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78-289 PS 2002

H.R. 2829 and H.R. 3705

LEGISLATIVE HEARING

BEFORE THE

COMMITTEE ON RESOURCES

U.S. HOUSE OF REPRESENTATIVES

ONE HUNDRED SEVENTH CONGRESS

SECOND SESSION

March 20, 2002

Serial No. 107-98

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

JAMES V. HANSEN, Utah, Chairman

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

Don Young, Alaska,

Vice Chairman

W.J. ‘‘Billy’’ Tauzin, Louisiana

Jim Saxton, New Jersey

Elton Gallegly, California

John J. Duncan, Jr., Tennessee

Joel Hefley, Colorado

Wayne T. Gilchrest, Maryland

Ken Calvert, California

Scott McInnis, Colorado

Richard W. Pombo, California

Barbara Cubin, Wyoming

George Radanovich, California

Walter B. Jones, Jr., North Carolina

Mac Thornberry, Texas

Chris Cannon, Utah

John E. Peterson, Pennsylvania

Bob Schaffer, Colorado

Jim Gibbons, Nevada

Mark E. Souder, Indiana

Greg Walden, Oregon

Michael K. Simpson, Idaho

Thomas G. Tancredo, Colorado

J.D. Hayworth, Arizona

C.L. ‘‘Butch’’ Otter, Idaho

Tom Osborne, Nebraska

Jeff Flake, Arizona

Dennis R. Rehberg, Montana

George Miller, California

Edward J. Markey, Massachusetts

Dale E. Kildee, Michigan

Peter A. DeFazio, Oregon

Eni F.H. Faleomavaega, American Samoa

Neil Abercrombie, Hawaii

Solomon P. Ortiz, Texas

Frank Pallone, Jr., New Jersey

Calvin M. Dooley, California

Robert A. Underwood, Guam

Adam Smith, Washington

Donna M. Christensen, Virgin Islands

Ron Kind, Wisconsin

Jay Inslee, Washington

Grace F. Napolitano, California

Tom Udall, New Mexico

Mark Udall, Colorado

Rush D. Holt, New Jersey

James P. McGovern, Massachusetts

Anibal Acevedo-Vila, Puerto Rico

Hilda L. Solis, California

Brad Carson, Oklahoma

Betty McCollum, Minnesota

Tim Stewart, Chief of Staff

Lisa Pittman, Chief Counsel/Deputy Chief of Staff

Steven T. Petersen, Deputy Chief Counsel

Michael S. Twinchek, Chief Clerk

James H. Zoia, Democrat Staff Director

Jeffrey P. Petrich, Democrat Chief Counsel

(III)

CONTENTS

Page

Hearing held on March 20, 2002 ............................................................................ 1

Statement of Members:

Faleomavaega, Hon. Eni F.H., a Delegate in Congress from

American Samoa .......................................................................................... 9

Hansen, Hon. James V., a Representative in Congress from the State

of Utah ........................................................................................................... 1

Prepared statement of ............................................................................... 3

Inslee, Hon. Jay, a Representative in Congress from the State of

Washington .................................................................................................... 12

Jones, Hon. Walter B., a Representative in Congress from the State

of North Carolina, Prepared statement of .................................................. 12

Pallone, Hon. Frank, Jr., a Representative in Congress from the State

of New Jersey, Prepared statement of ....................................................... 13

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

California ....................................................................................................... 8

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

of West Virginia ........................................................................................... 4

Prepared statement of ............................................................................... 5

Rehberg, Hon. Dennis R., a Representative in Congress from the State

of Montana ..................................................................................................... 11

Tauzin, Hon. W.J. ‘‘Billy’’, a Representative in Congress from the State

of Louisiana ................................................................................................... 9

Walden, Hon. Greg, a Representative in Congress from the State of

Oregon ............................................................................................................ 5

Prepared statement on H.R. 2829 ........................................................... 7

Statement of Witnesses:

Anderson, James J., Ph.D., Research Associate Professor, School of

Aquatic and Fishery Sciences, University of Washington ......................... 61

Prepared statement of ............................................................................... 62

Bean, Michael J., Chairman, Wildlife Program, Environmental Defense ... 95

Prepared statement of ............................................................................... 97

Dobson, Andrew, Ph.D., Professor, Department of Ecology and

Epidemiology, Princeton University ............................................................ 65

Prepared statement of ............................................................................... 68

Letter submitted for the record ................................................................ 66

Dueser, Raymond D., Ph.D., Professor of Fisheries and Wildlife, Associate

Dean of the College of Natural Resources, Utah State University ........... 84

Prepared statement of ............................................................................... 85

Gordon, Robert E., Jr., Executive Director, National Wilderness Institute 42

Prepared statement of ............................................................................... 44

Inland Action Inc.’s ‘‘San Bernardino International Airport & Trade

Center Issue’’ submitted for the record ................................................ 50

Illyn, Peter, Executive Director, Restoring Eden ........................................... 58

Prepared statement of ............................................................................... 59

Lent, Rebecca, Ph.D., Deputy Assistant Administrator for Fisheries,

National Marine Fisheries Service, National Oceanic and Atmospheric

Administration (NOAA) ................................................................................ 18

Prepared statement of ............................................................................... 20

Lilburn, Stephen T., President, Lilburn Corporation .................................... 54

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

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

U.S. Department of the Interior .................................................................. 14

Prepared statement of ............................................................................... 16

Page

IV

Statement of Witnesses—Continued

Simmons, Randy T., Ph.D., Professor of Political Science, Department

Head, Utah State University ....................................................................... 80

Prepared statement of ............................................................................... 82

Vogel, David, Senior Scientist, Natural Resources Scientists, Inc. .............. 92

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

Additional materials supplied:

American Farm Bureau Federation, Statement submitted for the record .. 105

Garczynski, Gary, on behalf of the National Association of Home

Builders, Statement submitted for the record ............................................ 107

Marbut, Gary, President, Montana Shooting Sports Association .................

Article ‘‘Assault by the Environmental Movement’’ submitted for the

record by The Honorable Dennis Rehberg ........................................... 33

Letter submitted for the record by The Honorable Dennis Rehberg .... 111

Pate, Preston P., Jr., Letters submitted for the record by The Honorable

Dennis Rehberg ............................................................................................. 36

(1)

LEGISLATIVE HEARING ON H.R. 2829, TO

AMEND THE ENDANGERED SPECIES ACT OF

1973 TO REQUIRE THE SECRETARY OF THE

INTERIOR TO GIVE GREATER WEIGHT TO

SCIENTIFIC OR COMMERCIAL DATA THAT

IS EMPIRICAL OR HAS BEEN FIELD-TESTED

OR PEER-REVIEWED, AND FOR OTHER PURPOSES; AND H.R. 3705, TO AMEND THE

ENDANGERED SPECIES ACT OF 1973 TO

REQUIRE THE SECRETARY OF THE

INTERIOR TO USE THE BEST SOUND

SCIENCE AVAILABLE IN IMPLEMENTING

THE ENDANGERED SPECIES ACT.

Wednesday, March 20, 2002

U.S. House of Representatives

Committee on Resources

Washington, DC

The Committee met, pursuant to notice, at 2:03 p.m., in room

1334, Longworth House Office Building, Hon. James V. Hansen

(Chairman of the Committee) presiding.

STATEMENT OF THE HON. JAMES V. HANSEN, A

REPRESENTATIVE IN CONGRESS FROM THE STATE OF UTAH

The CHAIRMAN. The Committee will come to order.

After we fill this room, which we are going to do, I am sure, and

if anyone wants to hear audio only, we have an overflow room in

1332 Longworth for those who would just like to pick up the audio.

Good afternoon, everyone, and thank you for being here to discuss two bills that amend the Endangered Species Act, H.R. 2829,

introduced by Congressman Greg Walden, and H.R. 3705, introduced by Congressman Richard Pombo, both members of this

Committee.

The CHAIRMAN. While there is not too much we do on the Hill

which stirs up as much controversy as the issues dealing with the

ESA, I may say with some degree of certainty that, for the Resource Committee, there are no debates more contentious as those

2

which surface when we are discussing endangered species and this

act.

There is probably a good reason for this. This is the only act in

the country that I am aware of that elevates species of flies, rats,

slimy slugs and hosts of other creatures nobody has ever heard of

over the needs, desires, and the pursuit of happiness for American

citizens. I always thought that we passed laws here in Congress to

help people in this country. Instead, however, what we have with

the ESA is a law which has devastated thousands of people and

their families, has displaced thousands more, has inflicted undue

hardships probably on millions of others, and has cost, conservatively, in the billions of dollars.

All of this for the sake of protecting some species that, under

their current status, cannot be supported scientifically and that

many believe should never have been put on the endangered

species list anyway. Unfortunately, we are well beyond that point

when this act should have been amended. Recent events have confirmed or convincingly underscored the need for this act to be

changed. The agencies responsible for making ESA decisions based

upon the best scientific and commercial data have simply failed to

carry out this mandate. When laws are passed which simply do not

function as they are intended to, it is our duty to make changes

and amend the law.

In the case of the ESA, the duty was clearly evidenced by two

recent events on which this Committee held hearings which illustrate some of the most egregious abuses by the agencies responsible to use scientifically valid and reliable information to base

their decision. One dealt with Klamath River Basin, the other with

the planted Canada lynx hair and conclusively show that these

agencies base decisions using unsubstantiated scientific information or had deliberately doctored scientific information to achieve

desired results.

Although these two incidents clearly call the integrity of these

agencies into question, they are not isolated and have been going

on for many years. These situations, and others like them, simply

will not be tolerated by this Committee nor, I believe, should they

be tolerated by the U.S. Congress. Without question, we need to

amend the ESA to integrate a system of better science and decisionmaking.

At the end of 2001, there were 1,254 plants and animals listed—

740 plants and 514 animals. Two hundred and forty-nine more

species remain on the candidate list, and 32 species are proposed

for listing. As we have seen, as more species are listed, more problems can be anticipated, unless we change how the ESA is implemented and get better science and peer review into this process.

There is an inseparable link between best science and that

science which has been field tested, validated or peer reviewed. It

is exactly this connection the responsible Federal agencies need to

account for when analyzing data and information within the context of the ESA. It is also this connection that H.R. 2829 and 3705

intend to make.

Both these bills, albeit with slightly different approaches, will establish the peer-review process on nearly all of the findings and

3

determinations made by the Fish and Wildlife Service and the Marine Fisheries Service.

Both of these bills also give greater weight to information that

has undergone some scientific scrutiny, analysis or review.

I will let each of the authors explain their legislation in greater

detail, but after my review of these bills, I am sure this is a good

first step in amending an act which simply does not function as it

was intended and solves many of the fundamental problems we

have had with this act for many years.

I am looking forward to hearing testimony from all witnesses

today, especially Assistant Secretary Craig Manson, who is making

his first appearance before this Committee. I want to welcome each

of the witnesses here today.

I will now turn the time over to the ranking member, the distinguished gentleman from West Virginia.

[The prepared statement of Mr. Hansen follows:]

Statement of The Honorable James V. Hansen, Chairman, Committee on

Resources, on H.R. 2829 and H.R. 3705

Good afternoon everyone and thank you for being here today to discuss two bills

that amend the Endangered Species Act—H.R. 2829, introduced by Congressman

Greg Walden and H.R. 3705, introduced by Congressman Richard Pombo, both

members of the Resource Committee.

Well, there is not too much we do on the Hill, which stirs up as much controversy

as the issues dealing with the ESA. I may say with some degree of certainty that,

for the Resource Committee, there are no debates more contentious as those which

surface when we are discussing endangered species and this Act.

And there is probably a good reason for this—this is the only Act in this country

that I’m aware of that elevates species of flies, rats, slimy slugs, and host of other

creatures nobody has heard of over the needs, desires, and the pursuit of happiness

of American citizens. I always thought that we passed laws here in Congress to help

people in this country. Instead, however, what we have with the ESA is a law which

has devastated thousands of people and their families, has displaced thousands

more, has inflicted undue hardship probably on millions of others, and has cost, conservatively, in the billions of dollars.

All of this for the sake of protecting some species that, under their current status,

cannot be supported scientifically and that many believe should never have been put

on the endangered species list anyway. Unfortunately, we are well-beyond the point

when this Act should have been amended. Recent events have confirmed and convincingly underscored the need for this Act to be changed. The agencies responsible

for making ESA decisions based upon the best scientific and commercial data have

simply failed to carry out this mandate.

When laws are passed which simply do not function as they are intended it is our

duty to make changes and amend the laws. In the case of the ESA, this duty was

clearly evidenced by two recent events, on which this Committee held hearings,

which illustrate some of the most egregious abuses by the agencies responsible to

use scientifically valid and reliable information to base their decisions. One dealt

with Klamath River Basin, the other with planted Canada lynx hair and conclusively show that these agencies based decisions using unsubstantiated scientific information or had deliberately doctored scientific information to achieve a desired result. Although these two incidents clearly call the integrity of these agencies into

question, they are not isolated and have been ongoing for many years. These situations, and others like them, simply will not be tolerated by this Committee nor, I

believe, should be tolerated by the Congress. Without question, we need to amend

the ESA to integrate a system of better science into the decision-making.

As of the end of 2001 there were 1254 plants and animals listed (740 plants; 514

animals). Two hundred and forty nine more species remain on the candidate list and

32 species are proposed for listing. As we have seen, as more species are listed more

problems can be anticipated, unless we change how the ESA is implemented and

get better science and peer-review into the process.

There is an inseparable link between ‘‘best’’ science and that science which has

been field tested, validated, or peer-reviewed. It is exactly this connection the responsible Federal agencies need to account for when analyzing data and information

4

within the context of the ESA. It is also exactly this connection that H.R. 2829 and

3705 intend to make. Both these bills, albeit with slightly different approaches, will

establish a peer-review process on nearly all of the findings and determinations

made by the Fish & Wildlife Service and Marine Fisheries Service. Both of these

bills also give greater weight to information that has undergone some scientific scrutiny, analysis, or review. I’ll let each of the authors explain their legislation in

greater detail, but after my review of these bills I am sure that this is a good first

step in amending an Act that simply does not function as it was intended and solves

some of the fundamental problems we have had with this Act for many years.

I am looking forward to hearing testimony from all the witnesses today, especially

Assistant Secretary Craig Manson, who is making his first appearance before this

Committee. I want to welcome each of the witnesses here today and I now turn the

time over to the Ranking Member, Mr. Rahall.

STATEMENT OF THE HON. NICK J. RAHALL, II, A

REPRESENTATIVE IN CONGRESS FROM THE STATE OF

WEST VIRGINIA

Mr. RAHALL. Thank you, Mr. Chairman.

Mr. Chairman, I had hoped we would not find ourselves at yet

another contentious hearing on the Endangered Species Act, but it

was not to be. Both of these bills have as their purported purpose

the improvement of science used in the implementation of the

Endangered Species Act. In reality, they do nothing more than

hinder the scientific process by dictating the types of data that

must be used in setting up a conflict between the agencies and the

outside scientists that will surely lead to more litigation, more

delays and more loss of species.

The law already requires that the ESA be implemented using the ‘‘best scientific information available.’’ H.R. 2829 abandons that

approach by defining what does and does not constitute acceptable

data. How is it possible that we will reach better scientific outcomes by basing them on less information? Even more puzzling, it

requires that any data submitted by a landowner be considered in

a decisionmaking progress, regardless of its scientific merit. It

would seem then that the best science is not to be identified by scientists through peer review, but by Members of Congress with little or no scientific expertise of which to speak.

Moreover, Fish and Wildlife Service and NMFS policy already require independent peer review of listing recommendations and recovery plans. These bills would extend that process to virtually

every decision made by the agencies, though only in cases where

agency decisions will result in more protection for the species.

At the same time, H.R. 3705 establishes a standard for review

by outside scientists. There is guaranteed resulting conflict with

the agencies and provide the basis for more delays.

Mr. Chairman, it is time for efforts to undermine the ESA to end.

As human beings, we have a responsible to act as stewards of all

of the creatures put on this Earth. We cannot continue to destroy

the habitat, use water and pollute the air with no regard to the impacts on other species. Those of us who support the ESA have tried

to make this point with secular arguments. Failing that, it is my

hope that the fact that every major religion in the world extols the

virtue of species protection might carry some weight.

As the word of the Lord came to Ezekiel, ‘‘As for you, my flock,

it is not enough for you to be on good pasture. Must you also trample the rest of your pasture with your feet? Is it not enough for you

5

to drink clear water? Must you also muddy the rest with your

feet?’’ We cannot treat the Earth’s resources with disdain as if they are

ours alone. If that was God’s intention, he would not have told

Noah to save two of every species, including man.

We have a responsibility to co-exist with all creatures. If we cannot, it is a sad commentary on our abilities to live in a civilized

world.

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, I had hoped we would not find ourselves at yet another contentious hearing on the Endangered Species Act, but it was not to be.

Both of these bills have as their purported purpose the improvement of science

used in the implementation of the Endangered Species Act. In reality, they do nothing more than hinder the scientific process by dictating the types of data that must

be used and setting up a conflict between the agencies and outside scientists that

will surely lead to more litigation, more delays, and more loss of species.

The law already requires that the ESA be implemented using the ‘‘best scientific

information available.’’ H.R. 2829 abandons that approach by defining what does

and does not constitute acceptable data. How is it possible that we will reach better

scientific outcomes by basing them on less information?

Even more puzzling, it requires that any data submitted by a landowner be considered in the decision making process, regardless of its scientific merit. It would

seem then, that the ‘‘best science’’ is not to be identified by scientists through peer

review, but by members of Congress with little or no scientific expertise to speak

of.

Moreover, Fish and Wildlife Service and NMFS policy already require independent peer review of listing recommendations and recovery plans. These bills

would extend that process to virtually every decision made by the agencies, though

only in cases where agency decisions will result in more protection for the species.

At the same time, H.R. 3705 establishes a standard for review by outside scientists

that is guaranteed to result in conflict with the agencies and provide the basis for

more delays.

Mr. Chairman, it is time for efforts to undermine the ESA to end. As human

beings, we have a responsibility to act as stewards of all the creatures put on this

earth. We cannot continue to destroy habitat, use water, and pollute the air with

no regard to the impacts on other species.

Those of us who support the ESA have tried to make this point with secular arguments. Failing in that, it is my hope that the fact that every major religion in the

world extolls the virtue of species protection might carry some weight.

As the word of the Lord came to Ezekiel, ‘‘As for you, my flock...is it not enough

for you to feed on 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?’’

We cannot treat the earth’s resources with disdain as if they are ours alone. If

that was God’s intention, would he have told Noah to save two of every species, including man. We have a responsibility to co-exist with all creatures. If we cannot,

it is a sad commentary on our abilities to live in a civilized world.

The CHAIRMAN. I thank the gentleman.

Possibly, we have just a brief explanation from the two authors

that are sitting here. Are you ready to go Mr. Walden?

STATEMENT OF THE HON. GREG WALDEN, A

REPRESENTATIVE IN CONGRESS FROM THE STATE OF

OREGON

Mr. WALDEN. I can, Mr. Chairman, but I can’t start without at

least trying to set the record state from the start when it comes

6

to data from landowners because I think that the ranking gentleman’s statement does not reflect the wording in the language of the

bill.

What the bill says is that the Secretary would have to accept and

acknowledge receipt of landowner data and include the data in the

rulemaking record. That is all it says. So I don’t think that is asking too much to say accept receipt of the data. Think of a public

hearing where you accept receipt of data, receipt of testimony.

These are people whose very lives are being turned upside down.

You want to talk about fairness, come out to my district and the

Klamath Basin, where you can talk to the people who have had

their lives turned upside down because of bad decisions that, once

we did have peer review, we found out were not made based on

adequate science. The decisions didn’t hold up.

So the genesis of the legislation I am proposing says let us get

a second opinion before we make a decision to either list or delist,

to consult or to recover. I don’t think that is bad. If you went to

the doctor and the doctor said to you, ‘‘Mr. Rahall, we are going to

have to take off your right leg,’’ you would probably go get a second

opinion. Right now under the Endangered Species Act they just cut

you off at the knees. You don’t get a second opinion.

Fortunately, this administration did go forward and ask for a

second opinion, the National Academy of Sciences’ opinion, on the

data and the decisions. We found out from the National Academy

of Sciences the decisions made weren’t based on adequate science

or the decisions misinterpreted the data they had. In either case,

1,400 farm families didn’t get water, nearly two dozen went bankrupt, and Mike McCowan had a heart attack and died.

That is why I feel so strongly about this, and that is why we

tried to take a very reasonable and prudent course not to up-end

the Endangered Species Act, but to bring about some sensibility, to

simply say, turn to the National Academy of Sciences, have them

put together a recommended list that they put forward. Pick from

that list, Madam Secretary, three people to do an outside peer review, and then let us set some standards on what science is or is

not. Promulgate that.

I am not an expert. I am not sitting here telling you what that

science should or should not be. That is something for the experts

to determine, but let us set some standards because right now

under the Endangered Species Act that is not determined. It is

very fluid, very flexible. And then let us go through and look at

some of the other issues that would be decided by the legislation

I am proposing.

The ESA right now gives the Secretary broad discretion in developing recovery plans. Public input is limited to an opportunity to

comment on a draft recovery plan. That is it. Our legislation would

say that agencies that are preparing recovery plans are required to

identify, solicit, and accept scientific or commercial information

that would assist in preparing the recovery plan. In other words,

get more information, get better information, do it right and involve the public more.

I talked about the need to set minimum standards for scientific

and commercial data not now required by the ESA. The listing actions must be supported by field data on the species and that they

7

must accept data on species collected by landowners. The ESA does

not require peer review of scientific information, nor does it establish any structure for a peer review process. Our legislation would

require, again, that every proposed listing, delisting, recovery plan

or consultation under the ESA would be reviewed by a peer review

panel of three nonbiased scientists.

And, finally, our legislation would require the Secretary to solicit

and consider information provided by the States. It allows an applicant to:

One, prior to the release of a draft biological opinion, submit and

discuss with the Service an action agency information about the

proposed action and possible reasonable and prudent alternatives.

Let us look and see if there are some alternatives out there that

would be better than what some Government agency is proposing.

Obtain information used to develop the biological opinion and

reasonable and prudent alternatives. We ought to have a right to

know here before these decisions are made. Where did they get the

information?

And, finally, to provide comments prior to publication of the final

biological opinion. The Service must include the applicant’s suggestions or explain why such suggestions were rejected. Comments

and other information submitted shall be made available to the

public.

I don’t see that the steps we are proposing are one-sided, Mr.

Chairman and ladies and gentlemen of this Committee. They could

be used by either side in this debate, but it makes the process more

transparent, it makes it based on better science, and it gives us a

second look at the science that is used and the decisions that are

made.

I think it is a prudent and reasonable step to improve and give

greater support, if you will, to decisions made by the Endangered

Species Act.

I thank you for your indulgence, Mr. Chairman.

[The prepared statement of Mr. Walden follows:]

Statement of The Honorable Greg Walden, a Representative in Congress

from the State of Oregon, on H.R. 2829

Sound Science and ESA Actions

• Requires the Secretary to set standards for the scientific and commercial data

that is used to take actions under the ESA.

• Requires the Secretary to give greater weight to scientific or commercial data

that is empirical or has been field-tested or peer-reviewed.

Sound Science and the Listing Process

• Sets minimum standards for the scientific and commercial data used in listing

determinations.

• Listing actions must be supported by field data on the species.

• The listing agency must accept data on the species collected by landowners.

Sound Science and Recovery Planning

• Agencies preparing recovery plans are required to identify, solicit, and accept

scientific or commercial information that would assist in preparing a recovery

plan.

Sound Science and Peer Review

• Every proposed listing, delisting, recovery plan, or consultation under the ESA

would be reviewed by a peer review panel of three non-biased scientists.

8

Sound Science and the Consultation Process

• Requires the Secretary to solicit and consider information provided by the State.

• Allows an applicant to: (1) prior to the release of a draft biological opinion, submit and ‘‘discuss’’ with the Service and action agency information about the proposed action and possible reasonable and prudent alternatives; (2) obtain information used to develop the biological opinion and reasonable and prudent alternatives; and (3) provide comments prior to publication of the final biological

opinion.

• The service must include the applicant’s suggestions or explain why such suggestions were rejected.

• Comments and other information submitted shall be available to the public.

The CHAIRMAN. Thank you, Mr. Walden.

Mr. Pombo?

STATEMENT OF THE HON. RICHARD W. POMBO, A

REPRESENTATIVE IN CONGRESS FROM THE STATE OF

CALIFORNIA

Mr. POMBO. Thank you, Mr. Chairman. I thank you of for scheduling this hearing. Like the ranking member said, I, too, think it

is time that we stop the contentious hearings dealing with the

Endangered Species Act.

After spending months dealing with the ranking member and

members of the minority, we came up with a number of ideas that

we agreed on, in terms of the science provisions in the Endangered

Species Act. Most of those areas that we agreed on are represented

in this bill, including a number of the provisions that the ranking

member was critical of, are provisions that he and others that

worked with me on that working group agreed to. We tried to include provisions that were of agreement in this bill.

Many of the provisions in my legislation are similar, have the

same idea as what is in Mr. Walden’s bill. Hopefully, we can come

out of this process with a unified bill that both the minority and

the majority can agree upon. I am anxious to get into the hearing.

I am anxious to hear from our witnesses, so I will just conclude,

Mr. Chairman, by saying that there are very, very few people who

will say there is nothing wrong with the Endangered Species Act

and the science that is being used, regardless of which side of the

debate you are on.

Some of the most blatant criticisms that have come from the environmental community on the science that is being used under the

Endangered Species Act are things that we are trying to reach

some conclusion, to reach some kind of consensus as to the best

way to proceed.

I will tell the administration witnesses, I will tell the rest of the

witnesses that are here, if there are provisions in my legislation,

in Mr. Walden’s legislation, that just don’t work, we will sit down

and work with you. We will try to work out what those differences

are, but we are going to do this. We are going to figure out a way

to do a better job of protecting endangered species, do a better job

of implementing the Endangered Species Act without all of the conflicts that Mr. Walden’s constituents, my constituents have to deal

with on a daily basis.

My constituents don’t have the advantage of sitting in marble

hearing rooms and talking about all of this as if it is theory. To

them, it is real. It is every day. It is a business decision. It is

9

something that they have to live with that they wake up with in

the morning, they go to bed with at night. It is not theory to them,

it is real life, and we have to figure out a way to do a better job

than what we are currently doing.

I thank the Chairman.

The CHAIRMAN. Thank the gentleman from California.

The gentleman from American Samoa, Mr. Faleomavaega?

STATEMENT OF THE HON. ENI F.H. FALEOMAVAEGA, A

DELEGATE IN CONGRESS FROM AMERICAN SAMOA

Mr. FALEOMAVAEGA. Mr. Chairman, I want to thank you for calling this hearing and certainly extend my courtesy to Mr. Pombo

and Mr. Walden for their efforts in introducing these two pieces of

legislation.

The Endangered Species Act is not a new issue here with our

Committee, and I certainly want to commend Mr. Pombo for all of

these past years that he has tried earnestly in trying to figure out

some way or some how the solutions that have been raised by various members and their constituents, problems affecting their districts, not only in the scientific terms, but more especially even the

economics and how the lives of the people have been affected because of its implementation. I won’t say any more than the fact

that since the announcement by the National Academy of Science,

Secretary Norton has also put in her contribution, the national

media has made a big thing about this, too, and I think it does

bear a comprehensive hearing on our part, as members of the

Committee that has jurisdiction over this issue.

So I look forward to hearing to hearing from our witnesses this

afternoon. Again, I thank Mr. Pombo and Mr. Walden for these

pieces of legislation to see where we need to go.

The CHAIRMAN. Thank you.

The gentleman from Louisiana, Mr. Tauzin?

STATEMENT OF THE HON. W.J. ‘‘BILLY’’ TAUZIN, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF LOUISIANA

Mr. TAUZIN. Thank you, Mr. Chairman.

I will tell you what it is time for, it is time for us to stop saying

that every attempt to improve this important act is an attempt to

destroy it. It is time to stop saying that. It is time to recognize that

people who agree with the way it is working and disagree with the

way it is working can have legitimate differences of opinion and try

to make it work better, and I hope that is what we begin doing in

this Committee. I want to commend my colleagues for trying to do

that, trying to make suggestions that will make this work better.

If you have any doubt that it doesn’t work well, come to Louisiana and see the alligator population in my State. Alligators were

put on the endangered species list erroneously because somebody

incorrectly calculated the rate of reproduction of alligators by 300

percent. Now, admittedly, checking on alligators reproducing is not

without some risk—

[Laughter.]

Mr. TAUZIN. And getting it done right is probably difficult, but

the missing by 300 percent was pretty severe. We used to have a

nutria problem. We don’t have a nutria problem any more. I would

10

like us not to have the same thing happen to Cajuns, but we are

getting overrun by alligators, truly. Come out and drive the bayous

at night with a light, and all you see is red eyes everywhere now.

They are just all over the place because I think we made an error

in the science, pure and simple.

I am trying to think this through, ladies and gentlemen, in a logical, sort of intellectual way. I thought we should start by thinking

about what has rights, who has rights in this American system, on

this planet. Start with property. I don’t think anywhere in the Constitution, anywhere in our laws, have we created rights that property owns. Property doesn’t own rights. It might deserve respect,

a property might deserve all sorts of nice treatment and good conservation and environmental lights, but I don’t know if we have

accorded property itself rights in America, not those of us who advocate so-called property rights nor those who fight them.

When it comes to animals and plants, everybody debates that.

What animal rights exist in America, what plant rights? I think we

have generally concluded, because we have an Endangered Species

Act, we have generally concluded in America that plants, and animals, humans and otherwise all have something of a right to survive as a species. We have a right to survive, at least a fair shot

to survive.

We can’t control meteorites hitting this planet, and you know destroying life, again, as it maybe once did. We cannot control many

things about nature and neither can species and plants. Sometimes

the survival of one depends upon the destruction of the other in the

history of the planet. We can’t control all of that, but we can, in

our endangered species laws, give plants and animals a fair shot

of surviving. We shouldn’t be going out trying to destroy them. We

should be trying to create conditions where they have a fair chance

to continue. I mean, ‘‘What is it all about, Alfie,’’ if it isn’t to continue your line, and love life, and enjoy it, and respect it in the

process?

The next group we should look at is people. Do people have

rights in this society? Absolutely. I mean, one of the basic rights

we have in this society is the right to private property in this

American system. You can argue about that elsewhere in the

world, but here in America in our Constitution we clearly describe

a right of people in America to own and enjoy private property. In

fact, we say to this Government up here, you cannot take it away

from us without fair and just compensation. You can take it away,

if you have to, for public purposes only and then only if you take

it away and provide just and fair compensation to us.

We know there are many ways in which those rights are abused.

They can be abused with regulations that don’t make sense, are

unreasonable, not properly based, and we end up either taking

rights away of the use and enjoyment of property under the Constitution, fairly or unfairly. We should look at that.

For example, do people have a right to know whether a Government regulation takes away their rights to use their property? I

think they do. We do not make that clear in the Endangered

Species Act well or our wetlands laws. Do people have a right to

know that when their rights are restricted it is on the basis of good

science? You doggone right they do. They ought to know that when

11

their lives are disrupted or their economy is turned around or their

property lost to them that it was done on the basis of good science

at least.

Do they have a right to know that the agencies of Government

are respecting good science? I think they do, and that is part of

what we are going to discuss today. Communities have rights, too,

by the way. They have a right to know, for example, whether or

not a decision of an agency of the Federal Government is going to

upset the community’s economic life.

We had a Critical Area designation proposal in Louisiana to designate millions of acres of land to protect black bears in Louisiana,

no public hearings planned. We demanded and got a couple of public hearings. We asked three simple questions: What is this critical

area all about? What are we doing now that we can’t do? And what

are we going to be required to do when this happens? Is it necessary, and what has got to change in this area about the way we

live?

The agency couldn’t answer, particularly those last two questions. And after the public hearings, they abandoned the Critical

Area because they recognized that there is a bear conservation

group working in Louisiana that is doing a much better job than

any Critical Area would do in restoring the black bear, the teddy

bear, in Louisiana to survival rates.

Bottom line, this is a good discussion. We ought to have it, and

we ought to quit saying every time we have it that somebody is out

to destroy the Endangered Species Act. It ought to work better

than it does. Let us try to make it work better.

The CHAIRMAN. Thank the gentleman.

Are there other opening comments?

The gentleman from Montana?

STATEMENT OF THE HON. DENNIS R. REHBERG, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF

MONTANA

Mr. REHBERG. Thank you, Mr. Chairman.

Real briefly I want to add my voice in the kudos to Mr. Walden

and Mr. Pombo for doing this. When Chairman Hansen originally

assigned me as a new freshman to the Working Group on

Endangered Species, I thanked him. Now I blame him. I didn’t realize how controversial this issue had become in Congress.

And, you know, it is kind of interesting because I guess I have

not been in Washington long enough to have lost sight of the fact

that when people are making jokes about laws, there is probably

something wrong. ‘‘Shoot, shovel, and shut up’’ is not a distinction

you want to be very proud of, and the people usually make the

right decision. It is hard to argue with them when you lose an election. They probably made the right decision, for one reason or another, and they probably will make the right decision when they

are very angry about a law that is not working.

This is not incentive based, it is disincentive based, and when

Chairman Pombo originally called this, of course, it took several

months to even agree what time to meet and where, but once we

got beyond the initial decision of getting along, a lot of good ideas

came forward from Mr. Rahall, and Mr. Miller, and Mr. Dingell

12

and such, and this is the direction that we took from the discussions that occurred.

I just thank Mr. Walden and Mr. Pombo for capturing the essence of the consensus that we are trying to build so that we don’t

have to joke about this law any more.

Thank you, Mr. Chairman.

The CHAIRMAN. The gentleman from Washington?

STATEMENT OF THE HON. JAY INSLEE, A REPRESENTATIVE IN

CONGRESS FROM THE STATE OF WASHINGTON

Mr. INSLEE. Thank you, Mr. Chairman.

I just want to say that Mr. Tauzin made reference to seeing the

red eyes glowing at night in the swamp, and I just want to assure

I don’t care what color their eyes are, we are going to take care of

Cajuns in this Committee.

[Laughter.]

Mr. INSLEE. So thank you, Mr. Chair.

Mr. TAUZIN. The Cajuns with red eyes are on Bourbon Street.

[Laughter.]

The CHAIRMAN. Does the gentleman from Pennsylvania have an

opening comment?

Mr. PETERSON. No.

[The prepared statement of Mr. Jones follows:]

Statement of The Honorable Walter B. Jones, Jr., a Representative in

Congress from the State of North Carolina

Thank you, Mr. Chairman. I won’t take too much of the Committee’s time today.

I am growing increasingly frustrated with the National Marine Fisheries Service

policy of not listening to fishermen regarding the implementation of the Endangered

Species Act and the Marine Mammal Protection Act. These fishermen have generations of empirical data that the National Marine Fisheries Service has chosen to ignore on issues like summer flounder, bottlenose dolphins and now monkfish.

Carolina’s fishing families are suffering the consequences for the National Marine

Fisheries Service’s use of inaccurate data and the unilateral preservationist policies

of an elite few within the agency.

I want to briefly discuss an incident regarding the Endangered Species Act that

occurred in my district on Friday, March 15, 2002. Last Friday with no warning,

no cooperation and faulty data, the agency closed the monkfish fishery along the entire North Carolina coast due to purported turtle interactions.

During 2001, the National Marine Fisheries Service had nearly 100% observer

coverage in the monkfish fishery in North Carolina and Virginia and a total of 4

turtle interactions were observed during the entire fishing season. However, the

agency ignored this data while filing the ‘‘Final Interim Rule’’ and instead used data

showing more than 275 sea turtle ‘‘strandings’’ from the year 2000.

No Federal observation took place in the fishery in 2000. The agency merely assumes that the monkfish fishery is responsible for these strandings, whereas empirical evidence collected in 2001 show a minimal impact on turtles by the monkfish

fishery. Taxpayers paid for the observers to be aboard vessels in 2001. I wonder how

the taxpayer would react if they knew that the agency would dispose of this data

that they paid for.

I am glad we’re discussing empirical data and the use of sound science today. But

empirical data and sound science don’t mean a thing if they are not utilized by a

Federal agency during the decision-making process.

Lastly, I want to touch on the role of those directly impacted by this closure. My

constituents, North Carolina fishermen, personally discussed with Administrator

Bill Hogarth a voluntary, cooperative proposal for rolling area closures to address

the sea turtle issue. The proposal was endorsed by the North Carolina Division of

Marine Fisheries in a letter to the agency dated February 20, 2002. At this time,

I’d like to submit these and an additional clarification letter from a constituent of

mine, Jim Ruhle, for the record.

13

I would like to remind members of this Committee that conservation is not a parttime hobby for fishermen, it is a full-time job that feeds our families and theirs. To

get fishermen to come forward and endorse a closure, a closure that will negatively

impact his business, his employees, his customers and his family, is a profound example of resource stewardship that should be rewarded. Instead, the National Marine Fishery Service rejected this fair, equitable and flexible proposal.

One of the things we’ve learned from the 9/11 attack is that America needs a safe,

locally grown and caught food supply. This action will do little other than to unilaterally disarm our nation by putting our food supply at risk.

Once again, I respectfully request that my natural resource-dependent constituents receive better treatment from their Federal Government. Fishermen face

daunting regulations and mortal danger as a part of their livelihood. If my constituents are going to be able to ever trust a Federal agency, that Federal agency must

be accountable.

To provide an unbiased, equitable and accountable process is the most important

service you can provide, a process designed to allow input from the fishermen who

pay the bills of the National Marine Fisheries Service.

In closing, I would like to submit for the record the text of an e-mail sent to my

office yesterday that I think gets to the heart of the matter. Dale Farrow is one of

my constituents impacted by this closure. He has spent countless hours and dollars

in preparation for the monkfish season, now closed by the National Marine Fisheries Service. Dale asks for no change in current law, asks for no compensation from

his Federal Government for this closure. All he asks for is to be adequately notified

of closures, to be given a chance to compete, to do what he does best, and that is

to feed America’s families.

Thank you.

[The prepared statement of Mr. Pallone follows:]

Statement of The Honorable Frank Pallone, Jr., a Representative in

Congress from the State of New Jersey

Mr. Chairman, I oppose both of the two bills that are before the committee today

concerning the Endangered Species Act, H.R. 2829 and H.R. 3705. Protecting our

endangered species should be one of our top priorities; therefore we should not be

doing anything to undermine them. I have always been an ardent supporter of protecting endangered species, and I believe that these two bills are headed in the

wrong direction.

Neither bill is designed to promote sound science or to conserve imperiled species.

Rather, both bills are biased against species protection because they require additional independent reviews that would lead to delays in the decision-making process. Peer review policy has been part of the listing process by agencies and adhered

to since 1994. These two bills require further peer review at a number of steps,

which would not only slow down the decision-making process, but cost more money

and reduce flexibility for the agencies. The current Act requires the Services to

make biological decisions based upon the best scientific and commercial data

available, and therefore increased levels of review are not necessary. Agencies

should continue to develop their own policy, and the premise underlying these two

bills is that the agencies cannot be trusted to make decisions based on sound

science.

Decisions regarding the Endangered Species Act can always benefit from more

data, and Congress can support sound scientific decision-making under the

Endangered Species Act by appropriating more funds for basic science. However, enacting H.R. 3705 and H.R. 2829 would add costly bureaucracy and delay without

promoting sound science or furthering species conservation. They would also require

inappropriate deference to industry experts, ultimately leading to reduced species

protection efforts.

I strongly urge all of my colleagues to oppose both of these bills.

The CHAIRMAN. I thank the members for their opening statements and we will now start with Panel I.

We are very honored to have Craig Manson, the Assistant Secretary of Fish, Wildlife and Parks, Department of Interior.

Now, Judge, this is your first time in front of this Committee,

isn’t it?

14

Mr. MANSON. Yes, it is, Mr. Chairman, and I am very pleased to

be here.

The CHAIRMAN. We welcome you here. The judge has an enviable

record of what he has been able to do, and we are grateful that he

has decided to lend some of this valuable background he has had

with the Department of Interior, and we are honored that you

could be here with us today.

Rebecca Lent, Deputy Assistant Administrator of Fisheries,

National Marine Fisheries Service. We are grateful for you to be

here, also.

Ms. LENT. Thank you.

The CHAIRMAN. Now we are not going to limit these two folks to

time. We want to hear everything they have to say on this important issue.

Now the rest of you I hope you have got your presentations within 5 minutes because we are going to run out of time, as we do

around here. So we are looking forward to hearing from all of you

when your time comes, but we are going to have to limit you.

With that, Mr. Secretary, we will turn to you.

STATEMENT OF CRAIG MANSON, ASSISTANT SECRETARY FOR

FISH AND WILDLIFE AND PARKS, U.S. DEPARTMENT OF THE

INTERIOR

Mr. MANSON. I thank you very much, Mr. Chairman.

During the past several weeks, there has been much discussion

about the use of good science in our decisionmaking. We recognize

that individuals who have been directly impacted by the

Endangered Species Act view it as inflexible. Given the impact that

our resource management decisions have on communities and individuals, the species conservation decisions that we make must be

based on the best available science. Our data and scientific information must meet the highest possible ethical and professional

standards. At the outset, I want to say that improving our science

has been one of Secretary Norton’s highest priorities, and it will be

one of mine.

H.R. 2829 and H.R. 3705 seek to ensure independent scientific

review of the science underlying our decisions. Indeed, this is one

of the positive aspects we have taken out of the National Academy

of Sciences’ review of the U.S. Fish and Wildlife Service’s decisions

in the Klamath matter.

‘‘Independent scientific review’’ can be a broad concept that goes

beyond the traditional expectations of a simple peer review process.

With this thought in mind, I offer the following principles that we

believe will form a strong basis from which to work. We will keep

these principles in mind as we go forward in this process.

First, there is no monopoly on good science. The Department

must cast a broad net to take advantage of the independent scientific expertise of groups like the State Fish and Wildlife agencies.

We believe that this will ensure that our decisions are based on the

best available science, not just one group’s or another’s interpretation of the science.

We must also acknowledge that science is not exact, that even

expert opinions can differ. Where there are differing interpretations

of the science behind our decisions, we must provide opportunities

15

for both Department scientists and stakeholders to air those differences and, wherever possible, resolve them. It must be an open

process.

Finally, as I noted previously, our resource management decisions can impact both communities and individuals. For this reason, we need to implement a robust, independent review process for

significant resource decisions. Yet we must also recognize that not

all decisions have the same impact. The scientific review process

should reflect this fact, and it should have the flexibility to be adjusted accordingly.

Although we support the general concepts advanced by these

bills, we have concerns with structural and budgetary impacts of

enacting this legislation. We also believe that the Department has

existing authority to implement improvements that will greatly enhance the science that we use. For example, the Joint Fish and

Wildlife Service/National Marine Fisheries Service ‘‘Policy on Information Standards Under the Endangered Species Act,’’ published

in the Federal Register on July 1, 1994, provides criteria, establishes procedures, and provides guidance to field biologists and

managers regarding the use of scientific information in the decision

process. We must ensure that this policy is fully and effectively implemented.

We must also recognize that independent scientific review will

not, in and of itself, guarantee that good decisions are made. Thus,

other efforts to ensure that high standards of scientific integrity

and ethics are in place throughout the Department are vital to

maintaining public trust and confidence in our decisionmaking

processes.

At a hearing before this Committee on March 6, 2002, Dr. Steve

Williams, Director of the Fish and Wildlife Service, told the

Committee that he is in the initial stages of developing a multi-faceted approach to ensure and enforce high standards of scientific integrity and ethics in addressing the Fish and Wildlife Service’s responsibilities. I believe the steps outlined by Dr. Williams will provide long-term emphasis on professionalism and ethics.

At that hearing, Dr. Williams also conveyed our commitment to

fully utilize good science support in the administration of the ESA,

including bringing independent scientific expertise into that process. We plan to seek advice from respected wildlife management

professionals, academia, the States and the private sector. The Department is also examining which decisions and processes from all

bureaus, not just the Fish and Wildlife Service’s ESA activities,

would benefit from the addition of peer review. The findings of this

review will be rapidly implemented.

Another initiative that we are developing will assemble multidisciplinary teams that will be assigned to assist Fish and Wildlife

Service regional office staff on an as-needed basis. It is our belief

that utilizing these teams— to be made up of senior-level agency

staff—will bring both experience and multi-decisional thinking to

large-scale and difficult issues. We hope to implement this effort

soon.

We believe that all of these administrative initiatives are consistent with the intent of H.R. 2829 and 3705.

16

As I previously mentioned, we appreciate and support the intent

of these bills to further ensure the application of sound science and

peer review. Nevertheless, we do have concerns as they are currently drafted. In my written testimony, I go into quite a bit of detail on some of those issues.

In general, both bills offer prescriptive solutions and lack flexibility in implementation. For example, both bills prescribe which

decisions, regardless of the complexity of the underlying science or

nature of the underlying issues, would act as triggers requiring

independent scientific review.

We are additionally concerned that the considerable new process

required will impact the Fish and Wildlife Service’s ability to provide consultations and other decisions in a timely manner.

Mr. Chairman, our ultimate goal is to ensure that better decisions are made. We believe that independent scientific review can

help ensure that there is better science behind our ESA decisions.

Many of our policies encompass the principles and intentions behind H.R. 2829 and H.R. 3705. We look forward to working with

the Committee as we strengthen the scientific integrity of our decisions. I believe we need to be more creative and more consultative

as we move forward to improve the implementation of the ESA.

We hope we can develop a system that can contain stronger safeguards to ensure our decisions are grounded on sound scientific

footing, but yet have the flexibility to ensure that decisions which

truly need independent scientific review are the decisions that receive it. We are prepared to work with the Committee toward that

end.

Mr. Chairman, that concludes my statement, and I will certainly

answer any questions that you or any of the members have on this

important topic.

[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 and Members of the Committee, I am Craig Manson, Assistant Secretary for Fish and Wildlife and Parks at the Department of the Interior (Department). This is my first occasion to appear before you, and I appreciate the opportunity to present the Department’s views regarding H.R. 2829, the ‘‘Sound Science

for Endangered Species Act Planning Act of 2001,’’ and H.R. 3705, the ‘‘Sound

Science Saves Species Act of 2002.’’

We greatly appreciate the Committee’s interest in endangered species conservation. For the past several weeks, there has been much discussion about the use of

good science in our decision-making. We recognize that some individuals who have

been directly impacted by the Endangered Species Act (ESA) view it as inflexible.

Given the impact that our resource management decisions can have on communities

and individuals, the species conservation decisions we make must be based on the

best available science. Our data and scientific information must meet the highest

possible ethical and professional standards. At the outset, I want to say that improving our science has been one of Secretary Norton’s highest priorities, and it will

be one of mine.

H.R. 2829 and H.R. 3705 seek to ensure independent scientific review of the

science underlying our decisions. Indeed, this is one of the positive aspects we have

taken out of the National Academy of Science’s review of the U.S. Fish and Wildlife

Service’s (Fish and Wildlife Service) decisions in the Klamath matter.

‘‘Independent scientific review’’ can be a broad concept that goes beyond the traditional expectations of a simple peer review process. With this thought in mind, I

offer the following principles that we believe will form a strong basis from which

to work. We will keep these principles in mind as we move forward in this process.

17

First, there is no monopoly on good science. The Department must cast a broad

net to take advantage of the independent scientific expertise of groups like the state

fish and wildlife agencies. We believe that this will ensure that our decisions are

based on the best available science, not just one group’s, or another’s, interpretation

of the science.

We must also acknowledge that science is not exact, and that even expert opinions

can differ. Where there are differing interpretations of the science behind our decisions, we must provide opportunities for both Department scientists and stakeholders to air those differences and, wherever possible, resolve them. It must be an

open process.

Finally, as I noted above, our resource management decisions can impact both

communities and individuals. For this reason, we need to implement a robust, independent review process for significant resource decisions. Yet we must also recognize that not all decisions have the same impact. The scientific review process

should reflect this fact, and it should have the flexibility to allow it to be adjusted

accordingly.

Although we support the general concepts advanced by these bills, we also have

concerns with the structural and budgetary impacts of enacting this legislation. We

also believe that the Department has existing authority to implement improvements

that will greatly enhance the science we use. For example, the joint Fish and Wildlife Service/National Marine Fisheries Service (NMFS) ‘‘Policy on Information

Standards Under the Endangered Species Act,’’ published in the Federal Register

on July 1, 1994 (59 FR 34271), provides criteria, establishes procedures, and provides guidance to field biologists and managers regarding the use of scientific information in the decision process. We must ensure that this policy is fully and effectively implemented.

We must also recognize that independent scientific review will not, in and of

itself, guarantee that good decisions are made. Thus, other efforts to ensure that

high standards of scientific integrity and ethics are in place throughout the Department are vital to maintaining public trust and confidence in our decision-making

processes.

At a hearing on March 6, 2002, Dr. Steve Williams, Director of the Fish and Wildlife Service, told this Committee that he is in the initial stages of developing a

multi-faceted approach to ensure and enforce high standards of scientific integrity

and ethics in addressing the Fish and Wildlife Service’s responsibilities. We believe

that the steps outlined by Dr. Williams will provide long-term emphasis on professionalism and ethics.

At that hearing, Dr. Williams also relayed our commitment to fully utilize good

science support in the administration of the ESA, including bringing independent

scientific expertise into that process. We plan to seek advice from respected wildlife

management professionals, academia, States, and the private sector in this endeavor. The Department is also examining which decisions and processes from all bureaus—not just the Fish and Wildlife Service’s ESA activities—would benefit from

the addition of peer review. The findings of this review will be rapidly implemented.

Another initiative that we are developing will assemble multi-disciplinary teams

that will be assigned to assist Fish and Wildlife Service regional office staff on an

as-needed basis. It is our belief that utilizing these teams—to be made up of seniorlevel agency staff—will bring both experience and multi-dimensional thinking to

large-scale and difficult issues. We hope to implement this effort soon.

We believe that all of these administrative initiatives are consistent with the intent of H.R. 2829 and H.R. 3705.

As I previously mentioned, we appreciate and support the intent of these bills to

further ensure the application of sound science and peer review. Nevertheless, we

do have concerns with the bills as currently drafted. We believe that the additional

processes added by the two bills would be costly to implement. These process issues

include, for example, assembling and compensating the independent review boards

and implementing the review board provisions themselves. Moreover, both bills offer

prescriptive solutions and lack flexibility in implementation. For example, both bills

prescribe which decisions—regardless of the complexity of the underlying science or

the nature of the underlying issues—would act as triggers requiring independent

scientific review.

We are concerned that the considerable new process required in both bills will impact the Fish and Wildlife Service’s ability to provide consultations and other decisions in a timely manner and, in some cases, may compromise the Fish and Wildlife

Service’s ability to meet statutory deadlines. For example, Section 3 of H.R. 2829

requires that all listing decisions, de-listing decisions, development of recovery

plans, or jeopardy findings, must be reviewed by an independent panel before

becoming final, with an opinion to the Secretary within 3 months. For listing

18

decisions, it would be difficult to accommodate this three month provision and still

meet the one year statutory time frame between proposed and final rule-makings.

The bill would make it necessary to extend comment periods to a minimum of 120

days.

Section 3(c) of H.R. 3705 contains similar review provisions that are equally problematic. Neither bill would extend the existing statutory deadlines for making decisions on petitions. With the additional time needed to comply with these new requirements and the increased workload imposed by these and other provisions in

the legislation, it is likely that the Department would not be able to meet the statutory deadlines in many cases, opening the door to additional litigation.

Similarly, section 3(d) of H.R. 3705 would allow ‘‘any person’’ to request an independent review of jeopardy Section 7 biological opinions. Currently, the Fish and

Wildlife Service is obligated to provide an opinion within 135 days of the request

unless the time period is extended by mutual consent. The process in H.R. 3705

would increase the time period by at least 120 days, and probably longer. It should

also be noted that allowing any person to request review of these findings would

invite persons not associated with a particular consultation process to request review of information developed through that process. In particular, it would allow an

individual or organization who wanted stronger or more restrictive reasonable and

prudent alternatives (RPAs) attached to the opinion—not just an unhappy applicant—to trigger the review process. The resulting delay in reaching a final decision

could have a detrimental economic impact on an applicant willing to accept the proposed RPAs.

Mr. Chairman, our ultimate goal is to ensure that better decisions are made. As

I previously stated, we believe that independent scientific review can help to ensure

that there is better science behind our ESA decisions. Many of our policies, both in

existing practice and new initiatives, encompass the principles of, and many of the

intentions behind, H.R. 2829 and H.R. 3705. I have presented, in very summary

fashion, some of the general implementation problems that we have identified in

these bills. We look forward to working with the Committee as we strengthen the

scientific integrity of our decisions. I believe we need to be more creative and consultative as we move forward to improve our implementation of the ESA.

We hope that we can develop a system that contains stronger safeguards to ensure our decisions are grounded on sound scientific footing but, yet, has the flexibility to ensure that the decisions which truly need independent scientific review are

the decisions that receive it. We stand ready to work with the Committee toward

that end.

Mr. Chairman, this concludes my prepared statement. I will be pleased to respond

to any questions you may have.

The CHAIRMAN. Thank you, Mr. Secretary. We appreciate your

statement.

Dr. Lent, you folks notice on the back wall we have a bunch of

lights on, and we have got four votes coming up, but I think we

can get your testimony in, and I would like to before we break for

a vote. So we will turn the floor to you, ma’am.

STATEMENT OF REBECCA LENT, Ph.D., DEPUTY ASSISTANT

ADMINISTRATOR FOR FISHERIES, NATIONAL MARINE

FISHERIES SERVICE, NATIONAL OCEANIC AND

ATMOSPHERIC ADMINISTRATION [NOAA]

Ms. LENT. Thank you, Mr. Chairman.

The CHAIRMAN. Pull the mike closer to you.

Ms. LENT. It is my first time, too. Thank you, Mr. Chairman, and

thank you to the members of the Committee.

I appreciate the opportunity to come here and talk about NMFS’s

views on the proposed legislation. Dr. Hogarth asked that I reiterate our commitment at the Fisheries Service to improving the

quality and the quantity of data that we use in our policy decisions,

also reiterate our commitment to issue a biological opinion, a draft

biological opinion, by April 12th so that we can be on our way to

delivering water to the farmers in the Klamath.

19

The National Marine Fisheries Service supports efforts to improve the quality of science used in implementing the ESA. Our

goal is to ensure that Federal policy decisions are based on the best

scientific and commercial data available. We are working closely

with our partners at the Fish and Wildlife Service to find the ways

that we can improve Federal implementation of ESA, the administrative process, the science. We appreciate the efforts made by Congress and the members of this Committee to seek ESA decisions

that are based on better science and the use of peer reviews.

As my colleague mentioned, we did implement standards in 1994

to provide better direction for information for science-based decisions. These promote the evaluation of all scientific and commercial

information to ensure that it is reliable, credible, impartial and

that it represents the best available science. Data and science

evolve. We always have more to learn, and we need to get that information and those data incorporated into our decisions.

Our policy is that ESA listing, delisting, biological opinions and

jeopardy decisions be based on primary and original sources and

that they be reviewed at the management level to verify their scientific credibility. We do consider information from a range of entities, including local, State and Federal agencies, tribal Governments, academic and scientific groups and private citizens, private

sector groups.

The opinions of independent peer reviews are summarized in biological opinions. We get our peer reviewers from the academic and

scientific community and the private sector. The peer reviews don’t

always support our decisions, but we consider them carefully in

reaching our final decisions.

Some of the policies and practices that we already have in place

are similar to those in 2829. Using data, we use data from landowners, we use data from fishermen in reviewing our decisions,

and the listing process and recovery planning. We use information

from the States in making listing determinations and recovery

plans. And listing determinations and recovery plans are peer reviewed.

Although we are already implementing these measures, we are

willing to review our existing procedures to see how they might be

improved. We are concerned, as our colleagues at Fish and Wildlife

Service, that some of the requirements in 2829 could make it more

difficult for us to meet statutory deadlines. Improvements are possible we know, but we need to issue biological opinions that meet

timeliness and satisfy other legal requirements.

We are also concerned that some of the provisions of H.R. 3705

could result in delays in issuing biological opinions, and that could

impede economic activities that are awaiting decisions of those biological opinions. Allowing a third-party review could extend listing

determinations by 285 days. So more time could improve the scientific review, but it also limits our ability to expedite processing

of biological opinions that often seem to be urgent activities.

So, while we have concerns about these bills, we want to work

with you to continue to ensure that NMFS’s actions under ESA are

based on the best scientific and commercial data available, we want

to improve the quantity and quality of data available, we want to

20

work with Congress and our partners at the Fish and Wildlife

Service to see that we reach these goals.

Mr. Chairman, I want to emphasize that the scientists at the

Fisheries Service are some of the best fishery biologists and marine

mammologists in the world. Some of them are leaders in their field.

We don’t always fully understand the complex relationships between fish and mammals. We want to extend the funding allowance, we want to improve our understanding of living marine resources, natural history, environmental factors, but in the meantime we are using, and we will continue to use, the best scientific

information available to guide us to make our decisions. When we

don’t have perfect information, we still need to make those decisions.

Thank you, Mr. Chairman. Thank you, members of the

Committee.

[The prepared statement of Ms. Lent follows:]

Statement of Dr. Rebecca Lent, Deputy Assistant Administrator for

Fisheries, National Marine Fisheries Service, National Oceanic and

Atmospheric Administration, U.S. Department of Commerce

Mr. Chairman and members of the Committee, I am pleased to be here today on

behalf of William Hogarth, the Assistant Administrator for the National Marine

Fisheries Service (NMFS). I welcome the opportunity to discuss with you our views

regarding H.R. 2829 and H.R. 3705, two bills that would amend the Endangered

Species Act of 1973.

Although both H.R. 2829 and H.R. 3705 specifically address the Department of

the Interior’s implementation of the Endangered Species Act (ESA), NMFS welcomes the opportunity to comment on these bills as they affect ESA decisionmaking

generally NMFS supports the goals of improving the quality of science used to implement the ESA and to ensure that Federal policy decisions are based on the best

scientific and commercial data available We are already working with the United

States Fish and Wildlife Service (FWS) to identify areas where we can improve Federal implementation of the ESA administratively

Before I comment more specifically on the bills, I would like to outline our current

process for utilizing scientific data and information on ESA-related actions.

NMFS is a partner with the FWS in implementing the Endangered Species Act.

Together, we have sought to administer the ESA efficiently and consistently while

using the best available scientific and commercial data. This is sometimes difficult,

particularly when policy decisions must sometimes be made with data or science

that is still developing. NMFS is responsible for over 50 listed species that are, for

the most part, wide-ranging, highly migratory and cover millions of square miles of

ocean and thousands of miles of U.S. rivers, streams and coastline. Several species

are co-managed by NMFS and FWS, such as the Atlantic salmon and four species

of sea turtles Others include anadromous and freshwater species that migrate

through the same watersheds, and require close coordination between the agencies.

The ESA requires the Services to use the best available scientific and commercial

data when implementing the Act. That is the standard we use for listing determinations as well as writing biological opinions In 1994, NMFS and FWS provided further guidance to our staffs through policies on information standards and peer review. Let me describe those policies in greater detail.

Information Standards.

To assure the quality of the biological, ecological and other information utilized

by the Services to implement the Act, we require NMFS biologists to evaluate all

scientific and commercial information that will be used to make decisions under the

Act to ensure that the information is reliable, credible, and represents the best

available. Further, our biologists gather and impartially evaluate biological, ecological and commercial information that disputes official positions, decisions, and actions proposed or taken by the Services, and they are required to document their

evaluation of information that supports or does not support a position being proposed as an official agency position on a status review, listing actions, recovery

plans, biological opinions or permits.

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Also, they must use primary and original sources of information as the basis for

recommendations to place a species on the list of candidate species; add a species

to the threatened and endangered list; remove a species from the list; designate critical habitat; revise the status of a species, issue a scientific research or incidental

take permit, or make a determination that a Federal action is likely to jeopardize

a species or destroy or adversely modify critical habitat. These sources are retained

as part of the administrative record supporting an action and referenced in all Federal Register notices and biological opinions. Further, the Services must conduct

management-level review of documents developed and drafted by Service biologists

to verify and assure the quality of the science used to establish official positions,

decisions, and actions taken by the Services to implement the ESA.

Peer Review

It is NMFS’ policy to incorporate independent peer review in listing and recovery

activities during the public comment period. For listing, we solicit the expert opinions of three appropriate and independent specialists regarding pertinent scientific

or commercial data and assumptions relating to the taxonomy, population models

and supportive biological and ecological information for species under consideration

for listing. We summarize in the final decision document the opinions of all independent peer reviewers and include all reports, opinions and other data in the administration record of the final decision.

For recovery plans, we actively solicit independent peer review to obtain all

available scientific and commercial information from appropriate local, state and

Federal agencies, tribal governments, academic and scientific groups and any other

party that may possess pertinent information during the development of recovery

plans. Where appropriate, we use independent peer review to review scientific data

relating to the selection or implementation of specialized recovery tasks. We summarize in the final recovery plan the opinions of all independent peer reviews requested to respond and include the reports and opinions in the administrative

record.

It is our policy to select peer reviewers from the academic and scientific community, tribal and other native American groups, Federal and State agencies and the

private sector. Those selected must have demonstrated expertise and specialized

knowledge related to the scientific area under consideration.

If there is a scientific disagreement concerning the listing of a species, the ESA

provides for NMFS to extend the statutory rulemaking deadline for six months to

consider the uncertainty. NMFS may appoint a special independent peer review

group to resolve any unacceptable level of scientific uncertainty. The results of this

review become part of the permanent administrative record. The public is given an

opportunity to review reports and provide comments for actions where there is a formal public comment period such as listing, designating critical habitat and developing a recovery plan.

We devote a significant portion of our budget to ensure that our scientists stay

up-to-date in their respective fields, and that they incorporate state-of-the-art analytical techniques and methods to assess and understand species and their ecosystems. Science is a vital component to the development of sound ESA decisionmaking. That is why nearly half of NMFS’ full time employees across the nation

work in the Protected Species program in our Science Centers.

Contents of Petitions

In 1996, NMFS and FWS published specific guidance on what a petition must include before it will be accepted. This guidance covers petitions to list a species, petitions to change the status of a species, or to designate critical habitat. The 1996

guidance augments information standards outlined in joint–NMFS and FWS regulations issued in 1984.

Role of States

NMFS and FWS recognize the important role of States in species recovery, and

have worked to foster partnerships with States in this regard. In 1994, the Services

published a policy clarifying the role of States in activities undertaken by the NMFS

and FWS to implement the ESA. Whether through species conservation prior to listing, listing itself, consultations, habitat conservation plans or recovery plans, we acknowledge that States possess broad trustee responsibilities over fish, wildlife and

plants and their habitats. We agree that state agencies compile valuable scientific

data and expertise on the status and distribution of species.

State agencies also have close working relationships with local governments and

landowners and are in a unique position to assist NMFS and FWS with species conservation. With regard to biological opinions, it is Service policy to inform state

agencies of Federal actions that may adversely affect listed species and to request

22

information from the States that would assist the Services in analyzing the effects

of the action. The Services and/or the appropriate Federal agency provide States

with copies of the final biological opinion, and we encourage Federal agencies to

share draft biological opinions with the States when the opinion may affect state

activities.

Time Allowed for Peer Review, Science and Biological Opinions

As Dr. Hogarth testified last week before the House Resources Committee hearing

on the National Academy of Sciences report on the Klamath Basin, NMFS is aware

of concerns about the scientific validity of the information used to develop biological

opinions, and we are now in the process of addressing these concerns in the biological opinion for the Klamath Basin. However, NMFS is required by law to make decisions based upon the best scientific and commercial data available. In writing a biological opinion we use all the information available to us. Frequently, information

used to develop an opinion is derived from a biological assessment or evaluation

that is submitted from the agency or entity requesting consultation, and NMFS cannot control whether the information in such an assessment has previously been peer

reviewed.

Both NMFS and FWS issue a large number of biological opinions every year.

While we would, of course, prefer to always use information that has first been peer

reviewed, time constraints do not always allow that to occur. The statutory time

frame for completing biological opinions is short. Under existing procedures, action

agencies and applicants are permitted to review and comment on draft opinions and

may extend the consultation schedule to insure that they have a reasonable amount

of time to conduct their review. They may also seek additional review by outside

experts.

Views on H.R. 2829 and H.R. 3705

H.R. 2829, the ‘‘Sound Science for Endangered Species Act Planning Act,’’ would

require the Secretary of the Interior to give greater weight to scientific or commercial data that is empirical or has been field-tested or peer-reviewed. While we support the goal of basing our decisions on sound science and peer reviewed science,

we believe that if we give greater weight to scientific or commercial data that is empirical or field tested, when evaluating comparable data, we may not be using the

best information available. There are other scientific methods (e.g., modeling and

statistical analyses) that produce valuable scientific data. It is usually a combination of various types of scientific data that form the basis of our evaluations.

Our current policies and practices already reflect some of the language in this bill.

For example, we do request data from landowners or any other party with information about a species when we are in the process of listing a species or preparing

a recovery plan. This information becomes a part of the administrative record. Peer

review is already required for listing determinations and development of recovery

plans. However, this bill’s requirement for peer review (e.g., recommendations from

the National Academy of Science, compensation for peer reviewers and including

jeopardy biological opinions found in Section 3) goes beyond what is in place now

by the Service and would make it more difficult to meet the statutory timeframe

for ESA decisions.

Section 4 of the bill calls for the use of information from states for recovery plans.

Again, this is a current practice of the Service and often, there is a state representative on the recovery team itself. NMFS supports opportunities for the action agency

and the applicant to participate in the development of biological opinions and, in

fact, our regulations cover some of the proposals here. We would be glad to work

with the Committee to expand meaningful participation in a way that, again, would

be within the statutory deadlines for completing opinions.

H.R. 3705, the ‘‘Sound Science Saves Species Act of 2002,’’ also covers using

sound science by addressing the contents of petitions to list a species and independent peer review of ESA decisions including jeopardy biological opinions. I will

focus my remarks on Section 3(d) and the requirement for independent peer review

of jeopardy biological opinions.

NMFS is concerned that this proposal could interfere with existing or new economic activities that require a biological opinion, because it could block the action

agency or applicant from taking any action for at least 30 days after receiving a biological opinion if any third party requests independent scientific review of the opinion. By itself, this language extends the consultation period from 135 days to 165

days. The additional 90 days for scientific review would extend the consultation to

255 days, and public notice requirements would extend the consultation to 285 days.

Even without the additional administrative procedures, these provisions more

than double the amount of time needed to complete consultations. These changes

23

would not necessarily change the outcome, increase the degree to which action

agencies or applicants are involved in the outcome, or increase the scientific rigor

of the consultation. At the same time, they would limit the flexibility and authority

of the Secretary to expedite the processing of biological opinions for urgent activities.

In addition, the provisions requiring the establishment and selection of Independent Scientific Review boards could duplicate or compete with existing Federal,

state, tribal, and local efforts to provide personnel and resources for peer review of

ongoing species recovery projects, such as the Independent Scientific Review Panel

that currently reviews hundreds of millions of dollars worth of salmon recovery

projects in the Columbia River Basin in the Pacific Northwest.

Mr. Chairman, while we express concerns with some provisions of these bills, we

recognize that we must continue to ensure that all actions taken to implement the

Endangered Species Act are performed using the best scientific and commercial information and data available. We must also strive to improve the quantity and quality of data available. We look forward to working with Members of Congress and

our partners at the FWS to bring about more effective implementation of the

Endangered Species Act.

This concludes my testimony, Mr. Chairman. I would be glad to answer any questions you may have.

The CHAIRMAN. I thank you, Dr. Lent.

We are going to stand in recess and try to get everybody back

just as soon as we can. We have a series of four votes. So relax,

folks, because we are going to be about a half-hour or better.

Thank you.

[Recess.]

Mr. POMBO. [Presiding.] If we could call the hearing back to

order. If I could have our first panel rejoin us at the witness stand.

I call the hearing back to order. First off, I would like to apologize to our panel and all of our witnesses for the delay in the hearing for the recess. It was beyond our control, but I apologize to you

for that.

Mr. Manson, I would like to start with you, if I may. Can you

describe for me and maybe clarify what the current peer review

process is that you have adopted or that the Agency has adopted

by rule. What process do you have to go through in order to peer

review?

Mr. MANSON. Right. I think you are referring to what I referred

to in my testimony, the 1994 policy in the Federal Register. What

that policy requires is that the Fish and Wildlife Service, in its various decisions, consider a range of information. In fact, I will just,

if you don’t mind, turn to it, as it appeared in the Federal Register

in 1994.

On listing, it says, ‘‘Solicit the opinion of three appropriate and

independent specialists, summarize in the final decision document

the opinions of those independent peer reviewers.’’ A same sort of

process is, a similar process is required for recovery, although it

doesn’t indicate a number of peer reviewers. It just says, ‘‘Utilize

the expertise and actively solicit independent peer review and document the use of that peer review.’’ It does indicate that they

should be selected from academic, and scientific, and tribal, and

Federal and State agencies.

Mr. POMBO. Is that a requirement on a listing or other decisions

that are made?

Mr. MANSON. In listing, it is a requirement, and on recovery

planning it is a requirement.

24

Mr. POMBO. Is it required that they review all of the scientific

data that has been collected?

Mr. MANSON. When you say ‘‘all of the scientific data that has

been collected,’’ the policy itself would require that they review that

that is collected from the independent peer reviewers who are selected, if that makes sense.

Mr. POMBO. Maybe you could explain that to me.

Mr. MANSON. Well, it does not explicitly require a review of all

of the independent data that may exist, but only that which comes

from the selected peer reviewers.

Mr. POMBO. What if an outside organization developed a biological opinion and submitted that to be reviewed by Fish and Wildlife

as part of a listing process?

Mr. MANSON. If they did it in the course of the public comment

period on the rule, that would be reviewed.

Mr. POMBO. And what if it was not part of that process?

Mr. MANSON. Then there is no requirement that it be reviewed.

Mr. POMBO. One of the issues that has been raised is that if we

actually went through and put a requirement of a peer review process in place on a number of different decisions, that it would delay

or take up a period of time in the process. Could you comment on

that, in terms of balancing a requirement for more accurate or in

the search of more accurate scientific information versus make any

quick decision.

Mr. MANSON. Yes, I can tell you this, that the goal should not

be to make quick decisions. The goal should not be to make quick

decisions. The goal should be to make decisions that have scientific

integrity in them.

Now there is no doubt that some process of peer review might

lengthen that process. It does not have to be one that unnecessarily

delays a timely decision, and by timely I mean one that is made

with all due deliberation given the scientific evidence. So I think

there are ways to craft a peer review process and put it in place

without unduly delaying a timely decision.

The concern that we have with the particular bill, as it is drafted, is that it conflicts with some of the other existing timeframes

that are already in the act.

Mr. POMBO. The statutory deadlines.

Mr. MANSON. Right. Right.

Mr. POMBO. Would an adjustment to those statutory deadlines so

that it fits within a balance in terms of the search for better scientific information, you know, instead of just putting an arbitrary

deadline in, could we adopt a deadline which matches with a better

effort in obtaining science?

Mr. MANSON. That is certainly a possibility. We would be willing

to come up with the Committee on coming up with a process that

didn’t run afoul of the other statutory deadlines or however it

would be that we could fit these two processes together.

Mr. POMBO. Thank you. My time has expired.

Mr. Faleomavaega?

Mr. FALEOMAVAEGA. Thank you, Mr. Chairman. I want to thank

Secretary Manson and Ms. Lent for their testimony this afternoon.

I think both witnesses made reference to a publication or a regulation issued in 1994. This is the Policy on Information Standards

25

Under the Endangered Species Act. If I quote just specifically some

of the provisions, ‘‘To ensure that any information used by the

services to implement the act is reliable, credible and represents

the best scientific and commercial data.’’

In addition to that, they are also required to ‘‘gather and partially evaluate biological, ecological and other information that disputes official positions, decisions and actions proposed or taken by

the services during the implementation of the act.’’

I don’t know if I misquoted that specific provision that both of

you made reference to. Do the Agency biologists, are they expected

to adhere to that policy?

Mr. MANSON. Yes.

Mr. FALEOMAVAEGA. Ms. Lent?

Ms. LENT. Yes, sir, that is our policy.

Mr. FALEOMAVAEGA. Is there any way that this policy can be interpreted in any other way so that it does not become confusing for

those who implement the provisions of the act?

Mr. MANSON. Well, I don’t know if it is confusing or not. I do

know that obviously there has been, in the news and in the public

arena, discussion of scientific issues where we may not have had

the very best science and not considered all of the information that

might have been available, and we are moving to fix that. I made

reference to Director Williams’ management initiatives, which include a Code of Ethics for scientists in the Department as well.

So, to the extent that the policy is not clear, that I think is a

management problem, and we are moving to deal with that.

Mr. FALEOMAVAEGA. I also noted, Mr. Secretary, that I take it

this must be the official position of the administration that the two

bills are too costly? It appears that the current administrative procedures are quite adequate to meet the requirements of the law,

and it seems you also mentioned that the bills also lack flexibility.

I think this seems to be the very issue of the bottom-line issue

of why we are here today.

Mr. MANSON. Right.

Mr. FALEOMAVAEGA. It seems to suggest that it does not have the

flexibility, at least the current provisions of the law. But I have

just cited you with this policy standard that was provided in 1994,

and I had asked earlier are there any provisions of this policy information standard that you feel is not confusing, that seems to be

quite clear and is stated quite clearly? I mean, is there any area

that there could be differences of interpretation on how the phrases

of this standard could be taken differently than the way that it is

currently being implemented?

I am just trying to—

Mr. MANSON. I personally don’t think so. I think it is clear, certainly clear to me, but again, if there have been instances where

it has not been adhered to, then those are appropriate for us to

deal with from a management perspective.

But, in addition, we continue to believe, as I said in my testimony, that we need a more robust independent scientific review

process, and we think that we can accomplish that, and we are

ready to work with the Committee to see that we move in that direction.

26

Mr. FALEOMAVAEGA. Correct me if I am wrong, Ms. Lent. You

seem to suggest in your testimony that the two bills proposed

would only extend delays in the process of implementing the

Endangered Species Act. It does not expedite the work. It seems

that that is just the opposite of what the bills are trying to do is

to expedite the work and not to make any more unnecessary

delays. I may be wrong on this, but am I wrong in interpreting

what you stated in your testimony, Ms. Lent?

Ms. LENT. You are correct, Mr. Congressman. There are areas

where we feel this could delay consultation, for example, and delay

people being able to move ahead with their economic activities.

However, I also emphasize that there are some areas in the bills

that we are already implementing, and we are pleased to see that.

We have a peer review process, and a process, and standards for

scientific and commercial data, and we are pleased that there are

those areas of overlap.

To the extent that these policies in 1994 are not clear, we continue to develop guidance, and guidelines, and training for our staff

to make sure this is clear, and it is consistently applied.

Mr. FALEOMAVAEGA. Mr. Chairman, could I have one more question?

Given the recent announcement made by the National Academy

of Science, what is basically the administration’s response to the

concerns that were issued by the National Academy of Science? Is

there any merit to their concerns? Is the administration going to

seriously address it or just continue things the way they are?

Mr. MANSON. Let me start off on that.

We took the National Academy report very seriously, and as a result there is, in the Klamath Basin, a new consultation process underway, and both of the services, the National Marine Fisheries

Service and the Fish and Wildlife Service, expect to have a draft

biological opinion out by April the 12th, which is enough time to

move the process along so that the season can start timely up

there.

The second thing I would say is that, as we have looked at the

whole issue of science and the way science is done and applied in

the Department of Interior, at least, that is where it was an opportunity, the National Academy report was an opportunity for us to

develop the principles that I laid out in my testimony. That, along

with other issues, presented an opportunity for Director Williams

to develop his management plan that he laid out before the

Committee on March the 6th.

So business will be done differently in the Department of Interior. Now let me add to that that we have many, many outstanding

employees who do an excellent job. We think the new measures

that Dr. Williams has laid out will strengthen those employees who

have done an excellent job and will give guidance to those who

need particular guidance. I like to think of the process as one of

continuous improvement, and that is where we are going in Interior at least.

Ms. LENT. If I may add to that, Mr. Congressman, we also, at

the Fisheries Service, take this National Academy of Sciences’ review very seriously. We have gone through the interim report, we

have written to the National Academy of Sciences with some

27

follow-up questions. We will be able to incorporate their responses

to the follow-up questions in our final biological opinion, and the

draft biological opinion on April 12th will also reflect what we have

learned through this process.

Thank you.

Mr. FALEOMAVAEGA. Thank you, Mr. Chairman.

In the interest of time, Mr. Chairman, I would like to ask unanimous consent to submit this list of questions for our friends to respond to and be made part of the record.

Mr. POMBO. Without objection.

Mr. FALEOMAVAEGA. Thank you, Mr. Chairman.

Mr. POMBO. Mr. Walden?

Mr. WALDEN. Thank you very much, Mr. Chairman.

I understand, from what I have heard, one of your concerns is

this bill, either bill, would be too costly. Can you tell me what a

peer review costs?

Mr. MANSON. Well, for example, if we are talking something on

the scale of the National Academy report, then are talking many,

many, many thousands, tens of thousands of dollars.

Mr. WALDEN. And that would be a fairly expansive look, right,

for peer review?

Mr. MANSON. Right.

Mr. WALDEN. So tens of thousands of dollars is a pretty good estimate.

Mr. MANSON. I don’t have an exact figure for what something

like Klamath would cost, but I can get that for you.

Mr. WALDEN. All right.

Mr. MANSON. In fact, I am told that it was $385,000.

Mr. WALDEN. Do either of you have an extra $134 million in your

account?

Mr. MANSON. No.

Mr. WALDEN. You don’t. Because I ask that, and I do it in a

semi-serious way because that is the economic loss, according to

Oregon State University, based on the decisions of your agencies

that the National Academy of Sciences has said was not based on

sound science.

Mr. MANSON. Right.

Mr. WALDEN. So I am willing to spend $300,000 to get it right,

to get a second opinion at least. I hope the administration understands the significance of the importance of getting good peer review.

Dr. Lent, can you explain for me the peer review that was done

on the Hardy studies, the flow studies on the Klamath River,

Hardy I and the current data that is being used under Hardy II?

Ms. LENT. I understand that the Hardy II study was not peer reviewed.

Mr. WALDEN. Was Hardy I?

Ms. LENT. I am not aware of whether it was or not.

Mr. WALDEN. Can you describe for me how those data are collected and for whom they are being collected?

Ms. LENT. Under the Hardy study, Mr. Congressman?

Mr. WALDEN. Yes.

Ms. LENT. I am not aware of the specifics of that. I can certainly

get back to you on that. Again, the policy of the Agency is to use

28

data from all sources and consider all sources of data. There may

be more weight given to data and studies that are peer reviewed.

Mr. WALDEN. Do you think there should be more weight given

to those studies that are peer reviewed?

Ms. LENT. We believe in the peer review process. However, we

often have to take decisions based on whatever information, best

information available. Sometimes it is information that is not peer

reviewed. It is information provided by user groups, buy fishermen.

Mr. WALDEN. So you wouldn’t object to the provisions in my bill

then that allow for landowners to simply submit and have their

data acknowledged.

Ms. LENT. Absolutely, Mr. Congressman, and we already do that.

Mr. WALDEN. The criteria that I have heard outlined today,

which sounds good, I am glad your agencies are taking these steps,

and that is really done administratively, isn’t it?

Mr. MANSON. That is right.

Mr. WALDEN. Is there anything that would preclude the next administration, if it were to be a different color on the maps, from

having different administrative requirements regarding these

issues?

Mr. MANSON. Well, frankly, that is why there are elections.

Mr. WALDEN. Thank you, and I am glad of the outcome of the

last one. But that is my point, is that while you are making steps

that I personally think are valid and good, and I even hear from

the minority side that they think these criteria are good, there is

nothing to stop some other administration from reversing that now,

is there?

And so that is part of why I think we ought to get together and

figure out a way to put it into statute so we have some long-term

consistency here, so that the data we use we can rely upon and

know that it has at least been peer reviewed and is sound, we get

a second opinion, because I have just seen too much hardship and

loss in the Klamath Basin.

I am not here, despite the environmentalist news releases that

are floating around, to gut the ESA. I am here to try and get agreement where we can have sound science and know it, where we can

get a second opinion. You have to have that to even publish a medical journal, I believe. Most scientific journals require peer review,

don’t they, before you can publish? Should we ask for anything less

than that in these decisions?

So I hope you will work with us, as you have indicated you will,

to work out the timeline conflicts because I think those are real,

they are not intentional, and I appreciate your willingness to work

with us on that.

Dr. Lent, how would you rectify a situation where an employee

did not abide by the process that you have outlined in your testimony regarding the way information is collected and used?

Ms. LENT. Mr. Congressman, I think the most important way to

deal with that is to have the training and the information up front

on how these activities under ESA are conducted. These documents

are reviewed at the management level, and we have accountability,

both at the employee level and the management level for those reviews.

29

Mr. WALDEN. There are issues that have come to light before this

Committee in the last few months involving scientists that knew

what they were doing was wrong when they submitted lynx hairs

to try to test the lab, and they had an alternative way to do it.

There is a report out just now, last week, I believe, about I think

it was the Forest Service on spotted owl timber sales, that now taxpayers have spent upwards of $24 million because they did overflights and said this looks like habitat, but never did the on-theground work, and a court ruled that they were arbitrary and capricious in their actions. That is the Forest Service, I realize it is not

your agency, but I hope you can understand why some of us are

as concerned as we are about trying to get back to where we can

trust the science we are getting, trust the decisions we are having

to live under and why we feel so forcefully. It is not meant personally at all, it is just from conviction that something has to change.

Thank you, Mr. Chairman.

Mr. POMBO. Mr. Otter?

Mr. OTTER. Thank you very much, Mr. Chairman.

Thank you folks for being here. I apologize for not getting here

early enough to hear your verbal testimony, but I assure you I will

read the written testimony that you have submitted.

I would like to continue along the lines a little bit of Mr. Walden

because coming from Idaho, both Mr. Walden and I have faced

many of the same problems.

One of the things that I am most concerned about is that it appears to me that one Federal agency uses one set of science, another Federal agency uses a different set of science in pursuit of

the same laudable goal, and that is the survival of the species,

whether it be plant or animal.

I would be in hopes that we could do two things. No. 1, we could

get a scientific basis upon which all of the Government could agree

is valid, and therefore would be providing us with answers that we

can go forward and do the correct thing, but I think something

needs to happen long before we arrive at that station. I think you

two individuals are going to have an awful lot, a large role to play

in that because in Idaho right now, you know, I have got 650,000

people that live and work on the watershed. Everything they do,

they have been born on that watershed generation after generation,

and lived, and worked, and recreated, and raised their families,

and when they die, we dig up part of that watershed and put them

in that grave and replace the watershed.

The problem right now is everybody is suspicious of a Government report. Can you imagine what would happen to an individual

with, as Mr. Walden said, the folks in Wenatchee National Forest

were truly valid in their effort to test the voracity of the labs that

were testing the lynx hair, can you imagine what would have happened to the logger that went into that test area and pulled the

hair off of that test patch? Can you imagine what would have happened to anybody that filed an IRS report which was in error to

test the voracity of the accountants and the tax lawyers at the IRS?

How can this Government ever again go forward with an individual and a private citizen and hold them responsible for action

that they have done on purpose and still have 12 people someplace

in this Government that we know about that falsified that report

30

in the Wenatchee National Forest, that falsified the reports that

Mr. Walden just referred to relative to the spotted owl?

My concern for this is the 650,000 people that live on my watershed, on the watershed in the First Congressional District of Idaho.

My concern is also for all of the folks that lost their jobs when we

shut down 38 lumber mills in my district in the last 8 years. My

concern continues to be for the lives of those folks that have been

inalterably changed because we no longer have those job stations,

we no longer have those opportunities available to them. My concern is for the folks that live in the Silver Valley that have withstood assault, after assault, after assault from the Environmental

Protection Agency, and the National Marine Fisheries and other

agencies that have sought to create a Superfund site that probably

would be the largest in the continental United States.

But setting all of that aside, there are a couple of questions that

I really need to know the answer to.

It has been the practice of the Government agencies right now,

any of those that contribute to the listing of an endangered species,

that when it is suspected that it may be endangered, usually all

activity within the potential habitat is drawn to a halt until that

agency can investigate whether or not there truly is an endangered

plant or an endangered species in that area. This has happened

time after time.

My concern, obviously, is for when you stop all of that activity

at a potential site. Is there any priority given to reach a satisfactory answer as to that potential listing so that we can hurry up

and get back to living while we are studying whether or not something is truly endangered?

Ms. Lent, I would ask you that question.

Ms. LENT. Thank you, Mr. Congressman.

We have consultations going on all of the time, too many consultations, too little time and lots of deadlines, but we do have a

system for prioritizing it. Obviously, when we are in a situation

where we need to prioritize because of economic activities being

stopped, this is taken into account.

Mr. OTTER. Have you ever heard of an open season on an endangered species? That is not a loaded question. The reason I ask that

question is the specific Northwest salmon run, which is an endangered species, and the headlines in the newspapers all up and

down the Salmon and the Snake river are on our record fish

catches. In fact, the U.S. Fish and Wildlife and the Idaho Department of Fish and Game have recently increased the take to 15 fish

a day because there are so many of them.

Now, obviously, those are hatchery fish, some of those are hatchery fish, because we know that we have got every postdorsal fin out

of those, every one of those hatchery fish, and there has been no

cross-breeding between them. Now we know that with certainty because some Government biologist did their science and told us that,

and we are expected to believe that. But I do not know how you

can have an open season on an endangered species. That has been

one of the real conflicts that I have had ever since I got back.

But if you want to pursue that, I would have a list for you and

all of the rest of the folks that are engaged in establishing the endangered species and the habitat, I would have a big list on those

31

endangered species that I would like you to declare an open season

on as well.

Thank you, Mr. Chairman. I appreciate it.

Mr. POMBO. Thank you.

Mr. Osborne?

Mr. OSBORNE. Thank you, Mr. Chairman.

I wasn’t here earlier, and I apologize for having to ask you this

question, but, Dr. Lent and Mr. Manson, are you recently appointed or how long have you been in your present positions?

Mr. MANSON. I was confirmed by the Senate on January 25th. I

have been on the job for 29 days.

Mr. OSBORNE. OK.

Mr. MANSON. I am not looking for any particular consideration

for that.

[Laughter.]

Mr. OSBORNE. No. Well— Mr. MANSON. Just answering just the facts, sir.

Mr. OSBORNE. That is a good point. It is well taken.

Ms. LENT. Mr. Congressman, I am not a political appointee. I

have been at the Fishery Service for 10 years, which I guess makes

me a good target.

Mr. OSBORNE. We are not here to target anybody. I was just kind

of interested in knowing your background.

Just a follow-up on an issue that Mr. Walden raised earlier, and

that is the amount of spending required by the bills. I think we all

know the cost to the Klamath Basin. I have been involved in a situation in the State of Nebraska which has been unpleasant, to say

the best. We have 56 miles of river, the Platte River, that has been

designated as critical habitat for the whooping crane, and that was

done in 1978. I think really the designation got out ahead of the

science because since that time they have done electronic tracking

of 18 whooping crane, and there weren’t that many. That was

about 35/40 percent of the total population. They did it for a period

of two and a half years, and at no time did any of those cranes ever

even land in the Platte Valley. Less than 1 percent of the whooping

crane population has even been seen near the Platte River during

that 20-some-year stretch and none of them use the river itself,

and yet that is designated as critical habitat.

Now that wouldn’t be too bad, except there have been a lot of

modifications. They have designated 140,000 acre feet of water per

year for the endangered species. Now that is water that is generally lost to irrigation, to power and is very expensive and very

difficult because water is short in that area. We also have no new

depletion since 1997, no new wells can be dug in the alluvion of

the Platte River unless there is an offset, unless another well is

shut down.

We have been ordered to push sediment into the Platte River because they want pulse flows, which will result in flooding and also

remove sediment from the river. So now they want to replace the

sediment that the pulse flows will cause, and they even at one

point talked about 100 dump truckloads a day each day for maybe

as long as 100 years to replace the sediment. Now they have even

backed off a little bit on that, but they want to bulldoze some islands.

32

So what I am saying is this is a substantial inconvenience and

tremendous cost. It is estimated that the cost of the plan alone,

just the cost of getting a cooperative agreement between Colorado,

Nebraska, Wyoming to furnish all of this water and the sediment

replacement and so on, will be somewhere in the range of $160 million. Now that does not say anything about the cost of the water,

no new depletions, replacing the sediment. That is just to formulate the plan.

So what I would really like to emphasize with you is it is critical

that we get it right the first time. Right now we are not getting

it right, and we are paying a huge cost. I mean, the cost of another

study or a 6-month delay or whatever is a tiny fraction of what cost

we are exacting from farmers and other people who own the land.

So that is the thing I just want to emphasize, to drive home to

you. It is not just Klamath. There are other places where this is

happening.

I guess the question I have—I have kind of violated our rule. You

know, we invite experts in, and then we make a speech, which is

kind of endemic to this occupation—but if it does appear that there

has been a mistake made in the designation, do you feel that your

agencies are willing to backtrack or to make a new designation, to

rectify a mistake? Either one of you or both.

Mr. MANSON. Let me address that first.

If there is evidence that a critical habitat designation needs to

be revisited on a scientific basis, then I expect the Fish and Wildlife Service to review that scientific evidence and revisit the critical

habitat designation if necessary.

Mr. OSBORNE. Thank you.

Doctor?

Ms. LENT. Mr. Congressman, I would echo that comment, that

when we receive petitions to list or delist based on new information, also, when we receive information that might change consultation process, the information upon which a consultation is

based, we will reinitiate consultation.

Mr. OSBORNE. I appreciate that. And what conversation I have

had with Secretary Norton would certainly fall in line with what

you have said, and we appreciate that because, obviously, we are

going to try to revisit this situation in the Platte Valley.

My time has expired, Mr. Chairman.

Mr. POMBO. Mr. Radanovich?

Mr. RADANOVICH. Thank you. Thank you, Mr. Chairman.

Just briefly I want to mention, and I don’t know if the two panelists are going to be leaving here after your testimony, the next two

panels can offer I think some valuable insight into problems that

many people are having with the Endangered Species Act.

One of those panel members will discuss two things here in

Washington; the dumping of sludge into the Potomac River and

also the Wilson Bridge, which I would like to highlight to you and

ask you to turn your attention to that. Because if Klamath terms

were applied to the dumping of the sludge in the Potomac and the

Wilson Bridge, construction on the bridge would be halted at this

moment, and they would be hauling sediment through Georgetown

in about 15 dump trucks per day, and you would be halting the

dumping of the sludge into the Potomac.

33

It is my big problem with the Endangered Species Act, as vague

as it is, it is allowed to be interpreted in rural parts of this country,

where there are no votes, but basically ignored in urban America,

and we are seeking justice in that.

So go take a look at those two, and if you care to stop the bridge

construction so that the Endangered Species Act can be dealt with

here in the Congress, I would applaud you for it, as well as stopping the dumping in the Potomac.

Thank you.

Mr. POMBO. Mr. Rehberg?

Mr. REHBERG. Thank you, Mr. Chairman. I ask unanimous consent to enter a letter and an article in the record, if I might, please.

Mr. POMBO. Without objection.

[The information submitted for the record by Mr. Rehberg

follows:]

Assault by the Environmental Movement

(THE GREAT PRAIRIE DOG HOAX)

GARY MARBUT 06.02.01

Let’s see if we can understand this. There’s an animal that has 10 million members in 11 states stretching from Mexico to Canada, and it is also on the verge of

extinction and must be protected by listing under the Endangered Species Act

(ESA). This is the claim that the National Wildlife Federation (NWF) has made

about the Black-tailed Prairie Dog in its petition for listing to the U.S. Fish and

Wildlife Service (FWS). To understand this, we’ll have to dig a little deeper.

In July of 1998, the NWF submitted a petition to the FWS asking it to use its

authority under ESA to list and protect Black-tailed Prairie Dogs under ESA.

Prairie dogs, of course, are not dogs, they are rodents.

NWF bills itself as the nation’s largest conservation organization. In this case,

‘‘conservation’’ could be defined as ‘‘we care more for animals, plants and the natural

environment than we do for Man and his needs’’.

NWF predicates its petition for listing on the presumption that it can demonstrate

the shrinkage in prairie dog populations over time, and that such shrinkage is destined to lead to extinction of the prairie dog without interference by the Federal

Government. We will look at these assumptions in a moment, but first, it is important to understand the philosophical orientation of the people making the argument.

In reading the NWF petition for listing, it stands out that what concerns the NWF

even more than threat to prairie dogs is the loss of habitat in general, especially

to agriculture. It becomes apparent when reading the petition that the NWF sees

as the only long-term solution to the ‘‘endangered’’ status of the prairie dog the restoration of the animal throughout its original habitat—move the people out and

move the rodents in.

The mentality of the people setting policy for this environmentalist organization

is that Man is an unnatural element in any ecosystem, and that true balance can

only be restored by taking modern Man out of the equation. Thus, it stands to reason that especially human agricultural endeavors must be halted in order to restore

critical endangered critters such as the prairie dog.

It is also true, according to the environmentalist mindset, that there has been

frustratingly little control over what private people can do with their private property. Then, along comes ESA, and suddenly there is a tool to restore the ‘‘natural

order’’ by stripping people of the choice about how they utilize any private property

containing an endangered animal or plant.

And, what better life-form to choose for this great power shift than one alleged

to have once occupied most of the West. The Montana Prairie Dog Management

Plan (Montana Plan), a privately-crafted document inspired by NWF-type thinking

recognizes this when it says, ‘‘Any prairie dog conservation strategy that addresses

prairie dogs on a State-wide basis must address the private landownership factor.’’

So, what exactly is the basis for the extravagant claims of prairie dog habitat and

population reduction used as the underpinning for claims of imminent extinction?

NWF quotes as authority the Lewis and Clark diaries where it is asserted that ‘‘this

anamal appears here in infinite numbers.’’

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NWF makes similarly vague claims to ‘‘establish’’ the ‘‘fact’’ that prairie dogs once

occupied vast regions where they now do not, in unimaginable numbers.

In truth, there probably has been a lot of ground once occupied by prairie dogs

which has been plowed and planted, making it unavailable for these rodents. There

have been extensive campaigns to eradicate prairie dogs with wholesale poisoning,

and the plague does occasionally make substantial inroads in their populations.

Also, it is claimed by the enviros that recreational shooting is significantly to blame

for alleged declines in prairie dog populations. What is very debatable is both the

extent of early prairie dog numbers and range, and the success of elimination or

reduction attempts, including by recreational shooting.

Of course, the petition to list the prairie dog as threatened or endangered presumes that without government management, the critter will become extinct. However, there are arguments to the contrary that sneak into the listing petition. The

petition mentions one prairie dog population in Colorado in which 95% of the dogs

were poisoned, but where the population was back to 100% of original numbers in

just five years! The NWF petition casually admits, ‘‘on a distribution map blacktailed prairie dogs appear to occupy most of their original range of 100–250 million

acres in the United States.’’ The junk science used to establish the baseline for the claims of shrinking prairie

dog numbers and habitat ought to amaze anyone. The Montana Plan says, ‘‘The

black-tailed prairie dog ecosystem on the Great Plains was extensive prior to settlement. It might have dominated as much as 10–20% of the landscape, but there is

no written record to verify this.’’ Sure, prairie dogs might have been planted by extraterrestrial visitors too, but there’s no ‘‘written record’’ to verify this either.

It is also useful to understand that the FWS would gain a lot of bureaucratic prestige from becoming the manager of a species that numbers in the millions and is

spread over at least 11 states.

So, the NWF submitted its petition to list prairie dogs under ESA to a sympathetic FWS. But, there was a problem. How could the FWS justify listing as on the

verge of extinction an animal numbering over 10 million in 11 states? The answer

is that they couldn’t. They knew that they wouldn’t last a day in Federal court defending such a decision. I recently spoke with counsel at the well-reputed Mountain

States Legal Foundation in Denver, and was given the informal but concurring

verbal opinion that there’s no way the FWS could sustain a decision to list prairie

dogs in court.

The FWS was temporarily stuck, and needed to find a way out. A clever resolution

to the problem would be to not list prairie dogs at all, but to cause all of the resultant protections to happen anyway. In a successful burst of imagination, the FWS

issued a letter saying that prairie dogs were warranted for listing and endangered,

but that they wouldn’t list them just now because they had too many other species

to list. And, they continued, if the states in which prairie dogs now live didn’t pick

up the slack and protect the critters, the FWS would probably take the management

prerogative out of their hands and list the animal Federally.

Suddenly, the fish and wildlife agencies of 11 states were scrambling to protect

prairie dogs, and convincing their policymakers to give them whatever authority

was needed just to protect the state from the FWS. This was a great win/win situation for the state fish and wildlife agencies because they were suddenly in the position to dramatically expand their agencies to service an animal with huge range and

numbers, requiring major new expenditures of manpower and money.

The first on the agenda of items the FWS demanded states accomplish was to

change state laws to designate prairie dogs as a protected animal. Local committees

and ‘‘study groups’’ were drummed up by the state fish and wildlife agencies in all

states to convince landowners that unless they caved in to the demands for changing state laws to protect these rodents,the FWS would list them and regulate the

landowners out of business.

Panicked landowners came to support the efforts to give state fish and wildlife

agencies statutory authority acceptable to the FWS to ‘‘manage’’ prairie dogs. In Colorado, shortly after the legislature gave the fish and game commission the authority

to manage prairie dogs, the commission outlawed any killing of these rodents. Other

states are expected to follow suit.

In Montana, a bill was introduced to allow the Department of Fish, Wildlife and

Parks (MDFWP) management authority over prairie dogs. At every hearing on the

bill, the threat was made that ‘‘if we don’t change our laws and manage prairie dogs

the way the FWS wants us to, the FWS will list prairie dogs and take the prerogative out of our hands and we won’t have any control at all.’’ The chief proponent

of this view was the MDFWP, which, of course, stands to gain immense bureaucratic

prestige (manpower, money and mission) with the assumption of management authority over prairie dogs.

35

In the public hearing testimony on the Montana prairie dog bill before the Senate

Fish and Game Committee, this author told committee members, ‘‘I first testified

before a committee of the legislature in 1971. In the many years I’ve participated

in the formulation of public policy before the legislature, this bill is the greatest

hoax to ever be perpetrated upon this body.’’

So, here is the hoax: The 11 states containing prairie dogs are stampeding to do

what the FWS can’t do (regulate prairie dogs), because the FWS has threatened that

if the states won’t do what FWS can’t, FWS will do what it can’t and the states

will lose control. The current leading advocates of this effort have become the state

fish and wildlife agencies, who stand to gain significant bureaucratic prestige from

managing such an abundant and widespread species. To gain this bureaucratic advance, state agencies are glad to scamper to effectively do the bidding of the FWS

and the environmentalists, operating on the announced theory that they are avoiding the dreaded FWS listing.

There is no way that the FWS could get away with listing prairie dogs as endangered, because there are so very many of them, spread so widely.

There are more prairie dogs in these 11 states than there are elk, deer, antelope,

moose and coyotes combined. To assert that they are on the verge of extinction is

nothing short of ludicrous.

However, during the Clinton years, America has been treated to such a vulgar lesson in the abuses of Federal power that few state decision-makers are willing to

take the alleged risk of the threatened FWS prairie dog listing. That is how this

great hoax is being successfully perpetrated.

The Montana Shooting Sports Association is the primary organization asserting

the rights and prerogatives of gun owners and hunters in Montana. MSSA President, Gary Marbut, grew up on a 5,000-acre cattle ranch in Western Montana, is

also an officer of the Western Montana Fish and Game Association, Montana’s oldest and largest regional organization of hunters and anglers, and is a lifetime

hunter, a student of precision rifle, who hunts elk with a revolver.

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Mr. REHBERG. Is it Dr. Manson?

Mr. MANSON. No.

Mr. REHBERG. I am sorry. I misunderstood.

Mr. Manson, you are familiar with the warranted, but precluded

designation within the Endangered Species?

Mr. MANSON. Yes.

Mr. REHBERG. As far as the two pieces of legislation that we are

talking about today, would the black tail prairie dog be put into

that category if these two pieces of legislation had passed the Congress?

Mr. MANSON. That I cannot answer because, if I understand your

question, it is if we had the type of peer review that these two bills

would institute, would that have resulted in the same decision to

make that species warranted, but precluded?

Mr. REHBERG. That is correct.

Mr. MANSON. I am afraid I can’t answer that. I have not seen

the specific science that went into that determination.

Mr. REHBERG. That has actually been one of our problems. We

cannot, for the life of us, see what science was used in making that

determination.

Is the warranted, but precluded category, I am asking this question because I don’t know it, and that is does it need to be reviewed

each year?

Mr. MANSON. I don’t believe we review those every year.

Mr. REHBERG. Are there different categories of warranted, but

precluded that you are aware of?

Mr. MANSON. Not that I am aware of.

Mr. REHBERG. I guess I was struck by Dr. Lent’s comment about

the prioritization of time because I am told that, in fact, they do

have to be reviewed on an annual basis, and if they do have to be

reviewed on an annual basis, wouldn’t it make sense to the administration that the time and effort that you spend having to continue

to reconsider this category for something that, for the life of us, we

still don’t get it? It would save you time and money if you were to

support something like these two pieces of legislation.

Mr. MANSON. Well, in fact, we do support the bills in concept,

and we do agree that there ought to be a robust independent peerreview system. The problems that the Department of Interior has

with the bills, I would characterize as more procedural than substantive.

Mr. REHBERG. Within the consideration of your administration at

this time, coming up with something administratively to do the

same thing, albeit cheaper, are you making a determination that

you will not include some of what we consider to be the junk

science or, I don’t know what I am trying to say, Mr. Chairman.

It seems like when the comment is made that the user groups,

such as the fishermen, and the hunters and all, you know, that has

been one of our complaints historically about the Endangered

Species, that it doesn’t seem to take much to raise the flag, but it

takes a lot to lower the flag, and the deck is kind of stacked

against those that don’t want them listed, because if a fair peer reviewer considered, any ideological human being would say, well,

clearly, the black tail prairie dog shouldn’t have been considered

for listing in the first place.

42

Mr. MANSON. Well, certainly, science ought to be judged on its

scientific merit and not on whether it came from one particular

group or another. It ought to be judged solely on its scientific merit,

and I think that a robust peer-review process helps ensure that

science is judged only on its scientific merit.

Mr. REHBERG. Thank you. I would like to echo Mr. Radanovich’s

comments as well. We have watched the Wilson Bridge and the Potomac issue with some interest, and unfortunately there are those

within the administration that seem to be thwarting our attempts

to see a little bit of fairness, and I hope that you will go back to

your administrators and anyone that will listen within the administration to tell them that we do want a fair consideration on that

issue because it doesn’t look fair to us from west of the Mississippi.

Thank you, Mr. Chairman.

Mr. POMBO. Thank you.

I am going to go ahead and dismiss this panel at this time.

Thank you for your testimony. Thank you for answering questions.

I will tell you that I know there are a number of members of the

Committee that had additional questions. They will be submitted

to you in writing. If you could answer those in a timely fashion so

that we could include them in the hearing record, I would appreciate it.

Mr. MANSON. Thank you, Mr. Chairman.

Ms. LENT. Thank you.

Mr. POMBO. I would like to call up our second panel of witnesses.

Mr. Robert Gordon, Stephen Lilburn, Peter Illyn, James Anderson, and Andrew Dobson, if you would join us at the witness table,

please.

Those of you that are standing over here, please feel free to take

the seats here in the front. Just go ahead and fill in.

Thank you very much. I think you are all familiar with the timing system, the series of lights in front of you. You will all be allowed 5 minutes for oral testimony. Your entire written testimony

will be included in the record, but if you could just kind of summarize that and include it in the 5-minute oral testimony, we would

appreciate it.

Mr. Gordon, if you are ready, you may begin.

STATEMENT OF ROBERT E. GORDON, JR., EXECUTIVE

DIRECTOR, NATIONAL WILDERNESS INSTITUTE

Mr. GORDON. Thank you, Mr. Chairman.

I appreciate the opportunity to testify on behalf of the National

Wilderness Institute on proposals to improve science used in ESA

decisionmaking. NWI has been highly critical of ESA. We understand the frustrations by those in rural America who see their communities, livelihoods, and homes threatened by the application of

this law, often triggered by highly questionable data. Such is the

case in Klamath, where Federal officials withheld water from those

who use it to provide food and fiber to the rest of us on unsubstantiated grounds, according to the National Academy of Sciences.

I have good friends in Klamath who struggle to make sense of

why Federal agencies behave this way and jeopardize their ranch

and their ability to care for their two little boys. While I understand such frustrations, NWI’s criticism has not been on economic

43

or social grounds, but because ESA has not worked well in terms

of wildlife conservation. I believe this is, in part, because it depends almost entirely on punitive regulation and to trigger that

regulation, agencies must have at least a patina of scientific basis.

Consequently, determining an appropriate conservation management regime that can lead to an endangered species being brought

back becomes less important than triggering the ability to regulate

by listing. How many are on the list, not how many have been

taken off, has become the measure.

Testifying today, however, is a bit different for me because I

want to use this opportunity to talk about something in my backyard so to speak, where I fish, and canoe and hike, and why peer

review of science used to justify Federal actions with regard to endangered species management is a good idea in general.

While agencies have been quick to take water from Western family farms and ranches on account of an endangered shortnose sucker, Federal agencies have done everything possible to enable the

nighttime dumping of hundreds of thousands of tons of sludge, including 10,000 tons of aluminum through a national park into an

American heritage river in the Chesapeake Bay tributary, and according to Federal biologists, in the ‘‘primary, if not only,’’ potential

spawning site for the endangered shortnose sturgeon on the Potomac.

The dumping comes from the water treatment plant run by the

Corps and EPA permitted that provides drinking water in the D.C.

area. It produces sludge from a process of chemically forcing the

impurities from river water by the addition of alum, as do many

other facilities. But unlike other facilities on the Potomac, the

Chesapeake Bay in EPA’s Region 3 or on the East Coast of the

United States, rather than treat or landfill the sludge from its settling basis, the Corps typically, under cover of night, dumps it into

the Potomac, the equivalent of 15 dump trucks a day.

For purposes of comparison, in Virginia such facilities are limited

to discharging no more than 30 milligrams per liter total suspended solids to prevent smothering of aquatic life. This facility

has discharged as high as 241,000 milligrams per liter. Here is

what the tail end of a dump looks like early in the morning in C&O

Park above Chain Bridge. EPA allows this while a new permit is

considered since the last one expired in 1994.

One of the factors that seems to have stopped the building of a

sludge facility, according to the Corps and EPA documents, is that

sludge-carrying trucks would have to go through ‘‘affluent’’ neighborhoods.

The EPA required a study of the discharges and has accepted the

study in its entirety. That study argues that there is little effect

and that with sufficient dilution, everything will be just fine. A

peer review conducted by the Institute for Regulatory Science, and

released yesterday, disagrees. The review suggests that the discharge toxicity test samples were biased. That yellow line indicates

the concentration of one of the three key pollutants in toxicity tests

compared with the actual concentrations of that pollutant for all

discharge represented by the bars.

The peer review found that the risks to the aquatic community

were underestimated. When the Corps dumped sludge, it can cover

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two football fields’ worth of MPS river bottom, 4 to 5 inches deep,

in about 4 hours. Not surprisingly, the review’s No. 1 recommendation for management of the facility is urging the operator to stop

dumping.

Perhaps the peer review will force different behavior. These

agencies know there are problems. The National Park Police have

filed reports about dead eels left on park lands in the sludge’s

wake. Police have reported discharges so ‘‘highly chlorinated’’ that

it ‘‘burned their eyes and throats from 30 feet.’’ Police records show an assistant United States attorney this December discussed this with an EPA special agent and declined to

pursue it. Within weeks of being issued inspection reports detailing

violations, the Corps testified to the Park Subcommittee that they

abide by their CWA permits.

I appreciate the opportunity to speak to you, as I have been trying to put a stop to this for 2 years now. And despite whatever differences that might exist, I cannot imagine that any member of

this Committee supports this outrage. I know Secretary Norton,

EPA Administrator Whitman, and the National Marine Fisheries

Service Administrator are well aware of this, as is the Corps. Why

they will not do their jobs and stop this is unclear. Peer review,

however, has exposed the bogus science for what it is.

Thank you.

[The prepared statement of Mr. Gordon follows:]

Statement of Robert Gordon, Executive Director,

National Wilderness Institute

Mr. Chairman, my colleagues and I have spent a great deal of time studying the

strengths and weaknesses of the Endangered Species Act. We support efforts to improve the scientific standards used to promote conservation of rare plants and wildlife, and I appreciate this opportunity to discuss why better science will make the

endangered species program more effective.

One of the many problems now plaguing implementation of a responsible and effective endangered species program is its faulty listing process. Under the current

program the evidentiary standards for listing are, in a word, bad. I use the word

bad because it is an apt acronym for ‘‘best available data’’, or, as it says in Sec. 4

‘‘best scientific and commercial data available’’. The problem with best available

data, or BAD, is that best is a comparative word. Thus the data need not be

verified, reliable, conclusive, adequate, verifiable, accurate or even good. The best

available data standard hampers the effectiveness of the program.

Data from the various government reports on endangered species demonstrate

how the current standards result in far too many mistakes. For example, one of

three grounds for removing a species from the list of endangered species from the

list is ‘‘data error.’’ The fact that this category is often needed demonstrates that

solid, verified scientific information is not required for a listing. Numerous species

that have been removed from the endangered and threatened list were originally

listed based on erroneous data. A look at some of these ‘‘data errors’’ makes a strong

argument against the B.A.D. standard.

Regarding one data error the Federal Register states: ‘‘As a result of the Indian

flapshell turtle’s inclusion on Appendix I of CITES [a United Nations endangered

species list] the Service subsequently listed the species as endangered.’’ After listing,

rather than before, a ‘‘’literature review was conducted to see if supporting evidence

justified its current endangered status. No such supporting data could be found.’’ In

a further attempt to find supporting information, the Service then contacted turtle

experts such as Dr. E. O. Moll, who happened to be researching in India at that

time. Moll stated that it was ‘‘seemingly the most common and widespread turtle

in all of India—How it ever made Appendix I is a big mystery.’’

The story of another data error, the pine barrens tree frog, is similar. Only those

pine barrens tree frogs found in the frog’s southern range were listed. After listing,

FWS worked with Florida officials to gather information about how many frogs

actually existed. According to the Federal Register, ‘‘Data were presented which

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expanded the species’ known Florida distribution from 7 Okaloosa County sites to

a total of over 150 sites...’’ in 3 counties. Further studies including Alabama areas

revealed a total of 165 more sites than were believed to exist when a fraction of

this frog’s population was listed—a pretty big error.

The Mexican duck, another error, was determined to be essentially a ‘‘blue-eyed

version’’ [not literally] of a common duck, the mallard. Almost comically, the Federal

Register states ‘‘all reports and observations of ‘Mexican ducks’ in the United States

and Northern Mexico must now be interpreted to be of only ‘Mexican-like ducks’.’’

The notice went on ‘‘‘Mexican ducks’ are only identifiable segments of the entire

population, just as brown-eyed and blue-eyed individuals are phenotypic segments

of the human species.’’

The tumamoc globeberry, a vine that is the most recent data error, was delisted

by FWS on June 18, 1993. After including this plant on the endangered species list

for 7 years, FWS determined, ‘‘surveys have shown Tumamoc to be more common

and much more evenly distributed across its range than previously believed’’.’’ Although never really endangered, during its 7 years on the list this plant soaked up

over $1.4 million in funds from the Corps, BLM, DOD, NPS, USFS, and the Bureaus

of Indian Affairs, Mines and Reclamation and was the basis for FWS to issue a jeopardy opinion on the Tucson Aqueduct.

It is difficult to know just how many species have been listed on poor grounds

but there is evidence to suggest that the number is significant. In a review we did

a few years ago of 306 recovery plans we found there was little hard information

about the status of listed species. Recovery plans regularly call for ‘‘searches for additional sites,’’ ‘‘searches for additional populations’’ and ‘‘surveying suitable habitat

for additional populations.’’ Few recovery plans state that we reliably know how

many of a particular Federally regulated species exist. Following are a few example

drawn from USFWS approved plans.

• Alabama Lamp Pearly Mussel: ‘Other aspects of the ecology of this species

are totally unknown.’ and that ‘The historically restricted distribution of

L. virescens and lack of information about changes in various stream populations prevents a more precise determination of the reasons for the

species decline.’

• Atlantic Green Turtle: ‘More information is needed before detailed distribution maps or estimates of population number and structure can be

made...’ ‘The number of nests deposited in Florida appears to be increasing, but whether this number is due to an increase in the number of nest

or more thorough monitoring of the nesting beeches is uncertain.’

• Cave Crayfish: ‘Sufficient data to estimate population size or trends is

lacking.’

• Higgins’ Eye Mussel: ‘The historical distribution of L. Higginsi is difficult

to accurately assess because of the taxonomic problems involving the

species complex to which it belongs.’ The plan also states: ‘Numerically

L. higgensi may be less rare today than previously thought, but in all

probability this reflects a significantly greater collecting effort and the

ability of a larger number of collectors to identify it.’

• Hualapai Mexican Vole: ‘...the subspecies is considered poorly defined

owing to limited material available...’

• Kentucky Cave Shrimp: ‘The very small estimated population size of the

species at the time of listing (approximately 500 individuals) made it

stand out as being extremely vulnerable to extinction. Since the time of

listing, new populations have been discovered...Population estimates...range from approximately 7,000 to 12,000 individuals.’

• Knowlton Cactus: ‘Because there is inadequate biological data for P.

Knowltonii and because there is only one viable population, downlisting

and delisting criteria cannot be established at this time.’

• Louisiana Pearlshell Mussel: ‘With practically no information on the life

history, population levels, and habitat requirements for this species, an

estimate of the cost of recovery to the point of downlisting is not possible.’

• Mona Iguana: ‘The status of the Mona Iguana prior to...1972...only can

be inferred.’

• Palos Verdes Blue Butterfly: ‘The historical distribution of the butterfly

is unknown...’

• Red Hills Salamander: ‘There is no evidence that the animal has occurred

outside its present range within historic times...’ and ‘Comparative data

relating temporal trends in population densities are unavailable...’

• Virgin Islands Tree Boa: ‘Population trends cannot be determined because

of lack of data.’ The plan also states ‘lack of available information on this

46

secretive, nocturnal snake precludes formulation of a quantitative recovery level’

• Painted Snake Coiled Forest Snail: ‘Information on the snail’s ecology and

natural history is almost completely lacking.’

• In at least 79 of the 306 plans I reviewed there was some degree of uncertainty regarding the taxonomic classification of an endangered plant or

animal.

Many of the species which have been officially declared as recovered actually were

listed based upon inaccurate data. Three birds, the Palau dove, Palau owl and Palau

flycatcher, considered recoveries and are limited to a small island nation of Palau

about 400 miles east of the Philippines. While FWS calls them ‘‘recoveries,’’ a GAO

report states that ‘‘although officially designated as recovered, the three Palau

species owe their recovery more to the discovery of additional birds than to successful recovery efforts.’’ Similarly, John Turner, former FWS director revealed during

a Senate hearing that the Rydberg milk-vetch, a plant which is one of the few other

supposed recoveries was delisted because ‘‘further surveys turned up sufficient

healthy populations.’’ In plain English, another mistake.

There are a few other species that some people cite as successes. One of these,

the American alligator, is thriving, but remains listed as threatened due to a technicality. However, like other officially ‘‘recovered’’ species, the alligator probably

should never have been listed. Florida wildlife officials think the alligator’s population dynamics were misunderstood at the time of listing. Even the National Wildlife Federation pointed out in its magazine that the ‘‘familiar and gratifying’’ recovery story of the alligator was ‘‘mostly wrong.’’

From USFWS’s reports and statements we know that a large number of the

species removed from the list, as well as many others still lingering there, should

have probably never been on it in the first place. We know that many of the Act’s

recoveries are really data errors. We know that for most species we have only qualitative estimates of uncertain value. For a great number of species we know little—

as demonstrated by recovery plans which basically state that or which call for a population survey as one of the first steps. And we know that two of the most famous

endangered species, the northern spotted owl and the snail darter, were both undercounted.

The weak best available data standard is exacerbated not only by a lack of reliable baseline data but by ideological agendas, programmatic incentives and institutional interests that further skew the program away from sound science. This process not only results in unnecessary costs but also wastes conservation resources that

otherwise would be more effectively used. Those who want to see responsible and

effective endangered species programs have a serious obligation to honestly address

this situation, because these errors cause conflict, drain resources and may plague

the Act to the point where it comes to be generally considered as another well-meaning government program gone bad.

The subjectivity of the standards under which the current program operates also

allows the law to be enforced very selectively. Economic activity has been almost

shut down in parts of the country, particularly the rural west, to protect possible,

potential habitat of species of highly questionable authenticity from harm that is

speculative. While in other areas major developments never seem to be inconvenienced by a need to protect species they affect.

Bad conservation science not only misdirects conservation efforts toward unjustified activities; it also blocks protective action where it is truly needed. A glaring example of this occurs here in Washington where massive amounts of harmful, foulsmelling sludge are permitted to be discharged by the Washington Aqueduct

through a National Park and into the Potomac where it smothers the spawning beds

of the endangered shortnose sturgeon. The Parks Subcommittee recently held a

hearing on these midnight dumpings and sought a peer review of the science being

used to justify continuation of this midnight dumping through a park.

The peer review panel found that the study was—inconsistent with established

scientific and engineering standards and industry practices,’’ that, ‘‘Selective collection, application, and interpretation of data leave key questions unanswered and introduce an element of subjectivity into the reviewed study,’’ and that ‘‘There are a

number of conclusions made in the Report that are based on selective, qualitative

interpretation of the data.’’

Those who have seen Draconian enforcement of the ESA in their districts may

wonder why there is apparently so little conflict between rare species and human

activities in other areas. They may be a surprise to learn that in the government’s

own back yard ESA is simply not enforced the way it is elsewhere. Here, the benefit

of the doubt is not given to the endangered species. Here, economic considerations

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outweigh species protection. Here, science, or what purports to be science, is employed to provide cover so that needed projects can proceed unimpeded by the ESA.

Let me quote from the scientific panel that reviewed a study EPA and the Corps

of Engineers planned to rely upon to justify continued discharge of toxic sludge here

in Washington:

• Virtually all of the interpretation is focused on explaining why the aquatic

aluminum standard should not be applied down gradient of the Washington aqueduct. However, very little of this interpretation is supported

by the presented data.

• In sum, the Report does not appear to contain sufficient analysis and

study to substantiate the conclusion that sediment discharges have no adverse impact on essential fish behavior such as feeding and seeking shelter.

• ‘‘The Washington Aqueduct’s sludge discharges can harm fish or other

aquatic life within designated mixing zones through toxicity, chemo-sensory disruption, or other environmental stress or by affecting essential behavior patterns, such as feeding, migrating, spawning, or seeking shelter.’’

The review panel’s primary recommendation for the Washington Aqueduct is that

dumping into the Potomac be stopped.

‘‘The operator of the Washington Aqueduct should be urged to undertake an effort

to avoid discharges into the Potomac River...’’ through, as the first choice, ‘‘Construction of a treatment plant on-site for solids dewatering prior to off-site on-land disposal of the solids.’’ This is really no more than almost every other similar water

treatment plant does.

The National Wilderness Institute has gone to court to try to force a number of

very reluctant Federal agencies to end the political favoritism and special treatment

used to exempt this area from needed conservation and recovery efforts for endangered species that occur here.

There are other examples I could give of how the current scientific standards apparently allow selective non-enforcement to occur. There are some highly endangered invertebrates, similar to the listed fairy shrimp though far rarer and far more

endangered, that occur in a few springs in the Washington area. One of these small

crustacean species is known from only one location, another from only two locations.

Yet petitions to have them listed have been arbitrarily rejected.

Another example of the sorry state of endangered species science was exposed a

few years ago when Secretary Babbitt bragged that a couple dozen species will ‘‘...be

flying, splashing and leaping off the list,’’ and claimed that his plan to delist species

proves ‘‘the Endangered Species Act Works...period.’’ This claim proved to be false.

Of the species Babbitt planned to delist several were already extinct or were taxonomically invalid. Many other species never had been actually endangered, they had

been undercounted or the threat to them had been overestimated. Some others on

Babbitt’s list had actually improved but did so primarily because of events unrelated

to the Endangered Species Act such as the ban on DDT or management by state

agencies or private conservation efforts. Here is a list of the Secretary Babbitt’s

species and the real reason for their possible delisting.

Common Name -- Reason

Guam broadbill -- Extinct

Oahu tree snail -- Extinct

Oahu tree snail -- Extinct

Oahu tree snail -- Extinct

Mariana mallard -- Extinct

Truckee barberry -- Taxonomic Error

Virginia roundleaf birch -- Taxonomic Error

Lloyde’s hedgehog cactus -- Taxonomic Error

Ewa Palains’ akoko -- Taxonomic Error

Dismal swamp southeastern shrew -- Data Error

Virginia northern flying squirrel -- Data Error

running buffalo clover -- Data Error

Tinian monarch -- Data Error

Hawiaian hawk -- Data Error

Island night lizard -- Data Error

Hoover’s wooley star -- Data Error

Missouri bladderpod -- Data Error

tidewater goby -- Data Error & Non-ESA

Aleutin Canada goose -- Data Error & Management

bald eagle -- Non-ESA Factors

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peregrine falcon -- Non-ESA Factors

Columbian white-tail deer -- Non-ESA & Management

brown pelican -- Non-ESA

Eureka Valley evening primrose -- Pre–ESA/Management

Eureka Valley dune grass -- Pre–ESA/Management

Columbia white tail deer -- Pre–ESA, Est. Refuge & Hunting Restriction

Robbin’s cinquefoil -- Management Activities

Loch lomond coyote thistle -- Management Activities

Heliotrope milk vetch -- Management Activities

parhump poolfish -- Management Activities

heliotrpoe milkvetc -- Management Activities

spring-loving centaury -- Established Refuge

Ash Meadows sunray -- Established Refuge

Ash Meadows gumplant -- Established Refuge

Ash Meadows amargosa pupfish -- Established Refuge

gray wolf -- Hunting Restriction

Poor Scientific Standards are a Threat to Private Conservation.

The relationship between private ownership of land and conservation is of special

interest to NWI. Private conservation is actually more important to the environment

than government efforts. Although the Federal Government owns vast amounts of

land, private land is often richer in wildlife, plants and water. When I speak of private conservation, I do not refer only to for-profit environmental organizations but

also commercial activities—ranching, farming, forestry, recreation industries and

others—that make tremendous contributions to conservation as a byproduct of business activity. The North Maine Woods land, for example, is a vast area—over two

million seven thousand acres—of privately owned commercial forest land that provides not only extensive wildlife habitat and public recreation opportunities, but

contributes to our economy. Much of this land is still owned by the many descendants of the original landowners who got the land when Maine became a state in

1820.

In some cases, conservation is directly related to a business enterprise. Sea Lion

Caves, a for-profit organization, protects the only mainland rookery of the Steller

sea lion. It is a major tourist attraction on the Oregon coast and receives over

200,000 visitors annually. Had not the area been privately owned, developed and

protected, especially when the State of Oregon paid a bounty for slaughtered sea

lions, the sea lions caves area would undoubtedly be void of sea lions and other marine life and this natural wonder would probably not exist today.

The opportunities to improve the quality of our environment by creating incentives for property owners are not limited the case of Sea Lion Caves but are vast.

In Utah, Deseret Livestock’s land produce elk that have a higher calving ratio, preferable bull to cow ratio and a higher average weight that on adjoining public land.

In Texas private ranchers are providing habitat and thereby maintaining a total

number of a rare African antelope that is greater than in Africa itself. In these

cases not only are the landowners and the species benefiting from private conservation activities but also the public. If any of these beneficial activities made the property owner vulnerable to a regulatory taking of his property, they would surely be

reduced in size and scope and might not occur at all.

Michael Bean of the Environmental Defense Fund described the problem in a talk

to U. S. Fish and Wildlife Service employees when he said there is ‘‘increasing evidence that at least some private land owners are actively managing their land so

as to avoid potential endangered species problems.’’ He went on to say:

The problems they are trying to avoid are the problems stemming from the

Act’s prohibition against people ’taking’ endangered species by adverse

modification of habitat. And they’re trying to avoid those problems by

avoiding having endangered species on their property. Because the woodpecker primarily uses older trees for both nesting and foraging, some landowners are deliberately harvesting their trees before they reach sufficient

age to attract woodpeckers, in their view, and in fact before they reach the

optimum age from an economic point of view. In short, they’re really nothing more than a predictable response to the familiar perverse incentives

that sometimes accompany regulatory programs...

Sam Hamilton, former USFWS State Director in Texas, said, ‘‘The incentives are

wrong here. If I have a rare metal on my property, its value goes up. But if a rare

bird occupies the land, its value disappears.’’

Other wildlife officials have pointed out how listing a species under the present

law can further imperil its prospects. Larry McKinney, Director of the Resource Protection Division of the Texas Parks and Wildlife Department stated:

49

I am convinced that more habitat for the black-capped vireo, and especially

the golden-cheeked warbler, has been lost in those areas of Texas since the

listing of these birds than would have been lost without the Endangered

Species Act at all.

The current combination of politicized science and the perverse incentive structure

created by some regulations hurts wildlife conservation because less desirable management decisions than would otherwise occur are made. Upgrading the scientific

standards of the endangered species program is a necessary first step in making

this program a truly effective conservation tool.

[The Inland Action Inc. ‘‘San Bernardino International Airport

and Trade Center Issue’’ submitted for the record by Mr. Gordon

follows:]

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Mr. POMBO. Thank you.

Mr. Lilburn?

STATEMENT OF STEPHEN LILBURN, PRESIDENT,

LILBURN CORPORATION

Mr. LILBURN. Mr. Chairman and members of the Committee,

thanks for the opportunity to speak with you today.

I am an environmental planning consultant from San

Bernardino, California. My specialty is securing permits for both

industry and Government, and I practice principally in the Western States, primarily in California.

I am here today representing Inland Action, which is a nonprofit,

nonpartisan group from the area, concerned about the economic

well-being of what we call the Inland Empire, which is essentially

Riverside and San Bernardino Counties.

I have worked with the Endangered Species Act throughout my

career, prepared and negotiated Section 7 consultations, 10A consultations, HCPs, banking agreements, biological opinions, programmatic permits, environmental assessments, impact reports

and impact statements. I always sit across the street or the aisle

from the Service typically, often representing Governments, both

State and local, in that process.

I am here today to speak in support of H.R. 2829, Mr. Walden,

and 3705, Mr. Pombo. Both are similar in their approaches to improving the act. I have provided my written testimony and will

simply summarize my position.

In California, where land use authority doesn’t come quickly or

cheaply, the ESA is now the most cumbersome, costly and difficult

land use permit to secure. Let me restate that. The Federal

Endangered Species Act is the most difficult land use entitlement

process in California. I the impacts both private and public properties, private industry, public agencies alike. It doesn’t make any

difference. Its implementation is being driven now in California,

particularly, by lawsuits, judicial interpretation and settlement

agreements between the Service and the myriad of special interest

groups that initiate those lawsuits, and then there is always the

interpretation of the individual representing the service that you

are sitting across the table from.

Congressional intent is never discussed. The ramification of these

listings on the public, of course, are tremendous, and I know a

number of you have personal experiences with those. At the very

least, Congress should ensure that the assumptions and baseline

science supporting them is accurate and complete. I have provided

three examples in my written testimony, which I have personal experience about—the Arroyo Southwestern toad, the San Bernardino

kangaroo rat, and the Delhi Sands flower loving fly.

I have referenced two documents, copies of which I have provided

to staff so they could be entered into the record. The first is a short

discussion with maps on impacts to the former Norton Air Force

Base by the San Bernardino kangaroo rat listing, and the other is

a report I wrote a few years ago on the impacts of the listing of

the Delhi Sands flower loving fly on the San Bernardino County

Hospital. This is the site where we spent $3.5 million moving our

county hospital 250 feet north to protect 2 acres on which we

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suspected there may be eight flies. This comes to a cost of $441,000

per fly which, by the way, from a patient standpoint, is the equivalent of serving 527 inpatients or over 25,000 outpatients.

I believe both of these listings would have been questioned if

they had been subject to scientific peer review. If 2829 or 3705

were to authorize a review committee, I would encourage you to

provide as broad-based a committee as possible, bring some balance

and expertise beyond just biology, but I am thinking along the lines

of spacial data applications, and land forms, and some expertise in

that area.

Be critical of the listing’s potential for success and be specific in

the Act so that it is clear that what is expected of the committee,

and later what is expected of us, is clear to those interpreting it,

otherwise some Tenth Circuit judge is going to be telling us what

you really meant to say, and that is what we will be doing.

I appreciate the opportunity to speak with you today.

[The prepared statement of Mr. Lilburn follows:]

Statement of Stephen T. Lilburn, President, Lilburn Corporation

My name is Stephen T. Lilburn. I am an environmental planning consultant from

San Bernardino, California. I am the president of Lilburn Corporation, a consulting

group that specializes in securing land use permits for industry and government.

I am also past president and current chair of the environmental committee for a

citizens group called Inland Action.

I have been consulting in the areas of environmental regulatory compliance for

24 years. My practice is centered in the area of the National Environmental Protection Act (NEPA), the California Environmental Quality Act (CEQA), the California

Surface Mining and Reclamation Act (SMARA), the Endangered Species Act (ESA

or Act) and various state and Federal processes. My work is conducted in the western states, principally in California. A resume of my professional experience is attached.

I have been asked to testify on behalf of H.R. 2829 by Mr. Walden and H.R. 3705

by Mr. Pombo.

I have reviewed both bills and see both as an attempt to interject scientific peer

review into the endangered species listing process. I support both bills in concept.

I would suggest that these advisory committees [(3705) p. 13–23 and (2829) p. 5–

21] composed of individuals with biological science expertise, also include those with

expertise in spatial distribution (geography), climatology and geomorphology. All

these resource areas are critical in the analysis of single and multi-species habitat

delineation and threat assessment. Biology is the basis of species protection but

habitat management and recovery potential is a much broader issue requiring

broader expertise. A review committee should have enough background to question

the broadest aspects of species viability and background presentation.

In light of recent 10th Circuit Court decisions regarding economic effects in California, it may also be appropriate to include an individual with expertise in economics and cost benefit analysis. This may be critical in analyzing the impact of implementation and feasibility of conservation and attempts at recovery.

Many question the need for refinement of the ESA; however, working with the

Act on a daily basis it is my opinion that many of the problems associated with its

implementation by the U.S. Fish and Wildlife Service (USFWS or Service) is the

lack of specific congressional intent within the Act. Unless you want the Service or

a court to interpret the Act, Congress should be more specific in their intent and

direction.

I have spoken with several of the framers of the original Act and it is clear that

it was not initially intended as a tool for land use regulation. Yet that is certainly

what it is today. In fact, few had an understanding of the depth and breath of regulation that would evolve with this Act.

A lack of specific congressional intent has led to an Act that is now driven by law

suits, judicial interpretation and legal settlements. Listing packages are being processed not by need or scientific justification, but by volume based on settlement

agreements dictating a number of listings to be completed within a fixed time

frame.

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Listings are being processed without knowing the extent of or availability of critical habitat needed for survival. This process can take years after the listing to develop and is itself subject to litigation. Yet you would think that critical habitat for

a species survival would be fundamental in the evaluation of a species threat. In

addition, listings do not include recovery plans or consider the financial feasibility

of their implementation. If we are going to commit to a species protection, can we

expect to wait years following its listing to determine a plan for its survival. And

typically, no one critically reviews or questions the field data, assumptions, techniques or accuracy of the information presented in these listing applications.

The result in California is that the ESA is being implemented as interpreted by

biologists and attorneys at USFWS as directed by courts and settlement agreements. It has turned into the single most complex land use regulatory process in

the state of California. More Section 10A (private lands) consultations are conducted

annually in California than in all the other states combined by the largest USFWS

staff dedicated to this effort in the country. Every consultation, Section 7 or 10, is

individually negotiated as interpreted by staff at that time. No two agreements are

identical. Although based on biologic intent, the process has affectively become one

of the most costly, time consuming and complex real estate transaction processes

in the state. All of this without the benefit of a single real estate professional on

the part of USFWS.

To refocus on the listing process and the Bill at hand, I know of at least two

incidences where emergency listing were initiated with the specific intend of affecting those negotiations in progress. In both cases peer review may have questioned

the listing process and its supporting data.

1. Arroyo Southwestern Toad

On December 16, 1994 the USFWS determined the Arroyo Southwestern Road to

be endangered. At the time, biologists at USFWS were consulting on a project in

the Los Padres National Forest that could impact wetlands habitat associated with

the toad. By listing the toad the occupied habitat would be subject to formal consultation and probable conservation. Discussions with biologists following the listing

indicated that they believed the toad had been eliminated in most of its historic

range and that listing the species would not impact projects much beyond the area

in question. Their data indicated their distribution was extremely limited and their

survival exceptionally compromised. This of course was not true. Based on subsequent studies, we now know that the toad occupies several river and stream habitats in Orange, San Diego and San Bernardino counties, its historic range. Several

state and local projects are now consulting on impacts to this species.

I wonder if forced to discuss the listing package, its assumptions and potential

ramification of the decision with a peer review group, the Service would have reacted with the same rush to adopt the listing package. A detailed discussion of the

literature and study results appeared four years later as the species recovery plan

began to circulate in draft form.

I believe the process of listing without immediate consideration of actual occupied

habitat and a strategy for recovery, allows for emergency listing to act as a means

of protecting potential habitat. Thus, it transfers the burden of proof of species occupancy to the property owner. A logical conservation strategy but based on time, cost

and recovery potential, an unfair burden to the private property owner or public

land use authority.

I wonder if objective critical review of the facts would support past listing

rationale.

2. San Bernardino Kangaroo Rat

The San Bernardino kangaroo rat was emergency listed in January 1998. At the

time, USFWS personnel had been in heated negotiations with a land user and property owner to complete consultation on potential impacts to plant species in the

upper reaches of the Santa Ana River. As indicated in the listing package and notes

of both the USFWS personnel and land users, both sides were extremely frustrated

with the state of discussions. The land user’s representative, operating under an approved land use permit indicated in a meeting that, if a resolution was not reached

soon, several more months, he would proceed with the approved site clearing. Within one week, the rat was emergency listed. The principal rational for listing, threats

to take rats by a property owner.

This obviously changed the balance of the discussion throwing leverage back to

the USFWS. The area was also the home of the largest Federal public works project

at the time, the Seven Oaks Dam. Upon publication of the listing, construction at

the Dam was halted because several acres of borrow area had yet to be cleared within San Bernardino kangaroo rat habitat. Within 24 hours from initiation, the local

57

USFWS office was able to prepare and approve a biologic opinion for the Dam on

the impacts of continuing its construction on San Bernardino kangaroo rat (USFWS

Biological Opinion for the Seven Oaks Dam, February 4, 1998). The Biological Opinion determined that the project would remove 70 acres of occupied habitat and

issued a take permit. The land user blamed for the threat has negotiated to this

day to receive permission to use the property originally in question.

The threatened property, approximately 300 acres, was suspected to be occupied

on approximately 60 acres at the time. Since it was possible to remove 70 acres of

occupied habitat without significant impact to the species, it would appear that the

emergency was overstated or in-fact non-existent. I wonder if a scientific review

panel would have supported this science based listing decision.

The ramifications of the San Bernardino kangaroo rat listing extend even further

with the critical habitat currently being considered. It includes the runways, golf

course and open space of the former Norton Air Force Base currently under redevelopment. This ‘‘historic range’’ was graded and developed in the 1940’s. The open

space is currently mowed seasonally to help maintain another sensitive plant

species, the Santa Ana woolly star, which thrives there. It is hard to understand

how the San Bernardino kangaroo rat will adapt to annual mowing. The scientific

justification for including this area in the critical habitat for the San Bernardino

kangaroo rat screams for objective review.

I believe that scientific peer review of listing packages should extend to critical

habitat designation and recovery plan proposals. Ideally these would all proceed

concurrently. In light of the Arizona Cattle Growers Association (ACGA vs. USFWS)

decision, it would seem that scientific review of each aspect of the listing and protection would benefit from review both to quality and thoroughness of process and compliance with the intent of the Act. Emphasis should be placed on significance and

actual injury to species. The more detail and clarification of congressional intent

that can be inserted into the Act the more likely the USFWS will be able to meet

that intent and avoid litigation. As I stated earlier—litigation is driving ESA in

California and ESA is now the most costly, cumbersome and time consuming land

use approval process in the state.

Another issue currently outside the consideration of these two bills but of needed

consideration by the Committee, is the economic cost benefit of listing species. This

is not to imply that the cost of implementation should out way protection, however

it should be a consideration in weighing the viability of protection and recovery and

would be useful in identifying funding needs and resources for habitat management.

Let me give one example of which I am directly familiar.

The Delhi Sands Flower Loving Fly (DSFLF) was listed in September 1993. The

fly lives in remnant sand dunes in and around Colton, California. It is clear that

this fly is very rare. Only a few specimens reside in collections and it is rarely seen

in the field. At the time of its listing, nothing was known of it larval habits below

the sand including its lifespan or emergence sequence. A total population of 300

adults at emergence was estimated. Its historical range was approximately 24,000

acres of what was now urbanized southern California. The most populated habitat

was in-fact within the property of an active cement plant.

Upon listing, it was discovered that a newly designed County hospital was being

constructed within potentially occupied habitat. This resulted in a consultation with

USFWS. The ramifications of this effort where documented in a paper I prepared

in 1994 and revised in 1996 for Inland Action. I brought a copy of that paper with

me today (Impacts of Mitigation for the Endangered Delhi Sands Flower Loving Fly

on the San Bernardino County Medical Center, Inland Action, 1994; revised 1996).

In summary, that consultation resulted in the movement of the hospital footprint

250 feet north, a redesign of the facility and the set aside of 1.92 acres of fly habitat

believed to be occupied by eight flies. The cost of this effort in 1994 was $3,310,000

dollars or $413,774 per fly, by 1996 the cost had risen to 3.5 million or $441,000

per fly.

Since the listing, only two private sites within the habitat of the fly have completed consultation with the Service. What concerns me about the DSFLF listing is

that if the habitat is looked at from a regional prospective, it becomes apparent that

the conditions contributing to the historical habitat no longer occur. Aeolian sand

sources upwind of the area are no longer available having been covered by development or mined. Much of the historic habitat has been altered by farming or development. The area is the most heavily urbanized portion of the San Bernardino Valley.

Biologists for both the Service and the private sector will readily admit that the feasibility of successful protection of this species is very doubtful. To date consultation

efforts and mitigation expenses for this species probably exceed 100 million dollars

including halting a Federal enterprise zone funded by $650 million dollars in HUD

bonds.

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I would like to think that scientific review by an objective, involved oversight committee would have asked hard questions regarding this listing, the impacts of its

implementation and the feasibility of its implementation and the potential success

of the effort.

The examples I have presented sound outrageous but should not be considered

atypical. They are the norm and they are the reason why listing packages proposed

under this Act need careful scrutiny before resources, both personnel and financial,

are committed.

I support both of these bills as an initial effort to specify the congressional intent

expected in the ESA. Critical oversight is long overdue. California is paying the

price in untold millions of dollars for this lack of control. I also believe that if, after

close scrutiny and critical review of every aspects of a species conditions and circumstances, it is determined to warrant endangered status, that it is then in the

national interest to protect the species. Its protection and survival should then be

budgeted for at the Federal level and a commitment guaranteed. The scientific review panel should determine if the data warrants a national commitment to a

species protection.

Thank you for your time and consideration.

Mr. POMBO. Thank you.

Mr. Illyn? And I apologize if I mess up your name.

STATEMENT OF PETER ILLYN, EXECUTIVE DIRECTOR,

RESTORING EDEN

Mr. ILLYN. You have got it. It is million without an ‘‘M,’’ Illyn.

I am here today to talk about the Biblical principles of environmental stewardship. I am the executive director of an organization

called Restoring Eden. Our official name is Christians for Environmental Stewardship. I recognize that I am not a scientist, and I am

not here to talk about the specific aspects of scientific analysis and

peer review, but I am here to remind this Committee that there is

moral implications to the extinction of species.

From a Christian perspective, these are very simple. I travel

throughout the country. I live in Washington State, in the Gifford

Pinchot, and I travel down to the Klamath Basin, and I spent 10

years as a minister in the Foursquare Church, which is a very conservative evangelical denomination.

I would like to say that I am humbled to be here today because

I recognize the difficulty of this task, and I have talked with farmers in Klamath Basin, and I know what it is like to lie in bed at

night and stare at the ceiling and realize that your world has radically changed, but I also read in Proverbs 31, Verse 8, the verse

that says, ‘‘Speak out for those who cannot speak for themselves.’’

Our group, Restoring Eden, works to make sure that the voice of

all of God’s creation, which is part of all of God’s household, does

have a voice.

There is a misnomer that says, ‘‘God created the Earth for us.’’

God created the Earth for God’s pleasure, and we are a part of it.

Throughout creation, at every instance, God said it was good, and

when God put humanity in the midst of creation, God called it very

good. We are a part of the Earth, but we are not the point of the

Earth.

I travel and speak all around the country, and I recognize that

thousands upon thousands of Christians are recognizing that the

viability, the protection of species is, first and foremost, a moral

issue. I recognize you are faced with the difficult task of making

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economic, and scientific, and cultural decisions, but for those of us

extinction is not stewardship.

In Genesis we read, ‘‘God created the different species and called

them good; God blessed the different species; God protected the different species,’’ and you all know the covenant God made with

Noah to protect the different species.

My favorite verse though, should I ever get a tattoo this will be

it, it says, ‘‘The Earth is the Lord’s and everything in it.’’ And, also, ‘‘In wisdom you made them all, the Earth is full of

your creatures.’’ When I read that verse and recognize what it says, it says in

wisdom you made them all. It says that somehow in the wisdom

of God, which I don’t even pretend to understand, he also made the

flower loving fly, and he made the suckerfish, and he made the

spotted owl, and God made all of creation according to God’s purpose, and it is not my place to destroy what God called good. It is

not my place to stand aside and let, for economic or even political

reasons, allow the destruction of God’s good creation.

God entrusted us to tend and keep the garden. We are allowed,

and we are even expected, to eat from the fruitful bounty of the

garden. But just because we have power, doesn’t mean we have the

right to trample and defile that same garden. There is no Christian

justification to destroy the fruitfulness of the Earth or to blaspheme the wisdom of God that is expressed in biodiversity. Again,

extinction isn’t stewardship. We believe it is sin caused by our arrogance, our ignorance, and our greed, and I am part of a grassroots movement that is growing throughout the country of people

recognizing this fact.

I would like to close with two quotes, the first being the Patriarch Bartholomew of the Orthodox Church, who writes, ‘‘To commit

a crime against the natural world is a sin. For humans to cause

species to become extinct and to destroy the biological diversity of

God’s creation, these things are sins.’’ But since not many people here are Antiochian Orthodox, I

would also like to read what Reverend Billy Graham wrote. He

said, ‘‘It is not right for us to destroy the world that God has given

to us. He has created everything; as the Bible says, ‘The God who

made the world and everything in it is the Lord of Heaven.’’’ To

drive to extinction something he created is wrong. He has a purpose for everything. We Christians have a responsibility to take the

lead in caring for the Earth. Again, I say extinction isn’t stewardship.

I applaud the difficult decisions you have and the choices you

have to make, but we do feel that, bottom line, as we travel around

the country, the work is simple. God is a good God, God made a

good Earth, and God calls us and entrusts us to be good stewards,

and that is the moral message that we are taking out and the response that we are hearing in communities throughout the country.

[The prepared statement of Mr. Illyn follows:]

Statement of Peter Illyn, Executive Director, Restoring Eden

My name is Peter Illyn. I’m here today to testify about the biblical principles of

environmental stewardship and how these relate to the protection of endangered

species. I have read the bills that are being discussed here today. I realize that I

am not a scientist and cannot accurately testify about the specific aspects

60

concerning scientific analysis. I am, however, a preacher. I would like to discuss the

theology of creation care and how this is becoming a growing movement within the

church.

I spent 10 years as a minister and a preacher in the Foursquare Church, a conservative evangelical denomination. I am now the Executive Director for a ministry

called Restoring Eden. I live in SW Washington, and spent five years as a professional outfitter in the Gifford Pinchot National Forest. I also do some networking

with churches in the Klamath Basin. I am well aware of the recent events in both

places.

I am humbled to be here today as I recognize the difficulty of your task. The protection of endangered species is a very complex and interwoven problem. Most potential solutions have ecological, political and/or economic ramifications. But as I

travel through-out the country speaking about the call to care for God’s creation,

I am amazed at what I see and what I hear. Thousands upon thousands of Christians have recognized that extinction of species is first and foremost a moral issue.

The Bible is clear on this subject. Humans have no right to wipe out that which

God called ‘‘good.’’

In Genesis we read:

That God made the different species (and called them good.)

That God blessed the different species (and told them to fill the earth.)

That God protected the different species.

And that God made a covenant with the different species.

In Psalms we read two more biblical and theological truths.

‘‘The earth is the Lord’s and everything in it. (Psalm 24:1).

‘‘In wisdom you made them all, the earth is full of your creatures.’’

(Psalm 104:24)

These scriptures reveal the heart and the will of God as it relates to the protection of biodiversity. In wisdom and in goodness, God created, blessed, protected and

made a covenant with the all the different species. God called them to fruitfulness;

to fill the earth. We are a part of creation, but we are not the point of creation.

God entrusted us to tend and keep the garden. We are allowed, even expected,

to eat from the fruitful bounty of God’s garden. But we have no right to trample

the garden; to destroy the fruitfulness, to blaspheme the wisdom of God expressed

in biodiversity.

Extinction isn’t stewardship. It is sin caused by our arrogance, our ignorance and

our greed. I’m part of a grassroots Christian movement that is taking place in

churches and in college campuses through-out the country. We are Bible-believing

Christians who recognized that we have a God-given responsibility; yea, a moral

duty, to be stewards of the earth.

We are seeing the beginning of a new morality, one that will be used by future

generations to judge the environmental decisions made by this committee and enacted by this Congress. We do not stand alone in this. Almost every major denomination in the country has a position condemning the human caused extinction of

species.

Patriarch Bartholomew of the Orthodox Church writes, ‘‘To commit a crime

against the natural world is a sin. For humans to cause species to become extinct

and to destroy the biological diversity of God’s creation,’’.these things are sins.’’

And the Rev. Billy Graham is quoted as saying, ‘‘It is not right for us to destroy

the world God has given us. He has created everything; as the Bible says, ‘‘The God

who made the world and everything in it is the Lord of heaven’’ (Acts 17:24) To

drive to extinction something He created is wrong. He has a purpose for everything.

We Christians have a responsibility to take the lead in caring for the earth. The

Lord said we are to look after his Garden,’’ and he said ‘‘we are responsible for it.’’

In the past few years, our ministry, Restoring Eden, has developed relationships

at over 40 Christian colleges. We have members in hundreds of churches throughout the country. Our call is simple. God is a good God. God made a good earth. And

God calls us to be good stewards.

Thank you.

Mr. POMBO. Thank you.

Mr. Anderson?

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STATEMENT OF JAMES J. ANDERSON, Ph.D., RESEARCH

ASSOCIATE PROFESSOR, SCHOOL OF AQUATIC AND FISHERY

SCIENCES, UNIVERSITY OF WASHINGTON

Mr. ANDERSON. Thank you, Mr. Chairman. It is an honor to be

here talking about this very important issue, how to bring peer review to the Endangered Species Act.

I am a scientist, I grew up as a scientist, I think as a scientist,

and I also realize and always thought that the best science, one of

the components of best science was it was peer reviewed and reproducible. As I started to look at the Endangered Species Act, I realized that peer review was not really part of the process, and so

peer review, external peer review, needs to be part of the

Endangered Species Act. I think this has brought out some problems, and many of these have been brought up today.

I will list just a few: The delisting of the Oregon coho, just with

the stroke of a pen; the pygmy owl, they set aside its critical habitat; the reevaluation of the Northwest salmon is going to go on.

There is 19 critical habitats which are going to be reevaluated; and,

of course, the Klamath National Academy of Sciences’ review. All

of these are reversals of decisions that were made by agencies.

I think the reason these happened is because the agencies felt

they were protected by the Endangered Species Act from standing

up to do science with peer review, and I think you are trying to

address that with your bills. Now the agencies realize, of course,

that peer review is important. Recently, there was a review of the

habitat conservation plans. Twenty-five percent of them do have review boards. This is actually quite a low number. The study that

evaluated these concluded quantitatively that those 25 percent

were the best of the habitat conservation plans. The ones which

had no peer review were the worst. So I think there is much evidence to show that the peer review is good, external peer review

is very important.

Now I would just like to mention a couple of types of peer review

because it is a complex issue how we get peer review in a standardized form.

Now, in the Klamath example, there was a single one-time review panel that came in, looked at the situation, made their comments, and then they moved out. In terms of the Columbia, which

I am quite familiar with, Columbia River endangered salmon, there

is a standing scientific review panel which then oversees 11 technical recovery teams. So these are standing panels, and they are

working on a very complex situation to deal with a very complex

issue, the recovery of many stocks in the Pacific Northwest.

What these point out to me is that a bill that, as you try to introduce peer review into the Endangered Species Act, it must be scalable. So, for a small issue, it can be done in a very efficient fashion

with a small group, and for a large issue, like Columbia River

salmon, there might be a need for some kind of standing group, as

an example that I just mentioned. So scalable is one of the things

that the panels need to consider in developing this peer review system that needs to be standardized.

As I looked into what peer review is, I found a number of references and quite a bit of literature on how peer review should be

done. Secretary Manson was also mentioning that they are looking

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into this, and there are a lot of studies, and I would encourage the

Committee to bring this information together to put together a very

good bill that will address the complex issues. So bringing together

this information, and of course doing it in a timely fashion because

there are many important issues that need to be addressed, and

peer review needs to be part of making these decisions.

With that, I will conclude my testimony. Thank you.

[The prepared statement of Mr. Anderson follows:]

Statement of James J. Anderson, Research Associate Professor, School of

Aquatic and Fishery Sciences, University of Washington

My name is James Anderson; I am a Research Associate Professor in the School

of Aquatic and Fishery Sciences at the University of Washington. For over two decades I have conducted research on the influence of the Columbia/Snake River

hydrosystem on salmon. I have also published articles on animal behavior and

human decision processes. I have been involved in a number of review processes.

Currently I am a member of the California Environmental Water Account (EWA)

Review Panel. The EWA is a new water management tool designed to protect fish

from harmful impacts of state and Federal water exports from the Sacramento–San

Joaquin watershed.

I wish to thank the Resource Committee for this opportunity to testify on

H.R. 2829 and H.R. 3705 which would amend the Endangered Species Act to give

greater weight to science. My testimony focuses on the need for peer review of

Endangered Species Act (ESA) decisions.

The Problem

As enacted in 1973, the ESA requires the Secretary to make determinations solely

on the basis of the best scientific and commercial data available. Although this directive is clear and powerful it has one significant omission: its determination of the

best science does not follow the procedures used by the scientific community. In the

science community, work is judged by peer review. However, the ESA has no formal

requirement for peer review. It is true that the agencies responsible for implementing the ESA spend considerable time reviewing petitions and soliciting public

opinion; however, these activities simply do not provide the disciplined analysis of

independent external peer review. Because critical ESA actions and decisions are

not peer reviewed, agency scientists are inadvertently susceptible to acting as if

their decisions are protected by the Endangered Species Act. Recent history has

proven otherwise. In three cases the courts reviewed agency decisions and found

them deficient. In another case, a National Academy of Sciences review criticized

the agency decision as scientifically unfounded. These after-the-fact reviews were

highly controversial; regardless of their final outcomes, which are not clear at this

time, they will have significant impacts on both the environment and the economy.

They are compelling examples of the need to strengthen the review process in the

ESA. • In September 2001, a U.S. District Court ruled to de-list Oregon coho, stating

that the National Marine Fisheries Service (NMFS) had been ‘‘arbitrary’’ in distinguishing between ‘‘two genetically identical’’ salmon ‘‘in the same stream’’ (NMFS 2001a, Kaiser 2001). • In September 2001, a U.S. District Court set aside the Fish and Wildlife Service

designation of pygmy-owl critical habitat. The judge noted that the habitat designated included areas not surveyed for, but in which the agency scientists

thought pygmy-owls could live (ESWR 2001). • In February 2002, the National Academy of Sciences released a report criticizing the judgment of Federal fisheries biologists on the recommended water

restriction to protect suckerfish in Upper Klamath Lake (Science Scope 2002).

• In March 2002, the National Marine Fisheries Service agreed to rescind critical

habitat designations for 19 west coast salmon listed under the Endangered

Species Act. The settlement was triggered in part by the National Association

of Home Builders’ discovery of an inter-agency memo stating ‘‘when we [NMFS]

make critical habitat designations we just designate everything as critical, without analysis of how much habitat an ESU needs’’ (NHBA 2002, NW Fishletter

2002a).

The ESA Current Review Processes

Currently, the ESA allows agencies to make decisions without independent peer

review of the major steps including: 1) decisions on petitions to add and remove

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species to endangered and threatened species lists, 2) decisions on jeopardy opinions, and 3) plans for recovery.

As the ESA is now implemented, public opinion is solicited on recovery planning,

but not on the decision to list a species, or on jeopardy opinions. For example, in

the case of the Columbia River salmon recovery plan, thirty-five parties, other than

Action Agencies, commented on the NMFS Final 2000 FCRPS Biological Opinion

(NMFS 2001b). Because the letters and supporting documentation represented thousands of pages, responses, typically a paragraph in length, were made to categories

of comments.

Although there is no requirement to provide peer review in developing recovery

plans agencies are beginning to do so. In a sampling of 43 US Fish and Wildlife

Service (USFWS) Habitat Conservation Plans, 11 plans employed science advisory

boards with half the members from within government and the remainder with industry, academic and environmental affiliations (Harding et al. 2001). The National

Marine Fisheries Service set up a two-tier review structure in 2000. A six member

Science Review Panel (NMFS 2000c) oversees the work of nine Technical Recovery

Teams (NMFS 2001d) that set biological goals needed for salmon recovery in the

Northwest and California. The Northwest Power Planning Council has implemented

a similar process through its Independent Scientific Advisory Board and Independent Scientific Review Panel (NPPC 1997).

A Case for Additional Review

Review through solicitation of public comments (NMFS 2000) is important but is

ineffective in providing substantive inputs to decisions. The importance of peer review was quantitatively illustrated in a study of 208 habitat conservation plans

(Kareiva et al. 1998). In a detailed study on 43 of the plans, the 11 that included

science advisory boards in the plan formation were of significantly higher quality

than the plans without boards. In the lowest quality plans, biological experts were

not consulted (Harding et al. 2001). From my own observations, the NMFS two-tier

review process and the NPPC review process provide substantive reviews of the recovery process. However, all these review processes address actions after the species

are listed. The decisions to list species and designate critical habitat are solely the

responsibility of the overseeing agencies, which act without external guidance and

review.

Although we can only speculate on how peer review would have altered the outcomes of the four cases noted previously, it is highly probable that through peer review the agencies would have been compelled to address the scientific weaknesses

in their decisions, making them less vulnerable to challenge. Furthermore, stronger

scientific foundations in agency decisions serve all parties. The ESA states that critical habitat designation will be based on the best science while also taking into consideration the economic and other relevant impacts. The recent court decisions have

emphasized this important balancing of needs and impacts. Peer review will better

illuminate the strengths and limitations of the science, which will facilitate a fair

balance between parties with differing standpoints on the needs of the species and

the needs of the economy. As the examples illustrate, non-reviewed ESA decisions

can be one-sided and vulnerable to court challenges.

The Science of Peer Review

Peer review is an imperfect process that can be manipulated, or simply fail for

procedural reasons. Fortunately, considerable research has gone into the peer review process and many of the pitfalls have been identified and can be avoided. However, peer review in regards to the important task of species recovery does appear

to have its own challenges and the structure of peer review in the ESA should be

carefully considered. Hundreds of articles have addressed the subject. In preparing

this testimony, I relied on a comprehensive and extensively documented study by

Kostoff (1997a, b) that addressed peer review issues, Federal agency peer review

practices, and recommended peer review processes plus a thoughtful discussion of

peer review issues by Ford (2000). From these works, a number of salient points

on ESA peer review emerge.

• The Review Process: For an efficient peer review of ESA actions the process

must be understood, developed, and standardized.

• The Agency: Success requires senior management’s commitment to high-quality

reviews. Rewards and incentives are required to encourage such reviews.

• The Review Manager: Functionally, a review process has a manager that guides

the questions and discussion in the review. The manager generally selects the

participants, and if the manager does not follow the highest standards in selecting the reviewers, the review’s outcome may be substantially influenced before

the review process begins.

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• The Reviewers: The selected reviewers should be competent in the required subdisciplines and, together the group, should cover the topic. The group should

also include generalists that that can address the overall issues and larger

questions. Reviewers come to a process with a standpoint that influences their

approach. For example, a conservation biologist and an agriculture economist

are likely to have different perspectives in reviewing critical habitat designations.

Specifics as Related to H.R. 2829 and H.R. 3705

The intent of H.R. 2829 and 3705 is to strengthen the use of science in actions

pertaining to the listing, jeopardy opinions, recovery actions and the delisting of endangered and threatened species as determined under the Endangered Species Act

(ESA). Both H.R. 2829 and 3705 would introduce independent peer review into the

procedural steps of the ESA. H.R. 2829 would implement review boards on: 1) the

species listing process, 2) the species de-listing process, 3) determinations of jeopardy, and 4) development of recovery plans. H.R. 3705 would implement review

boards on: 1) reviewing scientific information in listing petitions, 2) decisions to add

and 3) remove a species from a list, and 4) decisions on jeopardy.

It is my belief that enactment of either bill would improve the implementation

of the ESA. I believe it is critical that the review process involve listing, de-listing,

recovery actions and jeopardy opinions. However, I believe an improved bill would

draw further from studies of the peer review process and meld with existing review

processes.

Issues arise about how to incorporate existing review processes into an amended

ESA. In the case of the West Coast Salmon, the existing peer review process addresses questions related to recovery and jeopardy. However, the process is not

standardized and its responsibilities are not fully articulated. For example, is the

Science Review Panel allowed to review NMFS harvest policies (NW Fishletter

2002b), will it review the new habitat designations promised by NMFS, or the new

rules needed to disentangle Oregon’s wild and hatchery coho? The National Academy of Sciences review of the Klamath water policy was akin to the review structure outlined in H.R. 2829. The peer review processes for the Klamath and the Columbia basins are different, the Klamath involving a one-time National Academy of

Sciences review, the Columbia involving an ongoing process closely connected with

the agency. Which structure best fits into the ESA? What can be learned from each,

and how can ongoing review processes be incorporated into a bill? Scientific studies

on peer review indicate that these issues need to be understood and a formal process developed and standardized.

Peer review processes, if not carefully constructed, may be either too small or too

large. A brief three day panel may be sufficient to review research proposals, but

is insufficient to review a complex program. On the other hand, a multi-year review

by a large working group such as was conducted on the Columbia River by PATH

(Marmorek 2000), can become unmanageable through its complexity and advocacy

(Anderson 2000, Marmorek et al 2002). An alternative peer review process, the

Science Court, mimics a legal procedure, with advocates, critics, and a jury. It is

a unique and potentially powerful technique, but like any tool, can be misused if

not understood and applied properly (Kostoff 1997). Kostoff noted that the Science

Court probably had more debate and surfacing of crucial issues than any other concept he evaluated; however, it was time-consuming compared to a standard panel

assessment.

Before peer review is incorporated into the ESA questions such as the size of panels, their tenure, the process of selection, and the extent of their responsibilities

need to be resolved. Congress should not delay in this effort because the nation

faces many important decisions on endangered species and these decisions will be

better made with sound science founded in critical independent peer reviews.

References

Anderson, J.J. 1999. A Personal In-side Review of PATH. http://

www.cbr.washington.edu/papers/jim/handout.html.

Endangered Species & Wetlands Report (ESWR). 2001. Pygmy-owl critical habitat

set aside, listing upheld. 6:12.

Ford, E.D. 2000. Scientific Method for Ecological Research published by Cambridge University Press

Harding, E.K et al 2001. The scientific foundations of habitat conservation plans:

a quantitative assessment. Conservation Biology, 15:2, pp 488–500.

Kaiser, J. 2001, When is a coho salmon not a coho salmon? Science 294, pp.1806–

1807.

65

Kareiva, P., et al. 2001. Using science in habitat conservation plans. Report released by the American Institute of Biological Sciences and the National Center for

Ecological Analysis and Synthesis (4 June 2001, www.nceas.ucsb.edu/projects/hcp).

Kostoff, R.N., 1997 Research Program Peer Review: Principles, Practices, Protocols http://www.dtic.mil/dtic/kostoff/Peerweb1index.html.

Kostoff, R.N. 1997. Peer Review: The Appropriate GPRA Metric for Research.

Science 277, pp. 651–652.

Marmorek, D. R., et al. (34 co-authors). 1998. PATH final report for fiscal year

1998. Compiled and edited by ESSA Technologies, Vancouver, British Columbia,

Canada. BPA web site: http://www.efw.bpa.gov/Environment/PATH/reports/

1998Final/1998Final.pdf.

Marmorek, D. and C. Peters. 2001. Finding a PATH toward scientific collaboration: insights from the Columbia River Basin. Conservation Ecology 5(2): 8. [online]

URL: http://www.consecol.org/vol5/iss2/art8.

National Home Builders Association (NHBA), 2002, Federal agency proposes settlement, agrees that salmon, steelhead habitat must be determined by sound

science. http://www.nahb.com/news/salmon.asp.

NMFS. 2000. Three Additional Public Hearings Announced on Proposed Regulations to Protect Salmon and Steelhead. http://www.nwr.noaa.gov/1press/

4drulephnew.htm.

NMFS. 2001a. Summary of the Alsea Valley Alliance v. Evans U.S. District Court

Decision. http://www.nwr.noaa.gov/occd/AlseaSummary.pdf.

NMFS. 2001b. Response to comments on 2000 FCRPS Biological Opinion. http:/

/www.nwr.noaa.gov/1hydrop/hydroweb/docs/Final/respcomm.pdf.

NMFS. 2001c. Science Review Panel Appointed to Guide West Coast Salmon Recovery http://www.nwr.noaa.gov/1press/050300—1.htm

NMFS. 2001d. West Coast’s First Salmon Recovery Team Appointed; Will Examine Puget Sound Chinook, Chum, Sockeye http://www.nwr.noaa.gov/1press/040400— 1.htm.

NMFS. 2001c. Science Review Panel Appointed to Guide West Coast Salmon Recovery http://www.nwr.noaa.gov/1press/050300—1.htm

NMFS. 2002, Response to Salmonid Delisting Petitions Announced. http://

www.nwr.noaa.gov/occd/PetitionFindingsFRN.html

Northwest Power Planning Council (NPPC). 1997. Independent Science Groups

http://www.nwcouncil.org/fw/science.htm.

NW Fishletter. (2002a). NMFS says it’s sorry over harvest critique. NWF 138/

Feb.27.2002. http://www.newsdata.com/enernet/fishletter/4

NW Fishletter. (2002b). NMFS caves on critical habitat. NWF 139/March.15.2002.

http://www.newsdata.com/enernet/fishletter/6.

Science Scope. 2002. Water Warning, Science 295, 945.

Mr. POMBO. Thank you.

Mr. Dobson?

STATEMENT OF ANDREW DOBSON, Ph.D., ASSOCIATE

PROFESSOR, DEPARTMENT OF ECOLOGY AND

EVOLUTIONARY BIOLOGY, PRINCETON UNIVERSITY

Mr. DOBSON. Thank you. I would like to thank you for this opportunity to present this testimony. As a scientist, a professor at

Princeton University, I have a range of serious concerns about the

legislation before us today.

One concern is the bill would limit scientists’ ability to use some

of the most important mathematical tools, as well as data. It allows

us to examine endangered species. A second concern is that the

bills distort and misunderstand the nature of the peer review process. The third concern is that these bills, particularly the excessive

use of peer review, would create time delays in the legislative process that will not only increase the risk of extinctions, but also frustrate landowners and lawmakers.

In the 1990’s, the Ecological Society of America drafted a white

paper that addressed science and the Endangered Species Act. The

National Academy did the same thing. Both of those reports say

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the act, as it stands, is a powerful and sensible way to protect biological diversity.

I am submitting a copy of the Ecological Society paper to the

written record. I also have with me a letter signed by many eminent conservation biologists criticizing the act, and I would also

like that to be submitted to the written record.

[The information submitted by Mr. Dobson follows:]

67

Mr. DOBSON. Being here today means that I have stopped working for 4 days on a mathematical model that predicts the spread

of an infectious disease that could either be introduced accidentally

into a population of endangered species or inadvertently into the

human population by bioterrorists. There is a direct analogy between the type of mathematical models I build for that process, and

the ones we use to see whether species go extinct.

There is an important example of this type of modeling, direct

analogy to the type of things we do with the Endangered Species

Act. Consider the outbreak of foot-and-mouth in Britain last year.

Within 2 weeks of that epidemic starting, the Government was entirely dependent on a group of ecologists to predict the outcome of

that epidemic. Ultimately, determining when the Prime Minister

called the election was determined by a group of scientists who predicted when the epidemic would end.

If the same thing happened here, you would have to come to a

bunch of ecologists to tell you what would happen if you had another epidemic, the same group of people who look at endangered

species. If we were to follow the same procedures, as I laid out in

these bills, rather than develop mathematical models and use those

to predict what would happen, these bills suggest we should just

watch people dying and collect that data.

Now some of the proponents of the bills might want to stand by

their principles, but I get the feeling that their staff, as in the Postal workers, would find that a bit of a hard nut to swallow.

If we look at the Endangered Species Act, it is fundamentally

sound. It is one of the few pieces of legislation that require many

important decisions to be based solely on science. Unfortunately,

from a scientific point of view, the proposed bills don’t seem to have

any understanding of how science works. To talk of data as being

peer reviewed, seems to simply illustrate a lack of comprehension

between the product, which is data and the process of producing it,

which of course has to be peer reviewed.

The main problem with all of this peer review is that it slows

down the rate at which species get listed and, as I said, upsets policymakers. It makes them, not only policymakers, it upsets landowners, the people whom these decisions most affect.

There also seems to be an underlying assumption that a National

Academy of Sciences committee could be assembled at any time to

sit in judgment on any vaguely contentious case. Although such a

committee could come up with a suitably august judgment, what

seems to be happening here and what this bill effectively says is

it is the equivalent of going to the police and saying we are going

to take away your speed detectors, and we are going to let you

guess the speed of vehicles, and if you are wrong, the person that

you have said was speeding has to go to the Supreme Court to debate over speeding tickets. That is the equivalent calling in the

National Academy.

The main problem with the Endangered Species Act is it is massively underfunded. Both of the costs that were quoted early on exceed the annual cost that the Department of Interior has to pay for

the Endangered Species Act, which is around $125 million.

Let me make a pertinent comparison here. The current levels of

funding for the Endangered Species Act are equivalent to less than

68

6 hours of the annual Pentagon budget. Indeed, the Pentagon will

spend more time during the course of this hearing than is actually

spent on the Endangered Species Act. I don’t, and I am a father,

as well as a scientist, I don’t consider that national security is that

large an issue for the future well-being of my children as having

a healthy environment to live in.

To conclude, what I would like to say is that I think the proposed

bills are sheep in sheep’s clothing. They will make the Endangered

Species Act more wooly and slow-witted. What is really needed is

a bill that reflects one of the ESA’s major successes, the reintroduction of wolves into Yellowstone. Such a bill would have the teeth

of cutting-edge science and the focused ability to allow landowners

to benefit from the presence of endangered species on their land,

just as the Yellowstone Park and surrounding economy have benefited from the reintroduction of wolves.

Thank you for the opportunity to talk to you today. I am

available at any time. I am busy with infectious diseases, but I am

happy to address written questions.

[The prepared statement of Mr. Dobson follows:]

Statement of Andrew Dobson, Professor of Ecology and Epidemiology,

Princeton University

Thank you for the opportunity to present this testimony. As a scientist, I have

a range of serious concerns about the legislation before us today. One concern is

that the bills would limit scientists’ ability to use some of the most important mathematical tools used widely in the scientific community today and could limit tools

of the future. A second concern is that the bills distort and misunderstand the nature of the peer review process.

In the mid–1990s the Ecological Society of America drafted a white paper that

addresses science and the Endangered Species Act. Similarly, the National Academy

of Sciences National Research Council published a detailed final report entitled

‘‘Science and the ESA.’’ Both these studies, by two of the largest and most eminent

associations of scientists in this country, reached the same basic conclusion: ‘‘The

Act is a powerful and sensible way to protect biological diversity’’ (Ecological Society

of America); and ‘‘There has been a good match between science and the ESA.’’ (National Research Council). I am one of the authors of the Ecological Society of America report, which I am submitting for the record. In addition, I have here, which

I’m also submitting for the record, a letter signed by a number of leading scientists

that raises concerns that the bills before you could seriously impact the way best

available science is defined and considered. Also submitted is a paper from Science

on the geographic distribution of endangered species in the United States, which illustrates that a relatively small area of land is needed to conserve endangered

species. I greatly appreciate the opportunity to share a few additional thoughts with

you today.

1) There are distinct similarities between conserving endangered species and preventing disease outbreaks:

A) Preventing an endangered species from going extinct and controlling the

spread of pathogens and infectious diseases present similar challenges.

Both exercises seek to make the world a healthier place—both require

a mix of mathematics, statistics, and the collection and analysis of data

from the laboratory and field.

B) As an important example of this consider last year’s outbreak of foot and

mouth disease in the United Kingdom. Within two weeks of the outbreak

starting the government was entirely dependent upon a group of mathematical ecologists and the models they developed to predict the effectiveness of a control strategy for the epidemic. Their predictions for when

the epidemic would die out ultimately determined when the government

could hold the National election. If there were a similar disease outbreak

in the US—of livestock or humans—you would need the aid of similar

models and expertise. It’s the same mathematical problem as preventing

species go extinct.

69

C) Many of the people involved with the conservation of biological diversity

are the same people involved with controlling infectious diseases of humans and domestic livestock. All of the people at the cutting edge of

those disciplines use a mixture of mathematical models, long-term data,

and experiments to understand the natural work.

2) The Endangered Species Act and the proposed changes to the peer review proc- ess A) The Endangered Species Act is fundamentally sound. It’s one of the few

pieces of legislation that require many important decisions to be based

solely on science. As the Ecological Society white paper points out: ‘‘Biologists in the agencies responsible for implementing the Endangered

Species Act generally try to use the best scientific information and methods available. Failure to use the best available information and methods

is generally due to inadequate budgets and overworked staff.’’ Ecological

Society of America 9.

B) From a Scientific point of view the proposed Bills don’t seem to have any

understanding of how science works. To talk of data as being ‘‘peer-reviewed’’ simply illustrates a lack of comprehension between the product

(data) and the process of producing it and reasoning from it (which may

need to be peer-reviewed).

C) A key point here is that both of these bills propose peer review for jeopardy opinions, but not for non-jeopardy opinions. This creates an egregious asymmetry in the way that species would be dealt with. In particular it will slow the listing process for species for which simple and

effective protection may be developed, while focusing agency attention on

a tiny minority of species. As the Ecological Society pointed out in their

white-paper: ‘‘For species deserving protection, delaying the decision to

provide protection and recovery will bring most of these vulnerable

species even closer to the brink of extinction, restrict the options

available for achieving recovery, and increase the eventual cost of the recovery process.’’ D) There also seems to be an underlying assumption that an NAS committee could be assembled at any time to sit in judgement on any vaguely contentious case. While such a committee may eventually come to a

suitably august judgement, in most cases the local agency people will

know much more about the species in question. However, the last thing

that scientists (and agency people) need is to be bogged down in an endless peer-review process. There is no career incentive for scientists to

take part in such reviews. Equally there is no incentive for the NAS/

NRC to endlessly spend their time reviewing each transgression of the

ESA. The proposed Bill effectively suggests the equivalent of removing

speed detectors from the police, allowing them to guess the speed of vehicles, and then suggesting that traffic offenders appeal to the Supreme

court over speeding tickets.

3) Funding for the Endangered Species Act

A) The main problem with the ESA is it is massively under-funded. The annual funding for implementation of the ESA in the Department of Interior is around $125 million. This year the Administration has requested

just $9 million for listing and critical habitat designations. Last year the

FWS estimated that it needs $120 million to process the current backlog

of needed listings and critical habitat designations. According to the

FWS there are more than 250 species waiting for protection under the

ESA. The longer we leave them unlisted, the harder and more expensive

it will be to effectively protect them once listed.

B) Let me make a pertinent comparison here: the current levels of funding

for Endangered Species are equivalent to less than six hours of the annual Pentagon budget and less than half their Advertising budget. Yet

conservation of biological diversity is an equally important National and

International Security issue. As a scientist and epidemiologist, I would

argue that the health and security of my children is as dependent upon

a healthy and intact environment, as it is upon military preparedness.

C) As an example consider that more than half the people in this room will

probably die from a natural resource exhausted in our lifetimes—antibiotics capable of effectively controlling harmful bacteria. Antibiotic resistance is a direct example of misuse of natural resources (and a wonderful example of evolution in action). This proposed bill will allow similar misuses of natural resources that will ultimately reduce the quality

of life for most Americans. Again its ironic that we see biological weapVerDate 11-MAY-2000 09:56 Dec 17, 2002 Jkt 000000 PO 00000 Frm 00073 Fmt 6633 Sfmt 6621 78289.TXT HRESOUR1 PsN: HRESOUR1
70

ons as a threat to National Security, while discussing bills that have all

the potential to create biological disasters that may have a huge impact

on human health.

4) The importance of conserving biological diversity

A) Biological diversity is the world’s ultimate resource—it supplies humans

with food, medicine, and ecosystem services. The global economy and

whence global security are wholly dependent upon a healthy and intact

environment.

B) Biological diversity is produced by the world’s most powerful force—evolution by natural selection. This creates the ultimate irony. The

Endangered Species Act isn’t designed solely to protect biological diversity. Its long-term goal is to protect us from the folly and short-term

greed of our own actions. Nature can ultimately and relatively effortlessly recover from some of the effect of human activity, although the

loss of any species is irreversible. The more pertinent question is can humans coexist with nature in a way that will maintain a healthy and secure world for our children?

C) The proposed Bills change the definition of best available science by removing some of the principal scientific tools such as mathematical modeling and population viability analysis and replacing them with ‘‘expert

opinions’’ that may be easily distorted by significant conflicts of interest.

This again illustrates a deep lack of understanding of the scientific process. Science is only viable when it uses the most up-to-date variety of

tools to develop insights into the underlying process. Each member of

the committee should ask themselves ‘‘If you were ill, would you trust

a physician who restricted himself to the use of nineteenth century technology and diagnostic techniques?’’

D) The Bills we have discussed today cannot easily be tinkered with and

fixed ‘‘they will suffocate the Fish and Wildlife Service under a flood of

pointless additional bureaucracy. This is most clearly illustrated by its

emphasis upon inappropriate peer-review and the removal of the use of

mathematical analysis from the Listing Process. This is the direct equivalent of saying: ‘‘We have lots of ‘soon to be unemployed friends’ at Arthur Anderson, let’s get them to run the economy and let’s also do away

with the models developed by Alan Greenspan and his colleagues at the

Federal Reserve’’. Instead members of the committee should realize

there are deep similarities between the mathematical models that economists use and those used by ecologists. In essence, economics is just the

ecology of money and jobs. As the global economy is a wholly owned subsidiary of the natural economy, the future health and wealth of the

planet depends upon a dialogue between economists and ecologists. The

common language of this dialogue is mathematics. As it is in all the

sciences.

E) I personally find it unfortunate that these bills are under discussion. Today’s debate is occurring at a time when we should be strengthening the

science and funding for the Endangered Species Act. Indeed, if the US

is genuinely concerned with long term, global security, we should actually be debating the ratification and signing of the Convention on Biological Diversity. The continuing failure of the US Congress to endorse

and strengthen these fundamental pieces of environmental legislation increasingly reflects a chronic long-term misunderstanding of the major

underlying processes that determine human health, wealth, and global

security.

[NOTE: The Ecological Society of America report entitled

‘‘Strengthening the Use of Science in Achieving the Goals of

the Endangered Species Act’’ has been retained in the Committee’s official files. It is also available at http://

www.esa.org/pao/esarpt.htm. The Science Magazine article

entitled ‘‘Science and the Protection of Endangered Species’’

by H. Ronald Pulliam and Bruce Babbitt has also been

retained in the Committee’s official files. It is available at

http://www.sciencemag.org/cgi/content/full/275/5299/499.

71

Mr. POMBO. Well, I thank you. I thank the entire panel for your

testimony.

Mr. Dobson, your testimony somewhat intrigues me. I had the

opportunity to read your testimony last night, your prepared testimony, and there are a number of things that I think that you may

be a very brilliant man who may understand science more than I

ever will, and I will give you that, but I don’t think you have a clue

how the Endangered Species Act works in the real world and what

the impact is.

In 1995, they listed the fairy shrimp in my district. It was based

upon one of your mathematical models. They took a right-of-way

that they surveyed. They determined that a certain amount of

habitat was being lost within that area, and based upon that information that they had, it was listed as an endangered species. Subsequent to that, they found out that they do not just live in that

one area, but they live throughout California. I contend that if they

had had a peer-review process in place, if they actually had field

data, that they would never have listed that particular species.

And, in fact, one of the people that was hired by Fish and Wildlife

Service to peer review their work, at the time that we had a hearing, said that he had never seen all of the information that was

presented at that hearing and would support delisting the fairy

shrimp based upon that. Those are the kind of things that we are

trying to get at.

Now, as far as the peer-review process, I have yet, in the 10

years that I have been doing this, met two scientists who agreed

what peer review was, and you know that as well as I do. It is in

the eye of the beholder, it is in the eye of whichever scientist is

having his work peer reviewed, they come up with different opinions.

Now, Mr. Anderson, in your testimony you talked about the different ways to peer review work. I have read some of those reports

that you talk about and am committed to finding the best way to

peer review the information that Fish and Wildlife and NMFS

bases their decisions on. It may not be the way that I do it in my

bill. The way that we came to was, in consultation with the minority and kicking back and forth different ideas of ways to do this,

this was the way that we came up with that everybody seemed to

have the least problem with.

There were a number of other ways that we looked at that we

could do this. It was the best way that we felt would fit within the

job that we assigned to Fish and Wildlife Service and to National

Marine Fisheries. It may not be the best way, and if you have other

ways of doing that, if you think that there is a better way of doing

that, I am willing to listen to that. I am willing to take those ideas.

I am willing to take that to Fish and Wildlife and ask them will

this work, is this a better way of doing it?

All we are trying to do is find a way to have the decisions that

are made by Fish and Wildlife Service and by NMFS, to have those

decisions based upon as accurate a science as we can possibly come

up with at the time that those decisions are made. Most of us sitting up here don’t feel that that is happening. A lot of my constituents don’t feel like that is happening under the way that we are

doing it right now. We are trying to find a better way of doing it.

72

If the decisions on the fairy shrimp, if they had done a full-blown

scientific biological survey, and they had done the field surveys,

and they came back with the decision that it was in danger, we

could live with that. But the question that was pulled in was that

the science was faulty. From the very beginning, before it was ever

listed, they were told the science was faulty. And as a direct result

of that, it has cost people in my district millions of dollars in order

to meet the implementation, the cost of the implementation of the

Endangered Species Act on what I believe was a faulty listing from

the very beginning.

We are just trying to figure out the best way to do this. I don’t

sit up here in front of you and claim to be a scientist, and I don’t

sit up here in front of you and tell you that I have got all of the

ideas. All I can tell you is that I have chaired over 30 hearings on

the Endangered Species Act, I have listened to dozens of scientists,

to hundreds of witnesses, and we are trying to come up with the

best way to answer these questions.

So, having said that, Mr. Walden?

Mr. WALDEN. Thank you very much, Mr. Chairman. I appreciate

your comments.

I just want to make one comment. I believe, Dr. Dobson, your

analysis on hoof-and-mouth disease or foot-and-mouth disease, I

understand why you do mathematical models and run it out and

see it, but actually there would be data collected in the field,

wouldn’t there, ahead of that? Because, obviously, there was an

outbreak, and cattle were dying, right?

Mr. DOBSON. Exactly.

Mr. WALDEN. So you looked at the rate that they were dying at,

correct?

Mr. DOBSON. No, you look at the rate at which the disease is

spreading the population.

Mr. WALDEN. Oh, so you do measure the population?

Mr. DOBSON. That is exactly the analysis process. You are trying

to extrapolate into the future, which is what we are trying to do

with the Endangered Species Act—how will manipulations that we

make to the environment affect whether that population increases

or decreases.

Mr. WALDEN. But there is field data collected.

Mr. DOBSON. Yes, it is a happy dialog between data and models.

Mr. WALDEN. Right. I don’t object to any of that. My point is but

how do you design your model if you never had field data? If there

had never been an outbreak—

Mr. DOBSON. You do both at the same time. You use the model

to design how you collect and interpret the data.

Mr. WALDEN. But if there is never—

Mr. DOBSON. In the limited budget, it tells you how to increase

the efficiency of the data collection.

Mr. WALDEN. Right. But my point is data gathered on the ground

provides the foundation for you to model, right?

Mr. DOBSON. No, it is a two-stage process. You do both.

Mr. WALDEN. Right.

Mr. DOBSON. You could write a model without any data, based

on your biological understanding of the system, a simple model,

which would then allow you to collect data—

73

Mr. WALDEN. Where would you get the biological understanding

of the system if there had never been an outbreak of the disease?

Mr. DOBSON. Well, all diseases work in roughly the same way.

You have a healthy population, you add a disease, people get sick.

That is a simple thing you can write down as a— Mr. WALDEN. So every disease is equal in the way it spreads?

Mr. DOBSON. Well, no. The thing you want to do is collect the

data that allows you to quantify the rate it spreads, depending

on—

Mr. WALDEN. Thank you. That is my point. That is all I am saying here is if you collected actual data in the field, shouldn’t that

have a higher value? Isn’t that an incredibly important part of any

modeling that would occur thereafter? Can you have a model without any data collection from the field?

Mr. DOBSON. Our entire understanding of the structure of the

universe is based on models, as much as it is on data collected from

the field.

Mr. WALDEN. As much as it is data collected from the field.

Mr. DOBSON. Well, actually, our understanding of the structure

of the universe is more based on mathematical models than it is

on data collected from the field.

Mr. WALDEN. But there had to be data collected from the field,

right? Some measurements made, correct? How fast things are expanding and— Mr. DOBSON. Yes, but you wouldn’t have known to go and measure those things without the models.

Mr. WALDEN. I understand. But my point is we have had some

decisions made where they basically run models and give higher

value to the models than actual data that has been collected. It

seems to me that if we have—don’t you operate where there are

standards for how data is collected?

Mr. DOBSON. Absolutely.

Mr. WALDEN. We ask for that in my bill, too, that the Secretary

would set standards for how the scientific data is collected. Is that

a bad thing?

Mr. DOBSON. The models help you set those standards. They tell

you the sample sizes you need to see whether you are actually

measuring the right birth rates and mortality rates that you need.

Mr. WALDEN. Right. I don’t have any problem with modeling, but

I think you have to have standards, and you have to have a basis

for those standards, and how you collect the data and include the

data that is out there.

Mr. Gordon, where do you see this peer review effort? I mean,

how critical is this to the decisions?

Mr. GORDON. I think it could be a valuable addition. I think that

there is a track record of making mistakes and finding that out

later. Now you have got to recognize that the Endangered Species

Act incorporates kind of the assessment that you want to shoot

first and ask questions later, and that is particularly true in the

case of the emergency listing, as opposed to the regular listing

process.

But I think the standards have been weak enough, right now the

law is the best available data. Some people use the acronym

‘‘BAD,’’ because best doesn’t mean it has to be good or reliable or

74

even sufficient to reach a scientific conclusion. As a consequence,

you have a lot of things that get listed that may not merit protection.

Now I have heard a lot of people argue that, well, if you subjected that decisionmaking process to peer review, it would increase

the amount of time that it takes to list a species, and therefore further imperil them and cost money. But you have to put that in the

context of how the act works overall, and would requiring higher

standards that cause species that shouldn’t be listed not to get listed and thereby funds not to be expended on them be available for

other species that truly merit endangered species status, would

that be worth more? I think when you have provisions like emergency listing, it may well be.

I think that right now the standards are subjective enough that

they allow a lot of political consideration. For example, in the case

of something called the Indian flapshell turtle, this was added to

the list based on the grounds that it had simply been added to

Appendix 1 of CITES, which is the international version of the

Endangered Species Act. Based on that, it was, de facto, added to

the endangered species list. After that, a data search was done to

see if that listing was merited, and the Fish and Wildlife Service

found that, in fact, it was seemingly the most abundant aquatic

turtle species in all of India. Then it was delisted. Well, you know,

it is just a paperwork exercise, but listings and delistings cost tens

of thousands of dollars each time, and in that sense, you see here

was some money that was wasted on something that didn’t merit

it because there were very loose standards.

On the flip side, I will say my organization filed a listing petition

for a crustacean that occurs in Virginia. It had not been seen since

1947, and it has only been seen once since 1947. And when we petitioned the Fish and Wildlife Service to list it, it came to the conclusion that since it has been seen once since 1947, it indicates that

it is rare, but it is not in imminent danger of extinction. Now I

think that is on the other side of the list. Here is where a peer review would merit a species being listed, despite the Agency’s decision. So I think it could affect things in both directions.

Mr. WALDEN. Thank you.

Mr. POMBO. With the Committee’s indulgence, Mr. Gordon, hearing you say that, we had testimony that there could be 800,000

fairy shrimp in one mud puddle, and yet it is endangered, and seeing it once since 1947 means it is rare, but not endangered?

Mr. GORDON. It wasn’t in imminent danger of extinction. I think

the exact words were since it has been seen since 1947, it still persists, and therefore is not in imminent danger of extinction.

I don’t know, I mean, it seems to establish a new standard that,

in fact, you have to be extinct to merit listing, but it was quite

shocking, I thought.

Mr. POMBO. I hadn’t heard of that one.

Mr. GORDON. But I don’t think that decision would pass peer review.

Mr. POMBO. Do you have a copy of that that you could submit

for the record, please?

Mr. GORDON. Yes, I do.

75

[NOTE: The information submitted by Mr. Gordon, Inland

Action Inc.’s ‘‘Impacts of Mitigation,’’ has been retained in

the Committee’s official files.]

Mr. POMBO. Thank you.

Mr. Otter?

Mr. OTTER. Thank you, Mr. Chairman. I thank the panel for

being here.

My earlier statement to the first panel notwithstanding, I do appreciate some of the good things that have happened as a result

of the Endangered Species Act because they have been instrumental in making some other decisions for us, which I think are

important to encourage proper handling, if you will, of nature.

One of the characters that I find about the Endangered Species

Act is all of the unknowns, and if most of my 650,000 constituents

that have lived day-to-day and been adversely affected in some

cases and in some cases helped by the Endangered Species Act had

listened to certain members of the panel, they would be even more

confused than they would have been about the importance of the

Endangered Species Act.

One of the things that I think most sincere Members of Congress

try to do is to make things a little more understandable. I find

many times when I go home, and I have voted on a bill or I have

voted on an issue or took a position on an issue, a lot of folks, although they may get a report about that in the paper, don’t understand the why or the where, and so I have to go into a much deeper

explanation, and in many cases cite some analogy that they would

be familiar with in Idaho. I think that that ought to be part of the

process that we hope to achieve here. I think, in some cases, this

bill does just that, and it makes it more understandable.

One of the great, natural things about our Government is that

it is mostly a voluntary Government, with some encouragement.

You know, people pay their taxes because they want to make a contribution, but they also know what happens if they don’t make that

contribution. But for the most part, people obey the law, and they

want to obey that law, but first they have to understand it.

One of the other things that I have found about the Endangered

Species Act and many of the other acts that have come into existence back here is that, for those people that have not been directly

and adversely affected by it, it is great, but for those people that

have been adversely by it, and they don’t understand it, then it becomes something which they learn to hate, and they learn to have

disagreement with.

And so I have hopes that if this bill doesn’t do that, I hope that

with all of the legitimate minds and legitimate concerns that we

have coming before this Committee, that we will come up with

something which is a simple explanation to all of the folks that are

adversely affected by it of the good that it intends to do in its implementation and, to the absolute best of our ability, the science

that we are going to use to make these decisions which can affect

their lives is the best possible science that is available to us, and

that it is not falsified, and it is not somebody’s whim. And whether

it is a mathematical formula or if it is some other formula that

somehow we simplify that to the point that people understand not

only the methods that are used in order to measure the potential

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extermination of a species or a plant, but also the good that needs

to be done as a result of keeping that in existence.

Because right now, you know, I am reminded so many times, and

I was the lieutenant Governor of Idaho for 14 years, and when we

had a Federal agency come into the State of Idaho and say, ‘‘We

are from the Federal Government and we are here to help, you can

imagine, you know, what are they going to do to us now?’’

I would be in hopes that we could evolve the Endangered Species

Act and the agencies that have to deal with that to the same degree that OSHA was. I remember when OSHA started, there was

probably not a more hated agency than the Department of Labor

and the Occupational Safety and Health Act. But once they discovered that in order to achieve the mission that the Occupational

Safety and Health Act hoped to attain, that they had to get the voluntary help of all of those people that could help them, and then

they found great partnerships.

One time in Idaho, for about the first 10 or 12 years, I guess, if

an OSHA inspector walked into a plant, you know, everybody was

scared to death, and everybody avoided making reports on

accidents, and making reports on dangerous things that went on in

plants because they didn’t want that investigation. They didn’t

want that oversight because they knew that that oversight could

mean the loss of the job, the loss of the plant, the loss of a way

of life. And now, as I said, today, OSHA is a partner. You can drive

almost anywhere where there are construction jobs going on, and

you will see that the construction company is in partnership with

OSHA for safety and health, and that is because they finally

evolved into an agency, which we had hoped that they would, that

they are there to help people be safe, and to protect lives, and to

protect folks from being named.

I would just hope that if Mr. Walden’s bill doesn’t do that, and

if that is not how we are going to achieve it, and if this isn’t one

of the evolutionary steps, I hope you will find us an evolutionary

step which the Endangered Species Act can become user friendly

because that is what we need.

Thank you, Mr. Chairman. I yield back the balance of my time.

Mr. POMBO. Mr. Radanovich?

Mr. RADANOVICH. Thank you, Mr. Chairman.

Mr. Gordon, maybe you can help me here. It seemed at one time,

maybe it was the Supreme Court decision at the time of the Tennessee Valley Authority, TVA, that when the Supreme Court was

faced with the issue of interpreting the Endangered Species Act,

ruled that when a habitat of an endangered species is discovered

that all work must stop and no matter the cost or the disruption.

Mr. GORDON. You are referring to TVA v. Hill, I think. It is one

of the more famous Supreme Court rulings on the Endangered

Species Act in regard of the construction of the Tellico dam in Tennessee, and the snail darter was discovered to be in the vicinity of

the dam. The possibility the dam could jeopardize the snail darter,

required the dam to be stopped midconstruction. I think the exact

words of the Supreme Court are that the Congress intended the

species to be recovered, and protected, and conserved ‘‘whatever the

cost.’’

77

Mr. RADANOVICH. So the decision with the suckerfish habitat in

the Klamath area was really pretty much in keeping with the way

that at least the courts have interpreted the Endangered Species

Act; isn’t that right?

Mr. GORDON. With regard, perhaps, to the obligation to do something without concern to the economic impact when you are talking

about something being jeopardized, although certain provisions of

law, like critical habitat designation, allow for consideration of economic impact, yes. However, obviously, the question of the underlying data, whether it was sufficient to justify their actions is a different matter.

Mr. RADANOVICH. In the case of the Wilson bridge and the Washington aqueduct, some of the stuff that the National Wilderness Institute has been involved in, I am aware that in the brief, very

brief environmental assessment that they did for constructing the

Wilson bridge there, they were aware of the endangered sturgeon

there, but their plan for protecting that endangered species was to

wipe out the clam beds in and around the bridge, which was basically the habitat of the sturgeon, thinking if they just wiped the

habitat out, then the sturgeon wouldn’t be hanging around to get

blown up when they sink the pilings for the new bridge. Am I

wrong?

Mr. GORDON. Roughly, yes, the biological assessment prepared by

the Federal Highway Administration noted that prior to demolition, dredging would remove the clam beds, Asiatic clam beds that

might attract shortnose sturgeon to the area. Therefore, essentially, I guess that means it is functioning as a conservation measure to remove their food from the action area.

Mr. RADANOVICH. It apparently wasn’t the case in Klamath either, but also in the Washington aqueduct, in that case, the alum

that is used to settle the water and then the discharges going into

the river, under an EPA permit, by the way, which knowingly

dumps this 200,000 tons of sediment into the Potomac River on

what is known to be the spawning grounds for the endangered

sturgeon, which is stuff that you have been working on, and you

can verify this or tell me if I am wrong, but that is indeed what

is happening. Why is this happening?

Why is it that in the case of Klamath that when the habitat of

an endangered species is found, that they basically shut the water

off, when, in an area like on the Potomac River, with both the Wilson bridge and the aqueduct, you see it here, and people seem to

turn an eye or certainly don’t want to enforce the Endangered

Species Act in that way? Do you care to speculate?

Mr. GORDON. It is hard to know exactly why. There are several

documents that hint at various reasons the agencies have not initiated formal consultation on the aqueduct; one being one of the arguments made in court was that the act of discharging this sludge

didn’t constitute an action that required consultation. But other

than that, the records available that we have looked through indicate repetitively that there was a concern that construction of

sludge treatment facility would require trucks to remove sludge

through effluent or ‘‘high-value real estate.’’ Additionally, there was

a concern that the aqueduct’s customers, the aqueduct is on a payas-you-go basis, and it serves D.C., Arlington, and Falls Church

78

and parts of Fairfax, that they would have to pay the cost of constructing a water treatment facility.

EPA’s own analysis, however, showed that right now customers

of the aqueduct are at comparable or lower rates than most of the

adjoining jurisdictions, and that increase in cost wouldn’t be much

more—it would bring them on par, essentially, with other folks.

The only other rationale I have seen explained is that the EPA

has argued that by the year 2010, water clarity limits would be in

place on people who are above the point where the aqueduct withdraws water and that these new clarity limits or controls will reduce the amount of sediment going into the Potomac, so that by the

time the water reaches the aqueduct, the sediment will be reduced,

so there will be no concern by the year 2010 that this enormous

point source is dumping. So I guess they kind of rather focus on

the pig farmers, and the chicken farmers, and the cow-calf operations or rural areas and cities and towns above Washington, as

opposed to the point source here in Washington.

Mr. RADANOVICH. Does it suggest to you that maybe one endangered species is a little more important than perhaps another endangered species?

Mr. GORDON. Well, in fact, that argument has been made. The

National Marine Fisheries Service has hinted that there is some

possibility that these sturgeon have come over from the Delaware

River. Now they haven’t gone on and said that means you can go

ahead and blow them up, but they have kind of thrown that idea

out, that these fish are from the—there is a potential that they

have Delaware blood or mixed with Delaware shortnose sturgeon,

and therefore we can take them.

Now, under the law, you could issue a take statement that would

allow shortnose sturgeon in the Potomac of Delaware origin to be

taken by blowing up the bridge, but you have to go through formal

consultation or you would have to issue an incidental take statement, and they haven’t done any such thing.

Mr. RADANOVICH. Interesting.

Mr. Illyn, I would like to kind of explain to you something that

happened out in California and get your reaction to that, if I have

a little bit of time.

In January 1997, we had a big flood. A warm rainstorm came in

the middle of river and caused floods throughout the Western—you

got it up in Washington. You know what happened. During that

time, there were floods in the San Joaquin Valley near Sacramento

when a levee broke and killed three people. The story is that goes

beyond that is that the levee was known to be in bad shape for 6

years. In fact, for 6 years they were trying to get permits from the

Fish and Wildlife Service to go in and effect repairs, but since it

was the habitat of the elderberry bark beetle, they wouldn’t allow

them to fix this weakened levee. Finally, they did get a permit, but

I think it was like a week before the storm. They didn’t have the

time to get the equipment in and get it fixed, and the levee broke

and killed three people.

I think after that, Mr. Pombo and Mr. Herger came to Washington to try to change the Endangered Species Act so that under

a threat of human life, water agencies, such as this one, could go

in and effect those repairs and protect human life. That measure

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lost by 80 votes in Congress. It was quite alarming to people like

me.

In an instance like this, where the Endangered Species Act was

directly responsible for the death of three people, do you think that

is good?

Mr. ILLYN. Well, I can’t address the facts in the case because I

just take your comments, but we red flag when we see what we

consider the either/or mentality that says it is farmers versus fish,

it is loggers versus the spotted owl. So we take the stand that we

are a part of creation, and we have to work together. Obviously, all

legislation and circumstances don’t always work out the way people

plan. So I guess I can’t specifically address your issue. I avoid

being put in situations where the mentality seems to be it is people

versus creation. If we are already at that point, then we failed as

stewards.

Mr. RADANOVICH. If there is a case of imminent danger to human

life, do you think that the Endangered Species Act ought to be

modified so that water agency could go and effect those repairs? I

mean, this is a small thing. I mean, I don’t think you see anybody

up on this podium who wants to wipe out the Endangered Species

Act, and I think that there are many of us that believe that if we

go into this thing with a balanced attitude, we can protect human

life and preserve a species, but in this case, the Endangered

Species Act was directly responsible for the death of three people,

and the Congress could not change that law. So, basically, the

same thing could happen again.

If that is the case, do you think that the Endangered Species Act

needs to be modified?

Mr. ILLYN. During those same floods, we had numerous mud

slides in Oregon and Washington that killed many—killed people

up in Bainbridge Island, killed folks down, I believe, in the

Roseburg area, and the mud slides came down the hill and destroyed homes as well. I mean, so—

Mr. RADANOVICH. Did the Endangered Species Act or maintaining the Endangered Species Act, did it cause those accidents?

Mr. ILLYN. What I see is that it was unsustainable logging on

steep hillsides that caused that accident.

Mr. RADANOVICH. Sir, never mind. You are not going to answer

my question. But I have got another question, if I may.

Mr. POMBO. OK. Go ahead.

Mr. RADANOVICH. Mr. Dobson, I enjoyed your testimony.

Would you care to comment on the issues on the Washington aqueduct or the Wilson bridge, as far as the unequal enforcement of

the Endangered Species Act? Because this is really what we are

asking for. I mean, can you tell me if an endangered species, do you

think an endangered species found in Central Park in New York

should be just as protected as an endangered species found in the

Klamath Basin?

Wait. Let me clarify that. Knowing the Supreme Court says,

when a habitat of an endangered species is threatened, you all

must cease and desist, no matter what disruption or no matter

what the cost, until that species is taken care of?

I don’t believe your mike is on.

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Mr. DOBSON. I would think that a case such as Central Park,

which is bound to be inflammatory, you would have to have some

special sort of hearing than just apply the law in a very, very pedantic way. That seems to be what is happening in Washington.

But I have to admit straight away, it is not a situation with which

I have knowledge.

Mr. RADANOVICH. You might want to get familiar with it.

Thank you very much.

Mr. POMBO. Thank you. I am going to dismiss the panel. I want

to thank you for your testimony and for answering the questions.

If there are further questions of this panel, they will be submitted

to you in writing. If you could answer those in a timely manner so

that they can be included in the hearing record, the Committee

would appreciate that. So thank you.

I would like to call up our third panel, Mr. Simmons, Mr. Dueser,

Mr. Vogel and Mr. Bean.

Thank you very much. Before this panel begins, I wanted to take

the opportunity to apologize to you on behalf of the Committee. I

know that you have been here for a long time, and I appreciate you

being here. I appreciate what you have to offer to the Committee.

Mr. Simmons, we are going to start with you, so if you are ready,

you may begin.

STATEMENT OF RANDY SIMMONS, Ph.D., PROFESSOR OF

POLITICAL SCIENCE, DEPARTMENT HEAD, UTAH STATE

UNIVERSITY

Mr. SIMMONS. Thank you. I am a political scientist. I teach environmental policy. Occasionally, I teach a course in leadership and

politics, where I use the Old Testament as the text, and I would

like to begin by respectfully suggesting that whoever wrote Mr. Rahall’s comments at the beginning of the hearing might ask if the

34th chapter of Ezekiel applies equally to mountaintop mining in

West Virginia, as it is claimed to apply to the Endangered Species

Act.

Having suggested that, let me suggest that any attempt to

change the Endangered Species Act is difficult because of its symbolic value. The act has so many symbolic messages that are sent

that it is hard to talk about it in any sort of careful way, and I

appreciate the Committee for attempting to consider some practical

changes.

It appears to me that you are trying to accomplish three specific

things. You are trying to establish some principles. The first is peer

review; the second is, if not the primacy of field data, at least elevating the value of field data in comparison to computer modeling;

and the third is the establishment of a more rigorous process for

listing a species.

The listing process, by the way, I am sure you are aware, was

dealt with, to some extent, in Mr. Miller’s bill in the last Congress,

and it appears to me that Mr. Miller’s process lies halfway between

the two of you. So somewhere in there, there maybe the best way

for dealing with the process of listing a species.

Your bills also raise some suggestions about the precautionary

principle and for questions about what science is—what is science

and what is policy. I think those are all interesting implications.

81

I address all of those in my testimony, but rather than deal specifically with what is in the testimony, let me talk about wolves in

Yellowstone, briefly, because it has been suggested as the appropriate process to follow.

The idea of reintroducing wolves in Yellowstone has been around

for a long time. Some of the most creative thinking that has been

done about wolves is done by folks at Defenders of Wildlife, I believe. Hank Fisher, who is with the Defenders, has been incredibly

creative in trying to figure out how you might reintroduce large

carnivores and still have people in the landscape, and so I really

respect and admire Hank’s work, but what worries me is the

science behind the claims about wolves in Yellowstone.

It has been claimed by the former Director of the Park Service

that there is little scientific basis for most objections being raised

to wolf reintroduction. The president of the Defenders of Wildlife

claim that after the court decision that allowed the wolf reintroduction to continue, he says, ‘‘The wolf has been given a new lease on

life and so has the principle that science, not politics, should guide

wildlife restoration in America.’’ What I am going to suggest is that reintroducing wolves and having an Endangered Species Act are noble efforts, but often noble efforts are vulnerable to lots of odd human traits, including aggressiveness, dogmatism, whatever. And I think what happened with

wolves is a good example.

According to the recovery plan, if a minimum of 10 wolf packs

breed in one recovery area for 3 successive years, the wolves in

that area will be downlisted from endangered to threatened. So you

need 10 wolf packs, a breeding pair in each wolf pack. You get that

for three successive years, and the wolves get downlisted.

Now, according to the Fish and Wildlife Service, the goal of 10

breeding pairs in each of three recovery areas was established after

extensive literature review and consultation with a number of U.S.

and Canadian biologists and wolf researchers. Well, a colleague of

mine and I wanted to know who did they talk to? What studies did

they review? Which experts were consulted?

I had to file a Freedom of Information Act to get that information, and the Agency replied, the Fish and Wildlife Service said it

had ‘‘not contracted or undertaken any studies which would deal

with minimum viable populations of the Northern Rocky Mountain

wolf.’’ They further said, ‘‘There are no records in the files of our

Denver Regional Office or the Cheyenne Fish and Wildlife Enhancement Office referencing any specific materials used in determining recovery numbers.’’

So not contracted or undertaken any studies, and no specific materials are in any of their files referencing any specific materials

used in determining recovery numbers. So what we have is wolf recovery reports, wolf population models, studies regarding the possible impacts on big game based on 10 wolf packs, a total of 100

wolves in the recovery goal. But if they were determined without

any studies that deal with minimum populations, without referencing any specific materials in determining recovery numbers,

those reports, those models, those studies are arbitrary.

And if reintroducing wolves to Yellowstone, as was suggested in

the last panel, is the appropriate model, there is something wrong

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with that model, and we need to think more seriously about what

are the appropriate processes for establishing science.

I would just like to end by suggesting that there are other things

about the Endangered Species Act that I think are really important

to be addressing, things like what are the incentives created for

landowners, the ‘‘no surprises’’ policy isn’t no surprises, safe harbors isn’t safe harbors. And if the Committee doesn’t deal with

that, I would hope that the administration does.

Thank you.

[The prepared statement of Mr. Simmons follows:]

Statement of Randy T. Simmons, Professor of Political Science, Department

Head, Department of Political Science, Utah State University

Mr. Chairman, thank you for the opportunity to present my views on H.R. 2829

and H.R. 3705. As a political scientist I understand full well that even talking

about making the slightest changes to the Endangered Species Act is going to be

seen by many as attempting to make changes to holy writ. The symbolic value of

the ESA has successfully swamped practical considerations about changing the act

since at least 1992. Now, however, seems a good time to consider some practical

changes to the way science is used under the ESA.

Although the two bills under consideration for this hearing have somewhat different approaches to the use of science in the listing, recovery planning, and consultation processes, they attempt to establish some common principles. Those principles are peer review, the primacy of field data over computer modeling, and the

establishment of a more rigorous process for listing a species. These also have implications for the use of what has become known as the precautionary principle and

for questions about what is science and what is policy.

Peer Review

Peer review can be understood as a form of scientific quality control. It is commonly used in the social and natural sciences to establish and maintain professional

standards. It is a check on the exuberance of researchers who might not be satisfied

to let the data speak for itself. The American political system is based on the notion

that politics is more likely to achieve good results if there is a system of checks and

balances. No one is willing to assume that good intentions and hard work are

enough to produce good political results. There must be checks on political exuberance, on good intentions and on bad ones. The same is true in science. I believe

that most researchers mean well and conduct their studies carefully. But they will

be more careful and more restrained in ‘‘torturing their data’’ to meet their own preconceptions if they know their work will be reviewed by a set of peers. If a good

system of peer review is in place, at least two things are accomplished: 1) the people

doing the initial work are going to produce a better, more defensible product, 2) the

public and decision-makers are going to have more confidence in the scientists’

work.

It is important to have a good peer review process in place, not just any process.

The first consideration in peer review is who chooses the reviewers. The Fish and

Wildlife Service and National Marine Fisheries Service established a peer review

process in 1994 that appears to have had little effect. But that is the predictable

result because the FWS and NMFS are selecting the peer reviewers. Under that system a rational bureaucrat will select peer reviews from a stable of weak or pet scientists who will rubberstamp his or her assessments. For peer review to be effective,

the ability to select reviewers must be removed from the agencies.

Another consideration is who is going to be the reviewer. H.R. 3705 places such

severe restrictions on who can be a reviewer that finding good reviewers may be

impossible. H.R. 2829 provides a better process. For a workable alternative, the

committee may want to look at the process the National Academy of Science used

to review the Klamath Basin issue. The Administration and Congress could have

the NAS establish a permanent committee to oversee ESA science and have that

committee prepare periodic assessments.

One more consideration is whether peer reviews should be anonymous. I do not

know of data that demonstrate that this is preferable to having reviews signed. My

preference is that reviewers identify themselves so that their reputation stands behind their reviews.

83

Field Data and Computer Models

Whether field data should be considered superior to computer projections is a contentious issue among endangered species analysts. The best example is the conflict

over rates of species loss. Some claim human actions are causing the sixth great

species extinction. Edward O. Wilson, for example (1992:280) estimates that in rain

forests ‘‘the number [of species] doomed each year is 27,000. Each day it is 74, and

each hour 3.’’ Adding possible rain forest extinctions to those that may be occurring

in the rest of the world leads him to think that, worldwide, more than 100 species

are going extinct daily. The London Zoological Society’s internet site, Web of Life

(2001), claims that ‘‘an average of 137 life forms are driven into extinction each

day—or 50,000 a year.’’ If such claims are correct, then somewhere between onequarter to one-half of all species will disappear in our lifetimes.

These claims are based on the species-area relationship, a theoretical tool for estimating species loss. It is widely accepted and used by biologists and ecologists as

a theoretical tool. The problem for policy discussions is that the grand predictions

of species loss are not supported by field data. That is, by counting species that are

known to have gone extinct, it is not possible to justify claims that 100 species per

day are disappearing. IUCN can only identify about 1000 extinctions in 400 years.

In the 10,000 years before Europeans came to North America, just two North American bird species are known to have gone extinct, the flightless marine duck and

a small turkey. In the last 200 years five bird species have been lost. Internationally, the documented loss of mammals and birds has increased in the last 150 years

from about one species every four years to one each year (Lomborg 2001: 254). That

is a disturbing number, but far less disturbing than 3 per hour.

I am not arguing that computer modeling is inconsistent with doing sound

science, just that field data may not support the claims made by the modelers. Part

of the scientific method is to draw conclusions about the future based on available

information and theories about what the information means. As the available information improves or changes or theories are modified, the conclusions about the future can then be changed. Scientists who base predictions about future species

losses do just that—they revise their predictions as available information changes.

What ought to be important for endangered species policy is that there is a process

in place to make sure that as more field data becomes available, it is used to modify

policy conclusions.

Improving the Listing Process

Among the more persistent complaints about the Endangered Species Act are

claims that there is little rigor in the listing process and that landowners are often

ambushed as species that occur on their property are listed without landowners having adequate opportunity to participate in the listing process. These bills address

each of these issues. First, requiring peer review will make sure that those proposing a listing meet the standards of the scientific process. Second, by requiring

the Secretary to consider data from landowners and other affected interests ensures

that the Secretary takes more information into account.

H.R. 3705 takes the notice requirements one step further by requiring the Secretary to publish the petitions to list species on the Internet, publish the receipt of

the petitions in a local newspaper in the affected area, and notifying the Governor

of the affected state. H.R. 3705 also creates a review of the Secretary’s finding on

a petition to list or delist a species. These changes would help the affected state and

landowners by providing them notice and an opportunity to present the Secretary

with more information, earlier in the process. In turn, providing the Secretary with

more information earlier in the process would help the Secretary to make better decisions.

One improvement in the petition process was included in Mr. Miller’s H.R. 960

from the 106th Congress. Section 104 of that bill improved petition requirements

by calling for more information in the listing petition. H.R. 2829 could be enhanced

by including these improvements. H.R. 3705 increases these requirements even

more than Mr. Miller’s bill. While it would be valuable to increase the requirements

beyond what Mr. Miller called for, the only concern I have is that the requirements

in H.R. 3705 may be more cumbersome than is necessary.

The Precautionary Principle

One argument the committee may hear is that taking the time for reviewing the

science behind agencies’ proposed decisions might be dangerous. If we are going to

err, such arguments go, we should err on the side of caution and caution demands

moving ahead quickly to protect a species that may be in trouble.

But if we want to exercise caution, it would be useful to know which the cautious

decision is. For example, environmental groups and some agency personnel argued

84

that exercising caution in the Klamath Basin meant increasing stream flows down

the Klamath. But increasing those flows from the reservoir meant that more warm

water was added to the river, potentially raising the water temperature to higher

than lethal levels. Which was the cautions thing to do, add the water or not? As

the NAS has shown, there was no scientific basis for adding the water, just the

strong feelings of some well-meaning agency bureaucrats.

Sound science requires just that—sound science. Sound science does not mean

that we act ‘‘cautiously’’ when we don’t know what ‘‘acting cautiously’’ means in a

given case. As the Klamath situation shows, if we act cautiously as some argue, we

actually do more harm than good. This is neither cautious nor sound.

Science and Policy

Sound science is also not policy decisions cloaked as scientific decisions. One of

the aims of these bills is to separate out policy and science. It is obvious that the

drafters of these bills recognize there is a great deal of uncertainty in science and

that is why, I believe, they want to establish clear, workable review processes—they

hope the reviews will highlight where the science is relatively certain and where it

is not certain. That highlighting can help separate science from policy. Where the

science is relatively clear, the policy choices are often relatively clear. But when the

science is not clear and a choice has to be made anyway, it is important that it is

clear that a political decision, as opposed to a scientific decision, is being made.

Again, the Klamath Basin is an example. When the policy was established to increase river flows and keep Upper Klamath Lake at high levels, the FWS and

NMFS claimed these were scientific decisions. The NAS disagrees and claims that

the decision did not have a substantial scientific basis. Agencies must make policy

choices, but they should disclose what is science and what is policy.

Conclusion

I thank the Committee for the opportunity to testify on these bills. I hope we can

make some changes so the ESA will work better for species and people alike. I will

be pleased to answer any questions.

Mr. POMBO. Thank you.

I believe it is Mr. Dueser?

STATEMENT OF RAYMOND D. DUESER, Ph.D., PROFESSOR OF

FISHERIES AND WILDLIFE, ASSOCIATE DEAN OF THE

COLLEGE OF NATURAL RESOURCES, UTAH STATE

UNIVERSITY

Mr. DUESER. Correct, Ray Dueser.

Good afternoon. It is an honor to be here. I am a professor of

Fisheries and Wildlife at Utah State University, and I have been

involved with endangered species work now for the better part of

the last 20 years. I have served on one recovery team and been involved as an advisor to a number of others. So I am fundamentally

here as a working scientist who has seen the Endangered Species

Act primarily from the perspective of recovery planning and implementation.

My message today is simply that we need to find a way to expand the role of science in the administration and interpretation of

the Endangered Species Act. The act, as written, is expressed in

terms of best data available. We have heard that referred to several times today. My sense of it is that referring simply to best

data available is really understating the role of science, particularly the ecological sciences, in their potential contribution to endangered species restoration.

Science brings more to the table than data. It brings principles,

it brings theories and hypotheses, it brings scientific methods, it

brings standards and expectations. How do we inject each of these

things somewhat more explicitly into endangered species restoraVerDate 11-MAY-2000 09:56 Dec 17, 2002 Jkt 000000 PO 00000 Frm 00088 Fmt 6633 Sfmt 6602 78289.TXT HRESOUR1 PsN: HRESOUR1
85

tion? How do we, in fact, bring all of science to bear, not just the

relatively narrowly focused issue of good data?

The best answer I have come up with to this question really focuses on the process of peer review. I know you have heard a lot

about peer review today. You will probably hear more. Peer review

is a critical issue. It is the reality check, if you will, that we apply

to all of the other parts of science, to hypotheses, theories, even

sampling methods. Peer review is the heart of the both basic and

applied science. If we can find a way to increase the importance,

the significance, and the application of peer review, we will have

gone a long way I think toward making the implementation of the

Endangered Species Act more reliable and a lot more acceptable,

if you will.

Frankly, I am a little surprised. I mean, I am not surprised in

this particular case, but I am disappointed. The tone of the bills

that we are here to discuss today is fairly negative, there is an air

of skepticism and almost an air of disappointment in these bills. In

my own experience, I have to say I have seen recovery teams at

work. I have seen them work very effectively. I would like to suggest that those who are really skeptical about the implementation

of the Endangered Species Act try to spend a couple of days somewhere in a hotel with a recovery team. Try to get to see how those

folks work, see what kind of questions they bring to the table, see

what the issues are, see what their sensitivities are. I know it is

not universally true, but certainly in my own experience, the level

of concern, the level of commitment, and frankly the level of expertise that these teams tend to bring to the job is really substantial.

I think you would find it reassuring to observe these folks at work.

I think you would find the attitudes, the knowledge, the skills, and

so forth of these people very encouraging, particularly given the

constraints under which recovery teams operate.

Having said that, and I know you won’t be able to spend a lot

of time in the room with recovery teams, I understand that. It

seems that it would be really helpful to know how often train

wrecks like Klamath Basin actually occur. Probably every Member

of Congress has a story. I really don’t know that, but it may well

be the case. Certainly, I don’t really have that understanding.

Klamath is a disaster. There is no question about that, and I sympathize with the folks out there. The folks in the Klamath Basin

must feel like they have been abandoned by their Government in

some ways, and while the Government was headed out of town, it

sort of took the family silver with it.

But I just don’t know how often these kinds of extreme events

occur. It might be worth the National Academy undertaking a

study, as a matter of fact, to try to put this whole issue in a broader perspective.

Thank you.

[The prepared statement of Mr. Dueser follows:]

Statement of Raymond D. Dueser, Utah State University

GREETINGS AND SALUTATIONS

Mr. Chairman, Members of the Committee. I am honored to have this opportunity

to appear before you to speak on the issue of the role of science in the implementation of the Endangered Species Act (ESA).

86

My name is Ray Dueser. I am a Professor of Fisheries and Wildlife and Associate

Dean of the College of Natural Resources at Utah State University. I am proud to

reside in the 1st Congressional District of Utah. I am affiliated with a number of

professional societies and organizations which have publically-stated interests in the

re-authorization of the ESA, and I have worked been engaged in endangered species

research and recovery since 1984. I have worked with the U.S. Fish and Wildlife

Service, several State agencies and a host of private conservation organizations on

issues related to the ESA. I have been especially deeply involved with the recovery

of the endangered Delmarva fox squirrel (Sciurus niger cinereus) on the beautiful

Eastern Shore of Maryland. Nevertheless, I am here today simply as an informed

citizen, invited by a member of the Committee, and not as a representative of the

organizations with which I am affiliated. Any reference to positions these organizations may espouse relative to the ESA are based on my knowledge as a reader of

the scientific literature.

THE ENDANGERED SPECIES ACT OF 1973

The ESA of 1973 is widely regarded as a landmark piece of legislation. The purposes of this Act are:

‘‘to provide a means whereby the ecosystems upon which endangered

species and threatened species depend may be conserved, to provide a program for the conservation of such endangered species and threatened

species, and to take such steps as may be appropriate to achieve the purposes of the treaties and conventions set forth [elsewhere in this Act]’’ (16

U.S.C. 1531 et seq.).

These few words effectively changed how America manages and conserves its rich

natural heritage of animals, plants and ecosystems.

To accomplish these far-reaching objectives, the Act provides a process for determining whether a species is at risk of extinction, removing the ‘‘threats’’ that endanger the species, and restoring the species to a viable condition. The essential steps

in this process include: (1) identifying and listing ‘‘threatened’’ and ‘‘endangered’’

species of animals and plants on the basis of their risk of extinction, (2) designating

the ‘‘critical’’ habitat required for the survival of the species, (3) providing immediate protection against acts that would further jeopardize the species, (4) developing and implementing a plan for the recovery of the species to a viable condition,

and ultimately (5) ‘‘delisting’’ the species when the threat of extinction has been reduced (Carroll 1996). The strict provisions of the Act vest substantial regulatory and

enforcement powers with the Fish and Wildlife Service (FWS) of the U.S. Department of the Interior (for terrestrial and freshwater species) and the National Marine

Fisheries Service (NMFS) of the U.S. Department of Commerce (for marine and

anadromous species).

In formulating this Act, Congress required that all decisions made under the ESA

be based ‘‘... solely on the basis of the best scientific and commercial data available

...’’ [Section 4. (b), emphasis mine]. Science and scientific data have thus served to

inform ESA decision-making from the very beginning. This strong reliance on scientific data is meant to ensure the factual basis, objectivity and reliability of decisions regarding the status of species, their critical habitats and their risk of extinction.

THE SCIENTIFIC UNDERPINNINGS OF THE ESA

The first wide-ranging review of the scientific principles underlying the ESA was

motivated by a 1992 letter from the leaders of Congress to the Chairman of the

National Research Council (NRC). The Congress requested that the NRC convene

a ‘‘Committee on Scientific Issues in the Endangered Species Act’’ to study several

scientific matters related to the ESA (NRC 1995). The distinguished membership of

this Committee represented expertise in ecology, systematics, population genetics,

wildlife management, risk and decision analysis, ESA legal and legislative history,

economics, and the implementation of the ESA from both public and private perspectives. The Committee was asked to review a host of thorny scientific issues and

how they relate to the ESA. These issues included the species concept, conservation

conflicts between species, the role of habitat conservation, recovery planning, risk

analysis and decision-making under uncertainty, and issues of timing in the ESA

decision-making process

The overall conclusion of this wide-ranging review was that ‘‘... the ESA is based

on sound scientific principles’’ (NRC 19995:4). Indeed, this review stands today as

one of the clearest summaries of the scientific underpinnings of the ESA.

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THE ROLE OF SCIENCE IN ESA IMPLEMENTATION: A SELF–CONSCIOUS

REVIEW

The ESA has emerged over the past quarter century as a public policy lightening

rod. This act provides a ‘‘voice’’ for the animals, plants and ecosystems of America,

and for those citizens who value natural diversity as a core element of the American

heritage. In doing so, however, it frequently creates conflict over the enforcement

of the public’s will in a society founded on the core concept of individual rights. This

is particularly true when conflicting demands are made on a shared public resource

such as water or timber and when the public’s interest in the survival of a species

somehow constrains the use of a privately-owned resource such as land.

Despite the intended reliance of the ESA on a strong foundation of science, there

has emerged on multiple fronts over the past several years the realization that the

scientific base for ESA implementation should be both broader and deeper. For example, many of the professional and scientific societies whose members are involved

with endangered species research and recovery have taken a self-conscious approach

to assessing and enhancing the value of their science to recovery planning and implementation. Similarly, the academic and research community recently has undertaken several large-scale, scholarly reviews designed to identify both the realized

and potential contributions of ecological science to endangered species recovery.

The Ecological Society of America in 1992 established an ad hoc Committee on

Endangered Species to ‘‘... undertake an analysis of how scientific information could

be used more effectively to assist in the preservation of the Nation’s biological re- sources’’ (Carroll et al. 1996:2). The Committee found that ecological science might

be used more effectively in the listing process, the establishment of recovery priorities, and the delisting process. Among the Committee’s suggestions were three

based directly on advances in ecological science that post-dated the passage of the

ESA in 1973:

(1) Revise the scientific guidelines for setting priorities in the listing process to

include (A) the ‘‘inclusive benefits’’ afforded by the protection of a species, (B)

the ecological role played by a species in a community, (C) the ‘‘recovery potential’’ of a species, and (D) taxonomic distinctness.

(2) Expand the use of ‘‘population viability analysis’’ to (A) examine the prospects

for a species’ recovery in a variety of biological-environmental contexts, (B)

identify alternative ways to recover and sustain a species, perhaps at different

economic and/or social costs, and (C) improve the odds of success for recovery

plans.

(3) Increase the likelihood of successful recovery by (A) spreading the risk and (B)

planning and acting expeditiously.

Carroll et al. (1996) were generally encouraged by the obvious influence of ecological science on the implementation of the ESA up to that time, and were optimistic

about the potential contributions yet to be made.

The academic and research community recently focused close scrutiny on the

Habitat Conservation Plan (HCP) concept within the ESA. Introduced through

amendment of the ESA in 1982, the HCP is essentially a land use plan that allows

a non-federal landowner to obtain an ‘‘incidental take permit’’ for a listed species

in exchange for making conservation commitments on that land. The HCP is intended to minimize and mitigate the taking. This take permit authorizes a landowner to carry out specified development activities on the land, even if those activities alter protected habitat or otherwise harm (‘‘take’’) threatened or endangered

species. The HCP concept was developed as a means of reducing the level of tension

between the FWS and private-sector landowners. Given the rapid proliferation in

both the number of approved HCPs and the cumulative acreage represented by

these agreements, questions arose in the mid–1990s about both the scientific basis

of HCPs and the effectiveness of the HCP as a recovery and conservation tool

(James 1999).

The American Institute of Biological Sciences (AIBS) and the National Center for

Ecological Analysis and Synthesis (NCEAS) recently collaborated on a critical review of 208 HCPs written and approved in compliance with the ESA. A more detailed analysis was applied to a representative subset of 43 HCPs. This review was

undertaken, among other reasons, to ‘‘... identify ecological theory and methods that

can be applied to strengthen the design, management and monitoring of HCP areas’’

(Kareiva 1997). The final report was posted on the NCEAS Web site in January

1999 (Kareiva et al. 1999). The major finding was that many of the HCPs recommended conservation actions that were not supported by the ‘‘best available

data.’’ While using the ‘‘best available data’’ may have justified an HCP legally (and

politically), that data still may not have been sufficient to support the approved

management actions. Sufficient supporting data simply did not exist in many cases.

Insufficiency took a variety of forms, including the lack of information about current

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status and population trends, the absence of quantitative estimates of the proposed

‘‘take’’ of the species or its habitat, and the lack of information about the likely efficacy of proposed mitigation strategies.

Given this finding, Kareiva et al. (1999) made a host of recommendations for improving the HCP agreement process, including:

(1) Important data gaps should be acknowledged explicitly in the HCP. The uncertainty resulting from these gaps may, in some cases, be offset by more stringent mitigation requirements.

(2) Management and monitoring should be viewed as an exercise in ‘‘adaptive

management’’ (Walters 1986), in which management and monitoring are designed to provide feedback (and possible corrective insights) into future management decisions.

(3) Proposed HCPs should be reviewed by independent, qualified advisory panels.

Amendments that were made to the FWS habitat conservation planning handbook

in the months after release of Kareiva et al. (1999) incorporated many of these recommendations, and thereby significantly improved the HCP process.

The ESA stipulates the development of a recovery plan for most threatened and

endangered species. This plan then guides decision-making related to the recovery

program and directs the actions of managers in the implementation of the program.

Through a collaborative effort supported by the Society for Conservation Biology, the

FWS and NCEAS, Boersma et al. (2001) undertook an extensive systematic review

of a random subset of recovery plans for the 931 listed species for which the FWS

was responsible in 1998. This large sample, representing nearly 20% of the listed

species for which a recovery plan had been approved at that time, included 85 plant

and 96 animal species; 100 single-species, 29 multiple-species, and 6 ecosystem recovery plans; and 68 species plans which had been revised at the time of the review

and 113 plans which had not been revised. Boersma and a team of 325 researchers

drawn from the ranks of faculty, post-docs and graduate students at 19 universities

exhaustively reviewed the selected plans for a long list of attributes such as plan

length, length of time between listing and plan completion, number and composition

of individuals on the recovery team, and number of species included in the plan.

They also scored each plan for scientific content based on factors such as the

amount of biological and natural history information available for the species, prescribed management actions, monitoring protocols, and recovery criteria.

Boersma et al. (1999) used the FWS ‘‘trend’’ category for each species as an index

of recovery plan effectiveness. Each species was classified as improving, stable, declining, extinct or unknown. These data were then used to test four principal

hypotheses:

(1) Revised plans would be more effective than unrevised plans.

(2) Plans developed by a diverse group of authors would be more effective than

those written only by Federal agency employees.

(3) Plans in which recovery criteria were explicitly linked to a species biology

would be more effective than those lacking such links.

(4) Multi-species plans would be more effective than single-species plans, because

they incorporate a broad view of threats and tend to be more integrative.

Analysis of this massive and complex data set yielded several general results and

more than a few surprises:

(1) Recovery plans tend not to improve in effectiveness with revision.

(2) Participation of non-federal team members in plan development seems to have

a positive influence on plan effectiveness.

(3) The value of linking recovery goals to species biology is less clear-cut than expected, but nonetheless important for effective recovery planning.

(4) Multi-species plans tend to be less effective than single-species plans.

(5) Management tends not to be monitored sufficiently to determine whether it

is working, effectively precluding the use of adaptive management as a recovery protocol.

(6) Recovery plans typically take too long to write, delaying the implementation

of management.

(7) Plan length is not a good predictor of plan effectiveness.

Overall, the results reported by Boersma et al. (2001) tended to be more ambiguous than was anticipated. They nevertheless confirmed the value of using sufficient, defensible data in recovery planning, implementation and monitoring. The authors concluded with a call for increased reliance on adaptive management in the

revision of recovery plans, the inclusion of diverse perspectives and viewpoints in

the recovery planning process, close linkage between species biology and recovery

goals, and close monitoring of multi-species recovery plans. They repeatedly call for

the incorporation of more, better and relevant science in recovery planning.

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An even more extensive analysis and synthesis of this data set has been completed by Hoekstra et al. (In press), and will be published in June 2002, as an issue

of the journal Ecological Applications. I have seen the abstracts, but not the manuscripts for this set of papers. Review of even the abstracts confirms the creative

commitment of the academic and research community to expand the role of sound— i.e., reliable, relevant and sufficient—science in conservation management. Publication of this volume no doubt will represent an historic benchmark in the evolution

of ecological science as a self-conscious servant of public policy.

WHEN SCIENTIFIC WORLDS COLLIDE: A TRAGIC CASE STUDY

The recent experience of the resource managers and citizens of the Klamath River

Basin (KBR) of southern Oregon illustrates what can happen when scientific worlds

collide. The water resources of the Basin are managed by the U.S. Bureau of Reclamation (BOR), while the threatened and endangered fish of the Basin are managed (protected) by the FWS (shortnose sucker and Lost River sucker) and the

NMFS (Southern Oregon/Northern California Coasts coho salmon), under the ‘‘best

science available’’ administrative and regulatory requirements of the ESA. A sequence of decision-making occurred within and among these agencies in 2001 that

ultimately precipitated both a management tragedy in the form of shaken public

confidence and a human tragedy in the form of economically and socially stressed

communities. Without wishing to offend by brevity, I will attempt to summarize the

essential facts (as I have received them) in a few sentences.

In January 2001, the BOR issued a biological assessment that operation of the

Klamath Basin (Water) Project would be harmful to the welfare of the threatened

coho salmon without specific constraints on stream flows in the Klamath River. The

BOR then proposed relatively low monthly minimum flows for 2001. In April 2001,

the NMFS issued a biological opinion that operation of the Klamath Project as proposed by the BOR would place the coho salmon in jeopardy. The NMFS then formulated a reasonable and prudent alternative (RPA) incorporating, among other

things, monthly minimum flows in the Klamath River higher than those proposed

by the BOR.

Similarly, in February 2001, the BOR issued a biological assessment that operation of the Klamath Project would be harmful to the welfare of the endangered

suckers without specific constraints on water level in the Klamath lakes. The BOR

proposed to operate the lakes at very low monthly elevations. In April 2001, the

FWS issued a biological opinion that operation of the Project as proposed by the

BOR would place the coho salmon in jeopardy. The FWS then formulated an RPA

incorporating, among other things, monthly lake levels higher than those proposed

by the BOR.

In meeting its statutory responsibilities to provide water to its users, the BOR

proposed to operate with low lake levels, low flows and significant irrigation diversions. In meeting their own statutory responsibilities to enforce the ESA in the protection of threatened and endangered fish, the FWS and NMFS proposed to operate

with high lake levels, high flows and reduced diversions. The FWS and NMFS biological opinions and RPAs prevailed, and water management in the Basin was

changed for 2001. No irrigation water was provided to farmers for the 2001 growing

season. To further complicate matters, 2001 was a year of historic drought in the

Basin.

Recognizing the benefits of stringent peer review of scientific and technical judgements, the Departments of the Interior and Commerce jointly requested an NRC review of ‘‘... the scientific basis for the biological opinions that resulted in changes

of water management for year 2001’’ (NRC 2002:xi). The NRC recently issued an

interim report on the matter in which it found, among other things, that:

‘‘... all components of the biological opinion issued by the USFWS on the endangered suckers have substantial scientific support except for the recommendations

concerning (higher) minimum water levels for Upper Klamath Lake (emphasis

mine)’’ (NRC 2002:2).

‘‘... there (also) is no scientific basis for operating the lake at mean minimum levels below the recent historical ones (1990–2000), as would be allowed under the

USBR proposal’’ (NRC 2002:3).

‘‘... (there is no) clear scientific or technical support for increased minimum flows

in the Klamath River main stem’’ (NRC 2002:3).

‘‘... reduction in main-stem flows, as might occur if the USBR proposal were implemented, cannot be justified’’ (NRC 2002:3).

The interim NRC report thus concluded that there was no substantial scientific

basis for either maintaining higher lake levels for the endangered suckers or maintaining higher minimum river flows for the threatened coho. The report also concluded that there was no substantial scientific basis for the USBR proposals to

90

maintain both lower lake levels and lower river flows. With respect to minimum

lake levels and minimum river flows, both sides in the dispute were operating without strong scientific support. Important elements of the RPAs stipulated by the FWS

(high lake levels) and the NMFS (high river flows) were without sufficient scientific

support. In reality, the position of the BOR (low lake levels and low river flows) also

were without sufficient scientific support—but the FWS and NMFS RPAs had priority.

The outcome for the Klamath Basin was an economic nightmare. But from the

perspectives of the agency parties involved, each was trying to meet its mandate:

more water for people (BOR), more water for lake fish (FWS), and more water for

river fish (NMFS). Each of these agencies behaved in a risk-averse manner from its

own perspective, seeking to maximize the gain (and minimize the risk) for its constituents. BOR wanted to ensure plenty of water for irrigators—so it proposed to

maintain uncommonly low lake levels and river flows. FWS wanted to ensure plenty

of water for its lake fish—so it proposed to maintain unusually high lake levels.

NMFS wanted to provide plenty of water for its river fish—so it proposed to maintain unusually high stream flows. And all of this occurred in a year of abnormally

low water availability!

Final resolution of this controversy awaits further review by the NRC committee.

Nevertheless, this incident already has precipitated intense public scrutiny of the

reliance on ‘‘the best science available’’ in the implementation of the ESA, including

the listing, recovery and downlisting sections of the law. Others on this panel are

more qualified than I to comment on the details of the biological assessments, biological opinions and NAS review involved in this particular case. The recent release

of the Final Biological Assessment by the BOR (USBR 2002) strongly suggests that

constructive steps are being taken to formulate—based on the best science

available—a more balanced approach to resource management in the Klamath

Basin.

CONGRESS’ OWN SEARCH FOR SOUND SCIENCE

In the meantime, there is substantial interest in this case even within this Committee. The letter inviting me to testify indicated that the hearing would concern

two proposed amendments to the ESA—H.R. 2829 introduced by Mr. Walden of Oregon and H.R. 3705 introduced by Mr. Pombo of California—which are intended to

enhance the role of scientifically credible data, independent peer-review and public

involvement in the implementation of the ESA. I have neither legislative experience

nor legal training. There undoubtedly are fine points and nuances in the subject

bills that elude me. With this caveat, I have nevertheless tried to review these bills

from the perspective of a working scientist with some ESA experience. As I read

it, H.R. 2829 would:

(1) require the Secretary of the Interior, when evaluating otherwise comparable

data, to ‘‘... give greater weight to scientific or commercial data that is empirical or has been field tested or peer-reviewed,’’

(2) require the Secretary to establish (written) criteria for the admissibility of

scientific and commercial data to be used in a listing determination,

(3) require the submission of ‘‘... data obtained by observation of the (candidate)

species in the field ...’’ prior to a status determination,

(4) mandate both the ‘‘acceptance’’ of landowner-provided data on the status of

a species and the inclusion of this data in the record for any status determination,

(5) require the Secretary to publish ‘‘... a description of additional scientific and

commercial data that would assist in the preparation of a recovery plan,’’

(6) require the Secretary to solicit the submission of such data by any interested

party, and describe any plans ‘‘... for acquiring additional data,’’

(7) require the independent, scientific review of any proposed listing, delisting,

recovery plan, jeopardy opinion or RPA decisions rendered by the Secretary,

(8) require the evaluation and consideration of any such independent, scientific

reviews in a final determination

(9) require the Secretary to actively solicit and consider information provided by

States in any Section 7 consultation, and

(10) ensure the right of ‘‘... any person who has sought authorization or funding

from a Federal agency for an action that is the subject of the consultation’’

to be fully informed about (and throughout) the process.

Similarly, as I read H.R. 3705, it would:

(1) mandate the basic types of scientific information to be included in a petition,

(2) require that the Secretary acknowledge receipt of such a petition, and provide

public notice of the petition to each landowner possibly affected by the petition and to the Governor of each State possibly affected by the petition,

91

(3) require the independent, scientific review of petitions and findings regarding

petitions, including review of ‘‘... the sufficiency of all relevant scientific information and assumptions in the petition relating to the taxonomy, population

models, and supportive biological and ecological information ...’’

(4) require the independent, scientific review of ‘‘Whether the methodology and

analysis supporting (a) petition meet the standards of the academic and scientific community’’ and ‘‘Whether the petition is supported by clear and convincing evidence ... that the petitioned action may be warranted,’’

(5) require the appointment and convening of a review board to conduct an independent, scientific review of any finding issued by the Secretary,

(6) require full public disclosure of the findings of the independent review board,

any points of disagreement between the Secretary and the board, and the

basis for resolution on any such disagreement,

(7) require an independent review of jeopardy opinions issued by the Secretary,

and

(8) stipulate that any species for which a petition (for listing or delisting) has

been declined ‘‘... may not be considered (again) by the Secretary for one

year.’’

Both of these bills emphasize increased use of ‘‘good’’ (i.e., relevant and reliable)

and sufficient science in ESA decision-making, enlarge the role of peer review in the

evaluation of ESA decisions, increase the amount of public disclosure about the decision-making process, and increase Federal–State consultation. Both would provide

for greater scientific and public scrutiny of the ESA process, and both would appear

to set a demanding performance standard for the Secretary of the Interior. Each of

these changes has the potential to improve the operation of the ESA in significant

ways.

On the other hand, these improvements would come at some real cost of bureaucracy, time delays and expense. Given the volume of review and comment already

required for ESA implementation each year, and the apparently significant expansion of review called for in these bills, the expense of administering the ESA is likely to go up dramatically. Furthermore, the plan to compensate decision reviewers

with cash payments would produce another substantial new expense. Without an accompanying increase in budgets, these requirements will reduce the amount of funding available for actually implementing recovery. These bills have the potential to

harm recovery programming in the absence of new funding.

Furthermore, as I understand them, each bill prompts several specific questions

and comments. For example, would the requirement in H.R. 2829 that the determination of threatened or endangered status be ‘‘... supported by data obtained by

observation of the species in the field—preclude the reintroduction of an extirpated

species that might not have been seen in a region for 50 years or more? Also, what

are the implications of the proposed requirement that landowner-provided data

about the status of a species on the land be included in the rule-making process?

Not all ‘‘data’’ represents information. The information content of ‘‘data’’ often is determined significantly by the sampling protocol and procedure(s) by which the

‘‘data’’ was obtained in the first place. Also, is the call in both bills for increased

reliance on the use of ‘‘empirical data’’ a procedure for minimizing the role of analytical and simulation models in the decision process? (Often, such models are the only

way to integrate complex data into a simplified but realistic description of overall

system behavior.) Finally, in H. R. 3705, the disqualification for service on review

boards of anyone ‘‘who is, or has been, employed by or under contract to the Secretary or the State in which is located the (subject) species’’ would have the effect

in most cases of eliminating any and all otherwise ‘‘qualified’’ individuals.

It is gratifying to see the members of the Congress and the members of the academic and research community both so deeply engaged in the search for ways to

make to science—meaning scientific data, scientific principals and scientific reasoning—increasingly relevant to the administration and implementation of the

Endangered Species Act. The ESA merits no less than our combined best efforts.

Thank you for your consideration.

PARTIAL LIST OF REFERENCES

Kareiva, P. 1997. Habitat conservation planning for endangered species. National

Center for Ecological Analysis and Synthesis. < www.nceas.ucsb.edu/nceas-web/

projects/97KAREI2-org>.

Kareiva, P. et al. 1999. Using science in habitat conservation plans. National Center for Ecological Analysis and Synthesis. www.nceas.ucsb.edu/nceas-web/projects/

hcp>.

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Mr. POMBO. Thank you.

Mr. Vogel?

STATEMENT OF DAVID VOGEL, SENIOR SCIENTIST,

NATURAL RESOURCES SCIENTISTS, INC.

Mr. VOGEL. Mr. Chairman and members of the Committee,

thank you for the opportunity to testify at this important hearing.

My name is David Vogel, and I am here to support H.R. 2829 and

H.R. 3705 because concepts in these bills will significantly improve

the scientific integrity and implementation of the Endangered

Species Act.

I am a fisheries scientist who has worked in this discipline for

the past 27 years, including 15 years with the U.S. Fish and Wildlife Service and the National Marine Fisheries Service. I have been

extensively involved in ESA issues, including research on threatened and endangered species, listing of species, Section 7 consultations, biological assessments, biological opinions and recovery planning.

Mr. Chairman, I only have two points to make here today: First,

to point out where and how some aspects of the ESA can damage

scientific implementation of the act and, last, how this serious

problem can be rectified through peer review and placing greater

weight on empirical, instead of theoretical, information.

The most recent, prominent example where the ESA process

went awry occurred last year in the Klamath Basin. When I started working on endangered species issues in this region more than

10 years ago, the ESA process was open and dialog occurred among

all parties. It allowed for scientific data, and information exchange

and technical input from all individuals. However, over time, the

process became closed. This resulted in a series of actions where

only selected information and individuals were included in the formulation of two biological opinions that cutoff water to the Klamath project. Other highly relevant scientific information was either

overlooked or ignored.

Additionally, the agencies gave greater weight for theoretical information to support an assumption for high lake levels and high

reservoir releases without acknowledging empirical data that did

not support their premise.

As you know, a recent National Academy of Sciences’ review of

those opinions concluded, among other findings, that there was insufficient scientific justification to support the Fish Agency’s assumptions on lake levels and reservoir releases. Notably, the Academy’s 12 committee experts were unanimous in their conclusions

on both biological opinions.

The ESA allows one individual to essentially serve as judge and

jury. This process permits the following undesirable scenario: An

inexperienced individual has a speculative idea that evolves into an

assumption. Over time, that assumption turns into a fact. Ultimately, the presumed fact becomes a mandate under the

Endangered Species Act. In my experience, once this occurs, it is

next to impossible to change.

A more rigorous scientific approach is essential for the welfare of

species. It would allow for the development of scientific alternatives

that, in my experience, will lead to innovative measures to avoid

93

impacts to listed specie and, more importantly, develop proactive

actions for improving habitats and increasing populations.

Without question, there is uncertainty in science. However, peer

review will, at a minimum, disclose what is known and what is not

known when empirical data are not available. This can culminate

into the most well-informed resource management decisions. Too

often the doubtfulness is not revealed in the present-day ESA process. Scientific debate is not only common, but is expected and must

occur in order for our knowledge to advance.

I would like to emphasize that peer review is used in other Government work on natural resources. For example, I have been performing multidisciplinary research for CALFED, a collaborative effort among 23 State and Federal agencies to improve water supplies and the health of the ecosystem in California. Peer review of

my work and the work of many others for CALFED is mandatory.

Why should it be any different with the ESA, when the natural resource ramifications are greater and more global? At the very least,

peer review will elevate ESA technical issues to a higher scientific

standard of quality and instill greater confidence in the decisions.

In conclusion, the existing ESA does not ensure sufficient and

balanced scientific input. These circumstances can, and do, work to

the detriment of the Endangered Species Act. This problem can be

rectified through peer review and placing greater weight on empirical, instead of theoretical, information. Good science will lead to

good policy, and because science is constantly evolving, so should

policy.

These bills will ensure that the Endangered Species Act progresses with science to the ultimate benefit of fish and wildlife resources.

Thank you.

[The prepared statement of Mr. Vogel follows:]

Statement of David A. Vogel, Senior Scientist,

Natural Resources Scientists, Inc.

Mr. Chairman and members of the Committee, thank you for the opportunity to

testify at this important hearing. My name is David Vogel. I am a fisheries scientist

who has worked in this discipline for the past 27 years. I earned a Master of Science

degree in Natural Resources (Fisheries) from the University of Michigan in 1979

and a Bachelor of Science degree in Biology from Bowling Green State University

in 1974. I previously worked in the Fishery Research and Fishery Resources Divisions of the U.S. Fish and Wildlife Service (USFWS) for 14 years and the National

Marine Fisheries Service (NMFS) for 1 year. During my tenure with the Federal

Government, I received numerous superior and outstanding achievement awards

and commendations, including Fisheries Management Biologist of the Year Award

for six western states. For the past 12 years I have worked as a consulting scientist

on a variety of projects on behalf of Federal, state, and county governments, Indian

tribes, and numerous other public and private groups. During my career, I have

been extensively involved in Endangered Species Act (ESA) issues including research on threatened and endangered species, listing of species, Section 7 Consultations, Biological Assessments, Biological Opinions, and recovery planning. I have

been a long-time supporter of the fundamental principles of the ESA.

Mr. Chairman, I am here to enthusiastically support H.R. 2829 and H.R. 3705

because these bills will significantly improve the scientific integrity and implementation of the ESA. First, providing peer review when necessary is a proactive approach to prevent the probability of faulty decisions that may be unbeneficial, if not

harmful, to species. Second, giving greater weight to empirical information (as compared to theoretical) will increase the probability that the best possible decision is

made when it comes to the welfare of fish and wildlife species. These two measures

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described in the bills will result in substantive improvements and instill greater

confidence in future ESA actions.

The ESA Scientific Process: When It Works and When It Does Not

During my career, I have observed many examples of when the ESA process is

effective and when it is not effective. I have had extensive involvement with both

USFWS and NMFS implementation of the ESA and have seen successes and failures. I have observed examples where the lack of outside input and insufficient emphasis on empirical data served to undermine the ESA process. The most recent,

prominent example took place in the Klamath basin. When I started working on endangered species issues in this region more than 10 years ago, the ESA process was

open and dialogue occurred among all parties. Scientific data and information were

exchanged and the ESA process allowed for technical input from all individuals.

However, over time the process became closed. This culminated into a series of ESAbased actions where only selected information and individuals were included in the

formulation of the two final Biological Opinions that cut off water to the Klamath

Project in 2001. Only certain information was used by the USFWS and NMFS and

additional relevant science-based information was either overlooked or ignored. The

agencies gave greater weight to theoretical information to support an assumption

for high lake levels and high reservoir releases without acknowledging empirical

data that did not support their premise. As you know, a recent National Academy

of Sciences’ (NAS) review of the 2001 Klamath Biological Opinions concluded

(among other findings) that there was insufficient scientific justification to support

USFWS’s demand for higher-than-historical lake levels for two species of endangered suckers and NMFS’s demand for higher-than-historical reservoir releases for

threatened coho salmon. Notably, the NAS committee members were unanimous in

their conclusions on both Biological Opinions.

In my experience, a common factor in all instances where the ESA process worked

effectively has been when the process was open, constructive, and collaborative. The

Federal employees sought input from knowledgeable scientists and stakeholders

both within and outside the government on all sides of the issues. Sometimes scientific debate ensued, but the process improved the agency’s decision-making abilities. This open method worked not only to the benefit of potentially affected parties,

but also the listed species. This works well because many individuals within

USFWS and NMFS do not have all the information and expertise necessary to make

the most appropriate decisions and ensure the welfare of species. Simply because

an individual works for the Federal Government does not guarantee his or her scientific authority on fish and wildlife. Commonly, the Federal agencies have people

with little or no practical field experience in administering the ESA. Having worked

within the USFWS and NMFS for 15 years, I believe these two Federal agencies

need all the technical assistance they can get. I have worked with many outstanding

credible biologists. Conversely, I have observed many inexperienced biologists. Additionally, I have seen a high turnover rate in some Federal offices resulting in the

agency losing their most knowledgeable staff. Peer review would provide these agencies with that necessary technical assistance, if needed. Why wouldn’t biologists in

these agencies be expected to effectively use the best available scientific information

and perspectives? The current ESA does not ensure this situation; H.R. 2829 and

H.R. 3705 will. Good science and the best application of accepted scientific principles demand diversity in perspectives and opinions, as well as data/information

input from more than sources who are ‘‘like-minded’’.

Benefits of Peer Review and Empirical Data

Inserting peer review into the ESA process is an overdue concept. Furthermore,

providing greater weight to empirical, instead of theoretical, information makes

sense. These are good measures, not bad, for fish and wildlife resources. The lack

of application of good scientific principles in ESA processes can serve to the detriment of these resources. A more rigorous scientific approach is essential for the

ESA. It allows for the development of scientific alternatives that, in my experience,

will lead to innovative measures to avoid impacts to listed species, and, importantly,

develop proactive actions for improving species habitats and increasing the populations.

Selective, one-sided use of information is inappropriate in the ESA process. In

some recent ESA procedural actions, one-sided information was used whereas alternative information was overlooked, ignored, or casually dismissed. The existing

process allows one individual to essentially serve as judge and jury. Peer review will

provide balance and fair treatment of all information. This is particularly important

when other valid, relevant empirical data are available. When the stakes and ramifications are high on both sides of an issue, peer review becomes all the more imporVerDate 11-MAY-2000 09:56 Dec 17, 2002 Jkt 000000 PO 00000 Frm 00098 Fmt 6633 Sfmt 6621 78289.TXT HRESOUR1 PsN: HRESOUR1
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tant. Peer review will also insulate a Federal employee from outside pressure that

could influence the individual’s actions in an improper direction. This latter example

points out the fact that it is necessary to protect these people from ‘‘peer-pressure’’

science and engage peer-review science.

Although scientists are supposed to be the most-demanding critics of their work,

they sometimes succumb to their strong belief in a particular hypothesis. When this

occurs, the scientist becomes attached to that belief and acquires a parental affection to his or her hypothesis. Sometimes the affection is so strong, the individual

overlooks or ignores empirical data that is contrary to the person’s belief. In this

context, the existing ESA process permits the following undesirable scenario: an inexperienced individual administering the ESA has a speculative idea that evolves

into an assumption. Over time, that assumption turns into a fact. Ultimately, the

presumed fact becomes a mandate under the ESA. In my experience, once this occurs, it is next to impossible to change. Such circumstances can be prevented with

appropriate peer review and better use of empirical information instead of conjecture or theories.

There is uncertainty in science. Peer review will, at a minimum, disclose what is

known (placing the greatest weight on empirical data) and what is not known when

empirical data are not available. This can culminate into the most-well-informed resource management decisions. Too often the doubtfulness is not revealed in the

present-day ESA process or is inappropriately veiled behind the over-used phase,

‘‘the best available information’’. Scientific debate is not only common, but is expected and must be part of the process in order for our knowledge to advance and

not remain stagnant. The scientific basis or validity of decisions under the ESA will

be improved with these bills.

Peer review is common in many other forums of government work on natural resource issues. For example, I have been performing multi-disciplinary research for

CALFED in the Central Valley of California. CALFED is a collaborative effort

among 23 state and Federal agencies to improve water supplies in California and

the health of the San Francisco Bay–Sacramento–San Joaquin River Delta watershed. Peer review of my work and the work of many others for CALFED is mandatory. Why should it be any different with implementation of the ESA when the natural resource ramifications are greater and more global?

I want to emphasize that peer review is not necessary for each and every ESA

action. The legislation could specify thresholds of potential ESA procedures that

would require peer review based on factors such as calculated risks to the species,

potential economical impacts, petitions by affected or concerned individuals, etc.

Additionally, it is important to recognize that instances will arise where some individuals on either side of a controversial ESA issue will not agree with the outcome

of peer review. But at the very least it will elevate technical issues in the ESA to

a higher scientific standard of quality and instill greater confidence in the decisions.

I have never heard anyone say that peer review is enjoyable, but I firmly believe

it is necessary for the advancement of science and the welfare of the species.

Conclusion

In conclusion, many future errors in implementing the ESA could be minimized

through a proper peer review of the agencies’ rationale for their actions and by placing greater weight on empirical, instead of theoretical, information. However, it is

imperative that the execution of peer review not be made into a facade of ‘‘likeminded’’ individuals or agencies promoting or protecting their hypotheses, policies,

or positions. Data must be examined with clear objectivity using widely accepted,

fundamental scientific principles. Agency policies and positions are not part of the

objective equation or scientific process. Good science will lead to good policy and because science is constantly evolving, so should policy. H.R. 2829 and H.R. 3705 will

ensure that the Endangered Species Act progresses with science to the ultimate benefit of fish and wildlife resources.

Mr. POMBO. Thank you.

Mr. Bean?

STATEMENT OF MICHAEL BEAN, CHAIRMAN,

WILDLIFE PROGRAM, ENVIRONMENTAL DEFENSE

Mr. BEAN. Thank you, Mr. Pombo and Mr. Walden. I appreciate

the time you have spent today listening to testimony. I appreciate

your interest in this topic.

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I am Michael Bean. I am the Chairman of the Wildlife Program

of Environmental Defense. I have, for the last 25 years, been deeply involved in endangered species issues as a nonscientist working

very closely all of that time with many scientists.

I have also had the pleasure of serving as a member of the Board

on Environmental Studies and Toxicology of the National Academy

of Sciences, the board which was one of the two boards under

whose auspices the recent Klamath study was done and the board

under whose auspices the 1995 study on science and the

Endangered Species Act was done. I have also served on a number

of study committees for the National Academy of Sciences.

I very much share the view that decisionmaking under the

Endangered Species Act should be inclusive. The Fish and Wildlife

Service should reach out for input from other scientists. I do, however, fear that the bills that you two gentleman have offered will

probably not accomplish a good objective, and let me explain what

my concerns with the bills are.

First, both of you, and others on this Committee, have said that

their objective is to ensure the use of good science and the best scientifically based decisions in the Endangered Species Act, but I notice a considerable disparity as to when the special requirements

of peer review are required.

For example, in your bill, Mr. Pombo, when the Secretary of Interior determines that there is sufficient evidence warranting proposal of a species, then additional science is needed before that step

can be taken. On the other hand, when the Secretary determines

that a proposal of a species is not warranted by his status review,

there is no requirement in your bill for similar peer review.

In your bill, Mr. Walden, when the Secretary makes a final decision to list a species, peer review is required to make sure the

science is right. But if the Secretary goes through a rulemaking

process, at the end of which he concludes that listing is not appropriate, your bill does not require that that decision receive peer review.

And both of your bills require that when the Secretary carries

out a Section 7 consultation that results in a determination of jeopardy to the species, there must be peer review in order to ensure

that the best possible science underlies that decision. But when, as

is the case about 98 percent of the time, the Secretary determines

that jeopardy will not result from a proposed action, there is no requirement for peer review then.

I think a skeptic looking at that would wonder whether the objective really is improving the quality of science and decisionmaking

in general or just improving the quality of science when decisions

are made to extend protection to endangered species, rather than

to withhold it.

The second point I would make, and this echoes administration

testimony, I do believe that the imposition of peer review requirements will require significant additional resources and time for the

Fish and Wildlife Service and the National Marine Fisheries

Service to do that. The statutory deadlines currently in the law will

be difficult to meet, and I think you are both familiar that both this

administration and its predecessor have complained vigorously

about the fact that they have been whipsawed by frequent litigaVerDate 11-MAY-2000 09:56 Dec 17, 2002 Jkt 000000 PO 00000 Frm 00100 Fmt 6633 Sfmt 6602 78289.TXT HRESOUR1 PsN: HRESOUR1
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tion driving their agenda. Most of that litigation has been because

they have been unable to meet the existing deadlines. My concern

is that the new procedural requirements will make it even less

likely that they can meet those deadlines in the future.

The last point I would make about the bills is that, in some respects, and I say this with due respect to both of you, I think the

bills do not reflect an understanding of some scientific principles

that scientists would readily comprehend.

There is, I would note as a threshold matter, there is a tension

between, on the one hand, saying you want the Fish and Wildlife

Service to use the best available scientific data and your trying to

prescribe in the bill which data should always be given preference

over other types of data. I think that is an inherent tension.

It also is troubling that, in some respects, there is a sort of

flawed understanding. For example, data is, I believe, never peer

reviewed. Data is gathered. Data is collected. It is used as the basis

for reasoning to reach results. The reasoning may be persuasive or

unpersuasive, and that reasoning may be peer reviewed, but the

data itself is not. Yet this bill seems to assume it is.

So my conclusion is that I am very supportive of the goal of improving the quality of decisionmaking. I am very much of the belief

that it is helpful to the Fish and Wildlife Service to have external

input, but I also believe that it is a mistake to try to prescribe that

in a form and format that applies across the board to all of the decisions we have been talking about today because I think the nature of these decisions are simply such that a single, uniform approach doesn’t work in every case.

Thank you.

[The prepared statement of Mr. Bean follows:]

Statement of Michael J. Bean, Chairman, Wildlife Program,

Environmental Defense

Thank you for the opportunity to present this testimony on behalf of Environmental Defense.

The two bills that are the subject of today’s hearing address various aspects of

the role of science in the administration of the Endangered Species Act. That is a

very important topic, one for which I hope I can offer a helpful perspective.

Before addressing the substance of the two bills, I will briefly describe for the

committee my experience and that of my organization relevant to the topic at hand.

The organization for which I work, Environmental Defense, was founded in 1967 by

a group of scientists concerned about the effects of the pesticide DDT on wildlife.

Their efforts eventually led to the elimination of widespread use of DDT in the

United States, an action that has made possible a dramatic improvement in the status of the nation’s symbol, the bald eagle, as well as the peregrine falcon, brown

pelican, osprey, and still other species.

Beginning with the scientists who founded Environmental Defense, we have

throughout our thirty-five year history been firmly committed to finding scientifically sound solutions to environmental problems. Our staff is drawn from fields as

diverse as biology, hydrology, toxicology, biochemistry, engineering, medicine, anthropology, ecology, economics, and law. My training is in law, but my career has

been spent working closely with scientists and with scientific organizations. I have,

for example, served on the Board of Environmental Studies and Toxicology of the

National Research Council of the National Academy of Sciences, the very board

under whose auspices the recent preliminary study pertaining to the Klamath Basin

was done, and the board that produced the 1995 report, Science and the Endangered

Species Act. I have frequently published articles with scientists as co-authors, and

have written for a wide variety of scientific journals, including the Journal of the

Washington Academy of Sciences, Quarterly Review of Biology, Nature, Natural

History, Bioscience, Conservation Biology, Marine Pollution Bulletin, and Conservation Biology in Practice. For the last of these journals I serve on the editorial adviVerDate 11-MAY-2000 09:56 Dec 17, 2002 Jkt 000000 PO 00000 Frm 00101 Fmt 6633 Sfmt 6621 78289.TXT HRESOUR1 PsN: HRESOUR1
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sory board. I also have served as a peer reviewer of manuscripts submitted for publication in various of these journals.

One other aspect of my background warrants mention. I work closely with landowners on projects to enlist their cooperation in the conservation of endangered

species. Indeed, finding ways to enlist landowners—particularly private land- owners—as allies, rather than adversaries, of endangered species conservation has

been the overriding focus of my work for the past half dozen years. I am convinced

that the help of private landowners is essential for recovery of many endangered

species. After all, they own the land where recovery must occur, and only they have

the ability to manage that land in ways that facilitate recovery. My colleagues and

I at Environmental Defense are cooperating with landowners to help endangered

species in many different parts of the country. We work with forest landowners in

Virginia, the Carolinas, Georgia, Alabama, and Mississippi, with ranchers in Texas

and Utah, and with farmers in California. In my experience, winning the cooperation of landowners, particularly ‘‘working landscape’’ landowners such as farmers,

ranchers, and foresters often depends on four things: (1) keeping things simple; (2)

expediting agency decisions; (3) providing agencies with adequate resources to make

speedy and intelligent decisions; and (4) giving landowners real and meaningful incentives to manage land (and water) for the benefit of endangered species.

The two bills before the committee today do not address these needs. They make

aspects of the Endangered Species Act still more complex, rather than simpler; they

slow agency decision-making, rather than expedite it; they provide no new resources

to cope with new procedural obligations; and they do nothing to create positive incentives for conservation action by private landowners. All of that is not to deny

that there is a problem with the scientific bases for decision-making under the

Endangered Species Act. These bills, however, misdiagnose that problem and prescribe a remedy that will do little or nothing to solve it. More troubling still is that

in places, the bills reveal a dizzying ignorance of science itself.

The fundamental problem with the scientific bases for decision-making under the

ESA is hardly new. The National Research Council acknowledged it in its 1995

study, Science and the Endangered Species Act. Many of the key decisions required

by the Endangered Species Act, including whether a species should be listed as endangered, and whether a particular action is ‘‘likely to jeopardize the continued existence’’ of any such species are at bottom judgments about the risk of extinction

that a species faces. The amount and quality of information underlying such judgments affects one’s confidence in them, yet, as the National Research Council report

noted, ‘‘there will always be uncertainty in the estimates of risk used to trigger decisions under the ESA, requiring policies and processes for making decisions with incomplete and uncertain data’’ (p. 175, hardcover edition). Underscoring this inherent

uncertainty, the National Research Council noted that ‘‘for even the best-studied endangered species, essential pieces of information might be lacking, yet decisions

must be made—(p. 159). The ‘‘best studied’’ endangered species, of course, are very

few, for, as the National Research Council noted, ‘‘our biological understanding of

many rare, threatened, or endangered species does not extend far beyond a taxonomic description and a coarse geographic distribution,’’ yet ‘‘that lack of data

should not be the basis for failure to list a species if other information is available

to indicate that listing is otherwise warranted’’ (p. 182).

Since listing decisions and jeopardy determinations are, by definition, judgments

about the risk of extinction that are always made with incomplete data, it is erroneous and misleading to label such judgments as correct or incorrect. Yet, that is

exactly what the Pombo bill (H.R. 3705) requires when it obliges the Secretary to

evaluate a review board judgment that differs from his own prior judgment about

the need to list a species. A somewhat similarly flawed understanding of the nature

of these decisions is reflected in the Walden bill (H.R. 2829) requirement that the

Secretary ‘‘give greater weight to scientific or commercial data that is empirical or

has been field tested or peer-reviewed.’’ Making sense of this requirement is a challenge, inasmuch as data—the factual information used in reasoning—are never

peer-reviewed. Instead, data are collected and then used to test hypotheses. Peer review focuses on whether the use of data (i.e., the reasoning) is sound. Peer review

may call into question whether data were properly collected, or whether the right

kinds of data were collected, but the data themselves are not peer-reviewed. Nor

does it make much sense to refer to data that are ‘‘field tested’’ for much the same

reasons. Thus, rather than improve scientific decision-making, this language is likely only to cause scientists to wonder what Congress could possibly have meant. Perhaps what the drafters of this language really intend is to discourage the use of

models—which typically employ both known information and assumptions to predict

future outcomes—in endangered species decision-making. Here again, the National

Research Council has addressed the use of models in endangered species decisionVerDate 11-MAY-2000 09:56 Dec 17, 2002 Jkt 000000 PO 00000 Frm 00102 Fmt 6633 Sfmt 6621 78289.TXT HRESOUR1 PsN: HRESOUR1
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making, noting that ‘‘although most of these models have shortcomings, they do provide valuable insights into the potential impacts of various management (or other)

activities’’ (p. 142).

One can only hope that the apparent aversion to the use of modeling reflected in

the Walden bill does not extend to the realm of hurricane prediction. Predicting

where, or whether, hurricanes will make landfall is akin to predicting that a species

may go extinct in the foreseeable future. Both deal with significant uncertainties.

At least two members of this committee, Mr. Jones and Mr. Gilchrest, are likely to

remember Hurricane Felix of August 1995. It churned for days off the mid–Atlantic

coast with wind gusts of 145 miles per hour, one of the longest-lived hurricanes on

record. Hurricane warnings from South Carolina to Chesapeake Bay prompted mass

evacuations of beach communities at the height of the tourist season. The lives of

millions of people were disrupted, as were thousands of businesses. And yet, the

hurricane never came ashore. It was, in the end, a false alarm. The National Weather Service, relying on its most sophisticated models, erred on the side of caution,

and properly so, because the consequence of not issuing a warning and being wrong

would have been far more disastrous. In much the same way, if we find out after

the fact that we should have protected a species, but didn’t, the consequence is the

loss of the species. Some members of this committee may debate how important that

is, but this much they cannot debate—it is irreversible.

The bills now before the committee are also flawed in their understanding of the

threats affecting species. For example, the Pombo bill would require that petitions

to list species present clear and convincing evidence that ‘‘the population of the

species is declining or has declined from historic population levels and beyond normal population fluctuations for the species.’’ What this entirely overlooks is the fact

that some species can be in serious peril of extinction as a result of demonstrable

threats, even though no decline in population has occurred. A ready example is the

Devil’s Hole pupfish of Nevada, which has been on the endangered list since 1967,

even though its population has been relatively constant for millennia. Because the

pupfish occurs only in one desert pool, the threat of groundwater depletion has long

been recognized as putting that species at risk of extinction. Thus, for species like

the pupfish, that occur in highly restricted habitats and are vulnerable to clearly

recognized threats, the Pombo bill would impose a requirement impossible to fulfill.

Both bills would impose significant new procedural requirements that would make

it virtually impossible to meet many of the statutory deadlines prescribed by the

ESA. For example, both bills require additional independent reviews and new Federal Register notices for listing decisions and jeopardy determinations under Section

7 of the ESA. Both listing decisions and Section 7 consultation requirements are

subject to statutorily prescribed deadlines. It is worth noting that a very large portion, perhaps most, of recent Endangered Species Act litigation is due to the government’s failure to make listing and other decisions within the statutorily prescribed

deadlines. Indeed, the administrators of the Endangered Species Act in both the

Clinton and Bush administrations have decried the fact that their agendas have

been driven by litigation, much of which consists of various deadline suits. The new

procedural requirements of these two bills virtually guarantee that the government

will miss even more of its statutory deadlines, thus exacerbating the very problem

that has vexed the current and former administrations.

Each of the above problems could, I presume, be fixed by better-informed and

more careful drafting. However, the end result would still be a pair of bills that fail

to address the central needs for well-informed decisions and an effective Endangered

Species Act. For the former, the central need is adequate resources to generate more

and better information about imperiled species, their needs, and the likely impacts

of human activities upon their survival prospects. For the latter, the central need

is a set of significant incentives for landowners to cooperate with endangered species

conservation efforts. These bills provide neither.

Mr. POMBO. Mr. Walden?

Mr. WALDEN. Thank you very much.

Mr. Bean, I appreciate that. I appreciate the comments that you

have made. You have hit on some things, frankly, that others have

not addressed, and I appreciate the manner in which you have

raised them and the ones that you have raised.

Let me ask you a question. If we were to change this legislation

to require peer review on no listing decisions and no jeopardy decisions, would that ease your view?

100

Mr. BEAN. Well, it certainly would ease my concern that the bill

is not balanced, if you will, in when it chooses to require peer review. It would, I have to admit, exacerbate the other problem I

mentioned, which is the problem of resources and time because you

will be imposing these requirements to a larger set of activities.

Mr. WALDEN. Certainly. Certainly. No, I understand that. Because I actually thought we had it fairly well covered by doing listings, delistings, consultations, and recovery programs, but I have

not really focused on this other issue of no jeopardy decisions and

no listing decisions, and I would be open to discussing that.

Your comment about data is interesting as well because it is

probably the inartful way we drafted this. Obviously, what we are

after is to talk about how the data are collected, what are the protocols that are in place, and then are the conclusions drawn from

those data correct. As you may or may not know, the situation in

Klamath, the NAS said, yes, a number of the decisions made were

accurate and the science is there to back it up, and then there are

these others where either they looked at the science wrong or, in

many cases, the decisions weren’t supportable.

The interesting thing that I think draws me into this discussion

on the ESA is what the National Academy of Sciences found was

that decisions that were made didn’t help the farmers, clearly.

They got their water cutoff, but it potentially could have hurt the

coho salmon by calling for releases of water out of reservoirs at a

temperature which would be lethal, potentially, to the very fish

that are on the endangered list.

And so I guess that is where I have become an even stronger advocate for peer review because here you have the ‘‘Perfect Storm,’’

if you will, of bad decisions, according to the NAS, saying it didn’t

help the environment, it didn’t help the farmers. What if we had

had that peer review first? Maybe we could have avoided both potential problems.

Mr. BEAN. Well, perhaps in that case. I do think it is important,

though, to emphasize one characteristic of endangered species decisionmaking. Fundamentally, all of these decisions, the decision

that a species should be on the list or not on the list, the decision

that a particular course of action will cause jeopardy or not cause

jeopardy, those are fundamentally judgments about probabilities,

certainly. They are not simple questions like sort of, ‘‘Who is buried

in Grant’s tomb?’’ These are judgments about likelihood of extinction as a result of some future events.

Peer review or certainly external review is helpful to the Fish

and Wildlife Service in making those decisions, but it doesn’t

change the fundamental fact that, at bottom, somebody has to decide, based on the evidence at hand—

Mr. WALDEN. I understand that.

Mr. BEAN. —it either does or doesn’t, and that is often going to

be a decision on which reasonable people will disagree.

Mr. WALDEN. Absolutely, and I fully understand that.

I guess, as a policymaker, I want to get to the point where, when

we make those judgment calls, we can probably both agree that the

data that leads up to the decision is beyond reproach and that the

decisions are backed up by the data that we have.

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Mr. BEAN. I would like to think that as well, but experience tells

me that when these decisions are made, they will always be made

on the basis of less data than one would like to have.

Mr. WALDEN. I understand, but we have also witnessed some decisions of late, a court suit down in California on a logging case

where the Agency just simply didn’t do the work on the ground,

and then they were capricious in the way they operated. We have

got to get that out of the process, and that is where I am hoping

we can get there.

Mr. Vogel, can you describe how the Agency peer review operates, as opposed to the independent peer review process included

in the bills we are discussing today?

Mr. VOGEL. I can tell you, based on my experience, there has

been a wide variety of how the agencies have performed peer review, if they, in fact, even do perform peer review. In the Klamath

instance, it clearly was a very closed process. They did not allow

for significant outside input, particularly if there were alternative

scientific perspectives brought to bear in the process.

I was very pleased to hear Craig Manson say today that from

now on, if I understood his comments, that it will be an open process because it definitely was not last year.

My experience, based on working for the agencies, and with the

agencies, and being on the other side of the issues in some cases,

is that too often the agencies seek like-minded individuals to support their arguments, where, in my perspective, I think it is more

important to actually go out and seek alternative perspectives to

challenge. So I think that is one of the big deficiencies.

I am concerned that if administratively the agencies say, ‘‘Trust

us. We will do all of our own peer review process,’’ they won’t aggressively seek those outside alternative perspectives on these

issues.

Mr. WALDEN. Mr. Chairman, if I can just make one other comments.

Mr. POMBO. Have at it.

Mr. WALDEN. I can’t resist, but to follow up on—is it Mr. Dueser?

Mr. DUESER. Dueser.

Mr. WALDEN. —when you said the people in Klamath must have

felt abandoned by their Government. Let me suggest they didn’t

feel ‘‘abandoned,’’ they felt attacked by their Government. It has

been an extraordinary experience over the last year and especially

now, in light of the NAS findings, what they went through. You

can imagine the deep-seated anger that exists there about this act,

this Government, the decisions made by this Government, the

losses suffered, and the lack of improvement, frankly, in the habitat there in the intervening year.

I mean, that is probably to me the most frustrating thing is we

have known for 10 or 20 years what needs to be done to improve

water quality, and quantity, and fish passage, and I can rattle

them off. I have got them memorized now. It is about five pages

of items. For some reason, we have never gotten them done. We

have got a little irrigation dam blocks 95 percent of the suckerfish

on Chiloquin Dam on the Sprague River. We had Dr. Lewis here

last week saying the suckers would be lining up to breed if we

could just, I have visions of rabbits, if you could just get passage,

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and they have been telling us that for a long time. We have passed

a bill in this chamber to do that, and the Senate has got it bollixed

up.

You know, there are things that were promised that would improve water quality and quantity in this basin. The Government

has got to get at it and do the things that would make a difference,

many of which have been outlined by Mr. Vogel and others in the

work they have done that would really improve the habitat and

give us the water we need for everybody.

So the real crime in that basin is that the Federal Government

promised the tribes the water, and they promised the farmers, if

they would come out, veterans, if they would come out and settle

and use this productive land that had been reclaimed, they would

have the water. Then we passed the Endangered Species Act and

promised it to the species. And every one of those is a claim somebody is coming at you on, and we have run out of water, and we

have got to figure out how to fix that.

I, occasionally, get on my soap box here on that issue. I apologize, but I feel pretty darn strongly about it.

Thank you, Mr. Chairman.

Mr. POMBO. I think we have all heard you talk about Klamath

at some point before.

Mr. Dueser, I tell you that I would glad accept your offer to go

sit down with one of the recovery teams and watch and listen to

the process that they go through, but at the same time, I would

make the offer to you that, in your statement you talked about

Klamath and how you didn’t know if there were that many cases

like Klamath that were out there, and I would make the offer to

you. You name which Western State you want to go to, and I will

take you there, and you can sit down with a group of farmers or

homebuilders or property owners and hear the same kind of story.

I won’t even set it up for you. I mean, you just tell me which State

you want to go, and we will do that.

Mr. DUESER. I understand that must be the case. You know, in

Utah, where we are really beginning now to make some progress

in this area is through a lot more public involvement and community commitment to conservation programming, and this works for

us on some of the smaller issues. You know... you have prairie dogs

in some part of the State, yeah, you can deal with that. An issue

that involves the entire Pacific Northwest, old growth forests and

so forth... that is going to be a little trickier perhaps to create community-based programming. But certainly for—

Mr. POMBO. It is not. It really isn’t, and I have always contended

that if they really wanted to solve the problem with any number

of these different endangered species cases that we have had, they

could; you know, at least reach a consensus where the people who

actually live and work in that community could continue to live

and work in that community, and we could do a better job of recovering the species.

On the forest issues, Quincy Library Group is a perfect example

of how the community actually got together and solved the problem. Unfortunately, for them, they have had a very difficult time

convincing the Federal Government that they could actually do it.

The Federal Government usually thinks that they know more than

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anyone else, so they have held up their efforts in order to do that,

but I think that they have proven that they can do that.

I think that just about on every one of these there is a way to

move forward, and it does involve public participation, it does involve the community that is actually impacted by the decisions

being involved. Unfortunately, under the current implementation of

the act, that very, very rarely happens, and that is a major problem.

Mr. DUESER. Well, community-based programming is certainly

starting to pay huge dividends in the State of Utah and elsewhere

I think in the inter-mountain West.

Mr. POMBO. Mr. Simmons, you come at this from I think probably a different angle than a lot of the folks who have testified before this Committee in years past. I think you probably have a

greater understanding of what we have to deal with in terms of

trying to deal with this act. It has become, you know, the law of

the land. It is the preeminent law of the land. It takes precedence

over any other function of our Federal Government. And when you

talk about making any change, removing one comma from the act,

the accusations that are made are that you are trying to gut the

act.

Unfortunately, the media that covers this issue rarely takes the

time to actually understand the legislation. They just repeat what

accusations are being made. And the folks out in the real world

outside the Beltway very seldom hear, I think, an unvarnished

truth of what the debate is and what we are trying to do. I appreciate your testimony. I appreciate you being here.

Mr. Bean, I understand what your concerns are. I spent some

time reading your testimony last night and trying to understand

exactly where you are coming from because you and I have had the

opportunity over the years to talk, to interact on this on a number

of occasions.

I think that, when it comes to my legislation, you kind of just

make a general statement about what is included and what is not

included, what is peer reviewed, what is not peer reviewed. I went

back and looked at my bill in relationship to the existing law, and

when it comes to the jeopardy opinion, you are correct. It does not

require peer review on a no jeopardy opinion. It does require a peer

review on every listing petition, based upon what decision, not

based upon what decision the Secretary makes. It requires a peer

review on a listing petition.

So the information, what I am trying to get at, is the information

that he or she is basing their decision on is the best science that

we can possibly put together at that moment in time, regardless of

what decision they make, yes or no, on the list, off the list, threatened, endangered, it is the best decision, the best science that we

can gather at that particular point.

That is the attempt that is being made, and I think that in your

written, as well as in your oral testimony here today, that you

somewhat misstate what the act actually does or what the law does

or my amendment does in context of what the law actually says.

So I would like to disagree with you on that point.

Mr. BEAN. May I address that, sir?

Mr. POMBO. Yes.

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Mr. BEAN. I will certainly re-read your bill very carefully. However, my understanding is, with respect to petitioned actions, your

bill requires—potentially requires—peer review at two points; one,

when the Secretary makes a determination as to whether a petition

presents substantial evidence. You are correct. In that instance, as

I understand your bill, whether his decision is, yes, it does present

substantial evidence or, no, it does not, your bill appears to require

peer review, either outcome.

However, the next stage of the process, some 90 days later, is a

determination whether or not proposal may be warranted. At that

stage, your bill, as I understand it, says that if the determination

is that a proposal of the species may be warranted, peer review is

required. On the other hand, if the Secretary decides that a proposal is not warranted, peer review is not required by your bill.

That is what I meant to say in my testimony and thought I said.

Mr. POMBO. Well, the goal of this particular legislation is to get

the best available science that we can, which I do not believe is

currently the case. I think that, even though there are areas where

we do disagree in terms of the Endangered Species Act, I think we

would both have to agree that there are times when the science

that the decisions are based upon is not exactly the best that we

could do.

I would also like to say to the entire panel that, as we work our

way through this process, and in an effort to move this legislation

and other legislation that has been introduced, there are other

areas, and Mr. Bean points this out and a couple of you have stated this as well, that there are other areas of the act that need to

be addressed. There are other problems with implementation that

need to be addressed, and I wholeheartedly agree with you. There

are other areas that we need to make legislative changes to.

And as we work our way through this entire process, first, with

the science bill, later on with habitat issues, with incentives for

property owners, I look forward to working with you. Any ideas

that you have for ways that this would work, I would be more than

happy to take those and see if there is any way that we could make

that fit.

In terms of this particular legislation, you guys have other ways

of doing peer review, send them to us. I am not a scientist, as I

have said before. I know Mr. Bean said he is not a scientist. There

are scientists who have testified today that they like what we did,

there are scientists who have testified that they didn’t like what

we did.

So, if you have other ways of doing this, have at it. I am open

to it. And we will see if we can put together a bill that actually

works, so that when all of you are sitting down and trying to make

this work out in the real world, we get something that works a little better than what we have now.

But I want to thank you all for your testimony, for answering

questions. I will remind you that there are additional questions

that other members of the Committee will submit in writing to you.

If you can answer those in writing, for the benefit of the

Committee, it would be greatly appreciated.

I would, also, before I close the hearing, say that the hearing

record will be held open for 10 days. We had a number of other

105

people who did want to testify whom we were not able to accommodate. I know that I received a request from homebuilders, as well

as others, that they wanted an opportunity to testify here today.

The record will be held open. If anybody has additional testimony

that they would like to submit to be part of the record and to be

considered as part of our decisionmaking process in this, please

submit that to the Committee, and it will be included in the record.

So thank you all very much, and the hearing is adjourned.

[Whereupon, at 5:53 p.m., the Committee was adjourned.]

The following information was submitted for the record:

• American Farm Bureau Federation, Statement submitted for

the record

• Garczynski, Gary, on behalf of the National Association of

Home Builders, Statement submitted for the record

• Marbut, Gary, President, Montana Shooting Sports Association, Letter submitted for the record by The Honorable Dennis

Rehberg

[The statement of The American Farm Bureau Federation

follows:]

Statement of The American Farm Bureau Federation

Last year the Bureau of Reclamation, acting on recommendations contained in biological opinions from the US Fish & Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS), shut off the flow of irrigation water to over 1400

farms and ranches in the arid Klamath Basin in Oregon and California. The water

was needed, the agencies concluded, to keep lake and river levels high enough for

endangered sucker and salmon. Farmers suffered severe financial hardship as their

fields lay fallow. Communities suffered as businesses closed, and residents moved

away. Desperate farmers sought to sell their farms for a fraction of their worth.

The National Academy of Sciences (NAS) was asked to review the scientific basis

for the decision to favor fish over farmers. Its preliminary report issued last month

finds that there was not sufficient scientific evidence to support the decision to deny

water to the Klamath Basin last year.

The most celebrated case involving an endangered species remains the snail darter. This small fish halted a multi-billion dollar water project in Tennessee. A lawsuit over this human-endangered species conflict went to the Supreme Court, and

remains the only substantive case on the Endangered Species Act (ESA) to have

been decided by that forum. Following the decision in Tennessee Valley Authority

v. Hill, Congress passed a law exempting the Tellico Dam project from the strictures

of the act.

A few months later, several more areas were found to be inhabited with snail

darters. The species was soon thereafter downlisted from ‘‘endangered’’ to ‘‘threatened.’’ Millions of taxpayer dollars were wasted because of incomplete scientific information.

These are but two examples why it is critically important that decisions made

under the ESA be made on the basis of sound science. The ESA is so pervasive and

its provisions so restrictive that there is simply too much at stake for farmers,

ranchers and others for ESA decisions to be made with inadequate or incomplete

scientific justification.

The ESA needs to be changed to ensure that decisions are based on sound science

instead of agency whim. H.R. 2829 and H.R. 3705 are steps in the right direction

to accomplish this. Both bills provide for increased emphasis on verifiable, field-tested scientific data, and both bills provide for a system of scientific peer review of

agency decisions.

Much of the problem arises from the scientific standard applicable to ESA decision-making. ESA decisions currently are required to be made on the basis of ‘‘the

best scientific and commercial data available.’’ The ‘‘best’’ scientific data available

might be as little as one monograph on the subject by a student working toward

a master’s degree who might have an interest in having the species listed.

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The ‘‘best scientific data available’’ standard is really no standard at all. It provides no incentive for agencies involved in species decisions to obtain accurate and

up-to-date information necessary to make an informed decision. All too often, decisions are made on outdated or misinformed data. Unverified hypotheses or assumptions made by one researcher often become truth for the next researcher who does

nothing more than glance through the earlier work.

Often, the correct scientific data is easily obtainable through little effort. For example, in the case of a listing of the five snails in Idaho, the Idaho Farm Bureau

Federation hired an independent biologist to check the FWS data. With minimum

effort, he readily discovered that these snails exist in far greater numbers and in

a greater number of places than determined by the government. Such information,

however, was largely ignored in the final decision.

With affected species occupying greater habitat areas and affecting more basic,

pre-existing human activities (as opposed to new, proposed projects) than ever before, there is too much at stake to make such decisions based on inadequate scientific evidence

The ESA also requires the Secretary of the Interior to ‘‘determine whether any

species is an endangered species or a threatened species.’’ This requirement implies

a burden of proof on the Secretary to justify such a finding. It implies a minimum

scientific requirement that must be met. In practice, however, the FWS has ignored

this minimum requirement, made decisions without regard to sufficiency of the evidence and forced landowners and others challenging a decision to carry the burden

of proof.

We are troubled that private landowners are being required to prove that government data is incorrect. Private landowners do not have the resources that are

available to the government; and even in the face of contradictory evidence, there

is no guarantee that the government will accept it. We submit that precious time

and resources will be saved if the listing agency or the agency making the decision

is required to do it right in the first place.

Furthermore, requiring an affected private person to disprove the government’s

data places the ultimate burden of proof for ESA decisions on the private party. Instead, the burden of proving that a species deserves to be listed or that certain management prohibitions are appropriate should be on the government agency proposing the action. The act requires the FWS to make decisions whether or not to

list certain species, and those decisions should at the very least be based on sound

science. The agency has greater resources available to it, is in a better position to

obtain required data and should be required to justify its actions.

The term ‘‘best scientific and commercial data available’’ must be defined or clarified to incorporate minimum scientific standards and procedures necessary to sustain a decision that a species be listed or that some other action be taken. This

amendment is necessary to ensure that decisions affecting entire regions of the

country are not being made on outdated information or on bare assumptions that

could easily be disproved.

Once such a standard is in place, there must be an unbiased, objective review

prior to a decision to ensure that the proffered data meets minimum scientific

standards.

To accomplish this, we suggest the creation of a truly independent peer review

process to scrutinize ESA decisions prior to their proposal to ensure that there is

sufficient scientific data to support the conclusion. Providing independent scientific

peer review for most types of agency decisions will both validate the scientific conclusions of the agency and also help to restore public confidence in agency decisionmaking. Independent evaluation will lessen the possibility that decisions will result

from any bias by the scientist.

Independent peer review does not change the statutory standard of using the

‘‘best scientific and commercial data available,’’ but it can inform the agency whether there is a sufficient scientific basis for making a determination to list, de-list or

designate critical habitat. It may help restore the agency’s responsibility to justify

its decisions. Decision-making authority would still rest with the agency, with the

report of the independent peer review panel being part of the administrative record.

The peer review process must be streamlined so that it can be used for all agency

ESA decisions. It must be a process that will not unduly prolong the decision it is

supposed to review. The National Academy of Sciences process that was used in the

Klamath decision is not suited for review of agency decisions on a routine basis. We

look forward to working with the committee to craft a workable process.

[The statement of Mr. Garczynski follows:]

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Statement of Gary Garczynski on behalf of the National Association of

Home Builders on H.R. 3705

Chairman Hansen and members of the Resources Committee, I am pleased to

share with you the views of the National Association of Home Builders (NAHB) concerning the ‘‘Sound Science for Endangered Species Act Planning Act’’ (H.R.2829)

and the ‘‘Sound Science Saves Species Act’’ (H.R. 3705). My name is Gary

Garczynski. I am a homebuilder and developer from Woodbridge, Virginia, and the

2002 President of the National Association of Home Builders. I submit this testimony on behalf of our 205,000 NAHB members.

When homebuilders develop land and construct homes and apartments, the process may occur within or adjacent to an area where there may be endangered or

threatened species or their habitats. As a result, in seeking to comply with the

Endangered Species Act (ESA), many of our members are prevented from developing

their property or are required to submit to extensive mitigation requirements in

order to move forward.

For years, private landowners, who have been burdened with carrying out the responsibilities of the ESA, have repeatedly questioned the science behind the decisions made by the Federal agencies implementing the ESA. Because of the vast and

often severe social and economic impacts of each ESA decision, the aggregate results

of erroneous ESA decisions are broad, harmful effects on the housing market and

the national economy, and at times damage to the species we are trying to protect.

Legislation that requires better science to help prevent accidental or intentional errors in ESA decision-making is long overdue.

As members of this committee know, for over a decade the political realities of

the diverse interests in the U.S. Congress and on this committee have made reaching consensus on ESA reforms very difficult. However, given the recent public attention to ESA errors and the introduction of narrowly focused reform legislation before

us, I believe that Congress must act on the heightened urgency to pass reforms to

this act.

The two bills before this committee, H.R. 2829 introduced by Congressman Greg

Walden (R–OR) and H.R. 3705 introduced by Congressman Richard Pombo (R–CA),

are steps in the right direction to provide more effective protection to endangered

species while making certain that regulatory burdens placed on specific segments

of the public are scientifically sound and defensible. These narrow legislative

changes to the Act, through the requirements of sound science, would address many

of the systemic problems in the ESA, on which I will elaborate below.

Setting aside the community benefits of developing balanced neighborhoods, the

economic impact of home building extends itself deep into the economy of the U.S.

The economic activity generated by home building is three to four times the typical

homebuyer’s down payment. Hence, a typical $34,000 down payment on a new home

generates nearly $160,000 in new economic activity (the underlying land value is

subtracted from the calculation). Many aspiring homebuyers are just on the edge

of being able to qualify for a mortgage and make the required payments. Even a

small change in home prices, interest rates or delays in construction can determine

whether they can buy a home.

Home builders are generally entrepreneurial members of the small business community. 82 percent of home builders build fewer than 25 homes a year and 60 percent of our members build fewer than ten homes a year. Many of these small-volume builders and subcontractors do not have the capital to withstand the devastating effects of an accidental or intentional error in an ESA decision.

Therefore, NAHB believes the listing of species as threatened or endangered and

the designations of critical habitat for those species must be based on reliable, accurate and solid biological and scientific data.

The following publicly reported events, although somewhat recent, are not isolated

occurrences but are the latest in a chain of examples of bad Federal agency decisions based on faulty or absent scientific data. Considered individually, they demonstrate how single decisions under the Endangered Species Act (ESA) can have a

widespread effect on the regulated community. Considered cumulatively, these

events signal fundamental and systematic problems with the ESA.

• Several Forest Service and Fish and Wildlife Service employees admit to planting false samples of Canadian lynx hair in Washington state national forests.

• A scientific review by the National Academy of Sciences reveals that Fish and

Wildlife and the National Marine Fisheries Service did not have enough scientific evidence to justify cutting of irrigation water to hundreds of farmers in

the name of protecting fish.

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• The Forest Service used faulty data of spotted owl habitat to block logging

projects in California and as a result, has recently agreed to pay one logging

company $9.5 million in damages. • The National Marine Fisheries Service has agreed to rescind the overly broad

critical habitat designations for 19 salmon species and re-designate based on

better science and economics.

Six Necessary ESA Reforms for Science

The ESA calls for the use of the ‘‘best scientific data available.’’ However, there

is no definition of this phrase within the Act or in implementing regulations. Therefore, the following reforms are necessary to define what constitutes the phrase ‘‘best

scientific data’’ and to ensure that ESA decisions are made stronger and more defensible, while providing protection to our threatened and endangered species.

I. Reliable, Accurate and Solid Data

The underlying data used by the agencies in making ESA decisions must be reliable, accurate, and solid. Species should be listed on the basis of field-tested data,

including actual observation of the species, not merely on population projections and

speculation. Currently under the ESA, a species can be listed as endangered or

threatened based on one letter from a landowner claiming that ‘‘there are less of

the species than there used to be.’’ The golden-checked warbler was listed on the

basis of one letter from a private individual. This is unacceptable. Although this

type of information may constitute ‘‘best science available’’ under the current ESA,

the agencies should not be allowed to continue to make such fundamental and important decisions based upon such a blatant lack of information about the species.

Petitions to list a species should be founded on clear and convincing evidence that

a listing is warranted.

There are other important decisions made by the Federal agencies that are based

on flawed or absent data. For example, as a result of a lawsuit brought by NAHB

and 17 other organizations and municipalities, the National Marine Fisheries

Service agreed to rescind its critical habitat designations for 19 salmon and

steelhead species in the Pacific Northwest due to the lack of science and proper economic considerations. In 2000, NMFS designated critical habitat for these populations covering 150 watersheds over the states of Washington, Oregon, Idaho, and

California. Thousands of our members within this four-state area were encompassed

by this over-broad and expansive designation. Many of their projects were prevented

or were subjected to expensive mitigation requirements.

The lack of science in these decisions is best summed up by a 1998 inter-agency

memo from Donna Darm, the then Acting Regional Administrator for the National

Marine Fisheries Service, when she said, ‘‘When we make critical habitat designations we just designate everything as critical, without an analysis of how much

habitat an ESU needs . . .’’ NAHB strongly believes that ESA reform is overdue and

that Congress should act now to prevent these grievous errors from happening

again. In another recent development, the Forest Service has agreed to pay $9.8 million

to a logging company for four cancelled timber sales. The settlement arose out of

a February 1998 decision by an U.S. Court of Federal Claims judge that Forest

Service officials knew their scientific data regarding the California spotted owl was

faulty before canceling several timber sales.

These ESA decisions have far-reaching consequences for the public. Therefore, the

Federal agencies must be able to support these decisions with sound and defensible

science to justify that the hardships inflicted on the public are absolutely necessary

to protect and conserve these species.

Both H.R. 2829 and H.R. 3705 seek to give greater credibility to field-tested and

empirical data. H.R. 2829 sets minimum standards for the scientific and commercial data used in listings and H.R. 3705 requires minimum standards for the listing

petitions used to initiate the protection of a particular species.

II. Consideration of New or Additional Data

The Federal agencies must be required to consider any additional or new science

involving the species or its habitat. Once a species is listed, or its critical habitat

is designated, the agencies often ignore additional or new science that supports the

de-listing of that species, or removal of protections for its habitat. When the Fish

and Wildlife Service listed the Coastal California gnatcatcher as a threatened

species in 1993, it refused to seriously evaluate evidence that the population was

not a valid subspecies and was genetically indistinguishable from the millions of

gnatcatchers in Baja, Mexico. The best scientific data available on this issue, the

first-ever range-wide genetic study of the gnatcatcher (co-authored by the original

petitioner for the listing and published in the October edition of the Journal of ConVerDate 11-MAY-2000 09:56 Dec 17, 2002 Jkt 000000 PO 00000 Frm 00112 Fmt 6633 Sfmt 6621 78289.TXT HRESOUR1 PsN: HRESOUR1
109

servation Biology) now demonstrates that the Coastal California gnatcatcher is not

a distinct subspecies and is not genetically distinguishable from the millions of

gnatcatchers in Baja, Mexico. However, the Coastal California gnatcatcher remains

on the ESA list and the battle regarding its removal is now being fought through

litigation.

In another example, the Fish and Wildlife Service is still continuing to regulate

areas in Tucson, Arizona as ‘‘potential or suitable habitat’’ for the cactus-ferruginous

pygmy owl although a court has invalidated the critical habitat designation for that

species. The Fish and Wildlife Service is requiring our members to set aside 80 percent of their property as undeveloped. Yet, both survey protocols and reports by

local biologists in the area show that there is no scientific justification for those requirements and that in fact, many of the areas being regulated are not suitable

habitat for the pygmy owl at all. However, the Fish and Wildlife Service refuses to

take this data into consideration and often dismisses it outright. Scientific studies

conducted by entities such as landowners, biologists, municipalities, and consultants

must be taken into consideration by the agencies.

H.R. 2829 seeks to require agencies to accept data from landowners regarding a

species or its habitat. This is an important step in ensuring that regulatory decisions under the ESA are always based on the most up-to-date and reliable science

available.

III. Independent Peer Review of Scientific Conclusions Must Include Underlying

Data

Independent peer review must be required of underlying scientific data supporting

ESA decisions. It is extremely important that the peer review take place outside and

independent from the agency making the policy decision. Furthermore, it is vital

that the review encompasses the materials used to support the decision. For example, review of an ESA ‘‘jeopardy determination’’ will not reveal the fundamental

problems with the science unless all documentation used to reach that jeopardy determination can also be examined and reviewed. Likewise, not only should a proposal to list a species be reviewed, but also the underlying biological data, including

any species counts, population models, and other relevant information used in that

listing decision.

The best example of this is the recent independent study conducted on the scientific and biological data used by the Fish and Wildlife Service and National Marine Fisheries Service in the decision to cut off irrigation water to hundreds of farmers in the Klamath basin. The National Academy of Sciences reviewed the supporting data and found no justification for the decision to cut off the irrigation to

the farmers in the name of protecting the threatened and endangered fish. In fact,

the review showed that allowing the water to remain in the basin was likely harmful to the fish due to the temperature level of that water. Without this independent

review, the agencies would have continued to withhold water from the farmers and

possibly harm the fish they are mandated to protect under the ESA.

Both H.R. 2829 and H.R. 3705 contain provisions that would require independent

peer review of ESA decisions and the underlying scientific and biological data supporting those decisions. H.R. 2829 would require peer review of species listings, delistings, recovery plans, and jeopardy determinations. H.R. 3705 requires peer review of the underlying petition used to request that a species be listed as threatened

or endangered and of jeopardy determinations.

IV. Public Access to Science

Any scientific and biological data used as a basis for a regulatory action affecting

a landowner should be open for that landowner to review. If the Federal agencies

require a landowner to submit to specific regulatory requirements due to the presence of an endangered species or its habitat, the landowner should have the opportunity to request the biological and scientific data used by the agency to determine

those requirements. Often our members are forced to bring litigation under the

Freedom of Information Act (FOIA) in order to view the information that the agency

is using to justify placing restrictions on our members’ property. A landowner

should not have to rely on the ‘‘word’’ of the Federal agencies that an action the

landowner will take might effect a particular species or its habitat. In many cases,

the agencies will not even disclose to landowners where particular species or the

boundaries of critical habitat are located. This affords a great amount of discretion

to the Federal agencies to regulate as they see fit, without obligation to base their

actions upon actual biological or scientific data.

For example, the Fish and Wildlife Service has refused to turn over information

disclosing where particular members of the cactus-ferruginous pygmy owl exist in

Southern Arizona. Without knowing where the species are located, our members

110

cannot make the appropriate decision to avoid particular areas and they are forced

to submit to permit denials or project modifications simply based on what they are

told by the Fish and Wildlife Service.

H.R. 2829 provides the ability for a landowner to review information used by the

agencies in biological opinions and the alternatives developed for the particular

project under that opinion. However, another piece of legislation, H.R. 3706, introduced by Congressman Pombo would require the agencies to release information regarding a particular species or its critical habitat to the owner property affected by

such species or habitat. NAHB fully supports that legislation as a means to prevent

situations like that in Arizona where our members are not even allowed to obtain

information about species or habitat on their property, yet are still required to be

extensively regulated by the agencies.

V. Manifest Requirements

Situations like those involving the false samples of lynx hair demonstrate that

there must be strict manifest and reporting requirements for the tracking of biological and scientific data. Such requirements will compel the agencies to demonstrate

both the origins and handling of the data. Amendments requiring better science for

the ESA should encompass a requirement that the Federal agencies develop comprehensive manifest and reporting requirements for collecting and tracking scientific data. For example, the Department of Transportation has regulations covering the sample collection and ‘‘chain of custody’’ requirements for drug samples

collected for chemical testing. The Resource Conservation and Recovery Act (RCRA)

contains provisions to track the transport and storage of hazardous materials. These

types of quality control requirements would help to ensure that the biological and

scientific data used in making ESA decisions is sound and would also work to hold

those responsible for false data samples accountable for their actions.

Currently no legislative proposals exist to address the need for manifest and reporting requirements within the agencies. NAHB believes that these requirements

are necessary to ensure the validity of the underlying scientific and biological information used in ESA decisions and urges your attention to this needed reform.

VI. Agency Responsibility for Data Collection

Any scientific and biological data used as a basis for an ESA regulatory action,

such as a listing or critical habitat designation, is the obligation of the Federal agency to collect. Often the Federal agencies pass their obligations to collect scientific

and biological data under the ESA onto the landowner. For example, in many areas

of the country, landowners are required to conduct ‘‘survey protocols’’ of their property to determine if there are species or potential habitat present. The protocols require a landowner to prove the non-existence of a listed species or its habitat by

conducting surveys at various times of the year. In many cases, the failure of a

landowner to find a species is not considered proof that it does not exist on their

property, and the Federal agencies still regulate the landowner under the ESA. Survey protocols impose real, time-consuming and costly burdens on the regulated community and put the burden of proving where species are on the landowner not the

Federal agency where it belongs. These survey protocol requirements are being

forced upon landowners by Federal agencies in Pennsylvania, Massachusetts, California, Arizona, and Texas.

The committee should keep in mind that the responsibility to conduct proper

science in their ESA decisions is frequently passed on to individual landowners. Our

members are often unfairly burdened by requirements to complete extensive science

that often does not have a direct relationship to the effect that the project will have

on the species or its habitat. In strengthening the requirements for scientific and

biological data, the committee should remind the agencies of their obligation to complete these scientific requirements.

Conclusion

In conclusion, species protection without essential scientific basis has an unjustified real and direct impact on our members and others in the regulated community.

NAHB supports the goals of the ESA in protecting endangered and threatened

species and their habitats, but these protection measures must be based on reliable,

accurate and solid biological and scientific data. Our members are often prevented

from developing their property or must submit to extensive mitigation requirements

based upon what are often hypothetical and speculative impacts to species and their

habitats. Greater weight must be given to updated science that is empirical, peerreviewed and it should be accessible to the affects.

Both H.R. 2829 and H.R. 3705 will provide more accurate, reliable, and solid

data that is independently peer reviewed. H.R. 2829 also requires the consideration

of new and additional information pertaining to species and habitat. While manifest

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and reporting requirements are not provided by these proposals, we urge the committee to consider those requirements as necessary measures to ensure the validity

of ESA decisions. NAHB also asks Congress to reinforce the agency responsibility

to conduct these scientific studies and data collections pertaining to species and

habitat before being allowed to make regulatory decisions under the ESA. Landowners must not be required to bare the weight of these responsibilities.

Continuing to apply unsound, unreviewable, and at times fraudulent evidence in

ESA decisions could endanger the very species it seeks to protect, and it will certainly continue to unfairly raise the cost of housing, lock families out of the housing

market, and have harmful effects on our economic recovery.

We look forward to working with you and other members of the House Resources

Committee on the important issue of sound science in implementing the Endangered

Species Act. H.R. 2829 and H.R. 3705 represent narrow legislative solutions to documented science problems with the ESA. I urge this committee to support this legislation and move it to the floor of the House of Representatives for consideration.

I appreciate the committee’s leadership on this issue and your consideration of

NAHB’s views.

[A letter submitted for the record by Mr. Marbut follows:]

MONTANA SHOOTING SPORTS ASSOCIATION

JANUARY 22, 2002

Field Supervisor

U.S. Fish and Wildlife Service

420 South Garfield, Suite 400

Pierre, South Dakota 57501

Dear Sir,

It is our understanding that the U.S. Fish and Wildlife Service (FWS) Finding by

which the Black-tailed Prairie Dog (hereinafter PD) was determined to be ‘‘war- ranted but precluded’’ for listing as a threatened or endangered species under the

Endangered Species Act (ESA) is coming up for annual review and reconsideration.

We wish this letter to be considered as official comment upon this annual review

and reconsideration.

In general, we object to the Finding that PDs are actually warranted for listing.

We observe that the FWS has relied too heavily on the assertions and claims of the

petitioner, the National Wildlife Federation (NWF). In doing so, the FWS has replaced its responsibility to apply honest and accurate science to this issue with the

advocacy which constitutes the position of the petitioner. Specifically, the USFWS

has relied far to heavily on the assertions made by petitioner in their petition without verifying these assertions with scientific data—without sufficient fact checking.

Throughout the finding, there are hedge terms used that demonstrate the FWS

lacks certainty or scientific proof. For example, the Finding (as published in the

Federal Register of February 4, 2000) uses the phrase ‘‘we believe’’ about 32 different times. We assert that an issue as consequential to various stakeholders as

the listing of ten million animals, occupying vast areas of many states, as threatened or endangered must be done according to hard facts and proof, not merely

someone’s belief. These facts and proof must be able to be stated as facts, not the

simple reiteration of the wishes and beliefs of the petitioner wildlife advocates. Such

a decision needs to be based on real science, not wishful pseudo-science.

Allow me to discuss some specific areas of real concern about the ongoing position

of FWS that PDs are warranted for listing.

1. There are no adequate benchmarks to document the historic range and habitat

of PDs. In much of its publicity pushing PD listing, the petitioner NWF claims that

PDs now occupy only 1% of their historic habitat (Denver Post, January 06, 2002).

This assertion is repeated by the FWS in its Finding. Although there is little doubt

that many acres of historic PD towns have been tilled into cropland, and some acreage has been lost to human habitation, there is actually no census data whatsoever

to validate current claims of PD habitat and range a century, two centuries or five

centuries ago. It’s all guesswork.

For example, the ‘‘A SPECIES CONSERVATION PLAN FOR THE BLACK AND

WHITE–TAILED PRAIRIE DOGS IN MONTANA’’ (the Montana Prairie Dog Conservation Plan of 1999, adopted by the Montana Department of Fish, Wildlife and

Parks) points out on page 10, ‘‘The original abundance of prairie dogs in Montana

is unknown. Despite the reputation for occurring in incredible numbers, many 19th

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century Montana journalists recorded very little about prairie dogs. The Lewis and

Clark journals probably contain the best accounts of prairie dog colonies in Montana. Lewis and Clark reported that prairie dog colonies along the Missouri River

were common, some were 3 to 7 miles long, and that their last encounter with prairie dogs was at the Three Forks of the Missouri (Burroughs 1961).

While this makes for an interesting tale, it is hardly scientific information or accurate census data upon which it may be validly concluded that we have lost 99%

of historic PD habitat. We object to the unsupported and unsupportable premise in

the Finding that PDs currently occupy only 1% of their historic range.

2. The data we have now suggests significantly higher numbers of PDs extant

than the lowball estimates of the petitioner NWF that seem to be the primary basis

for the Finding. For example, recent inventory of habitat by the Colorado Division

of Wildlife suggests much more extensive extant PD habitat in that state than the

amount considered by FWS in its decision to award PDs (and NWF) the ‘‘warranted’’

status. As with estimates of the historic range and habitat of PDs, the numbers

used for the current range and habitat are somewhere between guesswork and blind

acceptance of the assertions made by petitioner and wildlife advocate NWF in its

petition to list. Although a lot of more accurate census and habitat measurement

has been done since the first FWS decision to call PDs warranted for listing, the

truth is that we still don’t have complete and reliable numbers for PD habitat extent, although the more we look, the more we learn that PDs are much more numerous than the numbers upon which the original Finding is based. We object to designation of PDs as ‘‘warranted’’ for listing based on inexact and lowball estimates

of current numbers.

3. Much weight is given to the effects of plague on PD populations. While there

is little doubt that plague constitutes a potential threat to PDs, we certainly challenge the use of the plague threat as any proper basis for listing PDs. First, we do

not believe that the ESA contemplates giving governmental agencies the power to

determine which species will prevail as a Darwinian success in the natural environment. No doubt there is an ongoing conflict between PDs and the plague bacillus

(one species against another), but the ESA does not contemplate making the FWS

the final arbiter of which species ought to be given an advantage over others. Second, although the NWF and the FWS point back to the earliest noticed effects of

plague on PD populations, there is no proof whatsoever that these first observations

constitute the first occurrence of that phenomenon. This is similar a child’s view

that the Universe began with their first conscious memories. The finding states in

its conclusion. ‘‘Plague is a new phenomenon in North American ecosystems.’’ With

the same scientific validity, one might just as well state that microbes only happened since the microscope was invented. Much is made of the presumption that

plague is a new and artificial factor in PD populations, and one for which the FWS

must regulate and compensate, only because the FWS has not yet demonstrated an

earlier existence of the phenomenon. This is not science.

So, we object to factoring plague into the listing decision because it is an intervention into the natural order and among species not supported by the ESA, and because there is no proof that plague is not a naturally-occurring phenomenon. It may

be that the rise and fall of PD numbers because of plague is as natural as the ebb

and flow of the tides, not exactly something the FWS is obliged to rush to fix.

4. It is a strange mindset indeed that would assert that inadequate regulation is

a threat, especially coming from a governmental agency. There is absolutely no limit

to the mischief that could be done to the liberties of the people under this theory.

Of course, the regulations contemplated are not regulations to regulate PDs, but to

regulate people. The theory that government must step in to regulate people who

are inadequately regulated—that if a regulatory vacuum can be identified, it must

be filled—is indeed novel, and is inconsistent with the republican and limited form

of government mandated by our constitution and especially asserted in the Tenth

Amendment thereto. While it is not surprising that a government agency would

think this way, it is at best a bit strange, and at worst dangerous. We object to the

application here of the theory that a regulatory void is a threat that must be corrected with government intervention.

5. Synergistic effects. In its rush to sweep PDs into its wide regulatory loop, the

authors of the Finding are indeed grasping at straws. It is hard to imagine locating

a more classic example of a non sequitur than this statement from the Finding:

‘‘The synergistic effect of various factors adversely influencing black-tailed prairie

dog populations are largely unknown. Nevertheless, these influences are considered

a moderate threat.’’

This is, apparently, what passes for science in this Finding. Allow me to offer a

semantic equivalent, but in different words: ‘‘Because we don’t know what it is, and

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can’t identify or describe it, it must be really bad.’’ We object to the use of such obvious nonsense masquerading as science.

6. In the conclusion of the Finding, which justifies the ‘‘warranted’’ status for PDs,

FWS states: ‘‘Overutilization via recreational shooting is considered a threat of low

magnitude. Local populations may be impacted by shooting; however, significant

rangewide population declines due to this factor are not likely.’’

All the other extant ‘‘threats’’ to PDs listed in the finding are listed as ‘‘moderate

magnitude’’. Of all the threats, the only one listed as ‘‘low magnitude’’ is recreational shooting. Notwithstanding this, the ONLY regulatory effort being pushed

by states, in response to the FWS finding, that is so strict that it carries potential

court-imposed fines and jail time for compliance failure, is recreational shooting. So,

PD hunters are the only ones who can go to jail for failure to protect PDs. We object

to this effective discrimination and criminalization against a particular class of people, PD hunters, with only the most flimsy justification.

7. Finally, we object to the notion that the ESA was intended to apply to a species

that numbers over ten million examples in 11 U.S. states, not to mention uncountable PDs in Canada and Mexico. We do not believe that PDs are on the brink of

extinction or in need of protection forced upon the several states by the Federal Government, whether by an actual listing of PDs, or by the threat to list them if the

states don’t get with the program and do under state law and with state money

those corrective and protective things the Federal agencies would like to see done.

We believe the use of the ESA by the FWS under these circumstances constitutes

an abuse of power and responsibility.

For all of these reasons, we recommend that the FWS drop its ‘‘warranted’’ designation of Black-tailed Prairie Dogs, and forego for the indefinite future any further

consideration of listing this species as either threatened or endangered.

Sincerely yours,

Gary Marbut

President

cc: Senator Conrad Burns

Representative Dennis Rehberg

Gale Norton, Secretary of the Interior

Montana Department of Fish, Wildlife and Parks

MT FWP Commission

Mountain States Legal Foundation

Montana Shooting Sports Association members

Media

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