this issue. I also want to openly express my appreciation to Congressman Cardoza for his steadfastness in chamVerDate 0ct 09 2002 11:21 Sep 24, 2004 Jkt 088533 PO 00000 Frm 00122 Fmt 6633 Sfmt 6621 J:\DOCS\93346.TXT HRESOUR1 PsN: KATHY
119

pioning this issue. He has been a strong support and guide for our local County 

Board. Thank you for allowing me to speak before you today. 621

[Ms. Crookham’s response to questions submitted for the record 

follows:]

Response to questions submitted for the record by Kathleen M. Crookham, 

District 2 County Supervisor, Merced County Board of Supervisors, 

Merced, California 

Questions from Chairman Richard Pombo 

1) We have heard that federal agencies could do a better job when it 

comes to informing communities of critical habitat designations. Communities deserve to be partners in this process. There are also instances 

where it is unclear how the federal agency determined critical habitat. 

Example: The Final Rule for Santa Ana sucker critical habitat is based on two 

‘‘personal communications’’ between with biologists and that nearby communities 

were not informed of these communications. 

• Will the bill improve cooperation and coordination with local governments? 

I am optimistic that H.R. 2933 will improve cooperation and coordination with 

local governments because the Service would need to consider information such as 

local resource data and maps from local governments in the vicinity of the area. In 

my experience in Merced County, the proposed critical habitat included land that 

was already developed into shopping areas, parking lots and even the Castle Airport 

Aviation and Development Center. Had the Service gathered basic data about our 

communities, they would have instantly seen the errors in their mapping techniques. Requiring the Service to consult local governments will result in more 

thoughtful and accurate designations, rather than hastily drawn habitats. 

Local officials and governments possess a wealth of information about their communities. Consulting local governments will increase communication with the local 

officials. We want to be a partner in the process and collaborate with the Service. 

Involving local governments can also help to minimize the distrust felt by local landowners. Landowners must be notified and given ample access to information as well 

as ample time to provide feedback. I also support providing a user-friendly website 

mechanism to help landowners determine if they are affected by a proposed designation. 

The CHAIRMAN. Thank you. 

Mr. Kelley? 

STATEMENT OF PAUL L. KELLEY, DISTRICT 4 COUNTY SUPERVISOR, SONOMA COUNTY BOARD OF SUPERVISORS, 

SONOMA, CALIFORNIA 

Mr. KELLEY. Thank you, Mr. Chairman and thank you to the 

Committee for allowing me the opportunity to come before you and 

testify in favor of Congressman Cardoza’s bill, H.R. 2933. 

My name is Paul Kelley. I am a County Supervisor in Sonoma 

County where I was elected nine-and-a-half years ago and have 

had the honor to serve my constituents and friends in a premium 

wine grape-growing region of California. I am here before you today 

to discuss the challenges that the residents of Sonoma County have 

faced subsequent to the listing of the California tiger salamander 

and also to speak in favor of Congressman Cardoza’s bill. 

On July 22, 2002, the Sonoma County distinct population of the 

California tiger salamander was listed as endangered on an emergency basis. The final rule was later published and our inability to 

find a balanced solution to this listing is particularly disappointing 

to the residents of Sonoma County, where we have been willing 

and very willingly shouldered all the responsibilities in the past to 

120

protect our environment, regardless of the mandate recognizing it 

is the right thing to do. 

Sonoma County is the home of 450,000 people. In addition to 

that, we are the home of other endangered species, specifically 

steelhead, coho and chinook salmon, and local governments, including the county, have had a long history of reviewing policies and 

procedures to ensure their protection. 

Our communities have diligently worked hard to protect our environment. We even have a local sales tax initiative that was 

passed that provides the opportunity to protect different lands and 

land conservation programs that brings in over $13 million a year. 

As a result of our historical success at preserving the environment, our community felt confident that we could address the challenge of the salamander. Although paralysis in terms of construction and project approvals, infrastructure maintenance and construction has been incredibly costly and potentially millions of dollars, we do feel confident that we have begun a process that will 

meet with success. 

Through the efforts of Wayne White of the Sacramento office of 

the Fish and Wildlife Service, we have embarked upon a conservation strategy for the CTS in Sonoma County. He has offered us an 

opportunity to work together so that the economic impact to the 

community is minimized and the opportunity to protect, recover 

and conserve the salamander is maximized. If we are successful we 

hope that this can be duplicated elsewhere. 

This strategy team has two tasks over the next 60 days—first, 

to identify lands that need to be set aside for conservation, and second, to craft solutions that are economically palatable to our community. The members of the strategy team include representatives 

from appropriate regulatory agencies, local governments, private 

landowners, and the environmental community. 

The Endangered Species Act should be about a conservation 

strategy and recovery. This bill is the right step to recovery. We in 

local governments and communities need the tools or the path for 

recovery. 

Beyond the first 60 days of formulating strategy, improvements 

will be made to certain parts of the landscape. This will undoubtedly include the creation of perpetual conservation easements on 

both public and private properties. If the team is not successful, we 

are very concerned that the Service does not have the resources or 

the personnel that would allow them to respond in a timely manner to requests for assistance and permits from public and private 

stakeholders. This could be a moratorium on construction, both 

public and private, including infrastructure critical to all of our 

constituents. 

In summary, my testimony today is meant to emphasize the 

many components of our local team’s efforts that support the congressman’s legislation. They include critical habitat designation 

would be made concurrent with the recovery plan, by developing a 

conservation plan first, as is currently under way in Sonoma 

County, and we hope that the designation of critical habitat will 

more accurately reflect what is actually needed to recover the 

species. 

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Properties that are already part of a conservation plan would be 

excluded from critical habitat designation. In Sonoma County we 

are looking at properties that now support or could sustain the salamander that are already subject to conservation measures. 

At the time the critical habitat is designated, economic impacts 

of the designation would have already been considered. And finally, 

the proposed legislation’s word change from ‘‘essential to the conservation of the species’’ to ‘‘essential to the conservation of the 

species as areas which are absolutely necessary and indispensable 

to conservation’’ would undoubtedly support efforts at crafting a 

workable conservation plan. 

In conclusion, we need the tools to recovery of species that are 

listed and Congressman Cardoza’s bill will, in the long run, offer 

a better protection for threatened and endangered species, it will 

go a long way in ensuring recovery of the listed species and will 

strike a balance that also addresses the needs of the people that 

we all serve. 

I appreciate and thank you for the opportunity to speak and testify before you and look forward to any questions at the end. 

[The prepared statement of Mr. Kelley follows:]

Statement of Paul L. Kelley, 4th District Supervisor,

Sonoma County, California 

I would like to begin by thanking Congressman Richard Pombo for allowing me 

to testify on Congressman Dennis Cardoza’s bill, H.R. 2933, that would amend the 

Endangered Species Act relative to the designation of Critical Habitat. My name is 

Paul Kelley, and I represent the 4th Supervisorial District of Sonoma County. I was 

born and raised in the district that I now represent. I attended local public schools 

and received my B.S. in Computer Science from San Francisco State University. Experiences from my youth forward have made me intimately familiar with the concerns of the people that I now represent. I’ve worked in the beautiful vineyards of 

Alexander Valley, in one of our largest manufacturing plants in the County, for a 

small computer company and, eventually, in the classroom where I taught Math and 

History. 

In 1994, I was elected as Sonoma County’s Fourth District Supervisor. I have 

served in that capacity since that time. I feel honored to serve the people who are 

my friends and neighbors. Representing the people that I have known my entire life 

makes my testimony of special personal significance. I am before you today to discuss the challenges that the residents of Sonoma County faced subsequent to the 

listing of the California Tiger Salamander. 

On July 22, 2002, the Sonoma County Distinct Population of the California Tiger 

Salamander was listed as endangered species on an emergency basis. The final rule 

listing of the Sonoma County Distinct Population Segment as endangered was published in the Federal Register on March 19, 2003. Our inability, in the last year, 

to find a balanced solution to this listing was particularly disappointing to the residents of Sonoma County: people who have willingly shouldered responsibility to protect their environment, not because it was mandated, but because it is the right 

thing to do. To understand their dismay, it is important to understand the community. 

Sonoma County is a wonderfully balanced mix of urban and rural development. 

We are home to 450,000 people and, for those of you not fortunate enough to be familiar with our locale, about 40 miles north of the Golden Gate Bridge. We live in 

an area that is varied in scenery: giant redwoods, ocean beaches, rolling hills and, 

of course, the beautiful wine country. In addition to our human population, Sonoma 

County is also home to a number of endangered and threatened species such as the 

Central Coast Steelhead, the Central Coast Coho Salmon and the California Coastal 

Chinook Salmon. Local governments have a long history of reviewing policies and 

procedures to ensure protection of all threatened and endangered species. As just 

one example: The Sonoma County Water Agency, at the direction of the Board of 

Supervisors, has spent millions of dollars in an effort to protect and restore fish 

habitat. 

122

Our communities have diligently worked to protect their environment. All of the 

cities within the range of the Tiger Salamander have passed Urban Growth Boundaries. Community Separators are in place between the communities for maintenance 

of open space and community identity. Additionally, in 1990, the taxpayers of 

Sonoma County voted to tax themselves a 1/4 percent sales tax for a 20-year period. 

These monies fund the Sonoma County Agricultural Preservation and Open Space 

District. The sales tax provides an annual allocation of approximately $13 million 

to the District’s land conservation program. This District is one of the top ten farmland and open space preservation programs in the Nation. It is one of the few jurisdictions in the Nation to use a sales tax for the purchase of conservation easements 

to protect agricultural lands and preserve open space. Thousands of acres of lands 

paid for by Sonoma County taxpayers have been set aside. 

As a result of our historical success at preserving the environment, our community felt confident that we could address the challenge of the salamander. Although 

paralysis in terms of construction and project approvals has been incredibly costly—

potentially millions of dollars—we feel confident that we have begun a process that 

will lead to ultimate delisting of the salamander and certainty for those most economically impacted. 

Through the efforts of Wayne White, Field Supervisor for the Sacramento Office 

of the Fish & Wildlife Service, we have embarked upon a conservation strategy for 

the California Tiger Salamander in Sonoma County. He has offered us an opportunity to work together so that the economic impact to the community is minimized 

and the opportunity to protect the salamander is maximized. This strategy has the 

backing of public and private entities alike. If we are successful, this process could, 

and should, be duplicated in other areas of the country. 

This strategy team has two tasks over the next 90 days: first, to identify lands 

that need to be set aside for conservation; and second, to craft solutions that are 

economically palatable to our community. The members of the strategy team include 

representatives from: 

1) United States Fish & Wildlife Service; 

2) Environmental Protection Agency; 

3) California Department of Fish & Game; 

4) Regional Water Quality Control Board; 

5) Army Corps of Engineers; 

6) City of Santa Rosa, Rohnert Park and the County of Sonoma (1 person); 

7) Environmental Community (1 person); 

8) Private Property; (1 person); 

9) NGO Representative; and, finally a 

10) Facilitator. 

Beyond the first ninety (90) days, improvements will be made to certain parts of 

the landscape. This will undoubtedly include the creation of perpetual conservation 

easements on both public and private properties. Additionally, we are exploring 

ways in which we can eliminate the expenditure of millions of dollars now spent 

on surveys that indicate the presence or absence of salamanders, and on Environmental Impact Reports that merely delineate the need for mitigation. Monies spent 

on these studies can be better used for conservation and ultimate delisting of the 

species. 

If the team is not successful, we are concerned that the Service does not have the 

resources or personnel that would allow them to respond, in a timely manner, to 

requests for assistance and permits from public and private stakeholders conducting 

activities in the salamander habitat area. In practical terms, this could mean a moratorium on construction, both public and private, on the Santa Rosa Plain. Our 

greatest fear is that anything short of success will result in the designation of Critical Habitat for the salamander. This recently occurred in Santa Barbara County, 

and the proposal was for 13,920 acres. 

In summary, my testimony today is meant to emphasize the many components 

of this team’s efforts that support Congressman Cardoza’s legislation. They include: 

• Critical Habitat designation would be made concurrent with a recovery plan. By 

developing a plan first, as is currently underway in Sonoma County, we hope 

that thoughtful preparation of the plan will allow the time, and will incorporate 

the expertise necessary, to ensure that the Critical Habitat which is designated 

meets the stringent requirements in the Endangered Species Act’s existing definition of Critical Habitat and as it may be amended by this legislation. 

• Properties that are already a part of a ‘‘conservation plan’’ or under protection 

by other state or federal conservation programs would be excluded from Critical 

Habitat designation. In Sonoma County we are looking at properties that now 

support, or could sustain or currently support, the salamander, and that are already subject to conservation measures by local agencies. This would allow land 

123

to be used for multiple purposes, including, preservation of open space, wetlands restoration, plant conservation as well as habitat for the endangered salamander. • At the time that Critical Habitat is designated, economic impacts of the designation would have already been considered. This approach is key if we want 

to ensure long-term continuation of the Act itself. We have yet to evaluate how 

economically devastating a Critical Habitat designation would be in Sonoma 

County. Given our current process, we hope to avoid the challenges that the 

people of Santa Barbara County now face. • Affected jurisdictions, with few resources available to deal with the listing 

would receive additional notification of critical habitat proposals. The information would have to be shared—precluding the employment of firms to aid in 

gathering information pertinent to the listing. This would give local jurisdictions access to information that would allow them to make decisions that would 

best serve their communities’ needs. • Finally, the legislation’s proposed word change from ‘‘essential to the conservation of the species’’ to ‘‘essential to the conservation of the species as areas 

which are absolutely necessary and indispensable to conservation,’’ would undoubtedly support our efforts at crafting a ‘‘workable’’ conservation plan. Any 

conservation requirements should be delineated in detail, clearly stating what 

is needed in terms of acreage, and the life patterns of the species that support 

that determination; and ‘‘the best available’’ science that is consistently applied. 

Congressman Cardoza’s bill will, in the long run, offer better protection for threatened and endangered species. It will go a long way in ensuring recovery of all listed 

species, and will strike a balance that also addresses the needs of the people we 

all serve. 

Again, thank you for allowing me to testify before your committee. 

[Mr. Kelley’s response to questions submitted for the record 

follows:]

Response to questions submitted for the record by Paul L. Kelley,

4th District Supervisor, Sonoma County, California 

(1) Supervisor Kelley, we have heard that federal agencies could do a better job when it comes to informing communities of critical habitat designations. Communities deserve to be partners in this process. There are also 

instances where it is unclear how the federal agency determined critical 

habitat. 

Example: The Final Rule for Santa Ana sucker critical habitat is based on two 

‘‘personal communications’’ between with biologists and that nearby communities 

were not informed of these communications. 

• Will the bill improve cooperation and coordination with local governments? 

Response: Communications between all government agencies, and in this case the 

USFWS and local jurisdictions, should be of the highest priority. Open lines of communication would allow for elected officials as well as regulators to share knowledge 

and make better and informed decisions. 

Frequently, people we represent in our communities have been ignored in the 

process. Requiring the USFWS to notify every impacted jurisdiction is of utmost importance. Affected jurisdictions with few resources available to deal with listings 

would be helped if they were to receive additional notification of proposals. Sharing 

of information would help reduce concerns involving the expenditure of human and 

financial resources. 

Few federal agencies have an understanding of the needs of a particular area. 

Locally-elected officials, however, have a very good idea of what these needs are. By 

working together, we can create solutions that would allow for recovery of the 

species—often through voluntary action—thus promoting co-existence between 

human populations and the protected species. 

The present communication process largely ignores public input. Few people have 

the time or energy to read the Federal Register on a daily basis. Even fewer people 

have a concept of the impact a listing may have on their lives. The time has come 

for individuals to be given the opportunity to participate in these decisions. If, indeed, it is appropriate that a species be offered federal protection, then a system 

of communication and cooperation should be devised that allows for maximum opportunity for species recovery with minimal economic impact to the human population. 

124

Thank you for allowing me to give additional testimony. 

The CHAIRMAN. Thank you. 

Mr. Walters? 

STATEMENT OF DONALD B. WALTERS, JR., PRESIDENT, 

PRIMARY SYSTEMS SERVICES GROUP, LLC., TESTIFYING ON 

BEHALF OF NATIONAL ASSOCIATION OF HOMEBUILDERS 

Mr. WALTERS. Chairman Pombo, members of the House Resources Committee, I am pleased to share with you today the views 

of the 215,000 members of the National Association of Homebuilders on H.R. 2933, the Critical Habitat Reform Act of 2003 introduced by Congressman Dennis Cardoza. I thank you for the opportunity to appear before you today. 

My name is Donald B. Walters, Jr., and I am a homebuilder and 

developer from Flagstaff, Arizona. As founder and President of 

Primary Systems Services Group, I oversee a full-service general 

contracting corporation involved in homebuilding, development and 

commercial construction. 

My family has lived in Arizona’s Verde Valley since the 1860s 

and my company and I have a deep appreciation and respect for 

the land on which we live and build. 

As a result of the failure to either (A) designate critical habitat 

or (B) properly conduct the analysis required under the ESA, critical habitat designations have become increasingly driven by litigation and inaccurate or incomplete science and data. The problems 

and difficulties experienced by private landowners with respect to 

critical habitat are well documented and numerous. In seeking a 

legislative solution to the current crisis regarding critical habitat, 

H.R. 2933 proposes several important reforms to the process by 

which the Service designates critical habitat. 

NAHB supports the majority of the reforms H.R. 2933 proposes. 

However, we do reserve concerns over provisions in the bill linking 

critical habitat designations to the recovery planning process. The 

following comments to the Committee address, in turn, four broad 

provisions of H.R. 2933. Section 2 of the bill proposes to link the 

designation of critical habitat to the approval of a recovery plan. 

Although well intentioned, NAHB believes that this may unintentionally create a new litigation threat and place a higher regulatory 

burden on the regulated community. 

First, NAHB is concerned that by linking critical habitat designation to recovery planning, the inherently discretionary nature 

of the recovery planning process will be supplanted by the mandatory nature of critical habitat designations. 

Second, recovery plans are guidance documents that do not have 

the force and effect of law. If critical habitat, the designation of 

which does have regulatory impact, is morphed as part of the recovery planning, the unintended consequence would be likely that 

the elements of the recovery plan would be transposed as having 

a binding legal effect on private parties. 

Finally, if critical habitat were tied to a recovery plan, NAHB is 

concerned that the boundaries of critical habitat, traditionally interpreted as a smaller area than that which may lead to a species 

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recovery, would likely coincide with the larger area of recovery 

habitat. 

Mr. Chairman, NAHB stands ready to work with bill sponsors 

and the Committee to address these concerns with H.R. 2933. 

Next, H.R. 2933 would exempt habitat conservation plans, 

HCPs, and other management plans from critical habitat designations. NAHB supports the exclusion of HCPs and other species 

management plans from critical habitat designations and therefore 

supports these provisions of H.R. 2933. NAHB believes that nationwide, private landowners represent a vital component to 

species conservation and preservation actions. 

While the Fish and Wildlife Service has exempted approved 

HCPs from critical habitat designations, these exemptions are more 

a matter of administrative policy and interpretation and therefore 

subject to change. Accordingly, NAHB supports the provisions of 

H.R. 2933 that would codify these important practices. 

Section 3 of the bill would require the consideration of direct, indirect and cumulative economic impacts on designating critical 

habitat. For years NAHB has questioned and challenged the assumption by the Fish and Wildlife Service that all costs are borne 

at the time of a species’s listing and as a result, there are only incremental economic impacts attributed to the designation of critical 

habitat. The economic analyses conducted for critical habitat routinely and significantly underestimate the true costs imposed by 

the designation. As such, NAHB supports provisions of H.R. 2933 

that at long last would provide this important direction to the Service. 

Mr. Chairman, Section 5 of the bill would establish statutory 

definitions for key terms relating to critical habitat under the ESA 

and NAHB also supports these provisions as they would restate 

and reemphasize the definitions of geographical area occupied by 

the species and essential to the conservation of the species. These 

are two terms that have been traditionally misread and misinterpreted and NAHB supports provisions in H.R. 2933 that seek to 

correct these past failures. 

Mr. Chairman, in closing I would like to express NAHB’s appreciation for your long-standing leadership on the issues surrounding 

ESA reform and for holding this important hearing today. 

On behalf of NAHB, I would also like to thank Congressman 

Dennis Cardoza for his leadership in introducing H.R. 2933. 

Chairman Pombo and members of the Committee, I thank you 

for your consideration of NAHB’s views on this matter and hope 

that endangered species conservation in this country becomes less 

about litigation and gridlock and more about commonsense conservation policies and programs. With the notable exception of linking critical habitat and recovery planning, NAHB believes that 

H.R. 2933 makes great strides in this direction. Thank you. 

[The prepared statement of Mr. Walters follows:]

Statement of Donald B. Walters, Jr., President, Primary Systems Services 

Group LLC., President, Northern Arizona Building Association, on behalf 

of the National Association of Home Builders 

Chairman Pombo, Ranking Member Rahall, and members of the House Resources 

Committee, I am pleased to share with you today the views of the National Association of Home Builders (NAHB) on H.R. 2933, ‘‘the Critical Habitat Reform Act of 

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2003’’, introduced by Congressman Dennis Cardoza (D-CA), and on the process of 

critical habitat designation under the Endangered Species Act (ESA). I appreciate 

the opportunity to appear before the committee today to share the building industry’s views on this important legislation. 

My name is Donald B. Walters, Jr., and I am a homebuilder and developer from 

Flagstaff, Arizona, and the current President of the Northern Arizona Building Association. As founder and President of Primary Systems Services Group, I oversee 

a full service general contracting corporation involved in home building, development, and commercial construction. My family has lived in Arizona’s Verde Valley 

since the 1860s, and my company and I have a deep appreciation and respect for 

the land in which we live and build. This appreciation and philosophy guide my 

company and the work that we do. 

Mr. Chairman, NAHB represents over 215,000 member firms involved in home 

building, remodeling, multifamily construction, property management, housing finance, building product manufacturing and other aspects of residential and light 

commercial construction. Our members are committed to environmental protection 

and species conservation, however, oftentimes well-intentioned policies and actions 

by regulatory agencies result in plans and programs that fail to strike a proper balance between conservation goals and needed economic growth. In these instances, 

our members are faced with significantly increased costs attributed to project mitigation, delay, modification, or even termination. 

NAHB’s members are citizens of the communities in which they build. They seek 

to support the economy while providing shelter and jobs; partner to preserve important historical, cultural and natural resources; and protect the environment, all 

while creating and developing our nation’s communities. As such, NAHB supports 

the Services efforts to protect and conserve species that are truly in need of protection. NAHB believes, however, that a vital component of any conservation effort is 

to ensure the proper balance of each species’ needs with the needs of the states and 

communities in which it is located. 

Because the ESA requires the Services to consider this balance, NAHB supports 

the designation of critical habitat when it is completed within the confines of the 

ESA. Unfortunately, as a result of the failure to either: a) designate critical habitat 

or b) properly conduct the analyses required under the ESA, critical habitat designations have become increasingly driven by litigation and inaccurate or incomplete 

science and data. 

The problems and difficulties experienced by private landowners with respect to 

critical habitat are well documented and numerous. The General Accounting Office 

(GAO) has repeatedly visited the critical habitat issue, and has twice raised 

concerns with the U.S. Fish and Wildlife Service for its failure to issue guidance 

on critical habitat designations (U.S. General Accounting Office. Fish and Wildlife 

Service uses best available science to make listing decisions, but additional guidance 

needed for critical habitat designations. GAO-03-803. Washington, D.C., August 29, 

2003.) Although FWS has repeatedly examined the issue, and has at times solicited 

comments on the critical habitat designation process, there has been no definitive 

guidance on critical habitat in recent years. Without such guidance the building industry has been faced with uncertainty and delay in moving forward with many 

projects. 

In seeking a legislative solution to the current crisis regarding critical habitat, 

H.R. 2933 proposes several important reforms to the process by which the Services 

designate critical habitat under the ESA. NAHB supports the majority of reforms 

H.R. 2933 proposes. However, we do reserve concerns over provisions in the bill 

linking critical habitat designations to the recovery planning process. 

The following comments to the committee address, in turn, four sections of 

H.R. 2933, including the aforementioned concurrent designation of critical habitat 

with the approval of a recovery plan; the exemption of Habitat Conservation Plans 

(HCPs) and other management plans from critical habitat designations; the mandated consideration of direct, indirect, and cumulative economic impacts when designating critical habitat; and the establishment of statutory definitions for two key 

terms relating to critical habitat under the ESA. 

I. Concurrent Designation of Critical Habitat with the Approval of a Recovery Plan 

H.R. 2933 proposes to link the designation of critical habitat to the approval of 

a recovery plan. Some advocates of this position believe that, if critical habitat is 

pushed back to the recovery planning stage, the Services will have more time to 

compile the scientific and economic data they need to make fully informed and fair 

designations. Although well intentioned, NAHB does not believe that this will solve 

the current litigation crisis that ensnarls the designation of critical habitat, and 

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may unintentionally create a new litigation threat for the Services while placing a 

higher regulatory burden on the regulated community. 

First, NAHB is concerned that by linking critical habitat designation to recovery 

planning, the inherently discretionary nature of the recovery planning process could 

be supplanted by the mandatory nature of critical habitat designation. The Services 

could effectively be exposed to greater legal liability, and possibly faced with a new 

breed of lawsuits focusing on compelling the issuance of recovery plans. As the ESA 

does not currently mandate any set timelines for the completion of a recovery plan, 

it would be up to the eventual judge to set one. The litigation cycle that currently 

entraps the ESA would only shift from compelling the issuance of critical habitat 

under set timelines to the completion of recovery plans under set timelines. 

A second concern with coupling the recovery planning process with critical habitat 

designation is a blurring of the important distinctions between the guidance of recovery plans and the regulations of critical habitat. Indeed, while U.S. Fish and 

Wildlife Service staff have relied upon recovery plans as the basis for their regulatory actions in some cases, numerous courts have determined that recovery plans 

are non-binding guidance—documents that impose requirements on federal agencies 

only. See, e.g., Fund for Animals v. Rice, 85 F.3d 535 (11th Cir. 1996); Oregon 

Natural Resources Council v. Turner, 863 F.Supp. 1277 (D Or. 1994); Defenders of 

Wildlife v. Lujan, 792 F.Supp. 834 (D.D.C. 1992); National Wildlife. Fed’n v. National Park Serv., 669 F.Supp. 384 (D. Wyo. 1987) 

By way of example, Fish and Wildlife field staff in Arizona have used recommendations from working drafts of the recovery plan for the Cactus Ferruginous 

Pygmy-Owl as justification for density requirements in proposed critical habitat 

areas. See, e.g., Biological Opinion on the Effects of the Countryside Vista (Blocks 

5 and 6) Development in Marana, Arizona (July 11, 2000). Accordingly, the potential 

for further abuse of regulatory authority is of significant concern to NAHB. 

The third and final concern with tying critical habitat designations to the recovery 

planning stage is that such a change may raise the standard for the designation and 

sweep broader areas into the regulatory net than Congress intended. While economic and other ‘‘real world’’ considerations are mandated under the critical habitat 

designation process, there are no such requirements for the drafting of recovery 

plans. Further, the ESA currently defines critical habitat as ‘‘specific’’ areas that are 

found to be ‘‘essential’’ for conservation. This has traditionally been interpreted as 

a smaller area than that which may lead to a species’ ‘‘recovery.’’ Quite simply, if 

critical habitat were tied to a recovery plan, the boundaries of critical habitat would 

likely coincide with the larger area of ‘‘recovery habitat.’’

Mr. Chairman, NAHB stands ready to work with bill sponsors and the committee 

to address these concerns with H.R. 2933 in an effort to ensure that the potential 

for future problems with critical habitat designations are lessened not expanded. 

II. Exemption of Habitat Conservation Plans (HCPs) and Other Management Plans 

From Critical Habitat Designations 

NAHB supports the exclusion of HCPs and other species management and conservation plans from critical habitat designations and believes that, in doing so, the 

Services provide powerful incentives to private landowners to continue entering into 

such agreements. Accordingly, NAHB supports provisions of H.R. 2933 that automatically exempt HCPs and other management plans from critical habitat designations. 

Nationwide, private landowners represent a vital component to ensuring species 

conservation and preservation. True progress in species conservation and recovery 

can only be accomplished with the active and creative cooperation of this integral 

constituency. One way to gain their support is through the creation and implementation of incentive-based policies and programs such as HCPs, Safe Harbor Agreements, Conservation Banking, and the No Surprises Rule. These programs, however, can only be effective if they provide certainty and predictability to the landowners who choose to participate. 

Under the ESA, the Services are obligated to consider whether ‘‘special management considerations’’ in the form of critical habitat are warranted for these specific 

areas. To demonstrate compliance with this mandate and determine whether any 

such additional management considerations are needed, NAHB believes that the 

Services are obligated to consider and review all private, local, state, regional, and 

federal protections, including all applicable management plans and conservation 

agreements to assess the conservation benefits they provide. If a specific area is already managed for the conservation of a particular species, that area is clearly not 

in need of additional protections or management considerations, and therefore fails 

to meet the very definition of critical habitat and must be excluded from the designation. 

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Unfortunately, recent litigation surrounding the Mexican Spotted Owl has challenged this logical progression (See Center for Biological Diversity v. Norton, Civ. 

No. 01-409 TUC DCB), and threatens to undercut the attractiveness and usefulness 

of the full range of conservation tools and management options available to land 

managers, private landowners, and developers, resulting in a far-more onerous and 

far-less effective ESA. 

Ultimately, in areas covered by HCPs, Safe Harbor Agreements, and other management plans and conservation programs, the designation of critical habitat only 

serves to add another layer of review and bureaucracy while failing to afford any 

additional protections for listed species. It also serves as a disincentive in those instances where voluntary measures are underway. Needless red tape is not a substitute for commonsense conservation policy, and may even result in detrimental impacts to threatened and endangered species. 

Accordingly, NAHB appreciates the Services recognition of landowner contributions in this regard, and notes as a matter of reference that the Fish and Wildlife 

Service for one has exempted approved HCPs from critical habitat designations 

(FWS has exempted HCPs from several recent critical habitat designations including; the La Graciosa thistle on March 17, 2004 (69 FR 12560) and the Santa Anna 

Sucker February 26, 2004 (69 FR 8847). In conjunction with § 4(b)(2) of the Act, the 

Fish and Wildlife Service has cited this very logic in its exclusion of HCPs and other 

properly managed lands in, amongst others, the proposed designation of critical 

habitat in Arizona for the Cactus Ferruginous Pygmy-Owl. In that proposal, the 

Service even went so far as to ‘‘encourage landowners to develop and submit management plans and actions that are consistent with pygmy-owl conservation that 

[the Fish and Wildlife Service] can evaluate and that may remove the necessity of 

critical habitat regulation.’’ (67 FR 71042) 

As these exemptions are more a matter of Administration policy and interpretation, and therefore subject to change, NAHB supports the provisions of H.R. 2933 

that will codify these practices. 

III. Consideration of Direct, Indirect, and Cumulative Economic Impacts when 

Designating Critical Habitat 

For years, NAHB has questioned and challenged the assumption by the Services 

that all costs are borne at the time of species listing and as a result there is only 

an incremental economic impact attributed to the designation of critical habitat. Indeed, the 10th Circuit Court has itself rejected this so-called baseline approach, reemphasizing ‘‘the congressional directive that economic impacts be considered at the 

time of critical habitat designation’’ (New Mexico Cattle Growers Assn. v. U.S. Fish 

and Wildlife Service, 248 F.3d 1277 (10th Cir. 2001)). 

The Services should base their decision on whether to exclude areas under 

§ 4(b)(2) of the ESA on economic analyses that are sound and complete, fully addressing the direct, indirect, and cumulative impacts of critical habitat designation. 

As such, NAHB supports provisions of H.R. 2933 that would provide this direction 

to the Services. 

By merely examining the administrative costs of Section 7 consultations and the 

costs associated with project modifications as a result of those consultations, economic analyses conducted for critical habitat routinely and significantly underestimate the true costs imposed by the designation. 

As pointed out in a report entitled, ‘‘The Economic Costs of Critical Habitat Designation: Framework and Application to the Case of California Vernal Pools Report’’ 

prepared for California Resource Management Institute by D. Sunding, the Fish and 

Wildlife Service’s attempt at quantifying the impact of critical habitat for four 

vernal pool species of crustaceans and eleven vernal pool species of plants in 

California and Southern Oregon underestimated true costs by 7 to 14 times. 

By way of further example, the Fish and Wildlife Service’s study for the economic 

impact of critical habitat for the Cactus Ferruginous Pygmy-Owl in my state of Arizona was not so much a study of the economic impact of the proposed designation, 

but a study of the costs of designation on certain concerned industries. No attention 

was paid to any effect on the local economy, local governments, or tribes; and regional economic impacts, tax revenues, secondary impacts, and increased housing 

prices were all excluded because they were assumed to be minimal. 

It is obvious that the Services have repeatedly failed to accurately and fully account for the economic impact of critical habitat designations. NAHB believes that 

H.R. 2933 recognizes and reaffirms the statutory requirement of the Services under 

§ 4(b)(2) of the ESA to examine the economic impacts of critical habitat and to exclude any specific geographical area from a designation if the benefits of exclusion 

outweigh the benefits of inclusion, and supports these provisions. 

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IV. Establishment of Statutory Definitions for Key Terms Relating to Critical Habitat 

under the ESA 

Although critical habitat is clearly defined in § 3(5)(a) of the ESA, NAHB believes 

the Services have traditionally misread and misinterpreted the Act’s requirements. 

Accordingly, NAHB supports provisions of H.R. 2933 that restate and reemphasize 

the definitions of ‘‘geographical area occupied by the species’’ and ‘‘essential to the 

conservation of the species,’’ two key, interrelated terms relating to the critical habitat process. 

The ESA dictates two distinct classes of habitat that may be designated as critical 

habitat: (1) those areas ‘‘within the geographic area occupied by the species’’ and, 

(2) those areas ‘‘outside the geographic area occupied by the species.’’ Congress intended that, as a benchmark, critical habitat could encompass areas ‘‘occupied’’ by 

the species. Under § 3(5)(A) of the ESA, ‘‘unoccupied’’ areas may also be 

designated—but only where the Secretary specifically determines that the unoccupied area is ‘‘essential to conservation.’’

NAHB believes that the Services have only limited and exceptional authority to 

designate ‘‘unoccupied’’ areas as critical habitat. The current implementing regulations also evince a clear priority for designating occupied areas as critical habitat 

in the first instance. The Services’ regulations state that areas outside of a species’ 

occupied habitat may be included in the critical habitat designation but ‘‘only when 

a designation limited to its present range would be inadequate to ensure the conservation of the species.’’ 50 C.F.R. § 424.12(e). 

Despite this directive, in practice the Services have often treated unoccupied areas 

as occupied to avoid its obligation to make affirmative findings that the unoccupied 

area is ‘‘essential for conservation.’’ The absence of such an affirmative finding, however, does not permit the Services to arbitrarily define which areas may or may not 

be occupied simply on the basis of habitat characteristics, as seen in the designation 

of critical habitat for the Alameda Whipsnake. As ruled in that case, (HBA of No. 

Calif. v. U.S. Fish & Wildlife Service (1:01-Cv-05722 E.D. Calif., May 9, 2003), an 

area cannot be labeled as occupied simply because it is deemed essential to the conservation of the species and contains necessary primary constituent elements. As 

the courts have ruled, such is ‘‘an insufficient basis to designate land as occupied 

critical habitat’’ and nullifies ‘‘the distinction between occupied and unoccupied land, 

a distinction Congress expressly included in the ESA.’’ Id. at 29. 

Likewise, NAHB believes Congress’ intent in crafting the ESA is being incorrectly 

interpreted by the Services when 1.2 million acres were proposed as being ‘‘within 

the geographic area occupied’’ by the pygmy-owl, a species that, in 2002, numbered 

18 individuals. (FR 67 71035). Experience has shown that it can oftentimes be very 

difficult for the general public to determine whether or not they are in an area labeled by the Services as ‘‘occupied.’’ Only after extensive litigation did FWS provide 

NAHB with site-specific data on where pygmy-owls were located across federal, 

state, and private lands. 

In the end, it is clear that, although already defined in the ESA, ‘‘geographical 

area occupied by the species’’ and ‘‘essential to the conservation of the species’’ are 

two terms that have traditionally been misread and misinterpreted. NAHB supports 

the provisions in H.R. 2933 that seek to correct these past failures. 

Conclusion 

Mr. Chairman, in closing, I would like to express NAHB’s appreciation for your 

longstanding leadership on the issues surrounding ESA reform, and for holding this 

important hearing today. On behalf on NAHB, I would also like to thank Congressman Dennis Cardoza for his leadership in introducing H.R. 2933. 

Chairman Pombo, and members of the Committee, I thank you for your consideration of NAHB’s views on this matter, and hope that as a result of the discussion 

on this and other ESA reform bills, endangered species conservation in this country 

becomes less about litigation and gridlock and more about common-sense conservation policies and programs. With the notable exception of linking critical habitat and 

recovery planning, NAHB believes that H.R. 2933 makes great strides in this direction. NAHB strongly urges the Committee to fully consider both the intentional and 

unintentional consequences of any ESA reform, so that these hard-fought efforts 

may leave species conservation better off in the end. I’d be happy to answer any 

questions you may have for me. 

[Mr. Walter’s response to questions submitted for the record 

follows:]

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Response to questions submitted for the record by Donald B. Walters, Jr., 

President, Primary Systems Services Group, LLC., on behalf of the 

National Association of Home Builders 

Questions from the Minority Members 

Question: How can we recover species without protecting habitats, including areas where species do not presently live but where they would if 

populations recovered? 

NAHB believes that in order to truly recover species listed as threatened or endangered, there must be an effective and workable means to protect and conserve 

habitat essential to the conservation of the species. Unfortunately, critical habitat 

has become an ineffective, and often times inappropriate means of protecting habitat. 

Congress intended critical habitat to encompass limited geographic scope. The 

ESA restricts critical habitat to those ‘‘specific’’ areas that are found ‘‘essential’’ to 

species conservation—based on the best available scientific data, and after considering the economic impacts of the designation. However, the Services usually designate critical habitat only as the result of litigation. Accordingly, the Services fail 

to engage in the rigorous scientific and economic analyses required by the Act—and 

paint with too broad a brush and improperly include huge swaths of historic and 

potential habitat areas within the ‘‘critical’’ habitat designation. Importantly, this 

has led to tremendous expense and difficulty for the regulated community, with little or no benefit to listed species. 

NAHB believes that statutory reform is needed to correct the Fish and Wildlife 

Service’s abuses in relying too heavily on their limited and exceptional authority to 

designate ‘‘unoccupied’’ critical habitat areas. Congress intended that, as a benchmark, critical habitat encompass areas ‘‘occupied’’ by the species. Under the Act ‘‘unoccupied’’ areas may also be designated—but only where the Secretary specifically 

finds that the unoccupied area is ‘‘essential to conservation.’’ In practice, however, 

the Service often treats unoccupied areas as occupied and avoids its obligation to 

make affirmative findings that the unoccupied area is ‘‘essential for conservation.’’

Importantly, critical habitat, at best, offers only limited protections to species 

while imposing significant costs on landowners, builders, and homebuyers. Section 

7 consultations only apply when the landowner needs a federal permit and only 

when the other federal permitting agency agrees to enter into consultation with the 

Fish and Wildlife Service. That means many stakeholders are not affected to the 

same degree as builders by the designation of critical habitat since they don’t 

typically require federal permits for the majority of their land operations—even 

though they can affect significant amounts of designated habitat. 

Furthermore, significant conservation efforts are often accomplished by builders 

and others though other ESA mechanisms beyond critical habitat. Builders typically 

use ITPs (incidental take permits) under Sec. 10 of the Act that require development of detailed species specific plans and the investment of significant dollars and 

creation and or preservation of species habitat over extended periods of time. Since 

1996 there are over 33 million acres in Habitat Conservation Plan (HCP) landmass 

equal to the size of the State of Louisiana. Included in that number is habitat created and or restored equal to the states of Connecticut and Rhode Island combined. 

Farmers have also done a significant amount of habitat conservation actions 

through several U.S. Department of Agriculture (USDA) conversation programs. 

The current critical habitat process is not working, and reform is long overdue. 

As outlined above, a truly effective means of protecting habitat for listed species 

must involve incentives for private landowners, and must provide private landowners with certainty. As indicated in my written statement, private landowners 

represent a vital component to ensuring species conservation and preservation. True 

progress in species conservation and recovery can only be accomplished with the active and creative cooperation of this integral constituency. One way to gain their 

support is through the creation and implementation of incentive-based policies and 

programs such as HCPs, Safe Harbor Agreements, Conservation Banking, and the 

No Surprises Rule. These programs, however, can only be effective if they provide 

certainty and predictability to the landowners who choose to participate. 

NAHB supports the exclusion of HCPs and other species management and conservation plans from critical habitat designations and believes that, in doing so, the 

Services provide powerful incentives to private landowners to continue entering into 

such agreements. Accordingly, NAHB supports provisions of H.R. 2933 that automatically exempt HCPs and other management plans from critical habitat designations. 

NAHB supports the goals of the ESA in protecting endangered and threatened 

species and their habitats, but these protection measures must be based on reliable, 

131

accurate and solid biological and scientific data. Our members are often prevented 

from developing their property or must submit to extensive mitigation requirements 

based upon what are often hypothetical and speculative impacts to species and their 

habitats. NAHB looks forward to continuing to work with this Committee, with Congress, and with the Services to ensure that Congress’ intent with respect to critical 

habitat is properly carried out, and that truly effective means of protecting both 

species and habitat can be realistically employed. 

The CHAIRMAN. Thank you. I thank the entire panel for this 

testimony. 

For this panel I am going to change things around a little bit. 

I am going to recognize Mr. Renzi first for his questions. 

Mr. RENZI. Thank you, Mr. Chairman. 

I want to thank Don Walters from Flagstaff, Arizona whose family has been up in the Verde Valley since the 1860s and who is a 

true corporate citizen and a great leader in our community. 

I wanted to talk a little bit about economic impact. We had a situation where a rodeo fire killed biologists think between 12 and 14 

breeding pair of spotted owls. We had a situation where a pygmy 

owl was found to be nesting at the Tucson International Airport 

underneath one of the eaves of the building and there were those 

in our community who actually felt that we should consider shutting down the airport and now that we have this legislation from 

Mr. Cardoza that economic impact will be factored in. 

You talked about underestimates that have occurred in the past 

and can you help me understand maybe some of the economic impacts that if they had been done in the past, what they would have 

revealed? Mr. Walters? 

Mr. WALTERS. Well, I would like to answer it this way. The Service should base their decision on economic analyses that are sound 

and complete, fully addressing the direct and indirect cumulative 

impacts of critical habitat designation. As such, NAHB supports 

provisions of H.R. 2933 that would provide this direction to the 

Service. 

Did I answer your question? 

Mr. RENZI. I appreciate it very much. 

When we are looking at economic impact we have had situations 

in the past where we had a high school that was getting ready to 

go into Tucson, Arizona. We spent three or four years fighting over 

the location. It drove up millions of dollars as to where the location 

would finally be. 

So here we were—state of Arizona, we were about 48th or 49th 

for public education in America, trying to build a new high school. 

We have our students that are overcrowded in the local high school 

and while we are ready to go on and finally had the funding to 

build the new high school, we were not able to do it for three or 

four years. 

So some of those stories I want to cull out and get on the record 

as far as economic impact not only being the costs associated but 

to cost to our future generation, the cost in the education to our 

children, as well as some of the other absurdities that I have listed 

today. 

I want to welcome you and thank you for your testimony and 

yield back. Thank you, Mr. Chairman. 

The CHAIRMAN. Mr. Cardoza. 

132

Mr. CARDOZA. Thank you, Mr. Chairman. 

I would like to direct my questions to Supervisor Crookham. My 

bill requires the Service to provide GIS maps on the Internet when 

proposing critical habitat. Can you please tell us how this would 

have impacted the public comment period relative to the vernal 

pool designation? 

Ms. CROOKHAM. Yes, thank you. The problem, I cannot even tell 

you how many people came into my office and said, ‘‘Am I in the 

proposed designation or not?’’ We had some really nice fuzzy maps 

and it was very difficult to see exactly where the line might have 

gone or was going and it was just a very confusing matter all the 

way around. 

Even if they had talked to us about the maps that we have within our county, we have excellent maps but nobody would approach 

us. So, as a result, we spent a lot of time trying to help people define whether they were within the proposed designation or not. 

So I would think that it would behoove the Service to talk to 

local entities for whatever kind of mapping they might have, including GIS. 

Mr. CARDOZA. As we sit here and discuss this, the anger comes 

back in me from the meetings that we held. I recall that there were 

a number of areas that were clearly developed that were included 

in the original designations. 

Ms. CROOKHAM. Including a brand new cancer center that had 

just opened. It was under the designation. Castle Airport, which I 

mentioned in my report today, was listed. There were housing developments that had already gone in. It was just like somebody had 

taken a big brush and gone zoom-zoom-zoom and wherever it happened to land, that is where it was. And when you realize that you 

had over 300,000 acres in the county that were thrown into this 

map, you realize that it was not probably defined too clearly. 

Mr. CARDOZA. I know from personal experience that residents of 

Merced County commented in great numbers once they found out 

about what was happening with the Service regarding their concerns, yet you stated in your testimony initially the community was 

not aware of the designation or the impacts. How did the community become engaged in this issue? 

Ms. CROOKHAM. Well, it is really a long story and I will make 

it very short. I actually read the article in the paper and I asked 

somebody what they thought it meant and the person I asked said, 

‘‘Oh, I do not think it amounts to anything. Do not worry about it.’’ 

But somehow in the back of my mind it did not feel quite right and 

I did speak to your staff person, Dee Dee DiAdamo, probably a 

short time later and she said, ‘‘Kathleen, that does matter. It really 

is very important.’’

So probably a month passed before I ever heard from anybody 

again and then I had two constituents call me and say they had 

heard from someone that probably it was not anything they needed 

to worry about but they were concerned. And as a result of those 

two people who came to me and I said, ‘‘No, it does matter,’’ and 

then at that point we had a local businessman who paid for the 

postage for the first notice that went out to the folks. And the first 

meeting we had—we had it on the third floor of our county adminVerDate 0ct 09 2002 11:21 Sep 24, 2004 Jkt 088533 PO 00000 Frm 00136 Fmt 6633 Sfmt 6602 J:\DOCS\93346.TXT HRESOUR1 PsN: KATHY
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istration building—people could not even get off the elevator, so 

many people came. So we mailed out about 1,200 letters. 

So then the second meeting we had was at the high school and 

Congressman Cardoza was there with us and it was amazing. 

Again we filled the auditorium with people. People were very, very 

concerned and they wondered how this had gotten this far without 

anybody taking the time to notify them. 

Mr. CARDOZA. And, in fact, people’s property were being considered with no notice. The Federal government does not issue notices 

to people when they put this designation onto their property. 

Ms. CROOKHAM. Right. The Service said to us, ‘‘Oh, we do not 

have money to notify people.’’ It was just like they were going to 

find out through osmosis, I guess. 

Mr. CARDOZA. I want to at this point congratulate you and thank 

you for your leadership in our community. It would not have gotten 

to the level of attention had you not taken the steps and frankly, 

I probably would not have been quite as far along as I am today 

with this bill had you not stepped in. 

My bill requires that the Service analyze the impacts of proposed 

designations on state and local governments. Can you tell us the 

impact that the vernal pool designation would have had on Merced 

County? 

Ms. CROOKHAM. You know, I wish I could tell you specifically because I know I have those figures someplace along the line but just 

as many people have mentioned before, it is not the initial impact; 

it is how the ripping effect affects so much of what goes on. When 

you start talking about any kind of development, any land use 

changes, and I guess I have a major concern owning a ranch in 

eastern Merced County. Can we put a fire guard in if we are going 

to plow through vernal pools? Can I put a new corral in? Can I remodel a barn? I do not know. 

These are the things that I think really raise a lot of questions 

and a lot of concerns but I know it had a real effect financially on 

our whole community. And you know, we have huge unemployment, like many of the people in the Central Valley. We are a very 

poor county and this was just going to be a devastating blow and 

it probably would have crippled us totally. 

And I wanted to say one more thing, please, kind of off. Thank 

you for the nice compliments but you know really how we got as 

far as we did was everybody working together and I think that it 

is a wonderful example of how a small county can marshall its resources and make something happen. 

Mr. CARDOZA. Thank you. 

Thank you, Mr. Chairman. Again thank you for the bipartisan 

cooperation on this. 

The CHAIRMAN. Mr. Udall. 

Mr. UDALL. Thank you, Mr. Chairman, and thank you, members 

of the panel, for being here today with us. 

Let me direct my first question to Mr. Webster here. Turning to 

critical habitat, which is the subject of this hearing, protecting and 

maintaining areas important for manatees, which you described 

the manatees in your testimony, these areas that are important to 

maintaining them—grass beds, estuaries and rivers—also benefit 

134

the fishing industry and fishing and other marine and freshwater 

resources and the tourism industry. 

And I understand that tourism is one of the top industries in 

Florida, comprising 20 percent of the economy, and that in a recent 

University of Miami study, 92 percent of the tourism industry leaders said they agreed or strongly agreed with the statement that 

protection of the environmental and cultural resources is necessary 

for their business. Moreover, according to a 2001 opinion survey, 83 

percent of Floridians support increasing the number of manatee 

sanctuaries and making them off-limits to boats and jet skis. 

It seems that the sensible checks and balances in place for 

manatees protection are a win/win situation all around, supported 

by Floridians and benefiting both Florida’s economy and the environment. Could you give me your thoughts on that? It seems like 

there is a whole other side here, Mr. Webster, on benefits to the 

environment, to your industry and economics down there in 

Florida. 

Mr. WEBSTER. Mr. Udall, I disagree with everything you just 

said. I think most people in the state of Florida, especially those 

who live in coastal areas, would disagree with it. I can assure you 

that every member of our association disagrees with it. In fact, the 

studies that you cite are generally studies that are concluded by 

groups that do have an interest in environmental stakes—not environmental stakes but environmental law stakes in the state of 

Florida. 

There was, for example, a survey that the Manatee Club did 

which claimed that homes on slow speed zones would increase in 

value faster than homes not on slow speed zones. That study was 

so bad that the county appraisers of various counties in Florida 

actually spoke out publicly to point out the flaws in the study, yet 

it is still cited to these days. 

As far as protection in Florida, we are all for protection. Unfortunately, what is happening with manatees in Florida is not protection; it is the result of litigation. If we were seriously interested—

if Fish and Wildlife Service was seriously interested in saving manatee lives and increasing the size of the herd, they would focus on 

what their own peer-reviewed literature states is the leading cause 

of deaths and the number two and number three causes of deaths, 

and let me outline what those are. 

The first—

Mr. UDALL. Let me just take a second here because you 

mentioned—

Mr. WEBSTER. Am I getting off? Sorry. 

Mr. UDALL. You mentioned litigation and you talked about the 

Federal judge in your statement exercising control over new manatee protection measures. As I understood that case you are talking 

about, those measures actually came about as a result of a compromise settlement agreement between a broad coalition of conservation and animal protection organizations, the Department of 

Justice, and major industry groups, including the National Marine 

Manufacturers Association, the Marina Operators Association of 

America, and the Marine Industries Association of Florida. 

135

If this settlement agreement was so draconian as you have described, then why was it signed by these four major industry 

groups? It seems to me that this is good compromise here. 

Mr. WEBSTER. Well, the reason it was signed by those groups is 

that they did not want the agreement, the implementation of the 

settlement going forward without persons from the other side of 

the table seeing what was happening in the judge’s chambers. I can 

tell you, knowing personally the people involved in that settlement, 

that if they had it to do over again today, they would have pressed 

forward with a lawsuit at that time, rather than a settlement. They 

themselves as respondents spent $2-3 million in legal fees just to 

watch the process in a courtroom. 

My own organization was not allowed as a respondent and even 

though the purpose of the settlement agreement ultimately says 

the final mitigation is to restrict dock-building, there was not a 

dockbuilder on that panel. Nor was there an active boat organization member on that panel that signed that agreement. 

No, we do not think it was a broad coalition or representative of 

the needs of Florida or the people. 

Mr. UDALL. But these are four major industry groups that signed 

on, that were a part of this court settlement. They all had able 

counsel. So I just do not see, after they do that and they know the 

conditions of the settlement, to now rewrite it after the fact I think 

is a little bit late and it seems to me a little bit disingenuous in 

a way. 

Let me ask Mr. McKeel because I am not sure about—you talk 

about the two plants that existed out there. 

Mr. MCKEEL. Yes. 

Mr. UDALL. And the land you were trying to lease was not designated as critical habitat for these endangered plant species, 

right? 

Mr. MCKEEL. They were only listed. 

Mr. UDALL. No critical habitat. 

Mr. MCKEEL. Yes. I think possibly the pools themselves may 

have been called critical habitat designated at the time of listing 

but I am not entirely certain of that fact. 

Mr. UDALL. Well, I think they were just listed, that there was 

no critical habitat designation. 

Mr. MCKEEL. All right. 

Mr. UDALL. In that case this bill would not apply to that situation at all. This bill is restructuring. It is a procedural bill dealing 

with critical habitat, so this bill would not have helped your situation. 

Mr. MCKEEL. I see that you are referring to the bill as pertaining 

to critical habitat, yes. 

Mr. UDALL. That is what my colleague and friend’s piece of legislation does, is restructure critical habitat. Your situation dealt with 

two plants which were listed but critical habitat was not designated. 

Now moving on second on that, as a result of the listing, you 

then had to participate and get involved in the transplanting of the 

plants. Is that correct? 

Mr. MCKEEL. Well, what transpired is we volunteered to relocate 

the plants at our expense and through needing wetland permitting, 

136

Section 7 came into play. The Fish and Wildlife Service, after considerable months of negotiation, came back with a jeopardy opinion 

basically that they wanted them left where they were. 

I think the crux of our matter was that plants are treated differently than animals and after we withdrew from the permitting 

process, the landowner was free to move those plants within certain parameters of the Endangered Species Act and he did so. 

Now we maintained to the end that we would have rather had 

a competent biologist or botanist transplant those species or they 

could have gone into a heritage program at a botanical garden or 

something of that nature. What wound up happening was through 

the adversarial position through the Endangered Species Act and 

the consultation process, the landowner himself ended up having to 

move the species on his own. 

Mr. UDALL. And today you are, in fact, mining on the property. 

Is that correct? 

Mr. MCKEEL. That is correct. 

Mr. UDALL. Thank you. 

Thank you, Mr. Chairman. 

The CHAIRMAN. Mr. Inslee. 

Mr. INSLEE. Thank you. 

Mr. Walters, I think you have probably heard concerns expressed 

about the failure of the Administration to act within 3 years to 

adopt better guidance for the definition of critical habitat and the 

like. Many of us cannot understand why the Administration has 

not acted to try to clear up some of these issues by means of rulemaking or guidance. It has been 3 years or more now. Is that a 

concern that you shared during those 3 years with the Administration? 

Mr. WALTERS. Sir, I am not qualified to respond on that at this 

time. If you will submit those in writing to us, we will respond in 

writing to you. 

Mr. INSLEE. Well, do you think that it would have been helpful 

for the Administration, instead of sitting on their hands for 3 

years, to issue a guidance or rulemaking during that 3-year period? 

Mr. WALTERS. Again, sir, I do not know enough about the issue 

to answer on that. 

Mr. INSLEE. Well, let me just explain a little bit to you. The situation here is this statute has been in existence for three decades. 

In 2001 a court struck down what was going on. A lot of people 

were urging the agency to issue a rule or a guidance in some sense 

to try to give property owners some certainty about critical habitat 

and those who were interested in species recovery, and yet the passage of 3 years goes on and the agency did not give property owners any additional guidance or rulemaking enlightenment at all 

until today, when we have this hearing. All of a sudden we are told 

that this guidance is going to pop out this week by some miracle 

apparently, with no hearings, no testimony, no input by anybody. 

Do you think that is a good way to run a railroad? 

Mr. WALTERS. Sir, again I heard a lot of testimony today. I hear 

what you are saying now but I heard testimony from the gentleman that was sitting here on panel one and I am not sure I 

agree with you. 

137

Mr. INSLEE. Mr. Kelley, I am sorry I did not hear to hear your 

testimony but I note in your written testimony that you said that 

‘‘We are concerned that the Service does not have the resources or 

personnel that would allow them to respond in a timely manner to 

requests for assistance and permits from public and private stakeholders conducting activities in the salamander habitat area.’’

Many of us are concerned that the agency has not been given the 

resources necessary to effectively carry out the statute and here we 

have efforts to change the statute. Many of us believe that the 

agency needs more resources so it can do its job, both to recover 

species and to deal with local concerns that you have expressed eloquently that deal with the difficulties associated with these programs. 

Were you aware that this Administration actually wants to cut 

$10 million out of the recovery budget, planning budget, on a national basis? 

Mr. WALTERS. I am not aware that they are proposing to cut 

their funding. I would say that one of the reasons why, as described in my written testimony, that we have embarked on the 

local initiative to work with the Service, provide much of the resources that they need, as well as we need to facilitate the conservation strategy that would move into the critical habitat designation is because of that concern that I describe. 

I also think that if there is a more succinct definition of creating 

a recovery plan and a critical habitat at the same time, as the bill 

is being proposed now, that there may not be as much of a need 

for the resources within the agency to actually accomplish that. 

Mr. INSLEE. Well, let me just ask you would you suggest to the 

Administration that they revisit the decision to cut this agency $10 

million or not? 

Mr. WALTERS. Well, I would suggest that they review it. I think 

that as it relates to all of the activities that they are dealing with 

throughout the country, we know specifically in our area that we 

have had to come up with our own resources to try to facilitate accomplishing the needs of our area. 

Mr. INSLEE. I think what you are seeing is really a microcosm 

of what is going on nationally, where the Federal government is reneging on some of its obligation and pushing down these obligations onto local governments. You are not just seeing it here. You 

are seeing it on a whole host of issues and I think that is regrettable. When you get a chance after you do review it, I hope you will 

help us get this agency the dollars it needs to get this job done because I think there is a twin need—one, so we can recover species 

but two, to deal with the clear difficulties that property owners do 

have in getting these permits processed and getting decisions and 

having certainty so that they can make decisions. Thank you. 

The CHAIRMAN. Mr. Walden. 

Mr. WALDEN. Thank you very much, Mr. Chairman. 

Mr. Walters, you mentioned in your testimony the problems specific to the economic impact of critical habitat for the pygmy owl 

and you suggest that no attention was paid to a number of regional 

impacts. Could you explain for us what some of those impacts 

would have revealed? 

138

Mr. WALTERS. Sir, the Fish and Wildlife Service’s study for the 

economic impact of the critical habitat for the pygmy owl failed to 

take into account any effect on the local economy, local governments, or tribes and regional economic impacts. Tax revenues, secondary impacts, and increased housing were all excluded because 

they were assumed to be minimal. 

Mr. WALDEN. They were assumed to be minimal? And what 

would you think they are? 

Mr. WALTERS. Again, sir, I am not qualified to express an opinion 

on that. I just know what I have been told. The information that 

was gathered and collected was not these items. I think these items 

need to be taken into account to really understand the economic 

impact. 

Mr. WALDEN. And they were not? 

Mr. WALTERS. They were not. 

Mr. WALDEN. Supervisor Kelley, there is a pending May 15 decision regarding the CTS in both Sonoma and Santa Barbara Counties. What would you like to see happen and why? 

Mr. KELLEY. Well, I think what we would like to see happen is 

that the listing be downgraded to threatened, which would open up 

some different options for those of us that are local property owners, as well as local governments, and that the distinct population 

designation be eliminated because we do not feel that that has 

been properly studied or considered. 

For those two reasons, it would also allow those of us in local 

government to deal with some of the infrastructure needs that we 

had. There was a discussion about the costs. The cost of being in 

limbo and having to do studies just to get a water line in or to do 

some maintenance on roads are incredible costs to our local taxpayers. 

Mr. WALDEN. I had a forest ranger tell me several years ago she 

had to do an aquatic study to replace the steps on a fire lookout 

on top of a hill, a fish study. Now there are not too many walking 

fish out there, but they still had to go through it. 

I think one of the issues that at some point Congress needs to 

address is the overlapping laws and rules and regulations that we 

put on your backs and every taxpayer’s back just to comply, when 

we ought to focus on the outcome and the goal, which is to protect 

species in the best way possible. 

I was just reading some of the important points put out in the 

guidance by the Director today apparently and he says things like, 

‘‘Accordingly, designation should not detract from other conservation efforts that provide greater species benefits.’’ That seems pretty logical guidance. I am actually sort of surprised we have to tell 

people that. 

‘‘Critical habitat designation should not be based on speculation 

or determinations that lack supporting data.’’ I mean this is the 

guidance we are hearing so much about. It seems pretty reasonable. ‘‘And do not designate critical habitat where existing management or protection measures adequately conserve essential habitat 

and those measures are likely to continue for the foreseeable future. Protected lands, such as state and national parks, wildlife refuges, national forests, et cetera, are examples of areas that may 

not need special management or protection.’’

139

Are those things that you all agree make sense in terms of guidance and common sense? 

Mr. KELLEY. It sure makes a lot of sense and I think there is a 

lot of common sense to be said that especially for local jurisdictions 

and local governments that already have property set aside for certain conservation activities that could be used for these activities, 

as well, thereby obviating the need to impact many of the other infrastructure projects that we have. It makes eminent sense. 

Mr. WALDEN. You know, there is another issue that comes up 

and that is this issue of habitat conservation plans. I know landowners are encouraged to enter into that when half the habitat out 

there is in private hands. If we are trying going to have a government/private landowner partnership for the benefit of the species, 

then you have to be able to cooperatively involve private landowners. And it seems to me when you have CHPs in place, those 

ought to be good and the government should not come back and 

ask for another bite at the apple. 

Do you concur with that? Am I missing something here? 

Mr. KELLEY. I would completely concur with that. I think that 

the issue that we have here and one of the reasons why I think 

it is so important that providing the road map to recovery and 

delisting of species is that when you have that road map to recovery and a conservation strategy, then people know what they are 

actually paying for and they know what they are going to accomplish by paying for that. 

The current system has a black hole of dollars and the more dollars you spend, the less you know how much you have to spend in 

the future and it is kind of once you are in the system or in the 

maze, there is no road map out. That is one reason why we in local 

government are serious about wanting the road map and that is 

one of the reasons why the bill that is before us today would provide that. 

Mr. WALDEN. You will especially like this, then. Part of their 

guidance also says, ‘‘Working with landowners, local governments, 

states and tribes on a voluntary partnership basis often provides 

conservation benefits superior to the designation of critical 

habitat.’’

And finally, there are others here in terms of the guidance. 

‘‘Complete and accurate administrative records are essential to the 

process of critical habitat designations.’’

Now whether this was done in a very bureaucratic way or simply 

done, the important thing is I think it makes sense what the Administration is suggesting as guidance to the people making these 

decisions. Use common sense, work with local governments, believe 

somebody outside of this imperial place back here may have a lick 

of common sense that might help in recovering a species and protecting habitat in a meaningful way. 

Mr. KELLEY. I would concur, Mr. Congressman, and I think, as 

you will see in my written testimony, the activities that we in 

Sonoma County have done in some ways are patterned after what 

those guidelines sound like are being laid out. 

Mr. WALDEN. Thank you. 

And thank you for your indulgence, Mr. Chairman. 

The CHAIRMAN. Thank you. 

140

A couple of points before I get to my questions. One of the things 

that has been repeatedly brought up during this hearing is that 

one part of Fish and Wildlife’s budget has been cut and I think in 

full disclosure it should be noted that the Administration’s request 

for Fish and Wildlife Service increases spending by over $60 for 

Fish and Wildlife Service and their request, while I do not completely agree with where they put all their money, but their request is a response to and reaction to, I believe, a lot of the litigation that has occurred over the past several years where they are 

trying to shift money to respond to areas where they are being 

sued and to be able to have money in those accounts. 

Just so that no one walks away from this hearing with the idea 

that we are somehow cutting Fish and Wildlife Service’s budget, 

the request was an additional $60.3 million, a 3 percent increase 

into Fish and Wildlife’s budget. 

In terms of the impact that this has had on local government, we 

have two members of boards of supervisors that testified as part 

of this panel. I am obviously familiar with both of your areas and 

I think this is something that a lot of times Congress misses in 

terms of the overall impact of what we are doing and what it does 

to real people out there that are trying to live under this Act. 

Supervisor Crookham, I can tell you in your answers to Mr. 

Cardoza you talked about what the impact is of private property 

owners. If you happen to have a farm, what happens? Can you 

build a new corral? Can you build a fence? Can you do all of that? 

In my area one of my constituents had grazing land, irrigated 

pasture land, and wanted to shift from a cattle-based operation to 

planting vineyards. That was considered a conversion to development by the Fish and Wildlife Service and in order for him to 

accomplish that he would have had to give up over half of his 

property to Fish and Wildlife Service as mitigation for being able 

to plant grapes on the rest of his property. They considered that 

a conversion to development, as if someone was coming in and 

building houses on this property. 

As you know, things are not always good in the cattle business 

and sometimes you want to do something else that you might make 

enough money to pay your taxes and this gentleman ultimately 

ended up having to sell the place because he could not afford to 

keep it. 

Ms. CROOKHAM. We actually have horror stories very much the 

same as yours in our county and I think that is one of the things 

that gets so confusing about all of these regulations when people 

really wish to do a higher and better use of land and then it is 

called conversion or it is called a development and it really is not. 

It is just a way of actually increasing the revenue. 

And when we talk about how that affects us economically, it 

does. It affects the person who is trying to make the change. We 

lose tax dollars, revenue dollars coming back to us. It really needs 

to be overhauled and I am just so glad that you are looking at it 

at this point. I probably am not the most objective person when it 

comes to talking about it. 

The CHAIRMAN. Well, I do not think anybody that is testifying is 

totally objective here. Everybody that is here has an opinion and 

that is why they are here. It is people that have had to live with 

141

this Act and have had to go through the struggles of trying to comply with it. I think it is important to hear from all of you. 

One interesting thing with the fairy shrimp was that when that 

was originally listed, you were not considered habitat. The only 

place they looked at was further north in California and if you go 

back at all of the so-called science that was done on the listing of 

the fairy shrimp, you were not part of that. It was only after it was 

listed that they discovered that you were critical habitat. 

Ms. CROOKHAM. Right, and as a response to a lawsuit, like most 

of these things are; then it came into play. Then there was this 

quick time line and all these things that happened. You are right, 

totally right. 

The CHAIRMAN. One interesting thing about this legislation and 

the attempt that is being made by Mr. Cardoza here is that it is 

something that we have seen repeatedly. You are seeing it firsthand but when something is listed as endangered, it is done with 

incomplete information that causes it to be listed as endangered 

and Fish and Wildlife is making the decision based on what is incomplete science. They list it and then they go through the process 

of critical habitat and adopting a recovery plan and all of that and 

it is at that point that they discover that the species is much more 

common than it was when it was listed and we go through all the 

trials and tribulations of trying to manage what is then considered 

critical habitat. 

I found it interesting to hear you talk about land that was developed that was included as critical habitat. In my area we have 

other endangered species that had court-ordered maps that were 

listed. In one instance we had a city of over 40,000 people that almost the entire city was included as critical habitat and different 

things like that where I believe they just looked at a map and 

decided well, we will just go around all these different areas without ever actually looking at what was on the ground. 

For the red-legged frog we had areas that are dry creek beds but 

on the map it says that it is a creek and it never has water in it. 

It is just a dry creek bed. When we get a 100-year flood action 

there might be some water going through there but normally there 

is no water in there and being from the Central Valley, you are 

fully aware of how hot it gets in these dry creek beds and to consider that habitat for a frog is pretty outrageous but that is what 

they did. 

I know when it comes to fairy shrimp, which I have fairy shrimp 

in my district, as well, that a lot of the areas that were considered 

habitat, if anybody had ever actually looked at them they would 

know that it was not habitat, that the map did not actually fit, but 

that is the way it resulted. 

I appreciate the testimony of this panel. It was very informative. 

It is something that not only helps us with this legislation but I 

think gives us the ability to go back to the Administration and ask 

some questions about decisions that are being made and what 

those decisions are based on. 

Mr. Walden has legislation dealing with the science that is used 

in this whole process that I am very interested in looking at and 

hopefully being able to move forward on, along with the legislation 

that Mr. Cardoza put in. I think if we look at those two areas we 

142

can have some kind of broad consensus that we can move forward 

and really start to bring some common sense to the way this law 

is being implemented out in the real world. I mean we can say all 

we want back here in these buildings but truth of the matter is it 

is you people that have to live with it every day. 

Mr. CARDOZA. Mr. Chairman? 

The CHAIRMAN. Mr. Cardoza? 

Mr. CARDOZA. Would you yield for a comment on your colloquy? 

The CHAIRMAN. Sure. 

Mr. CARDOZA. There are two points I would like to raise. First 

of all, the comments by Ms. Crookham about the real impacts on 

individuals because it is widely circulated when these designations 

are made that there are no impacts on current landowners. That 

is true if you do not ever want to change anything on your property. The minute you want to change something there are significant and costly impacts to your property, as well as there may be 

a chilling effect on the value of your property because if you want 

to sell the property for another use, someone who is purchasing it 

may very well not purchase it for the same price. 

The second point is the notice provision. All this happens to you 

without any requirement for the Federal government to give you 

notice that they are doing something to your property and to the 

value of your asset. And while we did not include that in this bill, 

it may be something that the Committee needs to think about as 

we go forward. The Fish and Wildlife Service has indicated privately that that is awfully expensive and that they are already 

short of funds, but the reality is to take someone’s property or affect someone’s property without any formal notice is something 

that I think is foreign to our way of government and I just wanted 

to raise those two issues. 

The CHAIRMAN. I think both of those are extremely important 

points. Your last point in terms of notice is something that I have 

been working on for a number of years in terms of how do we do 

this and there are two real issues. One is notifying the affected 

property owners that their property is going to be considered critical habitat and two is what restrictions are going to be placed on 

them because right now they really do not know and no one tells 

them what restrictions are going to be placed on them. 

I think those two issues probably would go a long way in removing some of the fear and concern that property owners have because it would get it all out in the open as to exactly what restrictions would be placed on their property. 

So I want to thank this panel very much for your testimony. It 

is very worthwhile that you were here. Thank you. 

I would like to call up the fourth panel—Michael Doebley, Michael F. Martini, Joni L. Gray and Joseph K. Sheldon. 

Before we begin with this panel I want to thank you. I know this 

has been a very long day and you have all been waiting for the opportunity to testify, so I appreciate you all being here and your patience with the Committee. 

Mr. Doebley, we are going to begin with you. 

143

STATEMENT OF MICHAEL DOEBLEY, DEPUTY DIRECTOR

FOR GOVERNMENT AFFAIRS, RECREATIONAL FISHING 

ALLIANCE 

Mr. DOEBLEY. Thank you, Mr. Chairman and members of the 

Committee. My name is Michael Doebley. I am the Deputy Director, Government Affairs, for the Recreational Fishing Alliance. RFA 

is a national grassroots organization representing over 75,000 marine recreational fishermen and the recreational fishing industry 

on marine fisheries issues. Our mission statement is to safeguard 

the rights of saltwater anglers, protect marine jobs, and assure the 

long-term sustainability of our nation’s saltwater fisheries. 

I am here today very pleased to speak in favor of H.R. 2933, the 

Critical Habitat Reform Act. There have been a great number of individuals here today who know so much more about the technicalities of the Act. I really wanted to just let you know some of the 

perspectives and real-world impacts on marine recreational anglers. 

One of the biggest issues in the country right now, as you have 

heard from Mr. Webster, regards how they went about designating 

critical habitat for manatees in Florida. It was this committee, 

through the Atlantic Coastal Act of 1933 and the Sustainable Fisheries Act of 1996, that we now see our nation’s saltwater fisheries 

rebuilding and because of that, Florida enjoys some world-class recreational fisheries. People come from everywhere to go fishing 

there. 

The problem they are running into is a problem of access and the 

access is being denied because of the critical habitat provisions, 

these no-speed zones for manatees where you have to go a slow or 

idle speed. First, folks cannot put in the private docks, as Mr. Webster pointed out. But even if they can have the private dock, what 

used to be perhaps a 15-minute run to the ocean to get to the fishing grounds is now taking over 2 hours. 

One of the things that all or most saltwater anglers like to do 

is you always try to find that little trip that you can sneak in in 

the morning or at night before work, after work, before you have 

time with the family or whatever obligations you may have. Going 

from a 15-minute run to a 2-hour run, it takes you right out of it. 

Forget it. That is longer than the amount of time you had to maybe 

get down and run a line. So there is a definite impact on the quality of life there. 

Ramp access. Without the private docks and you have to use a 

ramp, well, ramps are becoming crowded and because of this designation you cannot build new ramps, so the line is so long again 

you lose the time and some folks cannot use a ramp or launched 

boat. They either getting older, they have a disability. It is always 

a dicey proposition, multiple-person operation to get that done. 

Again access is being denied. So this has become a real problem for 

us. 

There is another example that was brought to my attention by 

one of our members who heard that I was going to be here today 

and this deals with piping plowbird habitat. This is a shorebird. It 

is a shore nesting bird. They are endangered. I do not think there 

is any question about that. What happens is in many parts of the 

East Coast piping plowbird arrives in the spring and they set up 

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a nest literally on the beach. They lay their eggs on the beach. So 

many areas have been designated critical habitat. 

Now the anglers are prohibited from going there for that particular fishing season while the birds are present and we are acceptable to that. We want to preserve the species. But within the 

first few weeks of those birds showing up, the biologists can go out 

and determine whether or not those birds are actually present that 

year. 

Some years they go to the critical habitat areas. Being migratory, 

they go as far as South America. Some years they choose another 

beach. It would be very easy for the government to go out and look 

at the beach and say ‘‘No birds’’ and let us on. Instead, those areas 

are closed year after year after year and we are losing the six best 

months of the year from May through September-October. So that 

is just another one of those real-world applications. 

Recreational fishing is a huge business. We are talking about over 16 million participants in this country, about $60 billion of activity, hundreds of thousands of jobs. It sounds impressive but it 

is, as Mr. Webster pointed out, it is as business of small margins, 

slim profit margins, and any of these actions that are taken without good science and a sound policy certainly have an impact and 

lead to the loss of jobs, loss of businesses, and again the loss of our 

quality of life. 

We have a tradition of conservation going back over 100 years. 

We are very proud of that. But we would also like to see a little 

bit more common sense brought in to how these designations are 

made and we will be the greatest partners out there for conservation but there is a lot of frustration, especially when we lose access 

because of the law, and that needs some amendments and being reformed. 

So thank you again, Mr. Chairman and members of the 

Committee, and I will try to answer any questions you may have. 

[The prepared statement of Mr. Doebley follows:]

Statement of Michael Doebley, Deputy Director for Government Affairs,

Recreational Fishing Alliance 

My name is Michael Doebley and I am Deputy Director for Government Affairs 

for the Recreational Fishing Alliance (RFA). The RFA is a national, grassroots political action organization representing over 75,000 recreational fishermen and the recreational fishing industry on marine fisheries issues. The RFA Mission is to safeguard the rights of saltwater anglers, protect marine, boat and tackle industry jobs, 

and ensure the long-term sustainability of our Nation’s saltwater fisheries. I am 

pleased to be here to speak in support of the Critical Habitat Reform Act of 2003. 

There are numerous individuals here today who can go into great technical detail 

regarding how the current process of designating critical manatee habitat is fundamentally flawed and restrictions placed on boaters causes unnecessary economic 

damage to a variety of fishing-related industries such as dock builders, has a negative impact on our members’ quality of life, and in some cases may actually cause 

biological harm to the animals that the designation was intended to protect. The 

process for designating critical habitat cries out for reform. 

Recreational fishing in Florida is enjoyed by 2.5 million people, accounts for almost $3 billion in economic activity and provides about 60,000 jobs. Please understand that while the raw numbers regarding economic activity are huge, recreational fishing support industries are often small businesses with slim profit margins. Even seemingly innocuous rules can lead to the loss of businesses and a way 

of life. 

With the reforms brought to fisheries management that were championed by this 

Committee such as the Sustainable Fisheries Act of 1996, the Atlantic Coastal Cooperative Fisheries Act of 1993, and steps taken by the State of Florida, Florida now 

145

enjoys truly world-class recreational fisheries. Yet access to these fisheries is for all 

purposes being denied to many anglers by the current system of designation of critical habitat. 

I offer to you some every day, real world scenarios of how the designation of manatee critical habitat areas negatively impacts recreational anglers and the industries 

they support. 

An all-too-common situation is that in the name of manatee protection, the necessary permits for homeowners to install a private dock are denied. Slips in marinas 

are often at a price that is out of reach of many fishermen. Due to advancing age 

or disabilities, launching a trailer boat is simply not an option for many recreational 

anglers. The denial of a permit to build a private dock for all practical purposes effectively denies many anglers access to fishing grounds. 

If an angler is capable of launching a trailer boat, they are increasingly finding 

that there is not a ramp in their area or an adequate number of public ramps available. The same permits that are necessary for the construction of a private dock are 

needed for a public ramp. These permits are being denied for the same reasons. 

Again, for all practical purposes, denying anglers access to the fishing grounds. 

Once in the water, recreational anglers often find themselves in an area designated as critical manatee habitat despite the fact that these areas were the creation of man. Boat speed must be kept to a slow or idle speed over long distances. 

As you know, in today’s world the most precious commodity most of us have is free 

time. Many recreational anglers enjoy a quick early morning or evening fishing trip 

squeezed in around work or other obligations that take up the majority of their day. 

These trips have been effectively eliminated by the use of slow or idle speed manatee zones. In many parts of Florida, what was once a brief run to fishing grounds 

of about 15 minutes, can now take up to two hours. The simple act of reaching the 

fishing grounds can now take longer than the amount of time available for the entire trip. What was once the most enjoyable part of the day is being effectively lost 

for the angler. The denial of access of course has an impact on the industry that 

recreational anglers support. Bait and tackle shops suffer, boats are not built, and 

jobs are lost or simply not created. 

Recreational anglers have a history of seeking the conservation of marine resources which dates back over 100 years. We are very proud of this tradition. Yet 

sound conservation also requires a dose of common sense and the need to consider 

man and his role in the marine ecosystem. In the case of designating critical habitat 

for manatees, we believe a well-intentioned law has become so distorted that it does 

nothing to offer any real protection for manatees and is ruinous for our members. 

Thus, we respectfully request your full support for H.R. 2933 and help put an end 

to the manatee madness, and to clarify the law so it more closely resembles the 

original intent of Congress. 

The CHAIRMAN. Well, thank you very much. 

Mr. Martini? 

STATEMENT OF MICHAEL F. MARTINI, COUNCIL MEMBER,

CITY OF SANTA ROSA, CALIFORNIA 

Mr. MARTINI. Good afternoon, Mr. Chairman and members of the 

Resource Committee. My name is Mike Martini and I serve on the 

City Council for the City of Santa Rosa and I am very happy to 

be here today to allow me to discuss some of the impacts the listing 

of the California tiger salamander has had on our communities. My 

written testimony is before you so I will abbreviate my comments 

in the interest of time. 

It is interesting to me that Santa Rosa shares with this committee a lot of the values that have been discussed throughout this 

hearing today. Its citizens embrace the preservation of resources, 

the cessation of sprawl and the protection of the environment, so 

much so that every single municipality in Sonoma County has 

adopted voter-approved urban growth boundaries. In addition, as 

Supervisor Kelley pointed out, we have a voter-approved quartercent sales tax for the acquisition and protection of open space. Millions of dollars are used each year for the public acquisition of comVerDate 0ct 09 2002 11:21 Sep 24, 2004 Jkt 088533 PO 00000 Frm 00149 Fmt 6633 Sfmt 6602 J:\DOCS\93346.TXT HRESOUR1 PsN: KATHY
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munity separators, agricultural lands, habitat preservation, and 

restoration. 

And it would be safe to say that if a poll was taken of the citizens of the City of Santa Rosa, similar to what was discussed earlier today, that the vast majority of its citizens would support the 

Endangered Species Act. But as Rosanna Rosanna Dana often 

would say, it is always something. 

And it is not just the Endangered Species Act. It is the interaction of the Endangered Species Act with the other public policy 

decisions that we make that cause local government consternation. 

A couple of examples. 

A lot of conversation today was around housing but by imposing 

voter-approved urban growth boundaries, we have set aside, we 

have made a statement in our general plans where we expect to 

see urban growth and where we expect to see the urban separators, 

where we expect to see agriculture. 

The listing of the tiger salamander overlays one quarter of the 

area of the City of Santa Rosa, which is earmarked in our general 

plans for our future growth and the studies that are required because of that listing are easily adding $20-30,000 per finished 

house and that does not count in any mitigation for the loss of 

habitat. 

Santa Rosa shares with the Chairman’s district in terms of the 

cost of housing. It is quite high in Sonoma County and that is great 

news to our homeowners but it is very difficult news to our children, who can no longer buy a home in the town that they grew 

up in. And as a parent of a 20-year-old, I am beginning to think 

he may never move out of the house. 

Another example where we have come in conflict is in our wastewater treatment. Santa Rosa, in cooperation with the county and 

working with the listing of the endangered species in the Russian 

River of coho salmon and steelhead, we have tried to modify the 

flow of waste-water into the river. We treat the water to an advanced tertiary-treated level. We ship it 42 miles up to a steam 

field and generate green energy out of about half of it and the other 

half is used for agricultural irrigation and this has proven to be a 

wonderful support for agriculture in our area, maintaining an economic balance, but it requires storage because, as you may know, 

agriculture does not need water all year long. 

The expansion of this system would require additional storage 

and the listing of the tiger salamander is going to have a significant impact on that and has already forced us to spend thousands 

of dollars in studies. 

Transportation is another area that I identify in my written testimony. Homeless shelters is another area that I identify in my testimony, as well as sewer lines. 

But I think what is really important is coming here today, I am 

encouraged that this committee is taking a look at the Endangered 

Species Act and how it does not act in a vacuum. I am very encouraged that you are considering the legislation that is being proposed. And most importantly, I am encouraged that Mr. Wayne 

White of the regional office for Fish and Wildlife Service is working 

closely with the city and private property owners, as well as the 

environmental community, to come up with a conservation plan so 

147

we are not dealing with this on a piece-by-piece basis but we are 

actually doing something about the recovery of a species, as opposed to just studying it to death. Thank you very much. 

[The prepared statement of Mr. Martini follows:]

Statement of Michael F. Martini, Council Member,

Santa Rosa, California 

Good afternoon, Mr. Chairman and Members of the Resource Committee. My 

name is Mike Martini and I have the honor of being the past Mayor and current 

Council Member for the City of Santa Rosa, California. I am pleased to be here 

today with other elected representatives from Santa Barbara and Sonoma Counties. 

We appreciate the time allowed to discuss the impacts of the listing of the California 

Tiger Salamander on our communities. 

Santa Rosa, along with the entire County of Sonoma, is very much like any other 

community in California. Its citizens embrace the preservation of resources, the cessation of sprawl and the protection of the environment. So much so that every city 

in the county has voter-approved Urban Growth Boundaries. The citizens have also 

voted in a quarter-cent sales tax to protect open space. Millions of dollars are used 

each year for public acquisition of community separators, agricultural lands, and 

habitat preservation and restoration. 

It would be safe to say that the majority of Santa Rosa citizens support the spirit 

of the Endangered Species Act. 

This sense of preservation along with a healthy and balanced economy and a wonderful climate have resulted in Santa Rosa being named as one of the most desirable places to live! 

As wonderful as it is, it is not without its problems. We in local government struggle to provide necessary services in the face of shrinking budgets and increasing regulation. 

The character Rosanna Rosanna Dana was correct—it is always something. 

We as elected officials do a great job when we focus on a problem but all too often 

as we focus on one solution we neglect how it impacts other actions we have taken. 

This is where we find ourselves with the listing of the California Tiger Salamander. 

In Sonoma County, the United States Fish and Wildlife Service included in the 

potential geographic range of the salamander approximately 50,000 acres—an area 

of the county that is about 21 miles by 7 miles across at the widest point. This includes major areas of planned development for the cities of Santa Rosa, Rohnert 

Park and Cotati. The growth projected for these areas represents 65% of the 

county’s future planned residential growth. Most of the City of Santa Rosa’s affordable housing units are slated for this area. Further, it impacts development of more 

than 15,000 housing units and several million square feet of nonresidential development. 

In addition to creating problems for private landowners looking to develop their 

lands, the listing has had an impact on the city and county’s infrastructure needs. 

The Santa Rosa Subregional Water Reclamation System serves 200,000 residents 

of central Sonoma County. The Santa Rosa system treats wastewater to an advanced tertiary level and recycles 80 percent, twenty five percent for irrigation of 

agricultural lands, currently identified within the salamander range. Continuation 

and expansion of this system is threatened by the listing of the salamander. It has 

added considerable costs in studies as construction of additional storage ponds and 

irrigation of agricultural lands are not consistent with CTS habitat conservation 

under the current regulatory environment. Application of the Services’ current regulatory approach jeopardizes the sub-regional water recycling system. Should the 

Service conclude that continued irrigation is not permitted; the system would need 

to be replaced at a cost of $200 million or about $5,000 per household. Ironically, 

this system was devised to respond to the need to minimize diversion of waters from 

salmon habitats used for irrigation. A further irony is that agriculture assured preservation of open space that the salamander currently relies upon, and now the ESA 

threatens agriculture. 

Affordable housing is another issue that has been negatively impacted by the listing. Santa Rosa, as is true with most cities throughout California, has struggled 

with providing affordable housing to its citizens. Strong demand with limited supply 

has resulted in a very high cost of housing. Santa Rosa has now topped $465,000 

as its median housing price. This is great news for those who are fortunate to own 

their own homes but has made it extremely difficult for children to settle down in 

the town where they grew up. It puts great demands on our transportation infrastructure as service employees are forced to live far from their jobs. Most affordable 

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housing—i.e., workforce housing that allows some of the communities most valued 

citizens: our teachers, police officers and firefighters, access to the dream of buying 

a home—was planned for the most impacted area. That dream appears more difficult to achieve as it is estimated that as a result of the CTS alone, the cost of a 

single housing unit will increase by $30,000. This lack of affordability has exacerbated a homeless problem. 

Transportation Infrastructure, specifically the only freeway through our county 

(Highway 101) project is another challenge. In Sonoma County, we are working to 

expand the major artery within its existing boundaries. The 101-impacted area is 

21 miles running north to south. As a result of the listing, highway safety projects 

reliant on federal money are forced to spend what scarce dollars they have on studies that will likely delay the projects while using up precious resources: This results 

in a public safety issue as well. 

The City of Rohnert Park’s main sewage line is nearing its capacity. Until expansion of the sewer line, the City will not be able to implement its General Plan. Line 

construction could mean costly surveys to determine absence/presence of salamander. Perhaps more challenging than the actual cost of the surveys is the environmental risks of delays. We already know that the CTS is present and the City 

is prepared to do what is necessary to prevent impacts to the species. The City is 

counting on having the new line operational in 2006, which, given current protocol 

procedures, is impossible. The City of Rohnert Park is in the process of reviewing 

applications of five future Specific Plan Areas. Development within these Areas will 

require construction of a new sewer main to the subregional treatment facility. The 

alignment goes through the center of tiger salamander habitat. If the City were to 

follow the current protocol it would need to conduct two years of surveys to determine absence or presence of salamanders before expanding the line. We know that 

salamanders are present. Currently, surveys are predicted to cost $450,000. This 

does not include the cost of mitigation. 

Application of the Services’ current regulatory approach jeopardizes our ability to 

provide for the neediest in our community. The City sought to convert an existing 

building to a homeless shelter in an underserved part of the community. The building is being acquired from GSA under the California Desert Act, paying full value 

to allow additional uses of community center and public safety training. These components are needed to respond to neighborhood needs and concerns about a homeless shelter. The listing of the salamander triggered the need under the California 

Environmental Quality Act for an environmental impact report adding costs to the 

already underfunded project. To avoid these costs, the City substantially reduced 

the scope of the project. Instead of providing a police outreach station, day care facilities and playground for children of homeless families at the homeless shelter, 

these important project elements were postponed for the necessary review even 

though more than 10 acres of the 12.5 acre parcel was being set aside as habitat. 

Fortunately, the City is moving forward to convert the existing building to an 80-

bed shelter with the addition of the other components as the process is worked out. 

We are willing to accept responsibility for addressing these challenges, however, 

we are unable to effectively do so without active participation from the Fish and 

Wildlife Service. Since the listing the City, County and private stakeholders have 

made many attempts at working with the Service to craft policies and procedures 

that would ameliorate the concerns of all impacted. 

We discovered that the Service had few resources and limited personnel. The 

Service lacks key information and staff resources to make decisions that have longlasting impacts on the economy and on the environment. For example: 

The Service lacks the personnel to respond to project review requests in a timely 

fashion. An example involves a stakeholder requesting an initial consultation on a 

6-acre parcel as required by law. The Service told the stakeholder that staff would 

be available to meet nine months after the initial request. 

Field survey requirements have been inconsistently applied to landowners as a 

condition of property development. Where required, the surveys can cost in excess 

of $180,000 for a ten-acre parcel per year for two years. Total cost for surveys on 

what is designated potential habitat on private land over the last two years has easily exceed several million dollars. In the case of my City, we spent this last winter 

$600,000 on a study that has not been approved. If the full survey protocol is required next winter it will cost up to $8 million dollars to comply with Service survey 

protocols. The Service lacks the resources to develop criteria for the appropriate geographic boundaries for the salamander habitat. The result is hundreds of thousands 

of dollars are spent on what may very well be unnecessary surveys. 

Due to lack of information and resources, different Service staff makes inconsistent determinations about the potential of a proposed project to adversely affect 

salamander habitat or actual salamanders. Projects are denied or approved on a 

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case-by-case basis. If a conservation plan and a recovery strategy had been developed, we would be conserving the species, and not abusing the regulated community 

with unnecessary economic hardship. 

In summary, the Service, which is required under the Act to base its decisions 

on ‘‘best available science,’’ instead defines the needs of the salamander on a projectby-project basis. 

Perhaps our experiences in Sonoma County can serve to bring about much needed 

changes in the current process. We are relying on the success of the ‘‘conservation 

team’’ strategy that Wayne White of the Sacramento Office of the Fish and Wildlife 

Service has supported putting in place. 

This team should serve as an example of how regulators and the regulated community can work together to ensure success in meeting the demands of the Endangered Species Act as well as the needs of the impacted human population. The process should be encouraged and supported: Perhaps with the assistance of our Congressional Members, and more specifically this Committee, we can continue to work 

together for the betterment of all concerned. 

As Supervisor Kelley has pointed out, our efforts are consistent and supportive 

of the components contained in Congressman Cardoza’s legislation. 

I would like to thank the Committee again for the opportunity to testify today on 

this important issue. I would be happy, at this time, to answer any questions Members of the Committee may have. 

[Mr. Martini’s response to questions submitted for the record 

follows:]

Response to questions submitted for the record by Michael F. Martini,

Council Member, City of Santa Rosa, California 

Questions from Chairman Richard Pombo 

1) Council Member Martini, in reading through your testimony, it sounds 

like you are seeing inconsistent decisions from staff biologists. • Is that the case? 

There are times when this is indeed the case. 

• Do you have examples? 

Yes, several. One specific example is as follows: I have a constituent who has a 

parcel of land already graded, curbs in place, gutters and lights on site. 

Additionally, the site had two large commercial buildings. This individual provided 

letters from California Department of Fish & Game and a local Biologist, permitted 

to survey for CTS, indicating absence of breeding and aestivation habitat. An absence determination was due to current ground disturbance and a creek that separated the parcel from any known CTS sitings. He sought a letter of ‘‘Not Likely to 

Adversely Affect’’ from the Service and was rejected. The letter indicated that the 

current development of the parcel did not preclude the site from serving as 

aestivation habitat. 

However, a parcel several blocks from the site, completely undeveloped, was given 

a ‘‘No Effect’’ letter from the Service. The reasons for issuing a ‘‘No Effect’’: ‘‘buildings and storage units would severely limit dispersal to the project site from the 

south...In addition. Roads, curbs and a perennial stream presented a severe impediment to dispersal from the northwest.’’ (The perennial stream is the same creek that 

borders the aforementioned property). 

• And, why do you think that is the case? 

I think that not enough biological information existed that clearly defined CTS 

habitat. Additionally, the FWS did not have clear policies and procedures relevant 

to such requests for ‘‘No Effect’’ determinations. Combined, these allowed for broad 

and subjective interpretation from individual staff Biologists. 

2) We have heard that federal agencies could do a better job when it 

comes to informing communities of critical habitat designations. Communities deserve to be partners in this process. 

There are also instances where it is unclear how the federal agency determined critical habitat. 

Example: The Final Rule for Santa Ana sucker critical habitat is based on two 

‘‘personal communications’’ between with biologists and that nearby communities 

were not informed of these communications. 

• Will the bill improve cooperation and coordination with local governments? 

Yes, I believe that it will. The current ‘‘team’’ in place in Sonoma County includes 

a local government representative. She has a voice in what will be needed to recover 

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the species on the Santa Rosa Plain. Consistent with that need, the local government representative is intimately familiar with current conservation plans and regionally protected properties. These areas should be excluded from Critical Habitat 

designation, but included, where appropriate, in what is required to ‘‘recover’’ the 

species. 

By sharing information, the local jurisdictions can do away with costly and duplicative efforts. This would save time and money—valuable resources to all parties. 

Information shared would include potential economic impacts. Any conservation requirements should be delineated in detail from shared information. 

The CHAIRMAN. Thank you. 

Miss Gray? 

STATEMENT OF JONI L. GRAY, DISTRICT 4 COUNTY SUPERVISOR, SANTA BARBARA COUNTY BOARD OF SUPERVISORS, 

SANTA BARBARA, CALIFORNIA 

Ms. GRAY. Thank you and it is always a pleasure to follow someone with the name Martini in the afternoon. And I wanted to particularly thank the members of Congress who are here to chat with 

us today and hear what we have to say. 

I am from a district called Santa Barbara County but I am from 

the north end, so my district is more like Chairman Pombo’s and 

The Honorable Mr. Cardoza. So it is great to be here. I am very 

impressed with the bipartisan support. 

My county is made up of about 400,000 people. My district is 

80,000 and I represent the district that is the most ag-oriented district. 

As a local official I work with mayors, city council members. In 

fact, I have City Councilmember Alice Patino here with me from 

the City of Santa Maria. I work with school trustees, work with 

special district members, and we all take this responsibility very, 

very seriously, as you do. And given the responsibility that we have 

to meet the challenges of providing for our communities with these 

very limited resources that we have, we have to, and you know—

I have heard it all morning and I am so appreciative of this. I have 

learned more by sitting here than I could ever have imagined. You 

guys really know a whole heck of a lot, so that is encouraging. I 

want to thank you. 

But we want balance, so I am going to give you my story, not 

just my story but the story of what happened in Santa Barbara 

County. On January 19, 2000, the United States Fish and Wildlife 

Service in an emergency rulemaking listed a subset of the 

California tiger salamander species in Santa Barbara County as an 

endangered distinct population segment. The rulemaking became 

final January 2001. Now true, there are disagreements as to 

whether it is scientific, whether it is right, whether it is wrong, but 

as a public servant, I, my fellow mayors, city council people, school 

trustees, we have to work with that. 

Now some of the impacts that you heard today, because everyone 

has much more of an ability to tell you this than I do, have talked 

about the things. In my district we have had a delay on a project 

to build a food bank. No, you cannot build a food bank because 

there might be a red-legged frog there. We have a 6-month delay 

on an animal shelter, a shelter that would stop the euthanasia of 

animals, because the tiger salamander might live there. 

151

We have had tremendous problems with attracting new business. 

There is delay in both residential and industrial construction. 

There is delay in the needed infrastructure, such as roads, flood 

control, water, sewer, all those types of things, and this has greatly 

impacted our ability to provide affordable housing, housing for 

those children that need to move out. This guy has one that is 30 

years old, so the story is going to get worse as we go along here. 

We also have delays on our high schools. We cannot build high 

schools because there is a problem. 

The salamander is probably thank you to my district. One of my 

friends who has lived on a ranch for many, many years tells her 

daughter, ‘‘Would it not be a great idea to study this little yellow 

and black lizard that has been on our ranch for I know 100 years?’’ 

Daughter and mom start digging around. They are finding things. 

They are talking to—whoops, the mistake—a UCSB scientist. So 

from that point forward she is now in a heated controversy over the 

protection of the tiger salamander. 

Well, Mrs. Sainz—her name is Janette Sainz—thought this is a 

challenge. I will just give them some property and that tiger salamander can go live there. California Department of Fish and Game 

said great idea; let us do that. They decided we are all ready to 

go forward, we are going to plant grapes, we are going to change 

this property. Whoops, the Fish and Wildlife Service came in and 

said not acceptable. 

So Mrs. Sainz, the winery, and Mrs. Sainz’s daughter have now 

caused a problem and no one has the answer. That is what all of 

you have said today that is the single most important thing. 

Let me move along. There are thousands of people in my community that would like very much to coexist and get along and do 

what the plan is if they knew the plan or if they were included in 

the plan. 

It really came down on my community this January 22. The 

United States Fish and Wildlife Service proposed 14,000 acres of 

critical habitat for the protection of the tiger salamander in northern Santa Barbara County. The proposal was totally prepared by 

scientists that were chosen by the Service who met privately—underline that word privately. Their meetings with what they call 

stakeholders—that is us ordinary people—only occurred once in a 

very, very limited amount of time. 

Once they decided to publish the proposal, they announced that 

there would be a meeting. Now they did not notify the county and 

they did not notify city officials, but they said there would be a 

meeting and the meeting only identified the 14,000 acres. 

Now it was not until the day of that meeting, which was March 

10, when my constituents, government representatives, raised their 

voices so strongly and so angrily that the Fish and Wildlife has 

now scheduled another hearing for May 11 where there will be a 

public hearing and we can talk about it. 

In a way, we are the reverse of Sonoma County because first 

they drew the map, then they whispered around about what was—

they, meaning the Department of Fish and Wildlife—then finally, 

they talked to us. And what causes that problem is that people become so angry. 

152

I am going to hurry along and I would like to thank Paul 

Henson, the assistant manager of the Sacramento office, and Diane 

Noda in the Department of Fish and Wildlife. They are finally recognizing that it is going to be a problem for us. 

I want to thank Congressman Cardoza because I think if his bill 

would have been in place, critical habitat designation would be 

made concurrent with the recovery plan. Properties that are a part 

of a conservation plan already in effect or protected by another 

state agency would be excluded. Darwin and Janette Sainz could 

plant their grapes and the salamander could have protection. At 

the time the critical habitat is designated, economic impacts would 

be considered. Then the affected jurisdictions, with few resources 

available to deal with this listing, could be adequately noticed and 

we would not have our constituents rising up screaming and yelling 

and having a fit. 

It was interesting; the gentleman from Washington talked about 

why had not Mr. Manson, who was sitting this seat, done something sooner. In my experience he has. Three years ago, prior to 

his taking over the administration of Fish and Wildlife, we could 

not get answers, we could not get responses, we could not even get 

a no, we could not get a yes. We could maybe get a maybe but the 

maybe changed 2 weeks later. 

So all we are asking for is a plan and I think that is what all 

of you are attempting to do. The public needs to know. Just give 

us the plan and we will do it. 

Thank you so much, Chairman, for letting me be here and I admire your effort. 

[The prepared statement of Ms. Gray follows:]

Statement of Joni L. Gray, 4th District Supervisor,

Santa Barbara County, California 

I am grateful to have the opportunity to testify on H.R. 2933, sponsored by a 

member of my State’s Congressional delegation, The Honorable Dennis Cardoza. I 

am encouraged that the legislation has received bipartisan support. My name is 

Joni Gray, and I represent the 4th Supervisorial District of Santa Barbara County. 

I was born and raised in Orcutt, a small community within my district. I attended 

Santa Maria Public Schools, and earned my Bachelor’s of Science and Master’s Degree in Education at Cal Poly, San Luis Obispo. I hold teaching credentials in Secondary Education, Adult Education, Counseling and Guidance and in General Administration. Additionally, I am a member of the Family Law and Taxation Sections 

of the State Bar of California. For many years I worked in the classroom teaching 

at Santa Maria High School, and later at Allan Hancock Community College. I subsequently practiced law. Those experiences provided me a unique insight into the 

workings of public agencies and how they can best serve community needs. 

In August of 1998, I was appointed by Governor Pete Wilson to serve as the 

Fourth District Supervisor for Santa Barbara County. In November 1998, I won the 

seat in the General Election and have continued to serve as Fourth District Supervisor since that time. Before taking office, I served as Chairperson of the Santa Barbara County Planning Commission. Today, I sit on many community organization 

Boards as well. These years of public and private service have inspired a deep commitment to address the concerns of the people who have been my friends and family 

all of my life. That commitment takes on additional significance, as I present them 

to this elected body today. 

As a locally elected official, I take my responsibility to these people very seriously: 

a responsibility that proves challenging as we attempt to meet the varied and many 

needs within the community with increasingly limited resources. I have learned that 

no matter what we do, or how hard we work, we will never be able to address individual needs without considering where they fall into the larger picture of community needs. We must therefore look at solutions that are balanced in their approach: 

incorporating the needs of both. That is why I am here today, to ask that, as MemVerDate 0ct 09 2002 11:21 Sep 24, 2004 Jkt 088533 PO 00000 Frm 00156 Fmt 6633 Sfmt 6621 J:\DOCS\93346.TXT HRESOUR1 PsN: KATHY
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bers of Congress, you apply that sense of balance to the implementation of the Endangered Species Act. 

I would like to share the story of the existing Act’s impact on my community, and 

how I believe that Congressman Cardoza’s legislation could bring that much-needed 

sense of ‘‘balance’’ to resolving the challenges that my constituents now face. And 

while the California Tiger Salamander is but one of the many endangered species 

listed in my district, it is the focus of my testimony. 

On January 19, 2000, the United States Fish & Wildlife Services, in an emergency 

rulemaking, listed a subset of the California Tiger Salamander species in Santa 

Barbara County, as an endangered, Distinct Population Segment. That rulemaking 

became final in June of 2001. Although there is strident disagreement over the process as well as the scientific basis for the listing, as an elected official I am obligated 

to aide in charting a course that allows my impacted constituents to move forward 

with their economic lives. Some of those impacts include: • Delays in vital projects that serve the most needy in our community, specifically 

the delay in the construction of a Food Bank that has resulted in turning away 

over 2 million pounds of donated food, vitamins, and agricultural products; • An impediment to attracting new business and industry to the Santa Maria 

Valley; • Delays in residential, commercial and industrial construction. This includes the 

Santa Maria Airport project that has spent hundreds of thousands of dollars 

over the last decade in planning; • Delays in much- needed infrastructure, including: repairs to streets, initiation 

of flood control projects and completion of utility projects; • Reduced ability to provide affordable housing while laboring under a mandate 

by the State to build housing or risk fiscal penalty, • Delays and added expenses in school construction; • Escalation in housing prices; and • Subsequent job loss and employment opportunities. 

Aside from impacts I have just referenced, the story of the California Tiger Salamander is rather personal and individual as well. Over thirty years ago, Janette 

Sainz, a life-long resident of Los Alamos encouraged her young daughter to make 

this salamander the focus of a school project. And while the critter was novel for 

her daughter, Janette knew that the spotted salamander had existed on her ranch 

her entire life. The ranch has been in Janette’s family for over 100 years. 

Both mother and daughter were enthusiastic about this school project. They began 

looking for details about the habitat and life patterns of the creature. Janette contacted a Santa Barbara scientist, who immediately expressed intrigue by the finding. Until that time, it was not recognized that the California Tiger Salamander 

lived that far south. The school project was a success for the Sainz’s daughter—

however, thirty years later that discovery placed Janette in the middle of a heated 

discussion over the protection of the salamander. 

Not easily deterred by a challenge, Janette and her husband Darwin, prior to the 

listing, volunteered to set aside acreage for the preservation of the species. The 

California Department of Fish and Game agreed with an independent scientist that 

the land to be set aside was sufficient for the sustainability of the species. However, 

the Federal listing preempted consummation of the agreement, and four years later, 

the Sainz are still unable to use their land. Today, Janette and Darwin have approximately 500 acres of property that is leased to a winery for the growing of 

grapes. Due to the listing, 360 acres of the property has remained uncultivated and 

unplanted. The loss in terms of dollars to both the winery owners that lease the 

land, and the Sainz family that own it is dramatic. 

It was always the intent of Janette and Darwin to continue sharing their land 

with the salamander that had called it home for as long ago as Janette could remember. In her own words: ‘‘Our family has lived with the salamander for years, 

and we have always gotten along just fine.’’

This story is but one of hundreds: people, willing to work with regulators to provide for the protection of a species, yet coexistence has been denied. Their proposals 

are not denied because of the ultimate demise of the species in question, but rather 

because current demands of the Endangered Species Act offer limited opportunity 

for delisting of the species, and no opportunity for economic protection of the individual impacted. 

This point was well-demonstrated when on January 22, 2004, the United States 

Fish & Wildlife Service proposed designation of nearly 14,000 acres of critical habitat for protection of the California Tiger Salamander in Santa Barbara County. The 

Service stated that these 14,000 acres, the vast majority of which are privately held, 

are essential to the species conservation. My constituents feel that the proposal was 

in large part prepared by scientists chosen by the Service, who met privately. Their 

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meetings with stakeholders were infrequent, and because stakeholder’s participation 

was so limited, it was impossible for them to constructively contribute to the recovery teams’ efforts. Post publishing of the proposed Critical Habitat, an informational 

meeting on March 10th was scheduled. This meeting was open to invitees only, and 

convened merely to notify stakeholders of the designation. County or City elected 

officials were not even notified. 

It was not until the day of the meeting, March 10th, 2003, when constituents and 

governmental representatives alike, raised their voices in anger that the Service 

agreed to reopen the comment period and on May 11th, allow for a public hearing 

on the proposed Critical Habitat. One of the grave concerns expressed at that time 

was that the Service proposed publishing Critical Habitat prior to the completion 

of an economic analysis, largely ignoring the economic needs of the community impacted. The community has been informed that the economic analysis is underway 

that identify impacts relative to the proposed critical habitat designation. In the 

words of the Fish & Wildlife Service, ‘‘It will be released separately for public review 

and comment.’’ We have since received a commitment from the Fish & Wildlife that 

a public hearing will be held on the economic analysis as well. If not for the efforts 

of Mr. Paul Henson, Assistant Manager, Ecological Services in the Sacramento Office of the Fish & Wildlife Services, and Diane Noda, Field Supervisor of the Ventura Office of the Fish & Wildlife Services, we would not have the opportunity to 

participate in public hearings. 

This chronology highlights the need for the proposed changes offered by Congressman Cardoza that would balance the needs of the community with that of the protected species. If his proposed changes were in place, the story of Santa Barbara 

would be quite different. 

Critical Habitat designation would be made concurrent with a recovery plan. Currently, critical habitat designation is so large, and appears to be such large taking 

of private and public lands that we were placed in a combative and contentious position from the moment that proposed habitat was published. By developing an inclusive plan first, and than designating critical habitat there is opportunity for input 

from all stakeholders, and the ultimate decision on critical habitat, while still painful, would be inclusive. 

Properties that are already a part of a ‘‘conservation plan’’ or offered protection 

by other State or Federal conservation programs would be excluded from Critical 

Habitat designation. In the case of Janette and Darwin, they would have a plan in 

place that protects the species but also allows them useful access to their land. 

At the time that Critical Habitat is designated, economic impacts would have already been considered. This would allow for a much more balanced approach when 

determining what is needed for the coexistence of the salamander and the human 

population. The legislation requires that the analysis reflect direct, indirect and cumulative impacts. It would have to consider the loss of revenues to private property 

owners such as Janette and Darwin, and Local governments such as Santa Barbara 

County. 

Affected jurisdictions, with few resources available to deal with the listing would 

receive additional notification of critical habitat proposals. The information would 

have to be shared—precluding the employment of firms to aid in gathering information pertinent to the listing. This would have eliminated much consternation and 

frustration at the county level with respect to the most recent meeting referenced 

earlier. 

Finally, the legislation’s proposed word change from ‘‘essential to the conservation 

of the species’’ to ‘‘essential to the conservation of the species as areas which are 

absolutely necessary and indispensable to conservation,’’ would undoubtedly have 

resulted in development of a recovery plan and than designation of Critical Habitat 

that was less than the 14,000 acres currently proposed. 

My colleague, Supervisor Joe Centeno, and I have scheduled a meeting with the 

Service and impacted constituents on May 5th. We hope that this will be the opening of a dialogue that will allow us to consider a more balanced approach to the 

challenges presented by the current law. Further, we are encouraged that the Service has responded to our requests to re-open the public comment period on Critical 

Habitat designation and a public hearing is now scheduled for May 11th. Perhaps 

the bottom line is that if Congressman Cardoza’s ‘‘balanced approach’’ legislation 

had been in place, Santa Barbara County would be well on its way to conservation 

of the species while at the same time recognizing the economic needs of those affected. 

Chairman Pombo, thank you for allowing me to testify before your Committee 

today. 

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[Ms. Gray’s response to questions submitted for the record 

follows:]

Response to questions submitted for the record by Joni L. Gray, 4th 

District Supervisor, Santa Barbara County Board of Supervisors, Santa 

Barbara, California 

Questions from Chairman Richard Pombo: 

1) Supervisor Gray, what do you think of the methodology used by FWS 

to craft a recovery plan? Would the elements of this bill make it a more inclusive and open process? 

The Recovery Plan process that recently occurred in Santa Barbara County left 

many people frustrated and disenfranchised. That included many elected officials as 

well as constituents. A Recovery Plan, in my estimation should be all-inclusive—

people who have the most at stake should have a seat at the table as well as 

scientists familiar with subject species. Further, I think that various Biological 

perspectives should be represented—this too would eliminate distrust in the end 

product. 

Currently the Recovery Plan process is broken. The USFWS has failed to provide 

timely recovery plans and this has prolonged a process (denial of certain land uses) 

that is costly to local governments and landowners. As currently structured the ESA 

requires certain actions to be completed within specific timeframes following a listing. This bill would require these actions to be completed concurrent with the listing, thus improving the performance of the USFWS. 

The bill requires that concurrent with Critical Habitat designation would be the 

presentation of the Recovery Plan. This Plan would outline what is required to recover the species. Additionally, the economic analysis would have already been considered, ensuring that protection for the species does not economically devastate a 

specific region. 

The experience in Santa Barbara County is that vast tracts of public and private 

land are sequestered while the USFWS evaluates data and determines what kind 

of protections are required, if any. By preparing a Recovery Plan prior to establishing a critical habitat designation all of the scientific merits would be fully developed, goals established and the need to protect the species fully justified BEFORE 

action is taken. 

All of these are important not only to the sustainability of a species but the sustainability of the Act itself. People need to feel that they are a part of the process—

elements of Cardoza’s bill go a long way in ensuring that this is the case. 

2) Supervisor Gray, if the Cardoza bill had been in effect, how would 

your experience in Santa Barbara be different? 

The provision of the bill that require Critical Habitat designation to be made concurrent with a recovery plan would have eliminated a great deal of consternation 

among my constituents. Currently, critical habitat designation for the Tiger Salamander is so large (14,000 acres) and appears to be such large taking of private and 

public lands that we are placed in a combative and contentious position from the 

moment that proposed habitat is published. 

By developing an inclusive plan first, establishing the recovery goals and then 

designating critical habitat there is opportunity for input from all stakeholders, and 

the ultimate decision on critical habitat, while still painful, would be inclusive and 

fully justified. 

Additionally, at the time that Critical Habitat is designated, economic impacts 

would have already been considered. This would allow for a much more balanced 

approach when determining what is needed for the coexistence of the salamander 

and the human population. The bill goes on to require that the analysis reflect direct, indirect and cumulative impacts. Designation would have to consider the loss 

of revenues to private property owners such as Janette and Darwin Sainz—constituents I referenced in my testimony, and local governments such as the City of Santa 

Maria and Lompoc. 

It is logical to conclude that if a Recovery Plan had been required for each species 

listed in Santa Barbara County that many would not have been listed. The premise 

of the Recovery Plan is that a species population has diminished and to bring it 

back to a sustainable population. To successfully accomplish these actions it is necessary to fully understand the species in question, its historical range and its habitat. 

3) We have heard that federal agencies could do a better job when it 

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nities deserve to be partners in this process. There are also instances 

where it is unclear how the federal agency determined critical habitat. 

Example: The Final Rule for Santa Ana sucker critical habitat is based on two 

‘‘personal communications’’ with biologists and that nearby communities were not informed of these communications. 

• Will the bill improve cooperation and coordination with local governments? 

The use of ‘‘personal communications’’ from listing advocates seems to be a common occurrence as the endangered species listings are reviewed. Requiring a Recovery Plan as part of the listing process will allow technical issues, such as the historical range and census counts of the subject species, to be fully vetted prior to any 

federal action. 

Requiring the USFWS to publish these communications so that knowledgeable 

members of the community can evaluate their relevance and provide comment is an 

important step forward. 

Requiring the USFWS to notify every jurisdiction within the proposed recovery 

area is of utmost importance. Frequently people in Santa Barbara County have been 

ignored in the process. For example when the Pacific Coast Population of the Western Snowy Plover was proposed for listing the notice only appeared in the Los Angeles and San Francisco area newspapers. No notice was provided in Santa Barbara 

County media, however the listing of the WSP has had a significant impact on my 

constituents. 

Affected jurisdictions, with few resources available to deal with the listing would 

receive additional notification of critical habitat proposals. The information would 

have to be shared—precluding the employment of firms to aid in gathering information pertinent to the listing. This would have eliminated many of the concerns at 

the County level with respect to the Critical Habitat designation. 

Few Federal agencies have an understanding of the needs of a particular area. 

However, locally elected officials have a very good idea. By working together we can 

create solutions that would allow for recovery of the species—often through voluntary action—that promote co-existence between the human populations with that 

of the protected species. 

The communication process today appears to be designed to exclude the public in 

general. Few people have the time or energy to read the Federal Register on a daily 

basis. This limits the ability of the public in general to participate in decisions that 

can have a dramatic impact on their lives. 

The bottom line is that unless the Congress adequately funds the ESA process 

there will be continued abuses of the system. This bill seeks to improve the process 

by clarifying the policy and establishing new requirements. Funding and interpretations by the judicial system will limit the successful execution of this policy. 

In conclusion, I would ask that you examine the ECOS website. This is a Summary of Listed Species and Recovery Plans as of 06/02/04. http://ecos.fws.gov/tess—

public/TESSBoxscore 

This is a very telling statistic. Less than half of the species listed have recovery 

plans. The impact of the proposed amendment to the ESA would cut the list in half. 

*There are 1855 total listings (1292 U.S.). A listing is an E (endangered) or a 

T (threatened) in the ‘‘status’’ column of 50 C.F.R. 17.11 or 17.12 (The Lists of Endangered and Threatened Wildlife and Plants). 

**There are 541 distinct approved recovery plans. Some recovery plans cover more 

than one species, and a few species have separate plans covering different parts of 

their ranges. This count includes only plans generated by the USFWS or jointly by 

the USFWS and NMFS, and includes only listed species that occur in the United 

States. 

Thank you for allowing me to give additional testimony. 

The CHAIRMAN. Thank you. 

Dr. Sheldon? 

STATEMENT OF JOSEPH K. SHELDON, PH.D., PROFESSOR OF 

BIOLOGY AND ENVIRONMENTAL SCIENCE, MESSIAH 

COLLEGE, GRANTHAM, PENNSYLVANIA 

Dr. SHELDON. Chairman Pombo and members of the Committee 

on Resources, Honorable Mr. Cardoza, it is a pleasure and an 

honor to be here today. I applaud your efforts to strengthen the EnVerDate 0ct 09 2002 11:21 Sep 24, 2004 Jkt 088533 PO 00000 Frm 00160 Fmt 6633 Sfmt 6602 J:\DOCS\93346.TXT HRESOUR1 PsN: KATHY
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dangered Species Act but there are some areas that I have some 

concern about and I would like to address those specifically. 

I direct my comments to you as a Christian and as a conservation biologist. I have been invited to speak out of my concern for 

the stewardship of biodiversity that was wrought into existence 

and is sustained by God. 

Many Christians consider themselves to be stewards of God’s creation and their stewardship to be an act of worship. Others see 

stewardship of creation as an act of responsibility for their children 

and grandchildren. In both cases we are not the owners but rather, 

act on behalf of either the one above or those to come and our efforts to maintain and assure the fruitfulness of God’s creation. 

A responsible steward must have sufficient foresight to anticipate and prevent problems from occurring in the first place. Lost, 

threatened and endangered species, as a result of human impact, 

testify to our past failure as stewards. Yes, we must address problems when they are recognized but it is your responsibilities as 

high stewards in Congress to make meetings like this unnecessary 

in the future as we are doing our job properly in preserving the creation. 

As stated by theologian Steven Bouma Predager, all creatures 

are designed to sing the praises of God. To see a tree only as so 

many board feet or a river as only a place to fish are forms of nearsighted utilitarianism that reduce all value to human terms. A 

focus only on human use, even if wise use, is a stunted viewpoint 

that fails to acknowledge intrinsic value in a world that is not of 

our making. 

H.R. 2933 reduces some of the essential protection from present 

and future species. It strengthens other areas that are necessary. 

Habitat destruction and degradation is the primary factor responsible for more than 80 percent of the U.S. species that are currently listed under the Endangered Species Act. By the time a 

species qualifies for ESA listing, their viability is already seriously 

threatened and they often survive only in degraded and marginal 

habitat, and that is critical to understand. The remnant population 

of most endangered species could still be recovered by removing the 

factors that have threatened them. Often this will require suitable 

habitat currently unoccupied by the species for reintroduction or 

recolonization. 

Rather than assuring adequate habitat for recovery, H.R. 2933 

limits habitat protection to absolutely necessary and indispensable 

landscape presently occupied by the species. That does not give any 

room for reintroduction or recolonization. I am assuming that the 

critical habitat is also habitat that has been identified by the best 

scientific means and it is not the middle of a tennis court or a 

housing development that already exists. I am talking about critical habitat that is necessary for the sustainable living of the 

species. 

A minimum viable population requires a minimum dynamic 

habitat but a minimum viable population is hardly the fruitful population described in Genesis 1:22. Are we not stealing the birthright of God’s creatures when we fail to provide them with the essentials necessary not just to survive but to flourish? Resource 

managers base their production goals on maximum sustained 

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yields yet when God’s creatures stand in our way we set minimum 

viable populations as an acceptable standard. 

The Endangered Species Act is an act in process. It demands 

adaptive management from the scientific end and adaptive legislation from your end. The steward’s role, your role, must be to craft 

a win/win solution for all stakeholders and to transform the ESA 

into an act that is supported by property owners who see value in 

preserving and enhancing the fruitfulness of their piece of creation, 

not the current practice of shoot, shovel and shut up. 

We live in the richest nation that the world has ever known. We 

have a national heritage of conservation that has persisted even 

through the worst of economic times. Surely we can and we must 

have the political will to commit the necessary resources to live 

sustainably within God’s creation. 

Humanity was placed in Eden, in the garden, to serve and to 

care for creation. Adam’s first task in the garden was to name the 

animals. It is this act of loving servant leadership that must characterize our lives today. As we step back and evaluate our job as 

stewards, let us remember that we have only one chance to do the 

job right. 

A real danger lurks here. Webster’s New Collegiate Dictionary 

defines blasphemy as the act of insulting or showing contempt or 

lack of reverence for God or the act of claiming the attributes of 

God. If we deny the fruitfulness of God’s creatures, have we crossed 

an unacceptable line? 

In our arrogance we have created a committee that we call the 

God squad to decide whether a species is worthy of continued existence. Section 3 of the current bill extends this policy by inserting 

an economic impact argument as the primary determining factor on 

evaluating whether to protect critical habitat. It is the steward’s 

job to care for creation. Only the creator has the right to determine 

when it is time to call a species home. 

I applaud your efforts. I encourage you. We need to change the 

Endangered Species Act but we need to do it in a way that will 

guarantee the fruitfulness of the species that have been placed in 

our hands to care for. Thank you. 

[The prepared statement of Dr. Sheldon follows:]

Statement of Joseph K. Sheldon, Ph.D., Professor of Biology and Environmental Studies, Messiah College, Grantham, Pennsylvania, Representing 

Au Sable Institute of Environmental Studies, American Scientific 

Affiliation, The Evangelical Environmental Network 

Chairman Pombo, Ranking Member Rahall, and Members of the Committee on 

Resources: 

It is an honor and privilege to be here today. I direct my comments to you as a 

Christian and as a conservation biologist. I have been invited to speak out of my 

concern for the stewardship of biodiversity that was wrought into existence and is 

sustained by God. Many Christians consider themselves to be stewards of God’s creation and their stewardship to be an act of worship. Others see stewardship of creation as an act of responsibility for their children and grandchildren. In both cases, 

we stewards are not the owners, but rather act on behalf of the One above or those 

to come to maintain and assure the fruitfulness of God’s Creation. 

159

Some Biblical and Scientific Perspectives on Species Protection: 

A RESPONSE TO H.R. 2933, CRITICAL HABITAT REFORM ACT OF 2003 AND WHY H.R. 2933

SHOULD NOT BE SUPPORTED

How many are your works, O LORD! In wisdom you made them all; the earth is 

full of your creatures...teeming with creatures beyond number. May the glory 

of the LORD endure forever; may the LORD rejoice in his works. 

FROM PSALM 104:24,25,31. 

Introduction 

Taking care of endangered species engenders heated debate. What are our priorities? Is it worth the expense? Should government be involved? H.R. 2933, the Critical Habitat Reform Act of 2003, weakens the Endangered Species Act by denying 

adequate habitat protection and by requiring a cost-benefit analysis. The steward’s 

responsibility is to preserve the fruitfulness of God’s creatures and the sustainability of all the Earthly Creation. This bill, if approved, will compromise that task. 

It should not be approved. 

Individuals with a Judeo-Christian heritage need to think biblically about these 

issues? How can Scripture inform our discussion? What would be a biblical response 

to the endangered species debate? What might God think of endangered species? 

Here are some guidelines for reflection on how we might follow Christ and respond 

with godliness to the needs of his creatures. 

Important Scriptures 

Is it not enough for you to feed on the good pasture? Must you also trample the 

rest of your pasture with your feet? Is it not enough for you to drink clear water? 

Must you also muddy the rest with your feet? From Ezekiel 34:18. 

Hear the word of the Lord...because the Lord has a charge to bring against you 

who live in the land: There is no faithfulness, no love, no acknowledgment of God 

in the land. ... Because of this the land mourns, and all who live in it waste away; 

the beasts of the field and the birds of the air and the fish of the sea are dying. 

From Hosea 4:1-3. 

The creation waits in eager expectation for the sons of God to be revealed—in 

hope that the creation itself will be liberated from its bondage to decay and brought 

into the glorious freedom of the children of God. From Romans 8:19-21. 

Thy kingdom come, thy will be done, on earth as it is in Heaven...(Matthew 6:10). 

‘‘This is the common denominator among Christians. Life is a primer for eternity, 

learning to love God as he loves us, by practicing that redemptive love in the framework of our daily lives. Not building utopia, not the final completion or redemption, 

but being good neighbors to all, especially to the least among us—human and nonhuman alike’’ (David Foster, Messiah College). 

Biblical and Theological Perspectives 

• Goodness of creation. Scripture expresses God’s delight at the myriad of species. 

Gen. I pronounces them ‘‘good’’ (vv. 21, 25). The creation story also repeats the 

word ‘‘kinds’’ (seven times in five verses, Gn. 1:20-25) showing that God gave 

special attention to variety. The Creator also commissioned Adam to name each 

specie: Gn. 2:19-20. Scripture also affirms the goodness of the human creation: 

Gn. 1:26-28, Ps. 8:3-8, Mt. 10:31. Despite the grandeur of creation, humans 

must be careful to worship God alone: Is. 42:8, Rm. 1:18-25. 

• God’s Joy. Throughout Scripture, we find the Creator rejoicing in his works 

(Ps.104:24-25, 31, etc.) and paying attention to even the most insignificant (Mt. 

10:29). God describes his creatures with awe, admiration and pleasure. Dare we 

diminish the joy God finds with his handiwork? 

• God’s concern. Matt. 10:29-31. Not a sparrow falls to the ground apart from the 

will of the Father. This reveals an intense involvement in the daily, seemingly 

inconsequential affairs of creation. It reveals a God who is not a scientist collecting cold data, but a Creator intimately leading creation toward the accomplishment of his will. Also revealed is the supreme value of the human creation: 

If God so esteems slugs and salamanders, what does this imply about me? It 

could be said that advocating for the protection of species elevates the stature 

of the human as well. When we know what is out there, it makes the human 

all the more valuable. Could it be said that a contributing factor to the demeaning of human existence is a loss of contact with the Creator God and his splendid creation? 

• Human responsibility toward creation. Humans have a very special and exalted 

place within creation (Gn. 1:26-28, Ps. 8:3-8, Mt. 10:31). However, Scripture provides us with no mandate or calling to destroy; our commission is to serve as 

160

stewards of creation: Gn. 1:28, 2:15. Genesis 1:28 is a strong passage that refers 

to ruling over creation. The ancient Hebrew word is redah and it generally is 

used to describe the righteous and loving rule of a good and kindly king. Genesis 2:15 describes how this rule is to be carried out. The two key words in Genesis 2:15 are ‘‘till’’ (abad in Hebrew) and ‘‘keep’’ (samar). In other texts, abad 

is translated to ‘‘serve.’’ Joshua 24:15 says, ‘‘we will serve (abad) the Lord.’’ 

What kind of service would our God require of us? Responsible or destructive? 

How would our God have us serve (abad) creation? Samar, on the other hand, 

describes the type of keeping that is illustrated in Numbers 6:24 where the 

Lord through the prophet Aaron speaks of his keeping of the Israelites. ‘‘The 

Lord bless you and keep (samar) you.’’ Certainly, God keeps his people in such 

a way as to demonstrate his great love and care. His keeping would cause his 

people to thrive. In a similar fashion, we are charged with the ‘‘keeping’’ of creation. Creation deserves our love and our labors that contribute to its health 

and vitality. • Human Concerns. Most Scripture would seem to lend support for preserving 

species for their own sake. Scripture also teaches that humans can enjoy the 

benefits of creation: Gn. 1:29-30. It would be difficult to enjoy the benefits of 

something which no longer exists. Also, all creation is to enjoy these benefits 

as well: Gn. 1:30. • Fruitfulness. Scripture commands us to tend creation so that it can be preserved and regenerate itself. Dt. 22:6-7. • God Sustains. The Bible says that God sustains his creation: Ps.145:15-16, Mt. 

6:26,30. By what calling do humans override God’s involvement with what he 

has made? • Covenant. God made a very specific covenant with all life: Gn. 9:8-17; it is not 

to be destroyed. • God’s Will. In the Noah story, God has revealed his will that all life be preserved, Gn. 6:19-20, 7:1-3, 7:14-16, 8:17, and in such a way that it may regenerate itself: Gn. 6:19b, 20b, 7:3b, 8:17c. Natural extinctions will sometimes occur 

as a part of God’s will, but this is not a human prerogative. • God’s Witness. ‘‘For since the creation of the world God’s invisible qualities—

his eternal power and divine nature—have been clearly seen, being understood 

from what has been made, so that men are without excuse.’’ (Romans 1:20). 

Who are we, through our actions, to degrade the witness to God’s power and 

divinity? Who will face him on the Judgment Day and give an explanation for 

our actions? What will we say to him? • Worship. The Bible says that all creation praises God: Ps. 96:11-13, Rev. 5:13. 

Silenced voices of praise are a great tragedy, a symphony ‘‘finished’’ in an untimely manner. • Human Worship. Can one read Psalm 104 or Job 38-41 without experiencing 

awe and wonder as the Lord describes the creatures of His creation? To know 

what God has made is to know him better and to be better equipped to worship 

him. 

• Human Responsibility. God gave to Noah and to Adam specific responsibilities 

regarding the care of creation. Are we called to be any less responsible than 

Adam and Noah? If we claim to know the Creator and to have a personal relationship with him, then how can we not be grieved at the destruction of the 

cherished gift that has been placed in our hands? 

• Ethical questions. It would be easy to consider some species as more important 

than others. Most of us are far more appreciative of butterflies than slugs. But 

can we really make such decisions? Who are we to determine which species are 

more important than others? Could we call this ‘‘playing God’’? Are we given 

a scriptural mandate to destroy? That is the prerogative of the Creator, not the 

steward. Our responsibility is to tend the garden. 

• Judgment. ‘‘Your wrath has come. The time has come for judging the dead ... 

and for destroying those who destroy the earth.’’ Rev.11:18. Our destruction of 

species is most often rooted in sin and for this we will be judged. Environmental 

degradation results from forms of idolatry, greed and pride: our technological 

pursuits lead us to forget about and be ignorant of God’s work in creation; we 

presume the importance of our work and needs, to the point of destroying God’s 

work; the powerful among us ignore the needs of the weak, destroying what 

provides subsistence for the poor or forcing them to marginal frontiers where 

they must live destructively in order to survive. In contrast to God’s knowledge, 

our ignorance is such that we don’t know all the different species that exist, 

how they interrelate, or how they might be useful or even necessary to us. 

Species extinction is symptomatic: It is a problem reflecting the sinfulness and 

unsustainability of lifestyles and our economy. ‘‘The sins of the father are visited 

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on the sons,’’ says the Lord in Deut. 5:8-10. We now see that the sins of humanity 

are visited on other species as well. • Evangelism. The unbelieving world is waiting for Christians to take a relevant 

stand on a variety of issues, including species protection. Ultimately, Christian 

involvement in species protection will be undertaken for its own sake as a way 

to honor God. Nonetheless, we can expect some in the unbelieving world to respond positively. Our work in species protection will speak powerfully about the 

very character of our God. 

Scientific Perspectives 

• Introduction. The branch of science which focuses on the protection of the 

world’s species is referred to as conservation biology. In scientific circles it is 

known as a ‘‘crisis discipline’’—often called upon to act or advise with little or 

no warning, with a limited knowledge base, and frequently dealing with emergency situations. In many ways it is similar to a medical emergency room; only 

the patients are not humans, but rather the other creatures of our Lord’s magnificent creation. Each is a Mona Lisa in its own right—painted into existence 

by the Lord’s own hand. The very fact that conservation biology exists is reason 

for concern, especially for Christians: it is testimony to our failure to properly 

steward creation. • What do we know about species? Science tells us that there are between 5 and 

40 million species alive today. Approximately 1.7 million have been identified 

and catalogued. We know that millions of unidentified species exist. How many 

we are not sure. The temperate areas where the great majority of scientists 

work and reside are relatively well-known, but our knowledge of the species of 

the tropics and the deep oceans where the majority of the world’s species reside 

remains largely a mystery. But the point is not the sheer number of species. 

The crisis involves what is happening to known species as well as to the myriad 

unknown. 

• What are the primary causes of extinction? Many factors contribute to the loss 

of species including the impact of introduced species, global climate change, pollution, disease, and excess hunting and other forms of harvesting which exploit 

species at a rate that exceeds their reproductive potential. But the single largest and expanding threat is habitat destruction caused by human actions. No 

species can continue to exist when its ecosystem, its very home is destroyed; the 

occupied habitat of most endangered is reduced to a fragment of its former area 

and is often marginal in quality at best. It should be noted that in January 

2004 a major research paper in the journal Nature identified Global Climate 

Change as a major contributing factor, perhaps equal or greater to habitat destruction. 

• What species are going extinct? The best known groups of organisms are birds 

and mammals. Since the year 1600, a total of 83 known mammals species 

(2.1%) and 113 birds (1.3%) have become extinct. This number is expected to 

rise rapidly as the breeding populations of many species continue to decline. 

But even before the advent of modern technology, humanity took a heavy toll 

on creation. Approximately 70% of the known bird species have become extinct 

in the Hawaiian Islands since humans first arrived. Indeed, large-scale 

extinctions of Pacific island birds apparently was widespread. Recent evidence 

points to a loss from these islands in excess of 2,000 species following human 

habitation—a 20% reduction in the world’s bird species. Evidence also links the 

colonization of Australia and North America with the disappearance of many 

species of large mammals (over 100 pounds). More than 50 mammal species 

have become extinct since the arrival of humans in North America. Fossils of 

extinct species have been found with spear and arrowheads imbedded in their 

bones. A few thousand years ago, western grasslands rivaled the great savannas 

of Africa in terms of the enormous numbers of animals. Both large grazing 

mammals and their predators were in abundance. Where are they today? 

Determining present extinction rates and even the status of most species is difficult for all but a few well-known groups. For example, we know that 17 of the 22 

crocodile and alligator species are threatened with extinction from habitat destruction and overhunting. But what about the world’s plants or its insects? Peter Raven, 

perhaps the world’s leading specialist on tropical botany has stated that 25% of the 

world’s plant species are seriously threatened. And what about beetles which represent approximately 25% of all known species? You may be wondering why we 

should be concerned about beetles at all. After all, a bird or mammal must be far 

more important than a species of insect! Not necessarily. Each species plays a 

unique role in creation. The loss of any species has ripple effects across the fabric 

of creation. In recent studies of Central and South America, more than 90% of the 

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beetles collected were from unknown species. A single tree may have as many as 

1200 species of beetles of which 20% (160) are specialist feeders that occur only on 

that species of tree. There are approximately 50,000 species of tropical trees—each 

with its specialist beetle population. If the tree becomes extinct, so will the other 

species associated with it. And there are many other specialists on tropical trees besides beetles! • How are scientists able to estimate the numbers of animals going extinct? There 

is a direct relationship between the size of an area and the number of species 

that it contains. A square yard of temperate forest habitat may have 10 species 

of plants, while an acre will often number in the hundreds. The larger the area, 

the more species encountered—up to a point. Of equal importance is the size 

of the area occupied by each species. Species that are restricted to small geographic areas are much more likely to go extinct than are those with widespread distributions. Also the smaller the population, the higher the probability 

of extinction. And here lies a disturbing fact. It is thought that tropical species 

commonly have smaller populations and much more restricted distributions. 

Thus, destroying an acre of tropical forest will likely have a much higher extinction impact than the loss of an acre of temperate forest. 

With this limited information, it is possible to explain how estimates of species 

extinction rates are obtained. In a major tropical forest research study, scientists 

found that if 50% of the habitat was destroyed then approximately 10% of the 

species disappeared. When habitat destruction reached 90%, then 50% of the species 

were lost. At least 12 African and eight Asian countries have lost more than 50% 

of their wildlife habitat. In some cases (Hong Kong and Bangladesh), habitat destruction exceeds 90%. Using this logic, Dr. Edward Wilson of Harvard University 

estimates that, if 1% of the world’s tropical rain forests are destroyed each year (a 

conservative estimate based on current rates of deforestation), then 0.2 to 0.3% of 

all species would become extinct per year. Over 100 years, this would be a loss of 

at least 20% of all species, if extinction rates remain constant. Based on a total of 

10 million species, the current annual loss has been calculated to be 20,000 to 

30,000 species. Are these numbers real? Some current studies indicate that the rate 

of species loss may be somewhat less that the model predicts. There is no question, 

however, that unless the escalating rate of habitat destruction is reversed, the extinction toll will continue to rise. And if recent evidence from studies on Global Climate Change proves to be true, atmospheric modification may become the major 

threat to species in the future. It appears that we are entering a major extinction 

episode with unknown global consequences. It is time that those in Congress join 

the rest of the world in addressing these problems. Long-term ecosystem sustainability must be our first priority as we carry out our role as stewards of God’s creation. • Is a minimum minimum viable population ecologically extinct already? The answer is probably yes. All species occupy an ecological niche and as such contribute to important processes of ecosystem function. When a species population 

is reduced to the point that it would qualify as a ‘‘minimum viable population’’ 

its contribution to these ecosystem processes is minimal. Such a species can be 

considered to be ecologically extinct. Many of our large predators fall into that 

category through much of their former range, if they exist there at all. The 

American Bison as well as many other species that are not currently listed by 

the ESA are functionally already extinct. They certainly do not exhibit the biblical concept of fruitfulness. 

• What about those animals, like the dinosaurs, that would go extinct anyway? 

Isn’t it true that many species have become extinct in the past due to natural 

events? If so, why should we be concerned about more extinctions today? Yes, 

it is true that extinctions have taken place in the past. Indeed, scientists have 

identified at least five major periods of extinction in the fossil record when large 

numbers of species disappeared during a ‘‘short’’ (geologically speaking) period 

of time. Various explanations have been proposed to account for these sudden 

losses. Perhaps the most well-known is the asteroid-impact hypothesis. But 

even if extinctions have taken place in the past, is this sufficient reason to 

cause more today? Indeed, I think not. Peter Raven, Director of the Missouri 

Botanical Garden, describes the present crisis as one of the greatest extinction 

episodes in the history of the Earth. What we are facing today is a catastrophic 

loss of the species that God placed here to share Creation with us. They are 

the species that God entrusted to humanity to name and to care for. We also 

have been given the privilege to use this special trust to meet our own needs—

but it must be done in a sustainable fashion. We may take from the fruitfulness 

(the ‘‘interest’’) of creation, but must not destroy its ‘‘principal.’’ This is clearly 

illustrated in Deuteronomy 22:6-7 where the Lord instructs the Israelites that 

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‘‘If you come across a bird’s nest beside the road, either in a tree or on the 

ground, and the mother is sitting on the young or on the eggs, do not take the 

mother with the young. You may take the young, but be sure to let the mother 

go, so that it may go well with you and you may have a long life.’’ • What good are many of these species anyway? ‘‘When it comes to a snail darter 

or a dam, I vote for the dam! After all...what use is a snail darter?’’ More and 

more frequently we find ourselves forced to make a choice between human activities and species protection. Rarely (if ever) is the choice between the life of 

humans and the life of a non-human species. When conflicts arise they typically 

involve economic restrictions, projected or actual loss of jobs, and inconvenience. 

In response to these conflicts some are suggesting that the Endangered Species 

Act should be weakened and that all proposed listings under the act be examined through the eyes of a cost-benefit analysis. What is the value of the project 

vs. the value of the species? This raises a difficult question. How does one actually determine the value of the species? What constitutes value? Can a monetary value be established for a species in the same way that we can measure 

the monetary value of a dam or the lumber cut from a tree? Let’s briefly look 

at the question of establishing value. 

There are many types of value that are recognized. Some are easy to associate 

with monetary value, others are perhaps impossible. A species that can be harvested 

and sold in the open market has economic value that is relatively easy to determine. 

Clothing (wool, cotton, silk), building materials (lumber), and medicinal products extracted from plants (taxol to cure cancer) provide obvious examples. But what about 

values not yet discovered? Wild plant species provide the primary source for new 

medicines and genes for new agricultural strains. Does a species whose use has not 

yet been discovered have a value? How is it to be determined? What if the species 

becomes extinct before its use is discovered? Another value is ecosystem value. 

Plants produce oxygen and remove pollutants from the air. Marshes are biological 

filtering systems. All species remove energy through food chains and are involved 

in the cycling of materials. Can one determine the value of the oxygen produced by 

a single tree? Or the amount of toxic air pollution that it removes? These are values 

that benefit the entire ecosystem. In most cases we will never know the ecosystem 

value of a species. Each plays a unique role in the functioning of Creation. If there 

is no obvious value directly to humans, does that mean the species is worthless? Another form of value involves esthetics. Can we reduce the beauty of a monarch butterfly, a zebra, or a mountain goat as it bounds across a snowfield in the high Rockies to a monetary cash value? Is it even right to try? Perhaps most difficult is the 

concept of intrinsic value. Do species have an intrinsic right to exist? Are humans 

the measure of all value or is God? When we read in Genesis 1:12 and 1:21 that 

God declared that the plants and animals of Creation are good, what does it mean? 

Can the value of goodness be reduced to cold, hard cash? Perhaps there is a higher 

value that we often ignore. This value is related to our responsibility as stewards. 

We are not asked to care for our Lord’s creatures because of their economic or even 

intrinsic value to us. We are asked to he stewards because of Creation’s value to 

the One who painted it into existence. 

CONCLUSION 

When thinking about endangered species, it is easy to get caught up in political 

and economic agendas. Certainly, these many issues must be debated. However, the 

faithful disciple of Jesus Christ must first ask the question, ‘‘Is there anything spiritual about this debate? How would my faith inform my own position on this matter?’’ These questions have rarely been asked by evangelicals. It is time to ask such 

questions. 

In the opinion of a growing number of evangelicals, the protection of species is 

supported by Scripture and therefore, must be the concern of all God’s people everywhere. 

As pointed out in the oral testimony and more fully explained from a Biblical perspective above, H.R. 2933, Critical Habitat Reform Act of 2003, if enacted will significantly weaken our ability to protect species under the Endangered Species Act. 

It withdraws habitat protection from land that is not currently occupied by the 

species. This unoccupied habitat will frequently be needed for reintroduction and/

or recolonization if the species is to recover. It also introduces a cost/benefit analysis 

as a primary determinant in whether to list a species. Neither change is acceptable; 

both compromise the responsibility/ability of a steward to preserve God’s creatures. 

As pointed out in the oral testimony, it is the stewards responsibility to maintain 

the fruitfulness of God’s creatures; only God has the right to determine when their 

time on Earth is has come to an end. 

H.R. 2033 SHOULD NOT BE SUPPORTED. 

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[Dr. Sheldon’s response to questions submitted for the record 

follows:]

Response to questions submitted for the record by Joseph K. Sheldon, 

Ph.D., Professor of Biology and Environmental Science, Messiah College, 

Grantham, Pennsylvania 

Questions from Congressman Tom Udall 

1)‘‘Dr. Sheldon, you indicated that many of the non-charismatic creatures 

that often go unrecognized by the general public are included in the most 

important elements of biodiversity to preserve. You also suggested that we 

must move beyond a focus on individual species; that it is critical to preserve essential ecosystem processes as part of our task. How should the 

Committee on Resources address these issues?’’

Response: Thank you for the opportunity to continue our discussion of this critical 

issue. Before I respond to your questions, I would like to clarify my response to two 

previous questions associated with my oral testimony. 

First, I was asked, as an evangelical Christian, what my view was on evolution/

creation. I responded that God did it, but I did not provide a more detailed response. 

My short answer is that we need to move beyond the debate of ‘‘how god did it.’’ 

It is a done deal. Now we need to act as responsible stewards of God’s Creation. 

It is my personal belief that God used a process over time. Some refer to it as theistic evolution; others as continuous creation. Even as God continues to act creatively and to sustain Creation, our role is to tend the garden. 

Second, I spoke earlier of our home on one-acre in Pennsylvania and my effort 

to enhance the fruitfulness of that tiny piece of Creation. I was asked what I would 

do if I was faced with the necessity to grow my own food to feed my family. Would 

I cut down and destroy what is precious to me to provide food? Such hypothetical 

questions trouble me; they frequently are diversion tactics to avoid having to deal 

with the real issue of the stewardship of biodiversity and sustainable living. If this 

were to happen, however, it would indicate the failure of our elected officials to 

carry out their task of governing our country with foresight and thus assuring longterm sustainability. I trust that I will not be faced with that choice. 

My assumption in answering this question is that a primary goal of the Committee on Resources is to protect the integrity and functionality of our biological diversity as an essential part of the Committee’s task of stewardship. Success in this 

effort will require both adaptive management on the scientific side and adaptive policy making within Congress as we adjust to meet the needs of dynamic ecological 

systems and as our level of understanding of the problems/solutions matures. On 

your part, the Committee on Resources must begin to think ‘‘out of the box’’. ESA 

in its current form has indeed helped. But it must be improved and strengthened. 

There are species alive today that would now likely be extinct if it were not for ESA. 

The California Condor, eastern Peregrine Falcon, and Black-footed Ferret are good 

examples. Neither would we have recovering Gray Wolf or Grizzly Bears populations. But ESA in its current form is not the sole answer. ESA needs revision so 

that it can indeed accomplish its intended purpose. Efforts to weaken protection are 

not the answer. Congress must craft ESA into a much more powerful and effective 

piece of legislation, but also one that is seen by all stakeholders as positive. 

But ESA alone will not solve the problems that we face. ESA addresses single 

species issues. It is the little Dutch boy with his finger in the dike—essential in the 

short term, but not the long-term solution. Congress must continue to address the 

threats to individual species but at the same time must determine how to solve the 

problems leading to species loss. This will require extending our thinking to the ecosystem and landscape levels. Healthy ecosystems = healthy species. 

Ecosystem-level management at the functional level focuses on understanding and 

maintaining essential processes (biological and physical) that provide the integrity 

of the system. It is these ecosystems processes that are critical for long-term global 

ecological sustainability. As I pointed out earlier in my testimony, species not recognized as significant by the general public are the ones that drive the essential processes. These include soil dwelling organisms, decomposers, herbivores, parasites, 

and predators. Placing the ESA focus on more charismatic species may be popular 

with the public but will loose the battle in the long run. It is easy to dismiss something as insignificant that we do not understand. 

What is known as the ‘‘Greater Yellowstone Ecosystem’’ provides an excellent example of landscape-level thinking that will be required to adequately protect many 

of the species within Yellowstone National Park. The park itself is not sufficient in 

size to maintain fruitful populations of all if its species. The boundaries of YellowVerDate 0ct 09 2002 11:21 Sep 24, 2004 Jkt 088533 PO 00000 Frm 00168 Fmt 6633 Sfmt 6621 J:\DOCS\93346.TXT HRESOUR1 PsN: KATHY
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stone Park are artificial and do not coincide with the boundary of the ecoregion that 

contains the park. Essential seasonal habitat for Yellowstone species falls outside 

of the park. Stewardship of Yellowstone’s species will require ecoregional-level management involving multiple government agencies, states, and other stakeholders. To 

the degree that this is done, Yellowstone will serve as a model of ecological wholeness. 2)‘‘You indicated that it is critical to preserve essential ecosystem processes as part of our long-term efforts as we focus on biodiversity preservation, critical habitat, and the Endangered Species Act. How and where 

should federal efforts be focused?’’

Response: First we must identify those areas (ecosystems) that are unprotected 

or underprotected. It was suggested in the hearing that we should increase our 

focus on federally managed land. We must recognize that existing federal land does 

not include many essential ecosystems and historically represents the ‘‘leftovers’’ of 

the pioneer days. Much of this federal land is in the western states at high elevation. Other areas including the majority of BLM land are arid to semi-arid. These 

landscapes are important in terms of their biodiversity, but other areas not represented by significant federal protection support much higher levels of biodiversity 

including important endemic species. The coastal mountains and lowlands of southwestern California are recognized as a global biological hot spot for endemic species 

(species unique to the area). Southern Texas and Florida also provide examples of 

both high biodiversity and high population pressure. Here the Biblical admonition 

in Isaiah 5:8 (NIV) must be taken very seriously in our planning from the local to 

federal level—‘‘Woe to you who add house to house and join field to field till no 

space is left and you live alone in the land.’’ We must not seeking quantity of human 

life, but rather quality. And quality of human life can only be found when it is embedded within a healthy ecological region. What percentage of an ecosystem’s area 

should the human steward use for personal gain and how much must be left to 

maintain the integrity of the ecological system processes? Scientists and policy makers must join together to address these difficult questions. We currently do not have 

all the answers. I recommend that the Resources Committee invite input from The 

Society of Conservation Biologists and The Nature Conservancy—organizations that 

contain the scientific expertise necessary to provide insight and direction. 

The mission of Congress must be goal driven—to assure long-term sustainability 

of biological diversity at the genetic, species, and ecosystem levels. The playing field 

will not be level; hurdles are ahead. Global warming and its associated effect on 

shifting distribution patterns of species and ecosystems will have to be faced. Adaptive management will be required. It will take strong leadership and commitment 

from elective officials who understand and are committed to the stewardship and 

sustainability of the world in which we live. We have put humans on the moon and 

landed spacecraft on Mars. Surely we can also have the commitment to care for the 

world that we call home. 

3) How would you suggest federal land managers work with developers 

and landowners to help develop sustainable win-win solutions to the frequent ESA-land development debates? 

Response: Regional planning that recognizes and includes essential ecosystem elements will be central to this effort. The planning must take place with key stakeholders as active participants in the process. We must begin to think, plan, and live 

differently. Traditional unplanned urban sprawl must be replaced with regionally 

sustainable growth plans. The non-human creation must be included within the matrix to provide for healthy human and non-human living space. Several important 

‘‘tools’’ for implementation include regional and local zoning, the purchase of development rights, and selective use of tax breaks and other monetary incentives for 

conservation efforts. For our efforts to be successful, we must learn to value and to 

live with biological diversity. Reserves and wilderness areas are critical, but more 

important will be the desire and willingness to live as partners with God’s Creation 

in our own back yards. The National Wildlife Federation’s ‘‘Backyard Wildlife Habitat Program’’ is a good example of what can be done by an individual landowner 

to enhance wildlife and habitat (see http://www.nwf.org/backyardwildlifehabitat/). 

The question is how to work with developers and landowners to eliminate the bulldozer mentality. Too often the scenario is: enter the bulldozers, remove a thriving 

forest, put up walls, and then plant quick-growing junk trees and exotic grass 

species. To a large degree this will require a world-view shift empowered by re-education of the public regarding the essentials of sustainable ecosystem living as partners with creation. 

We must find ways to avoid conflicts between species protection and the human 

community. The critical habitat designation of the California Tiger Salamander appears to exemplify failure in both policy and process. Or perhaps the problems 

166

emerged because of insufficient funding Regardless of the cause of the conflicts in 

this particular case, it is clear that critical habitat designations must be based on 

the best available science. Actual and potential habitats must be identified with care 

to define real boundaries. Good maps are essential as is adequate public comment 

and notification. It should also be noted that tiger salamanders require both a 

vernal wetland plus sufficient upland buffer. Essential buffers may extend as far as 

100 meters or more from the vernal ponds depending on the situation and species. 

Salamanders breed in the pond but spend most of the year in the upland buffer. 

A matrix that includes connectedness for movement between breeding/living sites 

must also be included. Lack of adequate connectedness in this metapopulation will 

result in genetic isolation of the subpopulations and eventual extinction. Adequate 

funding and commitment to solving the problem is the key to doing the job right. 

It seems that in this particular case, there was definitely a lack of funding and 

questionable commitment to really solving the problem. 

An effective way to kill ESA is to botch the job of critical habitat designation such 

that the general public is unnecessarily hurt. The outcry will turn public sentiment 

against ESA and politicians will respond to the public outcry. A way to guarantee 

that this happens is to under fund ESA on an annual basis. 

Species and ecosystem protection is not an option, but a necessity. The longer we 

delay, the greater the problems that will face us and the more expensive will be 

the solution. I urge members of the Committee on Resources to face this challenge 

today with passion and a unified heart. If we fail, our children and grand children 

will view us as a ship of fools. God, on the other hand, has spoken with a clear 

voice: ‘‘The time has come for judging the dead, and for rewarding your servants 

the prophets and your saints and those who reverence your name, both small and 

great—and for destroying those who destroy the earth (Rev. 11:18 NIV). 

The CHAIRMAN. Thank you. And I want to thank the entire panel 

for their testimony. 

To begin with, I will start with Mr. Martini. You talked about 

the impact of costs, housing costs, that you have locally. Obviously 

in your position you know that there are hundreds if not thousands 

of things that impact housing costs. The decisions that are made 

by city councils, by boards of supervisors impact housing costs, supply and demand. There are a lot of things that impact the cost of 

housing in a particular area. 

What you described was a community that I think took a step 

beyond what is typical with local government. In your general plan, 

your long-term planning, you set aside areas that would be permanent agriculture, permanent open space, as well as what is proposed for housing and industrial development off into the future. 

In my understanding of the way that you described that, you 

have this plan for the future and the area that was set aside as 

potential development land, it is that land that is now habitat. Is 

that accurate? 

Mr. MARTINI. The range that has been listed includes that area. 

It also includes areas outside of the city’s urban growth boundaries. 

And I want to say that the City of Santa Rosa has probably done 

as many things to artificially increase the cost of housing. We have 

urban growth boundaries. We have said this is all we are going to 

grow. We have growth management. We say we are only going to 

build 950 homes a year. That, in conjunction with a very high demand in our area, drives the prices up. 

But at the same time this is a community that is very concerned 

about maintaining balance, not becoming so gentrified that only 

the wealthy can live there. We have inclusionary zoning policies. 

We have in-lieu fees that are paid by builders to help subsidize. We 

are very active and aggressive in going after Federal and state tax 

credits. We have at least three major not-for-profit builders in our 

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community who work very hard at providing housing available to 

low and very low income families. 

We set aside money from our real estate transfer tax so that as 

people gain in their appreciation of the property when they sell it, 

that money goes back in. We have an equity-sharing pool that the 

community set up, recognizing that we need to have that balance 

in our community. You need to have a place for your service workers, for your teachers, for your firemen because if you do not have 

that, what you have now done is you have exacerbated your transportation problems, your infrastructure problems, and everything 

else that goes along with that. 

We are not perfect. We are trying very hard to arrange a level 

of balance where we respect and preserve resources but, at the 

same time, allow that economic balance to take place. 

We thought we had a lot of the pieces in place and then the listing of the tiger salamander came along and, as I said, many in my 

community would support that but in overlaying in that one major 

portion of our community, it has significantly impacted what plans 

we had in place to try to address some of the inequities that we 

were facing in terms of housing. 

And it is that conflict as we try to deal with the various public 

policies of affordable housing, of responsible waste treatment, providing homeless shelters, improving transportation infrastructure. 

Those are all concerns that I have to balance as a local policymaker. When we look at it with blinders on to a certain extent that 

you have one entity, the Endangered Species Act, you have to take 

into account the rest of these items. 

The CHAIRMAN. In the context of all of that and both of my local 

elected officials that are here come from areas that in many ways 

are similar in terms of being outlying areas outside of the major 

urban areas that have experienced growth over recent years, but 

in the context of everything you are doing, Santa Barbara County 

is a very progressive area. They do a lot of things, as well as the 

city that you represent. 

But you heard earlier a discussion of a poll that was done—do 

you support the Endangered Species Act? Do you think that we 

ought to set aside more habitat? You know, all of those issues that 

are asked in a very black-and-white way. My guess is that overwhelmingly your constituents would answer in the affirmative as 

those questions were asked because that, I believe, is a moral value 

that we as Americans share. We do not want species to become extinct. We feel it is our responsibility to keep animals, to keep 

plants, to keep wildlife from becoming extinct. 

Yet if you asked people in a little different way, would it be OK 

if we set aside this land in our town if it meant that your house 

was going to cost $50,000 more, they may answer a little differently and that is kind of what we are struggling with. I mean 

it is your responsibility as local elected officials to determine your 

rate of growth, where you are going to grow, what is going to remain open space. All of that is your responsibility. It should not be 

ours. It should not be Congress’s. 

And yet we are taking away from you the tools that are necessary for you to make those decisions because we are stepping in 

168

on top of you with land use decisions through the Endangered 

Species Act. 

Ms. GRAY. In response to your question about the poll, the answer would be that by far the majority of my constituents would 

have supported the Endangered Species Act maybe 5 years ago but 

today there are bumper stickers in my community that say ‘‘Free 

Surf Beach’’ because the plowbird is there and the folks cannot go 

to the beach. There are bumper stickers that say, ‘‘Eat salamander; 

save the broccoli.’’ Things are changing here, which is not the direction that we would like to move. 

So the answer to the poll is there is an attitude developing out 

there that is an attitude because of frustration, and I think that 

is what you are moving to do. 

Also, the man who wanted to build a patio onto his house in an 

urban area, urban meaning semi-rural—you know, he lived in a 

subdivision. I want to build onto my house. Oops, you cannot; you 

are in the circle where there may be an endangered species. Those 

are the kinds of things that cause the attitude to change and folks 

to get a little bit testy. 

Mr. MARTINI. Chairman, if I can just add to that, the piece of 

this poll that is important is also to change the question. You are 

right. You ask the question of anybody walking down the street, 

‘‘Should we save endangered species?’’ You are right. It is a value 

system and everybody says yes. 

But if you ask the citizens of Santa Rosa, now is it appropriate 

to spend $500,000 of very scarce transportation dollars to study 

whether or not the salamanders can get across an existing fourlane freeway in order to add a third lane, or do we take 250,000 

of those dollars and acquire habitat, to acquire or to support financially a conservation or a recovery plan, clearly they would jump 

at the latter, as opposed to the prior. 

That is why we are encouraged by what you are doing here, what 

Wayne White is doing in the area, so that we are not just spending 

money identifying more studies but that we are actually spending 

money to accomplish the thing that we are trying to accomplish. I 

think that is the key that we have to look at, that in addition to 

having it in balance with all of the other priorities we have in a 

municipality. 

The CHAIRMAN. Thank you. 

Mr. Cardoza? 

Mr. CARDOZA. Thank you, Mr. Chairman. As usual, we are on the 

same wavelength in that my questioning goes to exactly the same 

area. 

It has been my contention for some time that misapplication of 

the Endangered Species Act, specifically the critical habitat aspects 

of this Act, are constantly degrading public support for what should 

be the overarching goal of preservation. And when we start dealing 

with Mr. Baca’s problems about the Delhi sand-loving fly—

The CHAIRMAN. Delhi sandflower-loving fly. 

Mr. CARDOZA. Thank you. Versus the bald eagle, not that all 

species are not deserving of being protected, but there are differentiations amongst the public sentiment for different creatures. In 

fact, as Mr. Baca said, we are out swatting flies and we are crying 

about the fact that there are not enough bald eagles or there were 

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not. Actually, that is probably a poor case because my understanding is they have come back and that is one of the success stories. But there really is a differentiation. 

I just want to, in my question, ask if you are not seeing that on 

the local level like I am seeing it at home, as well, that, in fact, 

when you talk about the Endangered Species Act, what you see is 

not people caring about it but the frustration on their faces immediately about what they have seen happen in their communities. 

Even though they care about the overarching goal of preserving 

species, they are very frustrated by the bureaucratic processes that 

government has set up to deal with that concern. 

Ms. GRAY. You have it nailed. That is exactly what it is because 

it is the misapplication and not the fault, in my opinion, of the Department of Fish and Wildlife. It is because they did not have a 

plan. 

And the fellow that said if you are going to build a house, you 

do not go down to Home Depot and buy everything in the store and 

then figure out how it is going to—I mean he nailed it. That is 

what we are trying to do. 

I live in a county that is so pro-environment that every person 

in planning and development comes out of the University of 

California at Santa Barbara environmental studies and even they 

say, ‘‘Just give us the plan. We do not know what to tell the people 

that come in.’’

And that is why your bill is working, because we need to know. 

We will do it. We might gripe. Someone said we might gripe. But 

we will do it, but we need to know how to do it. So you got it 

nailed. 

Mr. CARDOZA. Thank you, Mr. Chairman. 

The CHAIRMAN. Mr. Rehberg. 

Mr. REHBERG. Thank you, Mr. Chairman. I think just exactly 

like you, as well. 

The CHAIRMAN. Today. 

Mr. REHBERG. Today, yes. 

I want to go off in the same direction but on a little different 

point. I apologize that I do not know California as well as I should 

so I am not specifically knowledgeable about your area. You are 

county commissioners. And you are a mayor? 

Mr. MARTINI. I was a mayor. I am a city council member now. 

Mr. REHBERG. OK. Are you aware of the unequal application of 

the Endangered Species Act between the East versus the West? I 

specifically asked the staff if there was any discussion today and 

perhaps you had heard while sitting here of a case back in Washington, D.C. right here of sludge being dumped into the Potomac 

and a lawsuit that was filed by the good guys, although we came 

up with an environmental name so that we would sound like environmentalists, and the lawsuit was it is not good for you to be 

dumping sludge from the Georgetown sewer into the Potomac, affecting the snub-nosed sturgeon. 

Unfortunately, a stay of execution was given by the Federal government saying well, it is OK for the next 5 years until you can 

get your act together for you to continue dumping the sludge in, 

affecting that endangered species. And oh, by the way, you can go 

ahead and build the Wilson Bridge. 

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Are you aware of some of the inconsistencies that are occurring 

throughout the nation, in deference to the problems that you are 

having most recently in your city and your county? 

Ms. GRAY. My answer is no. The only time there is unequal application is when the Service changes a worker. So if there is one 

scientist there that sees it one way, then her interpretation will be 

what we are working with in year 2000. If that scientist moves, 

then we are working with the interpretation of 2001. But that is 

different from what you are setting forth. Mine is just being back 

begging for the plan again. 

Mr. MARTINI. And just following a theme of being on exactly the 

same wavelength as not only the Chairman but everybody on the 

Committee today, it would be far from me to ever comment that 

Washington, D.C. is treated differently than—

Mr. REHBERG. And Virginia and Maryland, unfortunately. I 

guess my point is I am from Montana and Congressman Walden 

and I and Mr. Pombo for a different reason, but we fought the 

Healthy Forest Initiative, trying to get it passed. We were up 

against a brick wall until Colorado started having fires and then 

I will be darned if Southern California did not start having fires 

and then Mr. Daschle made a special exception for the Black Hills 

and all of a sudden we had our coalition built to pass this and it 

never would have occurred if it had not been real to people in 

California, Colorado and South Dakota. 

My point is I hope you will go back to the National Association 

of Counties and I hope you will go back to the League of Cities and 

Towns and tell them of the problems that you are having and the 

inconsistencies that are occurring nationwide because until we develop enough of a coalition to get people to support the repeal or 

the reform of the Endangered Species Act as we know it, it is not 

going to occur. 

We have felt the problems in our individual district and our individual states but it is now starting to boil. Again I apologize for not 

knowing California but I welcome you now to the fight. It is nice 

to have you. You see what we have been up against. 

Ms. GRAY. And I was commenting on that because I was doing 

my research in the bar last night to find out what people thought 

of stuff—

Mr. REHBERG. So you are an insider in Washington. 

Ms. GRAY. Right. So one of the things that kept occurring as the 

conversations were going was the difference in the eastern interpretation of what is going on with the endangered species than the 

western. I did not think that the other part of the country saw it 

as a problem, as we do in California. We have so many—Wyoming 

obviously, Montana, Nevada, Florida—so it is coming. I hear what 

you are saying. 

Mr. REHBERG. Real quickly, Mr. Martini, was it you that mentioned the 14,000 acres? 

Ms. GRAY. It was me. 

Mr. REHBERG. It was you, Ms. Gray. Is that private land? And 

are—

Ms. GRAY. Mostly private land. Some public airport. Mostly private. 

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Mr. REHBERG. Do you have a map? Did they hand you as part 

of the process—it was a secret procedure, right? 

Ms. GRAY. Right. 

Mr. REHBERG. You were not involved, so they unveiled something. Is it clearly defined with legal descriptions? 

Ms. GRAY. No. It is just a circle. We need the GPS so we know 

exactly. We still do not know exactly. We just have panic guessing. 

Mr. REHBERG. A question I have then, Mr. Chairman, is can the 

executive create an executive order to establish critical habitat, 

similar to what they did in Montana in the last throes of the Clinton Administration, saying well, we have lost our position, we are 

not going to be President and Vice President anymore, so here it 

is? For all eternity, this is the Missouri Breaks Monument without 

deference to us being involved in the determination of the boundaries. Can a President do the same? 

The CHAIRMAN. That is, in essence, what they are doing, is unilaterally drawing a circle on a map. In my instance with my district, it was not a circle. It did look like somebody took a brush and 

just went like that and everything within that area became habitat. Anybody that actually knew what was on the ground would not 

have drawn the map the way they did. And I am taking from this 

testimony that that is the—

Ms. GRAY. Right. They located pools where they thought that the 

salamander might breed and then they said we will go so far from 

there and that should work. But no, maybe we ought to go a little 

further, and that should work. So then pretty soon it resulted in 

a big circle that started from little circles, very similar to what 

happened to you in your vernal pool situation, very similar. 

Mr. REHBERG. Thank you, Mr. Chairman. 

The CHAIRMAN. Mr. Udall. 

Mr. UDALL. Thank you, Mr. Chairman. And thank you, members 

of the panel, for being here. Sorry I did not get to hear all of you 

but I did get to hear some. 

Mr. Chairman, I have two statements to put in the record. Our 

colleague, Congressman Grijalva, I would like to submit his statement for the record, and then comments of the North American 

Section of the Society for Conservation Biology. Can I have permission to—

The CHAIRMAN. Without objection, they will be included in the 

record. 

Mr. UDALL. Thank you very much. 

[The prepared statement of Mr. Grijalva follows:]

Statement of The Honorable Raul Grijalva, a Representative in Congress 

from the State of Arizona 

The Endangered Species Act is a law that aims to conserve and recover species 

which have reached a critical point in their existence. The law attempts to assist 

wildlife and plants that without changes in management or human activity will 

likely head down the road toward extinction. 

The goals of the ESA are lofty ones. We as a society have decided that we want 

to take care of imperiled species and help make them healthy again. 

But, the goal of the ESA is not to preserve wildlife and plants in zoos and laboratories. Instead, the Act aims to conserve species through the designation of natural 

habitat in which the species can recover. 

In my community in Arizona, we are attempting to set aside habitat, and allow 

for reasonable growth, in order to recover not only listed species, but those that 

have not yet reached the point of needing the Act’s protection. Several years ago, 

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the cactus ferruginous pygmy owl was listed, and later critical habitat was designated for the species. As a consequence of listing and critical habitat, a multi-species conservation plan, which attempts to protect and recover over 50 Sonoran 

desert species, was put together. This planning process involved a broad range of 

stakeholders in the area who sat down together and created this ground-breaking 

plan. Governmental representatives, environmentalists, homebuilders, and business 

owners, among others, were all represented. The plan contains areas that will be 

set aside for habitat, and other areas that will be developed for homes or commercial space. Currently we have widespread support for bond measures that will fund 

the plan. 

I am convinced that the listing and critical habitat designation for the pygmy owl 

were the impetus for something very special. The ESA presented us with an opportunity to comprehensively address the future growth and health of our community 

and our environment. We sat down together and decided what we wanted over the 

long term for our community, which we would not have done but for the ESA’s requirements. 

Critical habitat designation is an essential element of endangered species protection. Without adequate habitat, species cannot survive, much less reach a point of 

no longer needing human assistance. And, without the requirements of the ESA, 

communities like mine will not have the impetus or opportunity to take a comprehensive look at their environment. 

I believe the bill before us today will render the ESA’s critical habitat provision 

toothless, and no longer able to provide help to species as it was intended to do. 

I cannot support this legislation because it will do nothing to further the goals of 

the ESA and will instead make it more difficult and less likely that we will be able 

to recover species. 

The proposed legislation would limit habitat designations to areas where species 

currently live. This will preserve the smallest possible area, and will make it impossible to recover species to a point where they no longer need listing. The bill would 

also prioritize economic impacts over environmental impacts in the designation 

process. 

For the sake of argument, if assume that, as critics claim, the ESA is not working 

to recover species, the stated goal of the Act, we have to ask and answer the question: Why isn’t it working? Before we go about changing a law that has been in 

place for over 30 years, we should find out the real reason that the Act is not working, if it is true that it is not. 

We should look at the original legislative language and ask the question: Is the 

ESA being properly implemented according to legislative intent? 

Criticisms of the ESA have often focused on the plethora of lawsuits that environmental groups bring under the Act’s listing and critical habitat provisions. However, 

I would emphasize that the reason these lawsuits are necessary is that the agencies 

involved often have failed to meet their duties under the ESA. The agencies consistently delay listing when evidence that species are imperiled is clear and convincing. 

Moreover, agencies do not designate critical habitat on time and often the critical 

habitat designated is not enough to meet a species’ basic needs. Because there is 

no deadline for completion of recovery plans, they often are not created or implemented. 

Adding to the problem, the agencies that have jurisdiction over the ESA have consistently requested lower amounts from Congress than is necessary to complete 

their work in listing and designating critical habitat. They do not ask for enough 

funding to address the backlog of actions that are needed to assist species in trouble. These same agencies later claim that lawsuits and other actions are crippling 

the budgets of the agencies, when in reality this problem appears to be self-created. 

Before we take the radical and drastic step of changing one of our fundamental 

environmental laws, it would be more appropriate to properly fund the agencies that 

manage wildlife so that they can carry out their duties in the manner as intended 

under the Act, and at the same time require more accountability from these agencies in terms of their inaction to list, designate critical habitat, and create recovery 

plans in order to address species protection. 

This bill would take us backwards in our goal of recovering endangered species. 

It will result in less protection for species and a reduced likelihood that species will 

recover. I strongly urge my colleagues to reject this legislation. 

[The statement of the North American Section of the Society for 

Conservation Biology follows:]

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1This document represents the opinions of the North American Section of the Society for Conservation Biology only. It does not necessarily represent the opinions of the Society for Conservation Biology as a whole or of any of its other sections.

Statement submitted for the record by the North American Section of the 

Society for Conservation Biology on H.R. 2933, The Critical Habitat 

Reform Act of 2003 1

PREPARED FOR THE SECTION BY KATHRYN KENNEDY AND KAREN HODGES

23 APRIL 2004

In this document, we provide a section-by-section analysis of certain sections of 

H.R. 2933, highlighting various scientific issues pertaining to the conservation of 

endangered species and the designation of critical habitat. 

ANALYSIS OF KEY SECTIONS OF H.R. 2933

Section 2: Designation of Critical Habitat concurrent with approval of Recovery Plan 

Issue 1. Proposed change in language to Sec 4 (a) General.- section 4 (a) (3) 

FROM ‘‘The Secretary, by regulation promulgated in accordance with subsection (b) 

and to the maximum extent prudent and determinable—designate’’..critical habitat...’’ TO ‘‘The Secretary, by regulation promulgated in accordance with subsection 

(b) and to the maximum extent practicable, economically feasible, and determinable...designate...critical habitat’’. 

Comment: This proposed text is a significant change in the criteria for determination of critical habitat. The current inclusion of the word ‘‘prudent’’ places the 

emphasis on the benefit to the species that may accrue both biologically and functionally through designation of critical habitat and implementation of its associated 

regulations. Currently, the Fish and Wildlife Service (hereafter, FWS) examines the 

biological importance of any designated habitat in terms of survival and recovery. 

Agency biologists also consider their ability to reliably determine and evaluate the 

elements needed to define critical habitat. This approach relies on a scientific analysis of benefits. The proposed change in wording shifts the focus to matters of ‘‘practicality’’ and ‘‘economic feasibility’’ as well as determinability. The proposed wording 

is a significant change in focus away from the needs of the species. Loss of the term 

‘‘prudent’’ essentially removes the concept of biological importance to the species 

from the criteria. It weakens the ability of critical habitat to serve as a conservation 

tool under the Endangered Species Act. 

The ‘‘prudency’’ standard also provides an important exemption from critical habitat designation in cases where designation would likely increase a species risk of 

extinction, as could be the case when specific georeferencing would enable vandals 

or collectors to locate and damage the population (this issue is particularly pertinent 

for populations of at-risk plants or species such as raptors with few nesting locations). Although FWS use of the ‘‘prudency’’ exemption has far outstripped this intention, we are concerned that loss of the possibility of a ‘‘prudency’’ exemption 

could actually damage protection and recovery efforts by forcing designation in cases 

where ‘‘take’’ of a species could increase as a result. Although this issue likely affects the minority of listed species, it could be highly damaging to them. 

Furthermore, these new criteria of ‘‘practicality’’ and ‘‘economic feasibility’’ are not 

well defined. As written they introduce great uncertainty to the process. We anticipate that, as written, the proposed legislation would lead to additional litigation. A 

careful definition of terms and a clear understanding of the implications of the 

wording are essential in preventing legislative and judicial gridlock. We thus fear 

that this proposed wording change will do little to stem the existing problems with 

ESA implementation. 

We are also concerned that imposing a criterion of ‘‘economic feasibility’’ rather 

than the present requirement of ‘‘taking into consideration the economic impact’’ 

may reduce the decision to one of current or near term budgetary and economic factors, rather than emphasizing long-term stewardship or benefits of designation to 

the species, habitat function, and economic sustainability. This concern is amplified 

by the suggested removal of the prudency standard. Under the proposed wording, 

‘‘practicality’’ and ‘‘economic feasibility’’ could be volatile and inconsistently interpreted on the basis of agency staff priorities, budgets, or current economic conditions. For example, a strict interpretation of these proposed criteria today could be 

grounds for making no critical habitat designations simply given current limitations 

in FWS staff levels and budgets—regardless of potential benefits to the species 

under consideration. Similarly, significant areas necessary for the survival and recovery of the species could be excluded based on temporary economic conditions 

174

which may be the result of the same forces that make the species vulnerable. Failure to designate critical habitat based on economic issues alone would increase the 

risk of extinction. 

Issue 2. Proposed language further amending the current section 3 FROM ‘‘The 

Secretary...(A) shall, concurrently with making a determination under paragraph (1) 

that a species is an endangered species or a threatened species, designate any habitat of such species which is then considered to be critical habitat...’’ TO ‘‘The Secretary...(i) shall, concurrent with the approval of a recovery plan for a species under 

subsection (f), designate any habitat of such species which is then considered to be 

critical habitat’’. 

Comment: Many scientists and practitioners believe this change has some advantages. At the time of listing there is seldom as much information about the species, 

its range, and its habitat requirements as there is following the development of a 

recovery plan. Hence, the process of evaluating critical habitat would be enhanced 

by the recovery planning process, and allowing more time may yield more well-defined designations and give the FWS more time to work with the public to help 

them understand the process. Further, critical habitat is supposed to meet the needs 

of the species for survival and recovery, but at the time of listing recovery criteria 

have not been determined. Consequently, estimated recovery goals must be used. 

However, the potential drawback to having critical habitat designation concurrent 

with recovery planning is that some species are under severe threat from ongoing 

activities, and the legal protection afforded by critical habitat would be delayed. In 

cases where there are immediate threats to an at-risk population from human-induced habitat alteration, then delaying critical habitat designation and the attendant protections afforded to the species could substantially increase the risk of extinction. Further, recovery plans in many cases lag behind statutory requirements, and 

many species do not have approved recovery plans,1 which means that the potential 

benefits of critical habitat might not be realized even if designation were delayed 

until the recovery planning stage. 

In 1995, at the request of Congress, a panel of the National Research Council2 

reviewed some ESA issues. They recommended that at least some habitat be designated at the time of listing, which can then be modified at a later date—whether 

or not the entire designation process is deferred. This suggestion remains viable. 

Species are listed on the biological grounds that they are threatened with extinction: 

listing implies that human activities in their ranges need to be controlled in order 

to reduce the risk of extinction. For species where populations have dangerously low 

viability, threats are imminent, or there are clear current land use controversies, 

delaying the use of species recovery tools such as critical habitat designation would 

increase extinction risks, and perhaps may also increase species protection costs 

when actions are finally implemented. In such cases, we think it is essential to preserve the ability to act early and then refine the protection. This option is clearly 

biologically preferable to delaying such decisions. Such a policy could be developed 

as a parallel to the existing ‘‘emergency listing,’’ with only some species receiving 

a temporary critical habitat designation at the time of listing. While it may be feasible for all newly listed species to receive some critical habitat protection that is 

later modified during recovery planning, the costs and logistics of doing so for 

species with less critical situations needs to be weighed against the benefits that 

accrue to the community by taking more time to define recovery needs and inform 

the public about the process, and putting those dollars to more direct recovery implementation. 

Finally, for some species, full recovery is not possible (for example, when very few 

patches of suitable habitat remain) and the best we can hope for is that population 

size will be stabilized. In such cases, critical habitat may be important to protect 

the remaining patches of habitat, but a recovery plan will not be developed. To ensure that critical habitat can be used as a protection tool in such cases, there should 

be a requirement for critical habitat designation at the time a recovery plan is approved or a determination is made that such a plan will not benefit the species. 

Issue 3. Addition of a new section 4 (a)(3) (B) {the previous section (B) having 

been amended to become 3 (A)(ii)} adding the following language: 

‘‘(B) Notwithstanding subparagraph (A), the Secretary may not designate an area 

as critical habitat of a species, and any designation of critical habitat of a species 

shall not apply to an area, if the area is subject to—

‘‘(i) a habitat conservation plan under section 10 (a)(2) that the Secretary 

determines provides protection for habitat of the species that is substantially equivalent to the protection that would be provided by such designation; or 

175

‘‘(ii) a State or Federal land conservation program that the secretary determines provides protection for habitat of the species that is substantially 

equivalent to the protection that would be provided by such designation’’

Comment: This exemption permits the FWS to exclude certain areas from the 

designation of critical habitat based on current protection afforded to the habitat by 

other plans, programs or regulations. This proposed change further reduces the biological emphasis on whether a conservation benefit to the species would occur, with 

little justification for this proposed change. The phrase ‘‘substantially equivalent to 

the protection that would be provided by such designation’’ is undefined. The basis 

for the Secretary to make a determination of ‘‘equivalence’’ is unclear, and could be 

subject to abuse and inconsistent application if left discretionary. We expect inconsistency in application as differences emerge in the way it is interpreted, followed 

by litigation as people challenge those interpretations. Such lack of clarity has two 

likely impacts. First, it could significantly reduce the areas benefiting from critical 

habitat designation. Second, the contention and litigation that would follow would 

deepen rather than reduce the existing problems in ESA implementation. At-risk 

species are the ultimate losers in this scenario. 

Furthermore, the Act already provides for exclusions based on benefits comparison. Under Section 4 (b) 2 the Secretary may exclude any area from critical habitat, 

‘‘if he determines the benefits of such exclusion outweigh the benefits of specifying 

such area as part of the critical habitat.’’ It seems that the existing provision for 

exclusions is sufficient. 

The existing language emphasizes benefit to the at-risk species, whereas the proposed text is less clear in demanding careful benefits analysis. The exclusion from 

critical habitat designation of areas with state and federal conservation programs 

may damage recovery efforts. Areas currently under conservation programs are 

often areas where many types of federal funding and jurisdiction are involved. Costs 

of evaluation and implementation of critical habitat are likely lower in these areas, 

as there is often more information, and federal and state agencies have staff able 

to undertake the process. It makes little sense to exempt areas where federal actions are common and conservation of the species is likely to be both cost effective 

and relatively uncontroversial. 

Plant species make up more than half of the federally listed species under ESA, 

and critical habitat for listed plants on federal lands managed for conservation has 

the potential to benefit these species. Prohibitions on activities harmful to listed 

plants are limited on private lands. Federal lands are those where damage and destruction of listed plants are violations of the Act and listed plants receive more protection. These are exactly the situations where critical habitat is most likely to benefit plant species via the consultation process, and may significantly assist reaching 

recovery objectives. 

Moreover, exemptions based on today’s activities and protections may be shortsighted. Under this proposed amendment, habitat conservation areas and areas covered by state and federal conservation programs would be exempted from designated 

critical habitat based on our current perception of what constitutes substantially 

equivalent levels of habitat protection, and our estimation of likely activities that 

might affect the species and trigger Sec. 7 consultation requirements. This determination would not allow for unanticipated future activities that ‘‘may affect’’ listed 

species and which current HCP provisions or state and federal conservation programs may not protect against. This provision would then foreclose options for future benefits from the process. 

Furthermore, once we allow designated critical habitat to exclude lands covered 

by other protections, shifts in the protections afforded by these other plans, programs or permits and regulations would open species to additional hazards. To be 

sure that species receive the same benefits from other protections as would accrue 

from critical habitat, the FWS would have to constantly review and re-certify these 

exclusions. The more cost-effective and assured approach for habitat protection of 

listed species would be to designate critical habitat even in areas protected under 

other plans, programs, or regulations. 

These exclusions from critical habitat designation are not likely to reduce the regulatory process for permits and approvals. With or without critical habitat, in most 

cases a ‘‘may affect’’ activity would still trigger the need for a section 7 consultation 

and biological opinion, so exempting these areas from critical habitat designations 

is not particularly advantageous, nor is it likely to cut costs beyond the initial savings of not designating critical habitat. Designating critical habitat in these areas 

is still important because it highlights the issue that species protection requires 

more than just the prohibition on ‘‘take,’’ since habitat is necessary for the behaviors 

and reproduction for the species to maintain itself. 

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Listed species and the regulated public are probably better served in the designation of critical habitat if sound biological information is used to identify all the areas 

necessary for the survival and recovery of the species. Otherwise, critical habitat 

designation becomes a piecemeal approach that does not reflect the biological needs 

of the species. Under the proposed amendment, we anticipate that critical habitat 

designations would not be accurate reflections of areas where it is advisable to avoid 

any adverse modification. As a result, the public and agencies would not be as well 

informed for determining ‘‘may affect’’ findings, evaluating recovery needs, and 

tracking the condition of the habitat and the species. 

We oppose provisions for exempting areas under other programs, plans, permits, 

or regulations from the designation of critical habitat, with the exception of areas 

covered by safe harbor agreements, where the potential imposition of critical habitat 

could deter private landowners from participating in habitat restoration and enhancement efforts. We believe that at a minimum, it should be clear that the Secretary may not exclude areas when the failure to designate such an area will result 

in the extinction of the species, as currently required under Section 4 (b)(2)—and 

indeed, increasing the extinction risk of a species would mean that the jeopardy 

standard in ESA was being transgressed. We feel that this provision should instead 

be broadened to include ‘‘may significantly increase the likelihood of extinction’’ 

rather than the current ‘‘will result in the extinction of the species.’’

Section 3: Bases for Determination 

Issue 4. Adding to Section 4(b)(2) a requirement (B) ‘‘that in determining whether 

an area is critical habitat, the Secretary shall seek and if available, consider information from local governments in the vicinity of the area, including local resource 

data and maps.’’

Comment: It is our understanding that the FWS usually seeks this sort of information now, and provided that the FWS is not required to give undue credence or 

emphasis to locally provided information over information from other sources, this 

change poses no particular problems or added expense over current practice. We 

think the major issue with using information during critical habitat designation is 

to ensure that information from more credible sources is given more weight than 

information from less credible sources, rather than assigning emphasis based on the 

geographical origin of such information. It could weaken critical habitat designation 

if very poor but local information was given more credence than very strong information from a different location. 

Issue 5. Adding to Section 4(b)(2) a requirement ‘‘(C) Consideration of economic 

impact under this paragraph shall include’’

‘‘(i) the direct, indirect, and cumulative economic impacts of the designation, including consideration of lost revenues to landowners and to the Federal Government and State and local governments;’’

Comment: This is an extension of the existing requirement that economic impacts be considered in designating critical habitat (see Sec. 4 (b) (2)). The ESA currently requires economic evaluation and we feel the appropriate place for specifying 

how that evaluation is to be undertaken should be in agency guidelines, where more 

detail can be provided. This more explicit requirement will require additional guidance, implementing standards, and regulations, at considerable expense. It may also 

open additional areas for litigation, as estimating indirect and cumulative costs is 

difficult. It will also likely increase the costs and time needed to evaluate potential 

determinations, to the detriment of intended protection and progress toward recovery objectives. 

‘‘(ii) costs associated with the preparation of reports, surveys, and analyses required to be undertaken, as a consequence of a proposed designation 

of critical habitat, by landowners seeking to obtain permits or approvals required under Federal, State or Local law.’’

Comment: This provision puts an expensive burden on the FWS that is not justifiable when one examines the differences between consultation regarding areas 

with and without critical habitat. Because critical habitat regulations only come into 

play in the context of Section 7 consultations, and in most cases exclusion from critical habitat would not obviate the need for a Section 7 consultation altogether, the 

landowner’s and agency expenses for biological reports, surveys, and analyses associated with the process are likely similar. We do not think this provision would enhance species protection nor reduce implementation costs. 

Section 5. Clarification of the Definition of Critical Habitat 

Issue 6. This section adds more language to define the terms ‘‘geographical area 

occupied by the species’’ and ‘‘essential to the conservation of the species’’ as used 

in Section 3 (5)(A). 

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The statute currently states: ‘‘The term ‘critical habitat’ for a threatened or endangered species means—

(i) the specific areas within the geographical area occupied by the species at the 

time it is listed...on which are found those physical or biological features essential 

to the conservation of the species and (II) which may require special management 

considerations or protection; and 

(ii) specific areas outside the geographical area occupied by the species at the time 

it is listed’’.upon a determination by the Secretary that such areas are essential for 

the conservation of the species.’’

The proposed legislation adds a section 5(D)(i) (I) and (II), as follows: 

Adding language: 5(D)(i) for purposes of subparagraph (A)(i)—

(I)‘‘the term ‘geographical area occupied by the species’ means the specific area 

currently used by the species for its essential behavioral patterns, including breeding, feeding and sheltering; and 

(II) ‘‘the term essential to the conservation of the species means, with respect to 

a specific area, that the area has those physical or biological features which are absolutely necessary and indispensable to conservation of the species concerned.’’

Comment: The proposed wording change establishing the definition of ‘‘geographical area occupied by the species’’ is potentially damaging to species recovery 

efforts. There are two issues here. First is how habitats that are sometimes occupied 

are classified. Some species may use particular habitats for only part of a year or 

part of a life cycle. It is essential that these habitat types be recognized as ‘‘occupied,’’ despite the periods of time when they are not being used by the species. Insofar as the proposed wording would enable this classification, it could be useful. 

However, the second issue, and the more important one, is to what extent unoccupied habitat can be designated as critical habitat. ESA makes it very clear that 

species recovery is the ultimate aim, and species recovery in many if not most cases 

will require reoccupation of former areas of a species’ range. Thus it is essential that 

critical habitat designation be possible for currently unoccupied habitat so that it 

is available for recolonization during recovery. The proposed wording change would 

hinder designation of non-occupied habitat. Thus the proposed wording change 

would make it so that critical habitat designation collapses down to being a bare 

minimum of where populations are continuously present, which is a minimalistic approach to species protection and recovery, and is counter to ESA’s mandate. 

The addition of a specific definition of ‘‘essential for the conservation of the 

species’’ as ‘‘absolutely necessary and indispensable to conservation of the species 

concerned’’ does not provide any biological or semantic clarification. It therefore is 

not helpful in evaluations or determinations. We think it aggravates imprecision, 

and might actually increase confusion and subsequent litigation. 

References 

1. Hoekstra, J. M., W. F. Fagan, and J. E. Bradley. 2002. A critical role for critical 

habitat in the recovery planning process? Not yet. Ecological Applications 

12:701-707. 

2. National Research Council. 1995. Science and the Endangered Species Act. 

National Academy Press, Washington, D.C. 

Mr. UDALL. Dr. Sheldon, you have been sitting here today, I assume, for a bit listening to what has been going on and you are 

a conservation biologist. Is that right? 

Dr. SHELDON. That is right. 

Mr. UDALL. You have been teaching conservation biology and 

been involved—

Dr. SHELDON. I have been a member of the North American Society of Conservation Biologists for 20 years. 

Mr. UDALL. One of the things I am wondering, you sitting here 

as a conservation biologist, you hear a lot of the arguments here 

and you hear all the down sides of saving species and the problems. 

This panel and the previous panel and many of the witnesses today 

have brought those home in a passionate way and looked at those 

specifics and brought them to light for us and I applaud them for 

doing that. 

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I wonder if you could help us on the up sides of a healthy ecosystem. I mean what is in it for men and women, having a healthy 

environment? When you hear these kinds of arguments, what 

comes to your mind when you think of the Endangered Species Act 

and why it is important to have a balanced, healthy ecosystem? 

Dr. SHELDON. Critical habitat provides green space in the middle 

of an urban area, which otherwise would be wall-to-wall houses. It 

gives place for enjoyment. It gives place to celebrate the awe and 

wonder of creation. I mean green space is essential. 

And there is a point, I think, at which in some communities, as 

we have heard, we have boundaries for growth but too often we 

simply assume that our economy and our society can grow infinitely within a finite world. And if it is a choice between human 

growth and the protection of species, there is always going to be 

enough political power to push us on the side of human growth at 

the expense of the species. There has to be a balance. It is not an 

either/or. It has to be a both/and. 

We somehow must find the willpower to recognize that there are 

limits to growth. We have to have quality of life, but quality of life 

depends upon a healthy creation around us. It is necessary. It is 

very similar to the analogy that has been given that if you have 

an airplane, what we are arguing about is how many of the rivets 

can fall out of the wing before the wing falls off? There are thresholds within the ecological system beyond which the system will 

crash and we do not know where those thresholds are right now. 

The critical thing from a conservation biology perspective, and it 

is widely applied in many of our lives, is to operate by the precautionary principle. We do not have to have all of the information 

in to be absolutely sure before we err on the side of conservation. 

Sometimes that means that we may protect habitat in the beginning and realize that the habitat is not necessary in the long run, 

can be released. 

I am hearing the pain of some of the people around here and I 

hear it loudly where we did not have enough funding in the ESA 

to draw adequate maps so that we knew own the ground what the 

distribution was of the critical habitat to protect for the tiger 

salamander. That is a classic example of a failure not to release 

enough funding to do the science adequately to allow us to live 

sustainably within our communities. 

It is a joy to be able to say I have an endangered species in my 

back yard. I have one acre of land and I have identified 109 species 

of birds on that one acre of land. I have a house on it. It is covered 

with wild flowers. I have 19 species of trees on my one acre. I walk 

out onto my back porch and I celebrate the beauty around me. I 

do not have to go on a vacation to feel a release from the pressure. 

I just walk out onto my porch because I have landscaped for wildlife and invited them to be part of my backyard, too. 

I think the question is whether we have the willpower in the 

country to learn that we have to live with the creation instead of 

against it, and figure out how to do that. That is the essence of 

what you have to do here, is to come together and recognize that 

there are going to be boundaries. We have to recognize when we 

say no. We have to be able to have a quality of life. 

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I look back—I grew up in Oregon. I am from the Pacific Northwest. I teach during the summer at the Arava Institute of Environmental Studies on Whitby Island northwest of Seattle. It is a gorgeous place. But when I was growing up in my high school and my 

grade school in St. Helens, Oregon I did not know of a single person in my entire history in the school who had asthma. And as I 

went to church all my life I never knew of a single person that suffered from cancer, as a child. 

When I ask my class today how many of you in my class have 

asthma, 25 percent of my students acknowledge the fact that they 

are suffering from asthma today. And you look around you and ask 

how many people in your community are struggling with cancer. 

This is not dealing with the Endangered Species Act but it is 

very much part of the message that we are fouling our nests. We 

have to learn what quality of life is. We have to learn how to say 

no. And when it comes to the Endangered Species Act, as I said 

in my testimony, we have to figure out how to craft that Act so that 

we have a win/win situation instead of a win/lose situation, as it 

so often happens. 

Frankly, if we have enough money to give a half a trillion dollars 

in tax rebates to bail the country out for short-term economic stability, we certainly have got enough money to provide a sufficient 

amount of funds to maintain the biodiversity that not only we depend upon but all of creation depends upon. And it is a matter of 

choices. We simply have to determine what is important. And for 

me and my household, we will serve the Lord. And for me and my 

household, we have to maintain the sustainability of the global creation. 

So that is how I would answer your question. It is a matter of 

choices and we in this room all are living with problems. We are 

all struggling with aspects of an Endangered Species Act that 

frankly is broken and it needs to be fixed. Part of the current bill 

will indeed move us in that direction but critical habitat, the critical habitat description, that aspect is absolutely necessary but the 

critical habitat is the habitat that the species needs to flourish on 

and we have to have good science to provide us with that information. 

Then we are going to have to recognize that sometimes we have 

to make the choice of having a tiger salamander in my back yard 

is really great but there may be a financial cost to it, too, but we 

need to preserve the species. 

The CHAIRMAN. The gentleman’s time has expired. 

Mr. Walden? 

Mr. WALDEN. Thank you, Mr. Chairman. 

I think what we are hearing is a growing consensus on the need 

for critical habitat reform. This dates back to the days of Secretary 

Babbitt or Jamie Rappaport Clark or Michael Bean, the environmental defense attorney. Republicans, Democrats on this committee today, we must focus on how we can get recovery, which is 

what the Cardoza bill does, and we must improve science. I fully 

agree with that. I think that is the foundation for our decisions so 

we do not make decisions that are actually harmful to the species, 

which is what happened in my district when one agency—two 

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agencies made two bad decisions, both of which were threatening 

to the very species they were supposed to protect. 

As one agency said, let us flow warm water out of a lake down 

a river system that had microsprings in it that kept the water cold, 

and when you diluted that with warmer water, it imperiled the 

salmon they were supposed to protect. 

Another agency said to maintain a high lake level because we 

think that is the thing to do, when the history and the science 

showed just the opposite once the National Academy of Sciences 

did the review. 

So sometimes to me government rushes to make decisions that 

are not based on sound science and in doing so, not only upends 

an economy perhaps but also may actually imperil the very species 

we are supposed to protect, we are supposed to be stewards of. We 

need to get it right and that is why Mr. Cardoza’s legislation 

makes sense to me and it is why my legislation requires outside 

independent peer review. 

I think it makes sense for the Endangered Species Act modernization. This is a 30-year-old law that we are seeing some result 

from but I think it could do more and do it better than 12 or 13 

species out of 1,300 or whatever the number is after 30 years. 

And we have learned a lot. You talk about growing up in St. Helens. I grew up in the Dalles and Hood River and I have to tell you 

people are living longer today in this country than they did 20, 30, 

40, 50 years ago and we are detecting some of these diseases because of the miracles of modern technology and the things we have 

learned. 

I mean technically—we were just looking this up—under the 

ESA it is probably a violation to rid the face of the globe of polio 

if you read the statute correctly and clearly. The only exception are 

insects that are a threat to humanity. That is the only specific exception. So are we doing something terrible here because we are 

going to rid the face of the globe of polio or some other disease that 

we as a civilization decide is bad for us? 

To me, we can find a balance and to me, there is a certain sense 

that communities and countries that are strong economically probably are more engaged to protect, preserve and enhance their environment than those that are struggling to develop. I have seen that 

in China when I have been there. I have seen that in other Third 

World countries, certainly. They do not care. 

And what my colleague from Montana said I think made a lot 

of sense. Right out here in this river system one of the first listed 

species, the short-nosed sturgeon, gets to swim through sewer 

sludge because it would take 5 years to fix the problem. 

In my home state there is a city that every other day on average 

dumps sewage into the Willamette River and they get 10 or 15 

years to fix it because it is a big problem and an extraordinarily 

expensive problem and I understand that, but we can do better. We 

should do better. 

I think every once in a while it is a good idea to look at one of 

these laws and say is it working? Does it make sense? Is it causing 

hardships that are not necessary? Can we do it a better way with 

a partnership, especially when the bulk of the lands that are needed for habitat are private? 

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Sir, I would say I admire you for what you do on your property. 

It sounds splendid. But there could come a day when they come 

and say your house is in the way and we need to have you tear 

it down. You probably would say fine, take it; I’ll find something 

else to do. But for a lot of people trying to change out from running 

a cattle ranch to planting grapes should not be upended. They 

should not lose their property over that, in my opinion. That is part 

of what this country is about, is private property rights. 

So we need to find a balance in the law, Mr. Chairman, and I 

appreciate your work on this issue and Mr. Cardoza, yours, as well. 

I think together we can come and find solutions that work to modernize the Endangered Species Act to protect the species, to allow 

for our country to have a strong economy and not poverty. Thank 

you, Mr. Chairman. 

The CHAIRMAN. Mr. Pearce. 

Mr. PEARCE. Thank you, Mr. Chairman. I will not stoop to declare that my beliefs are the same as yours, but I would like to associate myself with the comments of Mr. Cardoza and Mr. Rehberg, 

in just in case it works well. 

I was fascinated by Dr. Sheldon’s comments and his perspective. 

Growing up on a five-acre farm as one of six kids in the 140-degree 

temperatures of southern New Mexico, I began to believe the words 

of the Lord when it says in Genesis 3:17-20 that the ground is 

going to be painful for you to toil and it is going to produce thorns 

and thistles by the sweat of your brow. I learned that very carefully and at an early age and have not gone back to that five-acre 

farm since leaving, but I appreciate that. 

Dr. Sheldon, you did say that you are a practicing evangelical, 

right? 

Dr. SHELDON. Yes. 

Mr. PEARCE. If many evangelicals come down in a debate that 

falls very close to your field, choosing creation theory over evolution 

theory. Where do you fall in that? 

Dr. SHELDON. God did it. I am not defining what process he used. 

Mr. PEARCE. And also just to put it in perspective, the question 

of your one-acre farm and the way that you are able to use that, 

if no one else in the world produced anything, food, would you plow 

up that habitat to provide your family with food? That comes down 

to the essential question for all of us because if we choose one thing 

with our own property, depending on others to do with their property, to mine the ore that is used in the metal for our cars, to drill 

the wells on their property to get the fuel for the cars that we drive 

if we drive cars, or if we fly in airplanes, then sometimes we, I 

think, simplify the decisions before the society and in these equations. 

So how would you use your one acre if no one else produced food? 

Dr. SHELDON. No one else produced it? That is a very interesting 

question. 

Mr. PEARCE. I will just let you ponder that. I really don’t want—

Dr. SHELDON.—moving to Whitby Island because I will have five 

acres there. I will be moving there in 4 years and I have a garden 

spot planned. But it is a question that we have to—

Mr. PEARCE. It is a very deep question that we all are troubled 

with and—

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Dr. SHELDON. I would struggle with the question. I certainly 

would not cut all of the trees on my half an acre that I might be 

forced to grow my produce on. Can you feed a family on one acre? 

Mr. PEARCE. But you see there is a quandary for all of us if you 

have—we have members in this body with 12 people in the family. 

Anyway, before my 5 minutes expires, Miss Gray, thank you very 

much for the balance that you bring into this and you expressed 

the frustrations that all of us do, that we must have some common 

sense. We have to reach the balance somewhere here. I made comments earlier today in this same hearing that we are taking away 

private property rights from people and that is not in the best interest of the country. If we just have a plan, almost all of us will 

live by it. 

I was really amazed that people talk about Republicans and their 

concern for the environment. In January the Clear Skies Initiative 

was discussed and we have in the Clear Skies Initiative by the 

President 70 percent reduction in emissions under the President’s 

plan; never before. Usually the reductions are in 10 and 12 or 4 

and 3 percentages. Seventy percent reductions and business is saying we can do those in return for one thing—certainty. 

Just stick with those rules. We can do almost anything here. It 

is when we set the rules and we begin to move them around that 

I think that the entire balance, the need to preserve a species with 

the need to have jobs and the need to provide livings and food 

sources and heat sources for our entire civilization so, I hope, Mr. 

Chairman, that we will drive ourselves to that again. 

Mr. Cardoza, thank you for presenting the valuable discussion 

and if any of you want to make comments on the things I brought 

up, feel free to until the red light goes on. Thank you. 

Mr. UDALL. Would the gentleman yield? 

The CHAIRMAN. His time is up. 

Mr. UDALL. I just wanted to get a last question on his time, Mr. 

Chairman. 

The CHAIRMAN. You can ask one more question. 

Mr. UDALL. OK, thank you. 

Dr. Sheldon, one of the things that has struck me today listening 

to the testimony is that people have an emotional connection to different kinds of critters. Clearly you have the American bald eagle 

and it is a national symbol and everybody loves the eagle and we 

have done an incredible job at recovering the bald eagle. But there 

are all these other insects and plants that are out there and everybody can probably think of the little plants and insects that they 

like the least—flies and chiggers and ticks. You can think of all of 

those. 

But is it dangerous to judge species based on an emotional perception? When we are talking about ecological balance and the 

whole equation, you need all the—flies are part of the pollenization—flies and bees are part of the pollination process. I mean 

what would be your comment on this kind of emotional attachment, 

that we are going to save the things we really like but the others, 

we do not? Do you have any comment on that? 

Dr. SHELDON. Conservation biology is recognizing the difference 

between fine-filtered approach and coarse-filtered approach to solving the biodiversity crisis. The fine-filtered approach is linked in 

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with the Endangered Species Act. We identify critical species and 

we try to help them one at a time. 

The coarse-filtered approach recognizes that we have so many 

species that are currently threatened that that is not a long-term 

viable solution. The only long-term solution is actually ecosystemlevel protection. If we preserve the ecosystems that the species depend upon sufficiently, the species themselves will remain viable 

within the ecological system. 

What is critical here is to recognize what are referred to as ecosystem processes, energy flow and biogeochemical cycles within the 

ecological systems. And what is interesting there is that many of 

the players, many of the absolutely critical players in ecosystem 

processes, the key functioning that drives the sustainability of the 

system, those key players are the microscopic organisms. They are 

the things that we are by and large unfamiliar with. That is what 

is generating and recycling the soils. If it were not for those creatures, you would be up to your eyeballs in dead dinosaurs right 

now. We have to have the recycling, the program within the 

system. 

It is part of what I would describe as the fruitfulness that has 

been built into the ecological system itself from the beginning by 

the creator. It is what keeps the system going. 

So we are very quick to identify with the pandas and the bald 

eagles. My work currently is I am working on a research project 

on the grasshoppers of Pennsylvania. It has never been done. The 

last work on the Northeastern grasshoppers was done in 1922. We 

cannot identify the species that are there. We have no idea what 

the distribution is. And the Nature Conservancy has no idea what 

rare or endangered species even exist in Pennsylvania because they 

are so poorly known. 

But the point is that some of the things that we feel have essentially no value—the fly that we will swat or the grasshopper that 

we will render into a grease spot with mechanical control while we 

are walking down a sidewalk—those are the species that are the 

glue that holds the whole system together. That is what keeps the 

integrity of the processes going. 

It is not the few species that we see on the top, the big, charismatic species. Too often those are already so few, their populations have been reduced to the point from an ecological perspective that they are already extinct. I mean we do have American 

bison in the U.S. but from an ecological perspective they are an extinct species. There is virtually no place in the country where they 

are carrying out the keystone roles that the American bison were 

known for. 

There are not any wolves or cougars in the Eastern United 

States. The keystone predators are missing and as a result, we are 

having an explosion of coyotes and the mesopredators in the middle 

are taking over, filling in the role. 

Those animals we can identify with but it is the other things 

that we often are very hesitant to even acknowledge with the Endangered Species Act because if you start listing grasshoppers 

under the Endangered Species Act everybody is going to scream 

their head off if there is habitat description set aside, protected 

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areas for grasshopper species because most people cannot recognize 

their value at all. 

I think that is one of the big issues that we are struggling with. 

How do we really deal with the preservation of all of the creatures, 

even those that we as a general public do not see as being critical 

for the functioning of the ecosystems? 

So it is the processes that are important on an ecosystem level. 

It is the landscape processes that we have to maintain. The Endangered Species Act is critical because it is filling in the gap and it 

is protecting species in the short run. In the long run we have to 

have habitat protected sufficiently to maintain those processes. 

And as we do that we should not lose that many more endangered 

species. If we are preserving the integrity of the habitat, if we are 

learning to live with creation itself, maintaining its fruitfulness, 

then a lot of the problems that we are addressing here are not 

going to be ones that are going to be major problems in the future. 

It is simply learning to live with the system. 

Mr. UDALL. Thank you, Dr. Sheldon. Thank you to the rest of the 

panel and Mr. Chairman, thank you for your indulgence. 

The CHAIRMAN. Thank you. 

Just in wrapping up this hearing, first of all, I want to thank Mr. 

Cardoza for his legislation, for his work in trying to bring people 

together on what has proven to be a controversial issue over many 

years. It is efforts such as his to try to bring balance to the Act, 

to try to bring so many different people together to come to a compromise, knowing that there are some people that are just going to 

be opposed to it no matter what. And it does not matter what the 

bill says; their response to it will be that it is gutting the Act. 

Dr. Sheldon, to you, I found it very interesting to listen to you 

and your responses, not only your testimony but your responses to 

the questions that were asked. I would like you to think about 

maybe on a somewhat larger scale, what you are talking about on 

your one acre. Your one acre, you want your home, what is necessary for you to live, and the rest of your acre you are using as 

habitat. And it not just endangered species. It is wildlife. It is the 

beauty of God’s creation surrounding you. 

When you talk about—Mrs. Gray talked about somebody with 

their farm and it does not matter if it is one acre, 1,000 acres, 

10,000 acres. They are setting aside what is necessary for them to 

live and thrive and produce and the rest of it, they are willing to 

set aside as wildlife habitat. 

That is all we are asking. We are asking for the flexibility in the 

Act for Mr. Cardoza’s constituents to be able to earn a living off 

of a farm and set aside the rest as that habitat and be able to do 

that in a proactive way and to remove some of the disincentives 

that exist under the current Act and its implementation so that 

people can do that. 

I grew up in the California Delta and I loved every day of it. I 

can tell you what it is like to see a bald eagle or a hawk hunting. 

I can tell you what it is like to be out in those rivers fishing. That 

is what I grew up with and I never wanted to leave it. I mean that, 

to me, was paradise growing up as a kid. 

Yet so many of my friends and neighbors are terrified today that 

you are going to find an endangered species on their property beVerDate 0ct 09 2002 11:21 Sep 24, 2004 Jkt 088533 PO 00000 Frm 00188 Fmt 6633 Sfmt 6602 J:\DOCS\93346.TXT HRESOUR1 PsN: KATHY
185

cause they are afraid they are going to lose it. They are afraid they 

are going to lose the ability to use that property and that is what 

drove me to get involved in this crazy game to begin with and to 

be able to come back here and be part of the effort that is being 

made to bring some rationality, some common sense back into the 

Act. 

I believe that the members of this committee can sit down and 

come to a compromise, can come to an Endangered Species Act that 

accomplishes exactly what you describe and, at the same time, 

takes care of the issues that these local elected officials are having 

to deal with every day. 

You know, in listening to all the debate today and all the talk 

today, people talk about setting aside habitat. How much? At what 

point do we say OK, this is enough? The Federal government owns 

a third of our country right now. A lot of that could be used to recover endangered species. A lot of that should be used to recover 

endangered species. 

We have land in my district, in Dennis’s district that is set aside 

with conservation easements on it and land that has been paid for 

under habitat conservation plans. That all ought to be part of what 

the ultimate solution is. But the way the Act is being implemented 

today, we still have things where the City of Santa Rosa is running 

into problems, where the County of Santa Barbara is running into 

problems. 

Balance is what we need to find. That is how we need to come 

up with a solution that removes some of the negative incentives, 

the perverse incentives that exist under the Act today and turn it 

into a positive if you find an endangered species on somebody’s 

property. That is what we need to do, but the law right now does 

not allow that. That is not the way it is being implemented and 

that is why it gets so frustrating for those of us that are up here 

trying to deal with this because I agree with most of what you are 

saying. I think you are right, but that is not the Endangered 

Species Act we are living with and we need to change that. 

So I appreciate the testimony of this panel, all of the panels that 

were here today. I think this was a very worthwhile hearing to 

have. I think we got a lot of very important information. I know 

that Mr. Cardoza and I can go back and sit down and take another 

look at this bill and see if there are things that we can change that 

address some of the issues that been brought up today. I think it 

is a good bill in general. I think it is a very good bill and it is something that we need to move forward with. 

So I thank all the panels. I thank the witnesses for your testimony today. I thank the members of the Committee for sticking 

around during all of this. I know it has been a long day. 

So thank you all very much. The hearing is adjourned. 

[Whereupon, at 4:02 p.m., the hearing was adjourned.]

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