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92–378 PDF 2004

S. HRG. 108–356

ENDANGERED SPECIES ACT: REVIEW OF THE

CONSULTATION PROCESS REQUIRED BY

SECTION 7

HEARING

BEFORE THE

SUBCOMMITTEE ON FISHERIES,

WILDLIFE, AND WATER

OF THE

COMMITTEE ON

ENVIRONMENT AND PUBLIC WORKS

UNITED STATES SENATE

ONE HUNDRED EIGHTH CONGRESS

FIRST SESSION

ON

AN EXAMINATION OF THE CONSULTING PROCESS REQUIRED BY

SECTION 7 OF THE ENDANGERED SPECIES ACT

JUNE 25, 2003

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

(
COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS

ONE HUNDRED EIGHTH CONGRESS

FIRST SESSION

JAMES M. INHOFE, Oklahoma, Chairman

JOHN W. WARNER, Virginia

CHRISTOPHER S. BOND, Missouri

GEORGE V. VOINOVICH, Ohio

MICHAEL D. CRAPO, Idaho

LINCOLN CHAFEE, Rhode Island

JOHN CORNYN, Texas

LISA MURKOWSKI, Alaska

CRAIG THOMAS, Wyoming

WAYNE ALLARD, Colorado

JAMES M. JEFFORDS, Vermont

MAX BAUCUS, Montana

HARRY REID, Nevada

BOB GRAHAM, Florida

JOSEPH I. LIEBERMAN, Connecticut

BARBARA BOXER, California

RON WYDEN, Oregon

THOMAS R. CARPER, Delaware

HILLARY RODHAM CLINTON, New York

ANDREW WHEELER, Majority Staff Director

KEN CONNOLLY, Minority Staff Director

SUBCOMMITTEE ON FISHERIES, WILDLIFE, AND WATER

MICHAEL D. CRAPO, Idaho, Chairman

JOHN W. WARNER, Virginia

LISA MURKOWSKI, Alaska

CRAIG THOMAS, Wyoming

WAYNE ALLARD, Colorado

BOB GRAHAM, Florida

MAX BAUCUS, Montana

RON WYDEN, Oregon

HILLARY RODHAM CLINTON, New York

(II)
(III)

CONTENTS

Page

JUNE 25, 2003

OPENING STATEMENTS

Baucus, Hon. Max, U.S. Senator from the State of Montana .............................. 33

Crapo, Hon. Michael D., U.S. Senator from the State of Idaho ........................... 1

Inhofe, Hon. James M.,U.S. Senator from the State of Oklahoma ...................... 3

Murkowski, Hon. Lisa, U.S. Senator from the State of Alaska ........................... 8

WITNESSES

Chilton, Jim, Arizona Rancher, on behalf of the Public Lands Council and

the National Cattlemen’s Beef Association ........................................................ 26

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

Domenici, Hon. Pete V., U.S. Senator from the State of New Mexico ................ 3

Prepared statement .......................................................................................... 34

Glen, Alan M., Counsel, Smith, Robertson, Elliott, and Glen .............................. 20

Prepared statement .......................................................................................... 43

Hill, Barry, Director, Natural Resources and Environment, U.S. General Accounting Office. Accompanied by: Trish McClure, Deputy Director, Office

of Natural Resources and Environment, U.S. General Accounting Office ...... 10

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

Horn, Patricia, Vice President and General Counsel, OGE Enogex Inc. ............ 24

Prepared statement .......................................................................................... 96

Kostyack, John, Senior Counsel, National Wildlife Federation ........................... 22

Prepared statement .......................................................................................... 92

Snape, William, Vice President and Chief Counsel, Defenders of Wildlife ........ 28

Prepared statement .......................................................................................... 102

ADDITIONAL MATERIAL

Dieker, Richard, President, Yakima Basin Joint Board ....................................... 105

(1)

ENDANGERED SPECIES ACT: REVIEW OF THE

CONSULTATION PROCESS REQUIRED BY

SECTION 7

WEDNESDAY, JUNE 25, 2003

U.S. SENATE,

COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS,

SUBCOMMITTEE ON FISHERIES, WILDLIFE, AND WATER,

Washington, DC.

The committee met, pursuant to notice, at 9:33 a.m. in room 406,

Senate Dirksen Building, the Hon. Michael D. Crapo [chairman of

the subcommittee] presiding.

Present: Senators Crapo, Murkowski, and Inhofe [ex officio].

OPENING STATEMENT OF HON. MICHAEL D. CRAPO,

U.S. SENATOR FROM THE STATE OF IDAHO

Senator CRAPO. The hearing will come to order.

Good morning. Welcome. Today the Subcommittee on Fisheries,

Wildlife, and Water will examine the process of Section 7 consultation under the Endangered Species Act. Senator Domenici has been

kind enough to join us to discuss some rather serious problems

with regard to Section 7 and the Endangered Species Act in New

Mexico. Senator Domenici must chair a hearing at 10 o’clock a.m.,

so we are going to move quickly through our opening statements

so that Senator Domenici can get to that hearing on time.

Section 7(a)(2) of the Endangered Species Act requires Federal

agencies to consult with either the U.S. Fish and Wildlife Service,

or the National Marine Fisheries Service to ensure that any action

authorized, funded, or carried out by such agency is not likely to

jeopardize the continued existence of any endangered species or

threatened species.

Since 1986, when the Fish and Wildlife Service and the National

Marine Fisheries Service published their joint consultation regulations, the consultation process has mushroomed into a lengthy and

expensive procedure that is increasingly burdening all the agencies

required to participate in it.

To begin with, the size of the program has grown beyond what

anyone ever imagined in 1986. More than 900 species have been

added to the list since then. There is another very significant reason that consultation has become such a burdensome and costly

proposition. Much of this boils down to two words: ‘‘may affect.’’

If a Federal action may affect a listed species, then the consultation process is triggered. The only way a consultation can be avoid-
2

ed is if the project will have no effect on the listed species. ‘‘May

affect’’ is defined as a beneficial, benign, or adverse action.

Once it has been determined that an action may affect a listed

species, consultations are divided up into those that are ‘‘not likely

to adversely affect,’’ and ‘‘likely to adversely affect.’’ The former result in informal consultation, and the latter in formal consultation.

In order for the Services to make a ‘‘not likely to adversely affect’’

determination, the effects of the action must be discountable, or insignificant, or completely beneficial.

Obviously these regulations were intended to protect the listed

species that we are attempting to recover. Despite this, the Services are consulting on tens of thousands of actions each year with

effects that are, in fact, discountable, insignificant, or completely

beneficial.

For example, in 2001, Region 1, which is Idaho, Washington, Oregon, California, Nevada, and the Pacific Islands of the Fish and

Wildlife Service, completed 14,004 Section 7 consultations. Of

those, only 863 were formal consultations, which means that the

other 13,141 were expected to have effects that were discountable,

insignificant, or completely beneficial.

Precisely three of those consultations resulted in jeopardy opinions. As I said earlier, the focus and purpose of Section 7 is to ensure that Federal actions do not jeopardize the continued existence

of listed species. In Region 1, only three Federal projects of the

14,004 were determined to be potentially jeopardizing to the continued existence of the species.

On the one hand, this is good news. The agencies are doing a

good job of avoiding adverse effects. The problem is that the Services are expending colossal resources on a process that produces a

lot of paperwork for Agency staff without a lot of positive impacts

on recovery. No other agency in the Federal Government engages

in such massive red tape to ensure compliance.

Congress has been concerned that these costs and delays that

continue to increase funding levels for consultation staff. In a report published last year on salmon funding expenditures, the General Accounting Office reported that in the 5 years preceding 2002,

the National Marine Fisheries Service’s Northwest Region’s consultation staff had grown from six to 120. Yet, I continue to hear

problems, delays, and costs. I do not have a perception that additional funding is going to address these issues.

Let me close by reading from a memo sent to Forest Service

Chief Dale Bosworth, by Regional Forester, Jack Blackwell, on

April 30, 2001. He states:

‘‘I cannot adequately convey the high levels of frustration, anxiety, and feelings of helplessness that are occurring both internally

and externally as we attempt to manage the national forests, and

deal with ESA Section 7, processes.

‘‘We all care deeply about and want to conserve species. Like the

majority of the American public, we strongly support the ESA and

recognize it is probably not going to be amended anytime soon. But

something significant must change in order to bring more effectiveness, efficiency, and common sense to the Section 7 consultation

process.
3

‘‘The time is right to initiate serious multi-agency reforms that

do not require congressional action. The amount of effort required

to get projects through consultation is increasing and appears to be

the same investment in people regardless of the project’s potential

impact or risk to the listed species or its habitat.

‘‘Once a project is more than a ’no affect’ determination, the

amount of documentation and analysis seems nearly identical. We

are spending a disproportionate amount of time and effort on

projects viewed by Forest Service biologists as low risk.

‘‘I am gravely concerned that we continue to expand scarce resources on a process that does not appear to provide significant

conservation or recovery benefits. I hope this will be the first of

several discussions with how we might create a process that is less

costly and laborious, and delivers meaningful conservation benefits

to species on the ground.’’

With that, I will turn to our chairman of the full committee, Senator Inhofe.

OPENING STATEMENT OF HON. JAMES M. INHOFE,

U.S. SENATOR FROM THE STATE OF IDAHO

Senator INHOFE. Thank you, Mr. chairman.

Let me just tell me that my prepared statement is almost verbatim yours. I am going to be asked that it be put in the record.

Senator CRAPO. Without objection, so ordered.

[The prepared statement of Senator Inhofe follows:]

Senator INHOFE. We do have a problem here. I see that our

friend from New Mexico has his silvery minnow problem. We have

the Arkansas shiner. I probably would swap with you right now.

There are serious problems there. Pat Horn, accompanied by Paul

Renfrow, who have come up from Oklahoma, will be testifying in

the third panel. I will be back for that.

Unfortunately, we have a Senate Armed Services Committee

hearing two floors down at exactly the same time. Mr. Chairman,

after we hear from Senator Domenici, I will go to that hearing and

then come back for the third panel.

You know that there is a problem when even the Ninth Circuit

Court of Appeals in San Francisco, which is about the most liberal

court in the country, has overturned Fish and Wildlife consultation

decisions on the grounds that they had no evidence to back them

up. We will get to some of these.

Thank you, Mr. Chairman.

Senator CRAPO. Thank you very much, Mr. Chairman.

Without anything further, Senator Domenici, the floor is yours to

present your testimony.

Welcome. Thank you for being with us today.

STATEMENT OF HON. PETE V. DOMENICI, A UNITED STATES

SENATOR FROM THE STATE OF NEW MEXICO

Senator DOMENICI. Thank you, Mr. Chairman, and Senator

Inhofe.

I think in the final analysis there are very few Americans who

would oppose a national law that said, ‘‘Let us try to protect endangered species.’’
4

However, what has happened to the Endangered Species Act is

that it is being applied without any common sense.

The interpretation and the implementation of the Act have gone

greatly awry. The process has become extremely combative. When

the judicial combat occurs, it would appear that the participants’

goal is to win no matter what.

In fact, the result is rather lacking in common sense. Clearly, if

you submit this to a large cross-section of Americans and say,

‘‘Would you come up with this opinion to save this species?’’, you

would find a minute number would agree with it.

Look at the case concerning Albuquerque, New Mexico. The City

is up and down the Rio Grande River from just north of Santa Fe,

all the way to just where the Rio goes into El Paso, Texas. We have

a little minnow in the Rio Grande called the silvery minnow. The

Rio Grande River is not a wet river like those in the East. As I

grew up as a young man, for long periods of time during the year,

big stretches of the Rio Grande were without water. It is actually

a river that runs with water only when you have a lot of rain. In

the last 50 years, the river has run only when you are letting out

enough water to make it wet. Otherwise, it has deep sand pockets

that suck up all the water you can put in it. It is very hard to

make it run.

Nonetheless, there has been an ongoing battle that the habitat

for this minnow, as far as a certain group of environmentalists are

concerned, must run wet throughout a very lengthy area of the

river. This calls for huge amounts of water. The only place we can

get it is to start dumping our reservoirs.

What we have now is a Tenth Circuit Court opinion that places

the needs of this small endangered fish over the needs of the people of our State. On June 12th, by a 2–1 decision, the Tenth Circuit

ruled that the Federal Government can completely disregard its

contractual commitments to provide much needed water to the cities, farms, Indian reservations, and instead take that water for the

needs of the fish. The Court found that the Government can use

water imported from another basin for the silvery minnow in violation of New Mexico State law.

Senators you know that the great Colorado River has been part

of supplying water to all different States up and down its lengthy

path, but it also supplied water to the State of New Mexico. The

second-to-last agreement made by the Senate, when Senator Clinton Anderson was then the Senator from New Mexico, was to take

some of that water, send it across the Rocky Mountains through a

canal drilled through the mountain into this new environment for

that water, the Rio Grade River.

Obviously, since the fish existed before that water came in, the

environment of the river for the fish and its protection was the

river without that water, not the river with that water.

Nonetheless, the closing remarks of the two judges seemed to me

to almost be the writings of some young student, delighted with the

idea that this river needed everybody and everything working and

living together for it to be a livable river. As a consequence, it

needed the water of that river to protect the fish.

Of course, that whole thought is an error. From its inception,

that river and that fish did not have that imported water. One of
5

the very big mistakes made by the Court was to say that the imported water could, and must, in fact, be used as you put together

the biological living conditions for the preservation of the fish.

That is one of the issues that seems rather simple for a committee like this to address. Across the land, with reverence to rivers, to protect endangered species within a river basin, should you

give water that is brought in for another purpose under another

contract, and paid for in another way? Could you make that imported water also a part of the water that is to be used for the

preservation of the fish?

The Court said ‘‘yes.’’ The minority judge said ‘‘no.’’ The minority

opinion is a very excellent opinion in this Senator’s way of reading

things. Maybe this dissenting judge is familiar with the Frankenstein monster. The dissenting judge equated the Endangered Species Act as it was applied in this Circuit to the Frankenstein monster that had gone wild, that just stomped around and took over

things wherever it could lay it feet, taking all the contracts of the

Bureau of Reclamation, regardless of their purpose, regardless of

their tenure, and regardless of how long they existed. They said

they are all subject to saving this fish.

How did we get there? The Court interpreted the ESA, as I said,

as preempting 75 years of existing water law, existing contracts,

and the needs of the burgeoning population of Albuquerque and the

surrounding area. The silvery minnow case began with a Section

7 consultation under ESA. The consultation for the minnow was

triggered by litigation. In 1999, a group demanded that the Court

direct the Bureau to consult with the Fish and Wildlife Service

over the Bureau of Water and River Operations in the middle Rio

Grande.

Until that time the Federal agencies had not consulted the Bureau’s operations. The middle Rio Grande, like most of the water

in the West, is completed accounted for through water contracts,

interstate compacts, and perfected water rights under State law.

I think all of you understand that the hallmark of water rights

in the West is certainty. That is why we have water rights law.

People have to have certainty of obligation and of ownership. That

is why water basins in States like New Mexico, believe it or not,

are adjudicated. Up and down the river you decide who owns what,

effective as of what time in history. To have any property value,

it must have certainty. The whole goal and objective of this river

basin is to inject certainty, not uncertainty, into the water rights

of that basin.

In my opinion, because the Bureau had no discretion to alter

these water deliveries, a Section 7 consultation was not appropriate

and should not have been ordered. Once the Fish and Wildlife

Service produced a biological opinion in 2001, the litigation that

began over Section 7 consultation was leveraged into a challenge

to the biological opinion itself. Let me repeat that. The litigation

began over a Section 7 consultation and was leveraged into a challenge to the biological opinion itself.

The environmentalists argued that the Bureau failed to consult

on a full range of alleged discretionary authority, even though the

Bureau believed it had no discretion to take contractually obligated

water, or the water resulting from inter-basin transfers. The Bu-
6

reau had no discretion to do that. Indeed, the Bureau kept maintaining that, ‘‘Since we do not have any discretion, why do we have

to have such broad consultation.’’

The Section 7 consultation was next transformed into a court

fight over an injunction sought by environmental groups. The case

resulted in the district judge determining that the Bureau has the

discretion under the ESA to take New Mexico’s water as I have described it. The Tenth Circuit, in the divided opinion, did what I

have just said. It would behoove you and your staff to read the

opinions. They are not long. In particular, the opinion of the dissenting judge seems to me to be on that makes eminent sense upon

which you might consult in terms of making some rational change

to the ESA.

I have been here long enough to have voted for the ESA. I came

here in 1972. At tht time, I did not know very much about what

I was voting on, but even I did, I probably would have voted for

the ESA. It is a great sounding piece of legislation. Obviously,

when you look at it, and look at the kind of people who were then

sponsoring it, you would for vote it.

Back then, you had people like Scoop Jackson proposing the ESA

and proposing other environmental laws of the days. You usually

would vote for them. That is not to say that those same senators

sitting here today would agree with the laws that they passed.

Nonetheless, they were giants who were trying to make some sense

out of what could end up being a very environmentally confused

part of our country.

Did any of us who voted for the ESA intend for it to apply retroactively? I do not think so. Did any of us who voted for it intend

that through the courts you could achieve super status to the point

of abrogating pre-existing contracts as has happened here? I did

not.

Just remember, the water that came to the basin across those

mountains and through those tunnels was no gift. Nobody gave

that to us. That was paid for over a 40-year period of time at 4 percent interest by the city of Albuquerque and a number of units of

governments. I missed by 1 year being the one who signed that

contract for the city. I came into the seat that signed the contract

the year after it was signed. But it was being finished up while I

was then Chairman–Mayor. It was a huge indebtedness to bring

water in. It was very clear. It was new water for a purpose, that

is, the long-term protection of water needs of that valley. That is

the valley that this court said was subject to take for the fish under

the ESA.

I am firmly convinced, as I have been in the past, that the law

should be changed. But I am equally convinced that it is almost impossible to do that. Particularly in the West it seems to me that

we must have laws that are prospective, not retroactive. We cannot

particularly exist in a world where the statute is allowed to undermine water contracts, interstate compacts, water rights preferred

under State law, and even treaties which have long governed river

management.

Four years after the Section 7 consultation litigation was

brought, millions of dollars have been spent. The court case drags

on. We are still in the position where we must request a rehearing
7

in bank in the Tenth Circuit, and if necessary, ask the Supreme

Court to consider it.

In addition to countering the potential devastating impact of the

Tenth Circuit, in particular on the imported water, which is the future of that area, I would be held derelict if I were not working

with members of our delegation, and hopefully with all of you, on

legislation to provide a balanced approach for that river basin, one

that addresses both the needs of the people of my State, and the

needs of the silvery minnow.

I have that legislation written. It has been cleared by a number

of lawyers. I will present it to you for your perusal. If you think

it is correct, you can support us. We will attach it to some legislation here in the Senate. It is very simple. It merely says that the

Endangered Species Act does not apply in the river basin. We describe it to the imported water which was brought there for other

purposes.

It continues to say that a biological opinion, which has been developed, should be implemented. Environmentalists do not like it

and to them, we say, ‘‘That shall be implemented.’’ That biological

opinion says that the river might run dry. It has to run dry because of the shortage of water, rather than to dump all the reservoirs to save the fish. The biological opinion is essentially the legislation that we will offer to one of the bills here on the floor.

I thank you for listening. I wish you good luck.

I would ask that my complete testimony be included in the

record in its entirety.

Senator CRAPO. Without objection, so ordered.

Thank you very much, Senator Dominici. We realize you have a

committee to be to in about 5 minutes.

The chairman wanted to make a quick statement.

Senator INHOFE. Thank you, Mr. Chairman. I have to go down

to Armed Services. I just want to respond, Senator Dominici, that

in hearing about your legislation, I really believe it needs to go a

little broader. There are other problems out there. I will share

some stories with you.

When I became chairman of this committee, I suggested something that was considered to be totally outrageous by some of the

community out there, and that was that we base our decisions on

sound science, that we have cost benefit analysis. Our chairman of

the subcommittee, Senator Crapo, said in his opening remarks that

he thinks we need to have common sense. I am sure they will consider that equally outrageous. We want to address these problems.

We have a chairman of this subcommittee that is going to give the

leadership necessary to make some changes.

Thank you very much, Mr. Chairman.

Senator CRAPO. Thank you.

Senator Dominici, thank you for spending your time with us

today and in testifying to us.

Senator DOMENICI. It was my pleasure.

Thank you, Senator Murkowski.

Senator CRAPO. Senator Murkowski, would you like to make an

opening statement?
8

OPENING STATEMENT OF HON. LISA MURKOWSKI,

U.S. SENATOR FROM THE STATE OF ALASKA

Senator MURKOWSKI. I appreciate that, Mr. Chairman. Thank

you.

Mr. Chairman, it was interesting to hear the good Senator from

New Mexico and his comments. I would concur with him that as

we look to Section 7 and the consultation process, I would certainly

concur that it needs work, and perhaps as much as major surgery.

Typically when we hear those who will speak to the pros and

cons of Section 7 and the consultation process, the focus is on experience with fresh water or terrestrial species, as Senator Dominici

has indicated. But those are not the only areas where Section 7

comes into play.

Alaska’s fishing industry has recently had a very instructive encounter with the consultation process. I would like to summarize

that for the record. Stellar sea lions are managed by the National

Marine Fisheries Service. In 1975, the population in Alaska of the

Stellar sea lions was estimated at more than 100,000 animals. By

1989, it had fallen to about 25,000. In 1990, Stellars were listed as

threatened. In 1993, critical habitat was designated. In 1997, the

Western population in the Aleutian Islands was declared to be endangered.

Under the Act, the status of the sea lion population triggered a

Section 7 consultation to consider the effects of the fisheries. Since

the fisheries are also managed by the National Marine Fisheries

Service, this created the odd situation where the Agency responsible for the fisheries was consulting with itself over its responsibility for the marine mammals.

From 1979 to 1998, NMFS repeated found that the fisheries did

not adversely affect the sea lions. But that was not satisfactory to

Greenpeace and other interests which then filed a lawsuit. After

the lawsuit was filed, the Agency suddenly reversed its course and

in late 1998, it issued a new biological opinion under Section 7

which, for the first time, found jeopardy for the Alaska pollock fishery.

The finding was based on an untested theory, popular among the

Agency’s marine mammal scientists, which supposed that fishing

could cause localized depletion of pollock or disturb the sea lion

feeding pattern. Unfortunately it ignored most of the available

science including evidence that largely exonerated fishing from

blame for the sea lion decline, and demonstrated that sea lion

stocks were healthiest when fishing activity was the heaviest.

Despite that, it became the guiding principle for the Agency, and

5 years of court battles, to adopt reasonable and prudent alternatives which devastated whole communities depending on fishing,

and spawning two more biological opinions in an attempt to get the

issue back on a reasonably even scientific keel.

What makes this case notable is not the outcome, but how badly

the process itself was allowed to spin out of control, even though

the National Marine Fisheries Service was the Agency conducting

the action. Evidence that indicated fisheries were unlikely to harm

sea lions was largely ignored. In 1989, in 1994, and yet again in

1996, research by scientists looking for a link between the pollock
9

fishing and the sea lion decline had failed to yield the expected results.

Although the declines were found in some areas of heavy fishing,

there were also sharp declines in areas with little or no fishing.

Other scientists, publishing in 1991 and 1992, questioned the supposed link more directly. A 1991 paper by two of NMFS’ top fisheries scientists actually seemed to indicate that there is an inverse

relationship between pollock and sea lions. In fact, more recent

work may even suggest that attempting to ensure less fishing and

more pollock may have been the worst thing to do because a pollock diet is less nutritious than one that includes fish of other species.

The failure of process in this case is that such a deeply questionable document as the 1998 biological was accepted as gospel. Those

responsible for overseeing the work failed to ensure that it was either justified or complete before it was accepted. Those who attempted to provide prospective on it were shut out of the process.

Worst of all, once such an error has been made, it may take many

years and many dollars before it can be overturned.

Mr. Chairman, natural resource managers sometimes use the

term ‘‘precautionary principle’’ to describe a better safe than sorry

approach to management. It should describe a reasonable effort to

ensure that all information is considered and reasonable precautions are taken where there is uncertainty. It should not be an

excuse for catering to the preconceived notion of one interest over

another. The Section 7 process should be emblematic of the precautionary principle at its best, not at its worst.

Finally, let me note that the National Marine Fisheries Service,

since the events I have described about the Stellar sea lions, has

made a significant effort to improve its practices and prevent such

abuses. That is laudable. However, these efforts have been voluntary. The fact is that the potential for abuse remains inherent

in the statute as it is currently written.

Conservation of species demands sound, objective science that examines all sides of an issue, not a subjective approach that caters

to preconceived notions. To the extent that the law allows the latter to occur, it is at fault, and change is needed.

Mr. Chairman, I would ask that a paper written by Dr. Dayton

L. Alberson on the Stellar sea lion and pollock basically outlining

the science behind it, be included in the record for others to review.

Senator CRAPO. Without objection, so ordered.

Senator MURKOWSKI. I thank the chairman for bringing this to

the attention of the subcommittee, and for your work on this very

important issue.

Senator CRAPO. Thank you. We appreciate your attention and

concern about this issue as well.

We will now proceed to the second panel. Mr. Barry Hill, Director, natural Resources and Environment, U.S. General Accounting

Office. I understand, Mr. Hill, that you are accompanied Ms.

McClure.

You may proceed.
10

STATEMENT OF BARRY HILL, DIRECTOR, NATURAL RESOURCES AND ENVIRONMENT, U.S. GENERAL ACCOUNTING

OFFICE ACCOMPANIED BY: TRISH MC CLURE, DEPUTY DIRECTOR, OFFICE OF NATURAL RESOURCES AND ENVIRONMENT, U.S. GENERAL ACCOUNTING OFFICE

Mr. HILL. Thank you, Mr. Chairman, and members of the subcommittee.

Before I begin, let me explain that Trish McClure, who is with

me today, was responsible for basically leading and managing the

work that we will be presenting today in our testimony. I will briefly summarize my prepared statement.

We are pleased to be here today to discuss the preliminary results of our ongoing review of the consultation process required by

the Endangered Species Act. As you requested, we focused on the

processes that applied in the Pacific Northwest.

Under the Endangered Species Act, before Federal agencies may

conduct, permit, or fund activities of the areas where threatened or

endangered species may be present, the agencies must consult with

the Fish and Wildlife Service or the National Marine Fisheries

Service. The consultation is intended to ensure that Federal agency

activities will not jeopardize the continued existence of any listed

species or destroy or adversely modify habitat designated as critical

for those species.

In the Pacific Northwest, the types of activities agencies may

need to consult on include maintaining wilderness trails in national

forests, dredging navigational channels, and operating hydroelectric dams. The Federal agencies responsible for consulting on

such activities are called ‘‘action agencies.’’ The four action agencies

included in our review were the Army Corps of Engineers, the Bureau of Land Management, the Bureau of Reclamation, and the

Forest Service.

Action agencies must also consult on various activities for which

they issue permits, licenses, or Federal funds to non–Federal parties. These activities include livestock raising, timber harvesting,

and mining on Federal lands, and building structures such as piers

and docks on private property.

The consultation process can be short or long, as illustrated by

the graphic that we have displayed here to my left on the presentation board. If an action agency determines that a proposed activity may affect a listed species, the Agency may initiate either an

informal or a formal consultation with one or more, or both of the

services. An informal consultation, which could be as simple as a

brief telephone call, the Service and action agencies agree that the

activity is unlikely to harm the species, and that formal consultation is not necessary.

On the other hand, if the Agency or the Service believes that the

activity may be harmful, the action agency initiates a formal consultation by submitting a biological assessment of the activity and

its potential effects. If harm appears likely and formal consultation

is required, the Service has 135 days, by regulation, to formally

consult and document, in a biological opinion, whether the activity

could jeopardize the species’ continued existence.

It is important to keep in mind that even under normal workload

conditions, the consultation process can be difficult. In part, this is
11

because decisions about how species will be protected must often be

based on uncertain scientific information and on professional judgment. It is also because Federal agencies and the Services must

strive to reach a balance between ensuring that action agencies are

able to fulfill their missions while protecting threatened and endangered species.

My testimony today will present the preliminary results of two

topics. First, key efforts to improve the consultation process in the

three States we reviewed, and second, key concerns with the consultation process as identified by the Services, other Federal agencies, and non–Federal parties.

We anticipate issuing our final report in late August, and in that

report we will be presenting additional information on concerns

about and improvements to the consultation process, Service and

Agency officials perspectives on the effectiveness of the improvements, and information on the adequacy of agency data bases that

contain key information on individual consultations.

Let me turn to the first issue of my testimony on efforts to improve the consultation process. In response to concerns that largely

stem from several fish listings in the late 1990’s, the Services in

the Pacific Northwest have taken a number of steps to improve the

consultation process. For example, both Services have increased

their staff levels in certain offices to help address workload backlogs. The National Marine Fisheries Service established new offices

to facilitate consultations at remote locations.

Also, to improve efficiency, the Services have increased their use

of consultations that address multiple activities. These consultations are often referred to as programmatics, and minimize the

need to consult on individual activities. For example, one consultation in Western Oregon covers ten types of routine activities in two

national forests and two BLM districts.

Another efficiency improvement, called streamlining, uses interagency teams made up of Service and action agency personnel that

work together on multiple projects. The intent is that by working

collaboratively these teams will more quickly reach agreement on

the potential effects of a project, and will resolve problems that

arise.

Finally, the Services and the action agencies have worked both

individually and together to develop and refine guidance and training for staff conducting consultations. Interagency efforts include

refresher training on the streamlining process, and development of

websites that provide staff with preparation instructions for, and

examples of, biological assessments and other key consultation documents.

Despite these and other improvement efforts, officials at the

Services and action agencies, as well as non–Federal parties, continue to have concerns about the consultation process. A key problem that lengthens the process is that the Services and action

agencies do not have a shared understanding of what constitutes

a complete biological assessment. This leads to repeated requests

by the Services for additional information from the action agencies

until the Services are satisfied that the assessment adequately addresses the effects of the proposed action on the species.
12

If you will refer to the presentation board, you will see in the

middle of the board the dotted line that represents this cycle of information request by the Services. You will also notice that this

cycle occurs before the official consultation time clock begins, either

30 days for an informal consultation or 135 days for a formal one.

By this time, however, related activities, such as requesting and

providing additional information may have been ongoing for quite

a while. Repeated requests for information can also be caused by

Service biologists being unfamiliar with action agency programs.

High turnover among Service biologists is one factor that contributes to this problem.

In addition, the fear of litigation can also impact the length of

the process; that is, action agencies and Service officials said they

sometimes try to bulletproof biological assessments, or make them

so comprehensive that they will be immune from legal challenge.

This adds to the time and cost of consultation.

Action agency officials also expressed concern that Service and

action agency roles are not clearly defined. Some action agency officials told us that Service biologists sometime recommend changes

to Agency’s proposed activities beyond what action agencies think

is necessary to minimize the negative effects on species.

In response, Service officials say that the purpose of the consultation process is to discuss the potential effects of proposed actions early in the planning process and to explore options that will

avoid jeopardy.

Service and action agency officials also identified a lack of sufficient resources, particularly at the Services, as a key concern. They

said that the staff level increases have not kept pace with their

growing work loads.

Among the non–Federal parties, permanent applications express

concerns about the time and expense required for the consultation

process. For example, the average permit processing time for 19

permits issued in 2002 for building private docks, or for similar activities on Lake Washington near Seattle, was more than 2 years,

and added about $10,000 to applicants’ costs.

Finally, environmental advocacy groups expressed concern that

the consultation process, like other land management decisionmaking processes, is closed to them until decisions are final. Accordingly, they feel that their only avenues for voicing their concerns are through administrative appeals and lawsuits.

In conclusion, Mr. Chairman, may I say that everyone involved

in this process is supportive of the goals and the intent of the Endangered Species Act. All would agree that consultations are a key

component of this process. Continued efforts must be made by the

Services and the action agencies to find more and better process,

effectiveness, and efficiency improvements for consultations that

help achieve the proper balance between action agencies being able

to fulfill their missions, while protecting threatened and endangered species.

Mr. Chairman, that concludes my statement. We would be happy

to answer any questions that you or any other members may have.

I would ask that my complete testimony be included in the record

in its entirety.

Senator CRAPO. Without objection, so ordered.
13

Thank you very much, Mr. Hill.

The first question I have relates to the time lines that you show

at the top of your chart. Could you go over again with me just what

the language is in the statute or the regulations that establishes

these time lines?

Ms. MCCLURE. The only statutory timeframe is for formal consultation. That is 135 days for the entire process. The Service policy to deal with informal consultations is 30 days. But both of those

clocks start ticking once the Services decide that they have enough

information from the action agency to determine whether the activity will have an effect on species or its habitat.

Senator CRAPO. It is that point that I wanted to go into. The

Service gets to decide when the clock starts going. Is that something that is in regulation or in statute, or is that just a procedure

that the Services has adopted?

Ms. MCCLURE. It is a procedure that the Services have adopted

to implement the statute.

Senator CRAPO. The statute contains the time deadlines that we

talked about. The reason I go into that is because I certainly cannot say what was in the mind of those who wrote and voted for the

statute, but it would seem to me that they had an idea in mind

that there would be a deadline. If the timing of the deadline does

not begin until the Agency performing the consultation decides that

it will begin, then it appears to me that we have a problem from

the git-go with regard to establishing some kind of a timeframe

within which we must operate.

Would you like to comment on that?

Mr. HILL. Well, I think what you are saying is true. But just to

provide some balance to this, I believe the controversy is occurring

over whether or not the biological assessment is complete. That is

a key point. That clock cannot start ticking until that assessment,

in the eyes of the Service agencies, is complete. I think you have

to be careful here in terms if you expedite that process, already

there are concerns about the lack of scientific data and information

that is being used to come up with these biological assessments.

There has to be a balance here to make sure that the action

agencies are doing a good job on those biological assessments in

using the best available data that they have and doing that in a

way that can be done a little quicker and more streamline. In that

way, you can get to the point where you have a biological assessment that is ready to go into this formal or informal process.

Senator CRAPO. This is not a new problem. It comes up in other

contexts. I first ran across this before I became a Member of Congress when I was working on permitting processes and the like.

There were time lines for applicants for environmental permits, but

the time lines never start running until something is decided by an

Agency. That something is never decided by the Agency, or decided

months, if not years, after the process is begun.

When I evaluated it at that time, it became evident that if you

were to put an actual firm deadline on the Agency, then what they

would simply do would be just to deny the permit and say. ‘‘We do

not have enough information; so we cannot approve it. You can

make your application again. We will deny it again. You can make
14

it again and we will deny it again until we feel like we are ready

to grant it.’’

The argument being made was, and always is, that we do not

have enough information to adequately evaluate the permit. It is

a serious problem. You raise a valid point.

The question I have is this. This is a creative thinking question.

How can we address this problem? If we want to find some way to

put some time parameters on the actions that we require of our

agencies—not just in the environmental arena, but in any arena—

how can we approach it? Have you given that any thought?

Mr. HILL. We are auditors by nature. We look for data. We look

for evaluations. That is what is lacking here. No one really has any

good information as to how long this entire process actually takes,

or why it is taking so long. There is not a lot of data out there that

really indicates when the initial contact is made to the Service

agencies in terms of an action agency coming in and saying, ‘‘I have

a project. I want to talk with you about it and enter into these informal consultations.’’

There is not a lot of data out there that really indicates just how

long that process takes. You hear the horror tales now and then,

but we do not know how prevalent that is. More importantly, without that kind of data and without that kind of evaluative information, you really do not know what is broken in that front end. That

is where I think there could be some gains made in terms of shortening that front-end process, that once the clock starts ticking, that

is a pretty set timeframe.

Senator CRAPO. We hear the horror stories, but that we really do

not know how prevalent that is. In terms of the analysis that you

made in focusing on the Northwest, do we get a feel there out of

the data that we studied there as to how prevalent these long

delays and problems are?

Ms. MCCLURE. We have some data on that which we are still

analyzing. The problem is that some of the data bases that the

Services maintain do not capture key points in time that you would

need to evaluate how long the process is. We did gather data from

service and action agency officials that can speak to the process of

how it has changed over time.

In terms of consultations in the 1998 and 1999 timeframe, we

have heard a lot of concerns through 2002, where they have had

the benefit of some of these improvement efforts, like

programmatics and streamlining. Folks do indicate that the timeliness has improved as a result of some of the improvement efforts.

We will get into that in more detail in our full report.

Senator CRAPO. You heard my opening statement in which I referred to a memo that was sent by the then regional forester, Jack

Blackwell, where he indicated that he could not adequately convey

the level of frustration, anxiety, and feelings of helplessness that

were occurring within the Forest Service at that point, in terms of

trying to work through the consultation process.

In a follow up memo, he was reporting back to the Chief on some

of the information that they were trying to glean as they tried to

implement these streamlining processes that you have talked

about. From the tenure of that memo, I get the feeling that, at
15

least in this context, it was not felt that there had been a lot of

success.

One of his examples was that he reports what some of his people

are reporting to him. He says in other forest reports that ‘‘The

streamlined consultation is an oxymoron. This forester says the

terms implies a fast, or at least a faster approach to what existed

previously. They say the current process was developed because we

had reached gridlock in consultation.’’

I guess if we have improvement over gridlock, that is good. What

I am getting at and what I am hearing you say is that we do not

have enough data to answer the question. How broad based is this

frustration? Are the streamlining processes working? Are we talking about a limited number of horror stories? Are we talking about

a pervasive problem that is causing the agencies to approach gridlock?

Do you have any further response to that?

Ms. MCCLURE. In the three States that we looked at, as you

know, the Forest Service and the BLM are the only action agencies

that do streamlining. The vast majority of the individuals we spoke

with in those Agencies, and the Services that service those agencies, felt that streamlining was working well and was improving

how consultations were working.

There was one exception in Idaho were things were not working

well. The individuals we spoke with seemed to think that the problem was personality driven, and that the process was not being implemented as it should be. There is a process of the ground level

biologists who serve on what are called Level I teams. They are

really the ones who do the grunt work and try to make the decisions and work through issues.

When they cannot resolve issues amongst themselves and they

cannot proceed with projects, they are to elevate that to their managers, to what is called a Level II team. That was not happening.

You did have projects that were gridlocked.

Senator CRAPO. That is exactly what is further referenced in this

memo. When you said there was one problem in Idaho, was Idaho

the problem or part of Idaho was the problem?

Ms. MCCLURE. A part of Idaho was the problem.

Senator CRAPO. OK. One of the things that was mentioned in

this memo was the point you just raised, and that is that there was

a reluctance or a failure to elevate this from Level I further up the

chain, for various reasons. The speculation is that people did not

want to admit that it was not working, or that there was a concern

that there may be some retribution or something like that, if they

were to elevate the decision.

Is it your understanding that this particular problem is not pervasive?

Ms. MCCLURE. There does not appear to be gridlocked consultations like there is in this one location in Idaho. We did hear from

other individuals involved in the streamlining process, though, that

there is some hesitancy to elevate issues to managers. There is that

fear that, ‘‘This is not working and we failed.’’ There is some level

of concern in other offices, but it is not gridlocking the process.

Senator CRAPO. There is something about this consultation process that is out there that is causing an element of concern. This
16

is not the first time this committee has addressed this issue. I am

told that in the past they were not able to get enough witnesses

willing to come forward to talk about it so that they could hold a

full hearing. In terms of getting this hearing put together today,

there are a lot of people that did not want to talk.

I am assuming that this is in the public section. These are people

who have a consultation on a project they are involved with and

who do not want to be irritating anyone at the Agency who may

be evaluating their projects by saying what their frustrations are

with the project. I am assuming that is the kind of dynamic that

we are dealing with.

I can tell you that we had to go through a tremendous amount

of effort to get people who were willing to come forward and talk

with us today. I am a little worried because of that, that perhaps

we are not getting a full story about what is happening in terms

of the implementation of this. I am assuming that you are continuing to evaluate this. I would encourage you to keep that in

mind and perhaps be prepared to evaluate that aspect of this with

us, if you can get a feel for it as you conduct your analysis.

Mr. Hill, aside from the significant increases in the number of

listed species, which is obviously going to increase the number of

consultations, are there other reasons why the consultations have

increased over the past few years; do you know?

Mr. HILL. Well, the listing, particularly in the Pacific Northwest,

is a major factor. You have a number of species listed in the late

1990’s that have habitat areas that are so far reaching that just

about any activity you are going to be doing there that is close to

the rivers and steams, is going to be examined closely. That was

a significant factor.

Another factor certainly is the fear of litigation. There is a lot of

concern, quite frankly. There has been a lot of litigation and there

has been a lot of court decisions. If you look back in time, I believe

the action agencies in the past had more of an inclination to basically look at their proposed action and determine that t would not

have a negative effect. They would then go ahead without even

having a consultation.

Now, because of the litigation that is occurring, I think there is

more of an inclination to play it safe. If they make that determination, there is no effect and it is later found out to have an effect,

they are responsible. They are liable for that action.

Senator CRAPO. Are they personally liable for that; do you know?

Ms. MCCLURE. Personally, or as an Agency?

Senator CRAPO. Personally.

Ms. MCCLURE. I am not clear on that. We could check on that.

Senator CRAPO. If you would, I would appreciate that.

Without objection, so ordered.

Senator CRAPO. Go ahead.

Mr. HILL. In order to play it safe, I think right now what you

have is, because of the fear of litigation, that they are going to go

through this consultation process and consult with the Service

agencies. At that point, the liability shifts from them to the Service

agencies. So I think you are seeing more of an increase in consultations from that standpoint as well. It is also adding to the problem

of the nature, size, and risk of the projects that are coming into the
17

system. There are many more ‘‘low risk’’ types of projects that are

going through consultations than the major actions that I think

you were seeing earlier on.

Senator CRAPO. Tell me a little bit about what qualifies as an action, or whatever the proper term is, that then has to be evaluated?

Ms. MCCLURE. Virtually anything. Any proposed action, even a

beneficial action, the action agency has to decide whether it may

harm, or jeopardize the continued existence, or adversely modify its

critical habitat.

Senator CRAPO. I know that you used examples in your testimony of construction of docks on private property, or the like. In

the materials I have here, I have things such as grazing, road or

trail maintenance, fire suppression, recreation projects, and noxious weed treatment. They even have firewood and Christmas tree

cutting.

When I look at the statistics of 14,004 consultations just in this

one region, of which 13,141 were considered to be in the category

of discountable, insignificant, or completely beneficial. Are we getting to the point where we are throwing the net too broadly, that

we are creating too broad a focus and diverting resources away

from what could be a more beneficial use of these dollars and personnel in terms of species protection?

Mr. HILL. That is a hard question to answer. Here again, there

is not a lot of good data and information to base that on. There is

not a lot of information in terms of the benefits of this consultation

process. The purpose of the process is to sit down early and discuss

the particular project, to explore options or whatever, and to basically avoid the jeopardy, the negative effects. To the extent that

that is occurring, because of the consultations, we really do not

have a good handle to what extent that is happening.

Senator CRAPO. That really is the core question.

Mr. HILL. Right. That is the kind of information that I think

needs to be collected. Where do you have instances where the consultation had a happy ending, a positive effect here, and that we

were able to avoid some type of negative action because we had an

early consultation and we were able to work it out before this

project got too far?

Senator CRAPO. Are you evaluating that question as you continue

your study?

Mr. HILL. Here again, there is really no data to go out there. I

do not believe that we are going to be able to capture that in the

work that we are doing.

Ms. MCCLURE. We can capture the amount of information that

is out there and what is being done, but we will not be speaking

to the benefits of the process.

Senator CRAPO. As you are aware, I am sure, this committee is

also looking at the problems that we face in designating critical

habitat. It was the Fish and Wildlife Service that said that they

were out of money and that they do not do the critical habitat designations anymore. I see a statistic here that the number of personnel doing consultations in the NMFS in the Northwest Region,

went from six to 120.

I am thinking about where we are putting our resources in endangered species protection. I am wondering if there any way for
18

us to construct a study that would enable us to answer this core

question. If the consultation process, as voluminous as it is, is making us much better at avoiding harmful impacts to species, then

there is a benefit there.

If instead it is causing us to spend significant resources evaluating whether a dock can be built on private property, or whether

a Christmas tree can be cut, after it has been evaluated by the personnel managing it, then I have a hard time justifying that kind

of extensive utilization of resource, when we could be utilizing resources in other parts of the Agency.

I think you have answered this, but I want to ask this again. Is

there a way that we could construct a study to get at that question?

Ms. MCCLURE. You would have to look at the benefits. You would

have to get into the benefits. I think you would also need to address the legal vulnerabilities, or the legal authorities and requirements under the Act. I think the Senator raised the issue this

morning that we did not know it would go this far and wide when

we signed the Act back in 1973.

I think there are several different pieces of analysis that need to

be done that could certainly get us closer to where we are right

now in answering that question.

Senator CRAPO. Thank you very much.

In Idaho, I am told that we are now facing a situation where just

the time line that we are talking about here, is getting drawn out

for all the reasons you talked about. We hear about the litigation

aspect of it a lot. That time line is interfering with projects that

are going to have a very beneficial impact if we can just proceed

with them; for example, reconnecting stream channels that have

become disconnected and impeding fish passage and migration and

rewatering streams that have become dewatered.

One of the concerns that I have is that we are losing opportunities to put our resources where they count and to engage in activities that will enable us to improve circumstances for species.

That is not really a question. It is just a commentary of the frustration that we are facing here as we look at some of these statistics.

Mr. HILL. If I could interject, we did some work last year on the

Columbia River Basin salmon and steelhead. We ran into that situation with regard to some of the projects that the Forest Service

was trying to do, particularly culvert replacement. Some of this

work is very seasonal. It can only be done during certain times of

the year because of the weather or because of the spawning habits

of the fish.

They raised that as a problem in terms of their inability to get

these culvert projects approved within a timely way. They were delayed to the point where they missed their window of opportunity

to do the work. Here again, it was a beneficial project. They are

trying to open up the fish passages, basically, by replacing these

culverts. They missed their window of opportunity. The project basically slid for a year, and in some cases it was 1-year money. They

lost the money, and in essence, they had to go back to the drawing

board.
19

It can have some significant effects if this thing is not done in

a timely way for some projects.

Senator CRAPO. I appreciate your making that point. Again, we

run into this constantly. It happens whether it is in terms of forest

management, water management, fish issues, forestry issues, or

the like. Often in the Northwest we have a very limited timeframe

within which we can operate, as you indicated. A couple of months

of delay can result in a year’s lost time. That is one of the reasons

that we are talking about this.

Let me ask one other question and then I will turn to our chairman for his questions.

Have you looked at the question of whether we are requiring the

same amount of documentation and consultation for small projects,

or projects that are considered not to have significant impacts, as

we are for larger projects and those which have significant potential impacts? In other words, are we requiring the full load for

every kind of project?

Ms. MCCLURE. I do not know if it is a equal load, but certainly

we heard concerns, again going back to the fear of litigation, that

even for simple projects the amount of documentation required on

the part of the action agency is increasing and can be fairly significant.

But most officials we talked with said it went back to this fear

of litigation, that even on the part of the action agencies, that they

feel compelled to bulletproof, or feel ensured that they have covered

all of their bases, that they would be immune from a legal attack.

Senator CRAPO. In this memo, I want to find out how broadly the

facts in this memo apply, but one of the points that was made in

here is that as a result of what you have just described in that effort to try to bulletproof things, and protect against liability or responsibility for any problems, that our personnel are now spending

more time in the office than they are in the field.

Again, it gets back to the point that I have made several times

and that is, are our resources being applied as effectively as they

should be in terms of the management of our resources and the

protection of species.

Mr. Chairman, do you have questions?

Senator INHOFE. Mr. Chairman, I do not. While I was attending

the Armed Services Committee hearing, I am sure that anything

I would ask would be redundant of what you have already asked.

I notice that we have a sizable third panel.

I have no questions.

Senator CRAPO. All right. Thank you very much.

In light of the time constraints under which we are operating, I

am going to excuse you. Again, I am hopeful that we will be able

to continue this discussion, as you continue your evaluation. Ultimately, I hope you come back with an answer to that $64,000 question that we identified together here, and that we can find a way

to evaluate whether this is actually doing its job and being worthwhile, or whether we are diverting resources in a very significant

way away from species protection. Thank you very much.

I would like to call our third panel now. Please come forward as

I am introducing you. Our first panelist is Alan Glen, Counsel,

Smith Robertson, Elliott, and Glen; John Kostyack, Senior Counsel;
20

National Wildlife Federation; Patricia Horn, Vice President and

General Counsel, OGE Enogex Incorporated; Jim Chilton, Arizona

rancher, on behalf of the Public Lands Council and the National

Cattlemen’s Beef Association; and William Snape, Vice President

and Chief Counsel, Defenders of Wildlife.

We have had some of you with us before. We appreciate your

coming back again. For those who are here for your first time, we

appreciate your being here.

Let me lay down the one big ground rule. That is, follow the

clock. We do have your written testimony. We have reviewed your

written testimony. It will be a part of the record. We do ask you

to summarize what you have to say in the 5 minutes which will

be allocated to each of you so that we will have time to engage with

you in dialog and some questions.

I always remind the witnesses of this. I am confident that when

your 5 minutes is up, you will not be done saying what you want

to say. I would ask you to wrap it up at 5 minutes. If you tend to

go a little longer, I will rap the gavel here just to remind you.

You will have an opportunity in the questions and answers to get

a part of the rest of what you want to say. We will give you an

opportunity to supplement the record if you feel you really did not

get to say everything.

With that, let us proceed.

Mr. Glen, you are first.

STATEMENT OF ALAN M. GLEN, COUNSEL, SMITH,

ROBERTSON, ELLIOTT, AND GLEN

Mr. GLEN. Thank you, Mr. Chairman, and Senator Inhofe.

My name is Alan Glen. I am a private lawyer from Austin,

Texas. Much of my work is in the Endangered Species Act field,

and a much of my time is spent representing clients through the

consultation process. Most of my clients are in industry. I also represent a number of local governments, including cities, counties,

and school districts.

Mr. Chairman, I am going to echo some of the concerns that you

raised in your opening remarks in three areas of the consultation

process. I will mention that I do think the consultation process can

be efficient and can be beneficial, although it often is not.

Since my testimony focuses on problems, I will mention briefly

two laudatory examples that I have been involved with. One was

for Williamson County, Texas, where a very efficient consultation

process resulted in the approval of a road program. The other was

for a school district where a desperately needed high school got

through the consultation process in record time and was able to go

forward.

Unfortunately, problems do remain. I will touch on three specific

areas.

First, there seems to be a trend toward the lowering of the

threshold for consultation, in other words, the trigger point that

leads to consultation. This trend is occurring not only on a caseby-case basis, but by broad actions by the agencies that tend to pull

numerous projects and activities into consultation that in my view

should not otherwise be there.
21

I provide in my testimony two examples of that. The most notable and current is the cactus ferruginous pygmy owl guidelines that

are applicable in Southern Arizona. These were consultation guidelines adopted as a result of litigation by the Corps and the Fish

and Wildlife Service. They have the effect of lowering to an infinitesimal small level the threshold for consultation. This means that

we are going to get exactly what you talked about in your opening

remarks—the thousands of consultations on projects that will cause

a lot of time, a lot of money, and with very, very little conservation

benefit for that consultation.

There were a similar set of guidelines adopted in Austin relative

to the Edwards A Aquifer and the Barton Springs salamander. We

have litigated those on behalf of the National Homebuilders Association, and reached a settlement by which they were withdrawn.

Next, I will mention the issue of delay. I will observe that there

are good Federal regulations under the Fish and Wildlife Service

relative to what the information standards are to trigger consultation. In my experience, though, those regulations are often not followed. By the way, the cite, I believe, is 50 C.F.R. 402.14(c), which

lays out what is required to initiate consultation.

In my experience, the lengthy delays are oftentimes associated

with the Agency wanting much more information than is achievable or obtainable during the 135 day consultation time clock. Unfortunately, the regulations specifically disallow the Agency to require surveys beyond the timeframe allowed.

What tends to happen in practice, though, is that the Agency

starts to sell time. There are quite explicit trades where we will let

you out of this process in 30 days if you add to your project these

things. The Agency in some instances has called this an alternative

process by which you pay mitigation in order to get a quicker

turnaway. This mitigation, in my view, is often at the end of the

day not justified under the law or the applicable science. It sets up

a mechanism by which the Agency is extracting merely for the

speed of processing.

Last, I will mention the utilization of draft jeopardy opinions.

The statistics are good. There are thousands of consultations and

very few jeopardy opinions. In my personal experience I have seen

a number of actual draft jeopardy opinions. I cover two of those in

my written testimony. I have been threatened to receive many of

those.

The impact of that and other things that happen earlier in the

consultation process, cannot be reflected in the statistics, but it is

very significant. There are projects that make enormous concessions along the way and spend an enormous amount of time and

money doing the scientific research, and then ultimately receive

non-jeopardy opinions. The statistics of what that cost and what

that involved is not reflected in the statistics that can be gathered

by the GAO.

With that, I will conclude my remarks. I would ask that my complete testimony be included in the record in its entirety.

Senator CRAPO. Without objection, so ordered. Thank you very

much, Mr. Glen. Mr. Kostyack?
22

STATEMENT OF JOHN KOSTYACK, SENIOR COUNSEL,

NATIONAL WILDLIFE FEDERATION

Mr. KOSTYACK. Good morning, Senator Crapo and Senator

Inhofe.

Thank you for the opportunity to testify.

I would like to make three observations based upon our 30 years

of experience with Section 7 of the ESA, and my 10 years of experience working with this provision. I would like to also provide three

recommendations for the future.

First, the big picture question: Is it worth all the trouble? There

has been a lot of discussion that there is a lot of time and delay

associated with Section 7, and unclear benefits. My organization’s

experience, and the commonly held view of people I work with in

the conservation community and the scientific world is that there

are immense benefits.

Section 7 provides a crucial opportunity for the Government to

look before it leaps into potentially harmful activities. It accomplishes a great deal for species conservation, despite a modest investment in resources. We would say that any reduction in conservation activities would be at the expense of listed species.

I can give you a long list of examples and places around the

country today where Section 7 is the key driver behind long overdue conservation actions, from the Klamath Basin, to the Missouri,

and to the Rio Grande. There are many ecosystems where fish,

wildlife, and plant species are at the brink of extension.

Without the Endangered Species Act, Section 7 provisions, the

species there such as the coho salmon of the Klamath, and the pallid sturgeon and piping plover on the Missouri, and the silvery

minnow on the Rio Grande would have no hope.

The second observation I would like to make is that we get these

benefits from Section 7 regardless of whether jeopardy or adverse

modification is found. In fact, the vast percentage of consultations

go forward with the Agencies sitting down, working collaboratively.

We want to avoid, if possible, jeopardy and adverse modification

findings. That means that the process has broken down. The general story and the history of the Endangered Species Act is that

these solutions are worked out in a collaborative sense, win-win solutions result, and projects move forward after adjustments are

made to avoid unnecessary harm to fish, wildlife, and plant species.

This should not be characterized as a failure of the Act. You can

go across the country for examples of these win-win solutions. I

have listed a number of them in my testimony. I will give one right

now.

If you go down Alligator Alley in Southern Florida, you can see

the wildlife underpasses beneath I–75. That was the result of a

Section 7 consultation concerning the endangered Florida panther.

As a result, we have avoided unnecessary vehicle collisions with

the panther, the No. 1 cause of panther mortality. That project

went forward fairly smoothly, while having this immense benefit

for a critically endangered species.

The third observation I would like to make is that the vast majority of ESA consultations are streamlined. There have been many

suggestions that people are being burdened with extensive delays

and paperwork. But if you look at the record, roughly 97 percent
23

of Fish and Wildlife Service consultations between 1996 and 2002,

were resolved informally.

An informal consultation, as a general proposition, means a single phone call or a single letter. I have seen many of these concurrence letters written by the Agencies. They are essentially one

paragraph long. They do not entail many resources at all.

Yet, we can receive significant conservation benefits from these

informal consultations when both the wildlife agency and the action agency agree to make project modifications to reach this ‘‘no

adverse effect’’ finding.

Let me turn to my three recommendations very quickly. First, we

really truly need a formalized program for tracking the Section 7

process. The only way to systematically evaluate the performance

of Section 7, and to ensure that this key part of the law works as

effectively as possible, is to have a rigorous monitoring program.

Right now there is little systematic collection of data. Virtually

all the information we have heard is anecdotal, or we gather statistics that are not necessarily very meaningful, such as how many

no-jeopardy or jeopardy determinations have been made. That really does not tell the story of what kind of conservation outcomes we

are receiving.

Looking simply at the pieces of paper that result from consultation alone will not be enough either. You need to follow through on

the outcomes of these consultations to see whether these conservation measures are truly being implemented, and what have been

the barriers to implementation. All of this data should be collected

in a systematic fashion and it should be posted on the internet for

public review, debate, and discussion.

The second recommendation is that we really and truly need to

provide better funding to enable these wildlife agencies to respond

to their ever-increasing workload. We have heard a lot about delays

which is a legitimate concern. We really need to get to the heart

of the problem, and that is inadequate staffing and funding of the

Agencies. In addition to reducing delay, this also ensures that the

Agencies have better ability to marshall the best available science.

There have been ESA funding increases in recent years and they

have been significant in terms of percentages. But if you look at

the rate of increase in the work load versus the rate of increase in

funding increases, they do not compare.

There is one example that I was able to pull out in a quick analysis. In the past 7 years, the number of formal consultations that

were handled annually by the Fish and Wildlife Service has grown

fivefold in the past 7 years, while the consultation budget has only

grown threefold.

The third recommendation is perhaps the most important thing

I can say today. Congress really needs to reject the new initiatives

we are seeing from the Administration to essentially weaken the

consultation process. The two most significant examples I can give

you are:

One, in January of this year, the Administration proposed a rulemaking for EPA that would allow that Agency to make its own ‘‘no

adverse effect’’ determinations with regard to pesticide registrations.
24

Similarly, just a week or two ago, the Administration proposed

to allow the Forest Service and three other land management agencies to make its ‘‘no adverse effect’’ determinations with respect to

logging under the National Fire Plan.

With respect to both of these kinds of movements and changes

in the ESA policy, the result is that the Fish and Wildlife Service

and NOAA Fisheries have reduced ability to protect listed species

from threats that are well known. They have reduced the ability

to insert their expertise into the process.

I thank you for the opportunity to testify. I would ask that my

complete testimony be included in the record in its entirety.

Senator CRAPO. Without objection, so ordered. Thank you, Mr.

Kostyack.

Ms. Horn?

STATEMENT OF PATRICIA HORN, VICE PRESIDENT AND

GENERAL COUNSEL, OGE ENOGEX INCORPORATED

Ms. HORN. Thank you, Chairman Crapo.

I appreciate the opportunity to be here in front of this committee.

I appreciate your leadership on this subcommittee and the committee. I especially appreciate Senator Inhofe on his work and commitment to Oklahoma.

I am Vice President of Enogex, a pipeline company in Oklahoma.

We are a natural gas pipeline and energy company. We do most of

our work in Oklahoma and Arkansas. We are the tenth largest

pipeline in the United States, so we do have a significant presence

in those two States.

The Company takes great pride and responsibility regarding environmental performance, accountability, and stewardship. Let me

say we seek to achieve a balance between our dual responsibility

to protect the environment and deliver reliable, safe, and reasonably priced services to our customers.

My testimony today will cover some of the experiences that the

company has experienced in the consulting process, both on a historical basis and a current basis. Basically let me tell you two background points.

The company is a natural gas pipeline company and it connects

natural gas wells that are completed and are capable of producing

in commercial quantities. The owners of the gas are trying to get

it to the market place—a time-sensitive interest by the owners in

getting natural gas to the community.

The issue that has come up is an endangered species called the

American Burying Beetle. I would like to talk a little bit about that

species. It was listed as endangered in 1989. At that time it was

only found in two States—Oklahoma and Rhode Island. In 2002, a

snapshot was taken, and it is located in seven States.

It is in 17 Oklahoma counties, in the Eastern part of the State,

and four counties in Arkansas. It is a large beetle. It is distinctive.

It is a habitat generalist. It feeds on carrion. It operates in two different seasons of the year which gets to be critical with our construction practices. It is active during May through September, and

inactive from October through April 1st. An interesting fact is that

it can travel two miles per night. It is a quite mobile little beetle.
25

I would like to talk about our historical clearance process. Informal consultation has actually been very favorable. Since 1989, continuing up to 2002, our consultations with the Fish and Wildlife

Service have resulted in favorable clearances, either no presence of

the beetle in the counties that I talked about, or no impact to the

beetle by our proposed construction.

Again, the timing that we are involved to do business is as follows. We go out and negotiate with producers who do not know

when they drill a well whether it is going to be commercial or not.

Once it is determined it is going to be producible in commercial

quantities, we have to get out there quickly, construct the pipeline,

and get that gas to market.

The history that I discussed with you has been important that

we knew predictability. We knew by going to the Agency we would

get a result. Some of the results came in as few as three or 4 days,

and we would get clearances. Other times it was up to 30 days.

So again, the history has been favorable. We were surprised in

2002 when there was a real change to the procedure that we were

required to go through, without a change in science, without a

change in any of the data that we could find, that would really justify the change that we were required to go through.

In July 2002, we were told by the Agency, ‘‘OK, if it is an inactive season, get out there, do your construction. There is no problem. If it is during the active season when we were going to be out,

then you could gate off the right-of-way.’’ Again, not a problem.

A complete reversal of that happened in October. In October we

went in with two clearances with two big producer wells, Chesapeake Energy and BP Amoco. We were trying to connect those two

wells. When we sought our clearances, the Agency determined, ‘‘We

do not have enough information. You are not going to be able to

connect this well until you go out and do a survey of whether the

beetle is present or not.’’

October is the inactive season. We could not do a survey until

May. We were stuck with having a well that needed to get gas to

market, but we could not connect until we did a survey that the

beetle would not be active. We began a very aggressive communication with the EPA, which was the permitting agency here, and with

the Fish and Wildlife Service. A stormwater permit was what we

were required to get.

We were trying to negotiate with them to enable us to do the

work for our customers and move forward. A lot of information was

requested. This was a daily process that we were involved in. We

were able to get the information in. We requested this in September 2002. We received a final biological opinion at the end of

January 2003.

We were held up in that process. By that time we got a biological

opinion—I am not going into all the problems of whether the biological opinion was justified or warranted; I am trying to set out

the timing for this committee to understand. Again, this biological

opinion is probably not warranted or justified, but we moved forward with trying to do that in this instance to try to connect the

wells and get the process done. We do not want to be bound by

that, when there is not the science, when there is not the balance

being looked at, before going forward.
26

I want to talk with you just a little bit about the effects of these

two wells. One well we lost to competition. We were not able to

connect that well. We lost a million dollars in revenues over the life

of the well. The producer lost $2 million by not being able to timely

connect the well. As you know, gas prices are volatile and based

upon not being able to connect that well during the time when

prices were rising, resulted in that loss. We were able to construct and connect the other well. Again, $2.5 million was lost in this delay and $150,000 to Enogex. Overall, we

are looking at $5 million as the economic ramifications of that one

instance that I wanted to point out for this committee.

You raised an interesting point. Are you worried about testifying

here, Ms. Horn, because of ramifications to you? I will tell you that

is one of the things that I have questioned. I want to have a good

relationship, and the company wants to have a good relationship

with these Agencies. I am here only to present the problem and to

get resolution. I am not here for any other purpose.

When we look at this and try to determine how we are going to

move forward, we think the Fish and Wildlife Service is casting the

net too widely. It is not based on sound science. There is no evidence at all that prior construction activity, 75 years of oil and gas

operations in this area of the State, has caused any detrimental effect to this species.

Until we have that information, and until we determine why

these species deteriorated, and why now it seems to be building

back, we cannot go in and make any justifiable decisions about

what should be done when the real intent here is to protect that

endangered species.

Again, we are looking for reasonable and predictable procedures.

We are looking for sound science. We are looking to strike a balance between preservation and business timing ramifications that

we have encountered here.

Senators we request your consideration in helping to resolve this

issue. I would ask that my complete testimony be included in the

record in its entirety.

Senator CRAPO. Without objection, so ordered. Thank you, Ms.

Horn.

Mr. Chilton?

STATEMENT OF JIM CHILTON, ARIZONA RANCHER, ON BEHALF OF THE PUBLIC LANDS COUNCIL AND THE NATIONAL

CATTLEMEN’S BEEF ASSOCIATION

Mr. CHILTON. Good morning, Chairman Crapo, and Senator

Inhofe.

My name is Jim Chilton. I am a rancher from Arivaca, Arizona.

My family started ranching in Arizona in 1888. My family first

started ranching in the Arivaca area in 1987. Arivaca, however,

goes back much further than that. Father Keno put the town on

the map in 1695 when it was the center for cattle grazing he

brought with him from Mexico.

My father, brother, and I run approximately 1,250 head of cattle

on 85,000 acres of very good land for a semiarid area: 48,000 acres

are Arizona school trust land, 35,000 acres are forest land, and

2,000 acres are private. We are among the 23,000 permittees who
27

manage livestock to harvest annually, renewed grass resource

grown on Federal lands.

I appreciate the opportunity to be here today on behalf of sheep

and cattle ranchers, and members of the Public Lands Council and

the National Cattlemen’s Beef Association. Every day is earth day

for the men and women of the cattle industry.

My story involves this. Federal land management agencies seriously misapplied the Endangered Species Act to the land and my

Federal allotments. This struck me as deeply unfair. I was not willing to accept the judgment of their actions without a fight.

I have spent countless hours and about $375,000 on lawyers, respected range scientists, bringing in soil experts, and assembled

the best site-specific data to correct faults and misleading information stuffed into my file by the Forest Service and put in my record.

After those expenditures, the record shows that my grazing allotment is in good to excellent condition, and is in an upward trend.

In 1997, the Forest Service removed 20 acres from my Montana

allotment. It is an Arizona allotment. It just happens to be called

Montana. They removed 20 acres from California Gulch. That is a

dry gulch that runs into Mexico. Our range is right on the Mexico

border. This was over a Mexican minnow, the Sonora chub.

In 1998, a Forest Service fish biologist asserted that grazing on

my Forest Service allotment was likely to adversely affect the minnow. The adverse call was astonishing, since there was no water

in the gulch nine to 10 months out of every year.

The June 1990 issue of the Southwest Naturalist described the

Sonora chub as abundant in Mexico where the chub dominates its

5,000 square-mile watershed. The fish was listed only because its

range barely extended into the United States and one canyon east

of my ranch. Any minnows that swim up across the international

border onto my ranch are truly wetbacks. They die when it dries

up.

In a similar vein, the Forest Service botanist concluded in 1998

that cattle grazing on the allotment was likely to adversely affect

the lesser long-nosed bat, a listed species, even though the bat had

never been on the allotment. Relying on his biologists, the Forest

Service supervisor signed a biological assessment in November

1998 asserting that grazing would harm the minnow and the bat.

Once the consultation process commenced, the Forest Service refused to allow me or my representatives to participate in the process. We were excluded even though we had applicant status. The

final biological opinion of the U.S. Fish and Wildlife Service in

April 1999 ignored my comments to the draft biological opinion.

The final biological opinion included an incidental take statement

with owners’ terms and conditions which regulated my grazing allotment. As a practical matter, the Fish and Wildlife Service and

the Forest Service added an estimated $25,000 to managing my allotment.

Fortunately, a Federal District judge in a court decision struck

down the biological opinion in 2000 as arbitrary, capricious, and

unlawful. The District Court concluded that the species had to be

present before the Fish and Wildlife Service could issue an incidental take statement and promulgate land use control and terms.
28

The Forest Service and the Fish and Wildlife Service cannot regulate grazing based on potential or suitable habitat.

Senator CRAPO. Mr. Chilton, we just had three stacked votes

called, which means we are going to be interrupted for a significant

amount of time. Senator Inhofe and I have just discussed this. We

are going to have to ask you to wrap your testimony quickly, and

have Mr. Snape wrap up his testimony as quickly as he can.

We are going to stay here for another 15 minutes. We are going

to have to wrap up the hearing. We apologize for that.

If you would not mind, Mr. Chilton, could you wrap up your testimony?

Mr. CHILTON. I traveled 3,000 miles to be here.

Senator CRAPO. We hear you. We will seriously consider your testimony. I have read your written testimony as well.

Mr. CHILTON. The bottom line is this. Not only did the Federal

judge declare the biological opinion arbitrary, capricious, and unlawful, but the Forest Service decided to redo the consultation process. The word went around. ‘‘Well, that was just one Federal

judge’s decision.’’

We appealed it to the Ninth Circuit Court of Appeals. The Arizona Cattlegrowers v. the United States Fish and Wildlife Service

and the Center for Biological Diversity. We won.

The Federal court said that the biological opinion was unlawful,

arbitrary, capricious, and the Fish and Wildlife Service lacks the

authority to impose terms, conditions, and land use regulations on

listed species on the land where the species are not found. In other

words, the species has to be there before the Fish and Wildlife

Service has the jurisdiction.

Affirming the lower court’s ruling, the Court determined that the

Federal agencies had the burden of proof to determine if the species existed on a grazing allotment.

Furthermore, the Court ruled that even if cattle grazing occurred

in the area where the listed species exist, the U.S. Fish and Wildlife Service must prove that cattle grazing will actually kill or injure the species.

I will conclude by saying that we need sound science. We need

good science. Science starts with disinterested evaluation of species

listing proposals by objective scientists using peer reviewed science.

We would like to see the ESA be amended to require the National

Academy of Sciences or some other reputable third party to delist

species or list species, and to review biological opinions and designated critical habitat. If we had had proper science, the Sonora

chub and the lesser long-nosed bat would never have been listed.

Thank you. I would ask that my complete testimony be included

in the record in its entirety.

Senator CRAPO. Without objection, so ordered. Thank you, Mr.

Chilton.

Mr. Snape, I apologize to you. I would ask you to be as brief as

you can. I promise you that we will thoroughly evaluate your testimony.

STATEMENT OF WILLIAM SNAPE, VICE PRESIDENT AND CHIEF

COUNSEL, DEFENDERS OF WILDLIFE

Mr. SNAPE. Thank you, Mr. Chairman, and Chairman Inhofe.
29

Thank you for allowing me to testify. I am testifying not only on

behalf of the Defenders of Wildlife, but also on behalf of the Endangered Species Coalition.

I am going to focus on the three points that I identified on the

cover page of my testimony. I flushed it out throughout the rest of

my written testimony, but in the interest of time I will just emphasize those three points. I will take them in turn.

The first conclusion that I made is that too frequently the focus

of consultation is on mere short-term survival of the species and

not recovery. Of course, recovery of the species is what I think we

all agree upon under the Endangered Species Act. We may agree

to disagree on many things. I imagine that we will. But we should

all agree that the point of the Endangered Species Act is to recover

these species and get them off the list. It is our opinion that frequently species are managed to hang on for survival, near the

brink of extinction, but long-term recovery measures are not taken.

The woodland caribou is an example of this.

Frequently, for many species, these consultations are not aimed

at recovery. I think that is a conflict that is frequently not resolved.

I think that results in litigation by both sides, or all sides, as the

case may be. That is point No. 1.

Point No. 2 is that species with critical habitats tend to fare

much better in consultation than species without such designations. I note here in my testimony the example of the pygmy owl

and the silvery minnow. Mr. Glen and I have butted heads in Federal court over the pygmy owl. I agree with a lot of what he said,

but certainly not all of it.

I will point out that the pygmy owl that a species that was listed

precisely because of habitat loss and habitat degradation. Therefore, I do not think it is too much to ask for Federal agencies like

the Army Corps to take every acre of its important habitat into account when they are permitting under provisions such as the Clean

Water Act. I do not think that is unreasonable.

With all due respect to Senator Dominici, I disagree a little bit

on that recent silvery minnow decision, I will point out only that

he must be a speed reader. It is not a short opinion. It is 57 pages

in the majority opinion, a 7-page concurrence, and a 35-page dissent. It is very complicated stuff.

But my bottom line with the case, and I have to be a little careful here because we are one of the litigants in that litigation, is

that the case is not about taking water out of people’s mouths, or

out of farmer’s fields, for the silvery minnow. That is not what the

case said and that is not what the case held. That may be in the

big picture of what he thinks is happening.

All that case said was that when the Federal Government is

going to renew and implement a Federal contract with irrigation

districts and with the city of Albuquerque that it must simply take

endangered species into account. All the Court was saying here was

that it was not convinced that the Bureau of Reclamation had no

discretion or that the Bureau of Reclamation could not do anything

to find any water to help the silvery minnow. The Court was asking the Bureau of Reclamation to ask these questions meaningfully.

So I disagree with the concept that critical habitat or consultation has created this crisis. This is a crisis in New Mexico that they
30

have known was coming down the pike and one that I think that

the Bureau of Reclamation purposely stuck its head in the sand

upon.

Last, the consultation process is of value not only to wildlife but

frequently to human beings. As John Kostyack said, it is a provision that asks Federal agencies only to look before they leap. Frequently, as Ms. Horn talked about, in the informal consultation

process, good mutually advantageous changes can occur. I do not

know much about the American burying beetle, so I cannot help

elucidate that particular conflict.

But frequently during the informal consultation process, negotiations and discussions occur where win-win solutions really are

hammered out. The same is true for formal consultation. There are

reasonable and prudent alternatives. The terms and conditions

that are frequently in biological opinions almost always seek to

avoid jeopardy and to find a way of moving forward.

In fact, I am going to end by picking up with the theme that Mr.

Chilton left upon—and again we may have to agree to disagree on

our ultimate conclusions—but we want the best science as well. I

think that sometimes there is conflict between the best available

science, which is the standard in the act, and peer reviewed National Academy-type science, which leads to the very delays that

permittees sometimes are complaining about. That is where the

conflict is frequently occurring.

As you look to ask the GAO to find more facts out about the consultation process, I would urge this subcommittee to look at the

case law that has occurred over the last decade with Section 7 consultation. I think you will find lawsuits by environmentalists and

industry. I think you will see environmentalists losing as much as

they are winning. You also will see industry losing as much as it

is winning.

I think what you are seeing is the type of common sense application of Section 7 that I think this subcommittee is searching for.

It is not always as efficient as someone like Mr. Chilton would like.

But I believe that it is a process that is working and one that we

need to get more information on to actually fine tune.

Thank you, Mr. Chairman. I would ask that my complete testimony be included in the record in its entirety.

Senator CRAPO. Without objection, so ordered. Thank you very

much, Mr. Snape.

I am going to give the rest of the time that we have for questioning to Senator Inhofe. I have a lot of questions. What I am

going to do is engage my questions in writing to this panel. I would

ask that you to respond in writing so that we can continue the dialog.

Without objection, so ordered.

Senator CRAPO. I apologize, but this series of votes which we

could not predict is going to take us for the rest of the morning.

When Senator Inhofe is done, we will conclude this hearing.

Senator CRAPO. Thank you, Mr. Chairman.

Mr. Chilton, I know when you commented that you came 3,000

miles to get here, I always feel badly. I happen to be a Republican,

and I thought that when the Republicans took over we would not
31

have this problem, but we do. When there are votes, there are

votes and we cannot help that.

Mr. Kostyack, you said that the consultation process has been

streamlined. What period of time are you talking about that

streamlining taking place?

Mr. KOSTYACK. Actually, I was not specifically referring to the

new measures that have happened in the past four or 5 years. As

Mr. Hill testified, on behalf of the GAO, there have been a number

of very specific policy initiatives taken by the two wildlife agencies

to streamline the process.

My point about streamlining was simply that when you have 97

percent of the overall consultations concluding informally without

a biological opinion, and without the formal consultation procedures, it is a streamlined process. If you look at the regulations

governing informal consultation, there is nothing in there that imposes any procedures on the Agencies, or that imposes any paperwork requirements.

My experience has been that these are very frequently resolved

with a single phone call and a single page letter confirming the

outcome.

Senator INHOFE. I was reading the quote that our chairman

made.

Who were you quoting at that time?

Senator CRAPO. The regional forester.

Senator INHOFE. OK. There is very little difference between informal and formal consultations. Is that essentially what it said?

Senator CRAPO. I think what he was saying was that the amount

of paperwork they were requiring was about equal.

Senator INHOFE. I see that during 2001, there were 46,227 informal consultation and 1,143 formal consultations. I would not want

that to be construed to take only the formal consultations as evidence that this streamlining has taken place. That is not your intention; is it?

Mr. KOSTYACK. No, not at all. My point is that obviously we need

follow up investigation. A large percentage of these informal consultations, from my experience, do not involve extensive paperwork.

There is a timeframe where neither Agency knows whether they

are truly going to go to formal consultation. When they are in the

information gathering mode, it may end up with an informal consultation required, and it may not. That point is the exact reason

why we object to the Administration’s new proposals for allowing

the action agencies to completely take over this process and cut the

wildlife agencies out.

That point is when you really need to get your arms around the

data, whatever data is available. There ought to be free sharing

among the key agencies.

Senator INHOFE. I would like to just ask very briefly, Mr. Glen,

Ms. Horn, and Mr. Chilton, do you agree that there has been an

improvement in this process? Are the trends going in the right direction or the wrong direction?

Mr. GLEN. To be honest, Senator, I think they are going in both

directions. I have seen very significant improvements in some
32

areas, but there are recent examples that trouble me as going in

the wrong direction.

An example in the wrong direction is the owl guidance I mentioned. I take issue with what Mr. Kostyack is saying about what

happens in informal consultation. I mentioned in my testimony the

Barton Springs salamander guidelines. Those were all resolved in

informal consultation. The deal was you could get out an informal

consultation if you agreed to develop no more than 15 percent of

your property and you had no other real available process for a

bunch of bureaucratic reasons to get out of that box. That is why

those were actually litigated and have been withdrawn.

Senator INHOFE. That is very interesting.

Mr. Chilton, do you have any comments to make as far as the

trends go?

Mr. CHILTON. The trends are to list more and more species using

inadequate scientific information. If peer reviewed science were

used, these species would not be listed. It is very important that

the listing process be emphasized and that peer reviewed science

be used, and that the Forest Service not make adverse calls when

species are not present. They create work for the U.S. Fish and

Wildlife Service. It is very inefficient. Yet, they tend to want to always want to make an adverse call.

Senator INHOFE. Ms. Horn, do you have any comments to make?

Ms. HORN. Senator, we have seen a trend starting toward this.

We are seeing additional species being considered and critical habitat, and Western Oklahoma being considered for prairie chickens.

We are seeing a trend for this increasing.

Senator INHOFE. In your testimony, you talk about the various

requirements that the Fish and Wildlife imposed on your company

to avoid jeopardizing the beetle. Can you describe some of those requirements just so we can have them in the record.

Ms. HORN. Yes, they are very much changing our construction

practices. The costs are very prohibitive. One of the things that we

now have to do is to employ a biologist to go out to every project

that we have and do an assessment for the presence or absence of

the beetle if it is in one of these counties.

We also have a lot of procedures about baiting any beetle that

could possibly be there again off the right-of-way. The construction

practices that we are having to follow cause more resource time

and energy delay. We are having to narrow the right-of-way that

we can use. We are having to stop using pesticides and different

practices that are not required environmentally, but are required

for the endangered species, to make sure that we are trying to

mitigate any possible potential impact to the beetle that may be

there.

Senator INHOFE. When you talk about biologists, are you talking

about your staff people or using outside biologists?

Ms. HORN. We are having to use an outside biologist because it

has to be someone who knows the history of the beetle, and also

someone who has a Section 10 permit.

Senator INHOFE. I have a number of questions that I am going

to submit for the record. I need to get very specific on the model

that you are using for this particular beetle. There is not time to

do it now.
33

Without objection, so ordered.

Senator INHOFE. Mr. Chilton, Ms. Horn, and Mr. Glen, we need

for you to submit for the record also constructive suggestions on

things that you could come up with that you think would help in

this situation.

As I think Mr. Kostyack and Mr. Snape both know, I had some

experience in the private sector for some 30 years and had some

similar problems. I am very sensitive to some of the things that

come to this committee. But I also think it is a good idea to come

up with constructive suggestions for improvements.

With that, I am going to go ahead and ask you to do that for the

record.

Without objection, so ordered.

Senator INHOFE. I am going to have to conclude this and adjourn

this meeting. I thank you very much for coming, and particularly,

Mr. Chilton, for coming as far as you did. I know there are some

very serious problems out in Arizona that I am sure are affecting

you right now. I appreciate your presence here.

We are adjourned.

[Whereupon, at 11:19 a.m., the subcommittee was adjourned, to

reconvene at the call of the chair.]

[Additional material submitted for the record follows:]

STATEMENT OF HON. MAX BAUCUS, U.S. SENATOR FROM THE STATE OF MONTANA

Thank you Mr. Chairman for calling this hearing today on the Section 7 consulting process under the Endangered Species Act. I am very interested in this

issue, as this process has a particularly significant impact on the ground in my

State of Montana, just as I know it does in yours, Mr. Chairman.

I was particularly interested in the preliminary report prepared by the General

Accounting Office, I believe at your request Mr. Chairman. I was struck by the

many similarities between what I have heard from my constituents and the findings

in that report.

For example, the GAO points out: ‘‘Even under normal workload conditions, the

consultation process can be difficult, in part because decisions about how species

will be protected must often be based on uncertain scientific information and on professional judgment.’’

‘‘Decisions resulting from consultations are sometimes challenged in lawsuits and

responding to the lawsuits can increase workload and delay activities. These problems were magnified in the late 1990’s after several fish species in the Pacific

Northwest were listed as threatened or endangered.’’

‘‘The new listings increased the Service’s consultation workload significantly in

Idaho, Washington and Oregon, and the Services were unable to respond quickly.’’

The Service’s issues are no less compelling and complex in Montana, and Montana

has a fraction of the U.S. Fish and Wildlife staff that Idaho, Washington and Oregon have to deal with its consultation workload. Montana has only 18 permanent

and 5 1-year term Fish and Wildlife Service ecological services employees. These

employees are responsible for millions of acres of Forest Service, Bureau of Land

Management and other Federal lands, and countless activities that occur across the

State on private and State lands in Montana.

Activities in Montana that could potentially or actually impact endangered,

threatened or other sensitive species include: timber harvests and hazardous fuels

reduction projects, irrigation development, coal mine development and expansion,

new or expanded coal and gas fired power plants, new hydroelectric generating facilities, highway projects, airport facilities, sewage treatment plants and cellular

tower placements. Many if not all of these activities could require some level of consultation with the Fish and Wildlife Service, to address or reduce impacts to fish

and wildlife. Lack of funds and staff for Montana hamstrings every other Federal

agency that depends upon opinions from the Fish and Wildlife Service.

There’s only so much that 18 full-time, permanent employees can do, in a State

the size of Montana, with as many endangered, threatened and other sensitive species that we have, including grizzly bears, wolves, lynx, bull trout, sage grouse, prai-
34

rie dogs, Yellowstone cutthroat trout, fluvial arctic grayling, sturgeon, and the list

goes on.

I’ve been told that good projects often never see the light of day in Montana, because the Fish and Wildlife Service just can’t get to them they’re struggling just to

keep up with a crippling backlog. That backlog is hurting the economy of my State

and rural, timber-dependent communities like Eureka, Thompson Falls, Columbia

Falls, Seeley Lake and dozens and dozens more because every Forest Service timber

sale requires some level of consultation with the Fish and Wildlife Service. County

Commissioners bend my ear about this problem every time I’m back in the State.

Not only can the Service do very little proactive work in Montana to work with

communities and landowners to recover species and prevent species from being listed the staff is struggling to chip away at their crippling backlog of consultation and

other work.

Mr. Chairman, Montana is a growing State, and we’re trying hard to continue to

grow our economy, to provide more and better paying jobs for the citizens of our

State. That means more projects, more improvements, more activity, and more potential for conflicts with fish and wildlife recovery goals.

As Montanans, we prize our first-class landscapes, our pristine rivers and

streams. We’re proud of our outdoor heritage and our abundant fish and wildlife.

We don’t believe that economic growth and protecting fish and wildlife and their

habitat are mutually exclusive goals.

But, a lack of resources has made it very hard for the Fish and Wildlife Service

to respond in a proactive way to Montanans’ needs or the needs of our fish and wildlife populations. That’s just not right.

I would like to ask the Chairman if he would include Montana in the ongoing

study on the consulting process required by Section 7 of the ESA. I believe Montana

merits this consideration, and if necessary I will request a separate study from GAO

of the situation in Montana. We’re getting close to a crisis here, and from what I

understand, it’s been hard on the staff on the ground they’ve been working long

hours, weekends, just to keep from getting buried. I’ve asked the leadership at the

Fish and Wildlife Service and the Department of Interior multiple times to address

this situation, and have received no response.

I’m sorry to sound like a broken record on this issue, Mr. Chairman, but I believe

very strongly that ensuring adequate resources for the Fish and Wildlife Service

would mean important Federal, State and private sector projects more forward more

quickly, more efficiently, and that potential problems are addressed up front. More

people and more resources means the Service can work more pro-actively with the

State and local land-owners on species conservation efforts, to avoid the need to list

a particular species, or to help landowners cope with the presence of an endangered

or threatened species on their property. For instance, as I’ve mentioned before, a

few Service employees did great things to improve habitat for bull trout by taking

the time to get to know local ranchers and citizens along the Blackfoot River in

Montana.

There may be other means to improve the section 7 consultation process, and I

know that’s why the Chairman called this hearing today. I too am interested about

any way we can make this process work more smoothly.

Mr. Chairman, I have worked hard in the past to propose common sense reforms

to the ESA, in order to help the Fish and Wildlife Service and other agencies implement the Act more effectively, and with greater sensitivity to the needs of private

landowners and States. I was proud of these efforts and the efforts of many of my

colleagues on this Committee. I know you are interested in pursuing similar common-sense reforms. But, no matter what may or may not happen with ESA reform

this Congress or in any other Congress, we have to adequately fund the Fish and

Wildlife Service, and we have to put adequate staff where it’s needed the most. I

can’t say this enough.

The investment would be small compared with the benefits to species and to the

citizens of my State we’d see healthier forests, improved species habitat, reduced

conflicts, continued economic growth, and fewer lawsuits.

Thank you again, Mr. Chairman for calling this important hearing and I look forward to working with you in the future on this and other issues important to my

constituents and the country.

STATEMENT OF HON. PETE V. DOMENICI, U.S. SENATOR FROM THE STATE OF NEW

MEXICO

Good morning. Thank you for inviting me to testify before the Subcommittee on

Fisheries, Wildlife and Water on Section 7 consultations required by the Endan-
35

gered Species Act. I appreciate the opportunity to provide comments on an issue

with which I have become all too familiar.

Today, I would like to discuss a recent Tenth Circuit Court of Appeals decision

by a three judge panel that essentially places the needs of a small endangered fish

called the silvery minnow over the needs of the people of my State. On June 12,

in a 2-to–1 decision, the Tenth Circuit ruled that the Federal Government can completely disregard its contractual commitments to provide much needed water to the

cities, farms, and Indian reservations in New Mexico and instead take that water

for the needs of the fish. The Court even found that the government can order the

importation of water from another basin for the silvery minnow in violation of New

Mexico State law that allows such transfers for municipal uses only.

This judicial decision means that local governments, farming communities, and

Indian tribes cannot reasonably expect a permanent water supply despite their longheld water contracts. If allowed to stand, this far-reaching interpretation of the Endangered Species Act will have a devastating impact in my State, which is already

suffering from years of drought. If the decision is used in future litigation-driven

efforts to expand the reach of the Act via the Courts—which seems likely—the impacts of the Tenth Circuit’s decision will register throughout the west and even the

Nation.

How did we get here? How can a Court interpret the ESA as preempting 75 years

of existing water law, all existing contracts, and the needs of a burgeoning western

population?

In the case of the silvery minnow, it began with the ESA’s section 7 consultation

process. As with many actions under the Act, the section 7 consultation process for

the minnow was triggered by litigation. In 1999, a group of environmentalists demanded that the courts direct the Bureau of Reclamation to consult with the Fish

and Wildlife Service over the Bureau’s water and river operations on the Middle Rio

Grande.

Until that time, the Federal agencies had not consulted on the Bureau’s operations because the Bureau was obligated to make water deliveries. The water in the

Middle Rio Grande, like most of the water in the west, is completely accounted for

pursuant to water contracts, interstate compacts, and perfected water rights under

State law. As the Subcommittee is aware, one of the key issues with section 7 consultations is whether or not the agency has discretion or control over the action at

issue. In my opinion, because the Bureau had no discretion to alter these water deliveries, a section 7 consultation was not appropriate and should not have been ordered.

Mr. Chairman, once the Fish and Wildlife Service produced a Biological Opinion

in 2001, the litigation that began over a section 7 consultation was leveraged into

a legal challenge to the Biological Opinion. The environmentalists argued that the

Bureau failed to consult on the full range of its alleged discretionary authority—

even though the Bureau believed it had no discretion to take contractually obligated

water or the water resulting from interbasin transfers. The section 7 consultation

litigation was next transformed into a court fight over an injunction sought by the

environmental groups. The case resulted in the district judge’s determination that

the Bureau has the discretion, under the ESA, to take New Mexico’s water.

The Tenth Circuit, in a divided opinion, upheld the district court’s determination

of the Bureau’s broad discretion. The dissent, however, rightly characterized the

ESA as a Frankenstein. Despite good intentions, this law has become a monster.

As a Senator who voted to enact the ESA in 1973, I certainly do not recognize the

statute after thirty years of expansive interpretation by the courts. Did any of us

who voted for the ESA intend for it to apply retroactively? I did not. Did any of us

believe the Act would, through the courts, achieve super-status to the point of abrogating pre-existing contracts? I did not. It was never my intention, when I voted

for the ESA, that the statute would violate previous Federal commitments over

these water resources.

The ESA must be applied prospectively. We cannot—particularly in the west—

exist in a world where the statute is allowed to undermine the water contracts,

interstate compacts, water rights perfected under State law, and even treaties which

have long governed a river’s management.

Now, 4 years after the section 7 consultation litigation was brought, millions of

dollars have been spent and the court case drags on. New Mexico is now in the position where it must request a rehearing en banc to the Tenth Circuit and, if necessary, take the fight all the way to the Supreme Court. In order to counter the

potential devastating impact of the Tenth Circuit’s decision, I am currently working

with other members in the New Mexico delegation on legislation to provide a balanced approach—one that addresses both the needs of the people of my State and

the needs of the silvery minnow.
36

Mr. Chairman, the ESA, long-driven by litigation, is in dire need of reform. The

section 7 consultation process, as examined by the Subcommittee today, seems to

me a good place to start. Above all, certainty must be imposed on the process. Not

only is certainty the bedrock of western water law, it is also critical for listed species. I believe we can amend the law to protect struggling species while, at the same

time, allowing people access to the vital resources they need. I stand ready to assist

the Subcommittee in any attempt to achieve comprehensive reform of the Act.

Again, thank you for having me here today. I appreciate the opportunity to testify

on this important matter.

STATEMENT OF BARRY T. HILL, DIRECTOR NATURAL RESOURCES AND ENVIRONMENT, GENERAL ACCOUNTING OFFICE

ENDANGERED SPECIES: DESPITE CONSULTATION IMPROVEMENT EFFORTS IN THE PACIFIC

Northwest, Concerns Persist about the Process

Why GAO Did This Study

The Endangered Species Act requires all Federal agencies to consult with the Fish

and Wildlife Service or the National Marine Fisheries Service (the Services) to determine the effect that the activities they conduct, permit, or fund may have on

threatened or endangered species. In particular, Federal agencies (action agencies)

must ensure that their activities do not jeopardize the continued existence of any

listed species or adversely modify critical habitat. After several fish species in the

Pacific Northwest were listed in the late 1990’s, the Services’ consultation workload

increased significantly in Idaho, Oregon, and Washington, and the Services were unable to keep up with requests for consultation. As a result, many proposed activities

were delayed for months or years. Even under normal workload conditions, the consultation process can be difficult, in part because decisions about how species will

be protected must often be made with uncertain scientific information using professional judgment.

This testimony is based on ongoing work requested by the Chairman of the Senate

Subcommittee on Fisheries, Wildlife, and Water. It addresses (1) efforts to improve

the consultation process, by the Services and by four action agencies in Idaho, Oregon, and Washington; and (2) concerns with the process expressed by officials at

the Services and action agencies, and by nonFederal parties. www.gao.gov/cgi-bin/

getrpt?GAO–03–949T.

What GAO Found

The Services and four action agencies in the Pacific Northwest have taken a number of actions to improve the efficiency of the consultation process. For example, the

Services have increased their staff levels in some offices, and the National Marine

Fisheries Service has opened additional offices to facilitate consultations at remote

locations. The Services have also increased their use of consultations that cover multiple activities that are similar in nature, thus minimizing the need to consult on

individual activities. Another improvement, called streamlining, uses interagency

teams that work together on multiple activities; these teams work to improve communication, reach agreement on the potential effects of activities early in the process, and resolve problems that arise to ensure that proposed activities will not negatively affect listed species. In addition, the Services and the action agencies have

worked, both individually and together, to develop and refine additional guidance

and training for staff conducting consultations.

Despite the improvement efforts, Service and action-agency officials, as well as

nonFederal parties, continue to have concerns with the consultation process. A key

problem that lengthens the consultation process is the lack of a shared understanding between the Services and action agencies on what constitutes a complete

biological assessment. According to Service and action-agency officials, this can lead

the Services to make multiple requests for information from the action agencies

about an activity until the Services are confident that a biological assessment adequately addresses the effects of the proposed activity on the species. Multiple requests for information are also sometimes due to Service biologists’ being unfamiliar

with Action–Agency programs, partly owing to high staff turnover. In addition, Action–Agency officials noted that the Services and the action agencies attempt to ensure that biological assessments are ‘‘bullet proof’’ by making them so comprehensive that they will be immune to any legal challenges. Action–Agency officials also

expressed a concern that Service and action-agency roles are not clearly defined. For

example, according to action-agency officials, Service officials sometimes make judgments about whether an activity should occur or how it should occur, rather than
37

just judging its potential effects on species. In response, Service officials commented

that the purpose of the consultation process is to discuss the potential effects of proposed actions early in the planning process and to explore options that will avoid

jeopardy. Service and action-agency officials also identified a lack of sufficient resources-particularly at the Services-as a key concern, stating that staff-level increases have not kept pace with their growing workloads. Among the nonFederal

parties, permit applicants expressed concerns about the time and expense required

for the consultation process. Environmental groups said land management decisionmaking processes, such as consultation, are often closed to them until after final decisions are made, and that the only way they can make their voices heard is through

administrative appeals and lawsuits.

United States General Accounting Office

Mr. Chairman and Members of the Subcommittee:

I am pleased to be here today to discuss preliminary results from our ongoing review of the consultation process required by the Federal Endangered Species Act,

particularly as applied in the Pacific Northwest. Under the act, before Federal agencies may conduct, permit, or fund activities in areas where species listed as threatened or endangered may be present, the agencies must consult with the Department

of the Interior’s Fish and Wildlife Service or the Department of Commerce’s National Marine Fisheries Service (the Services). Such consultation is intended to

allow Federal agencies to ensure that the activities are not likely to jeopardize the

species’ continued existence or adversely modify their critical habitat. Consultation

has particularly significant effects in the Pacific Northwest because numerous species there are threatened with extinction, including the Northern spotted owl, various salmon species, and the bull trout.

Federal activities that agencies may need to consult about in the Pacific Northwest range from operating hydroelectric dams on the Columbia River-which provide

about 60 percent of the Federal electricitygenerating capacity in the region-to harvesting timber, to dredging navigation channels. Responsible agencies-or ‘‘action

agencies‘‘-include the Department of the Interior’s Bureaus of Land Management

and Reclamation, the Department of Agriculture’s Forest Service, and the Army

Corps of Engineers, to name a few. Typical nonFederal activities that these agencies

permit, which may also require consultation, include grazing, timber harvesting,

and mining on Federal lands, and building structures such as piers and docks on

private property. NonFederal parties, such as private landowners, developers, or

local governments, typically conduct these permitted activities.

If an action agency determines that an activity may affect a listed species, the

agency may initiate either an informal or a formal consultation with the appropriate

Service. In an informal consultation-which could be as simple as a brief telephone

call-the Service and action agency may agree that the activity is unlikely to negatively affect the species and that formal consultation is not necessary. On the other

hand, if the Service or agency initially believes or finds after informal consultation

that the activity may have negative effects, the action agency initiates formal consultation by submitting a biological assessment of the activity and its potential effects. If negative effects appear likely and formal consultation is required, the Service has 135 days to formally consult and document, in a biological opinion, whether

the activity could jeopardize the species’ continued existence and what actions, if

any, are required to mitigate those effects. Avoiding jeopardy caused by federally

conducted or approved activities is important to achieving the overall purpose of the

Endangered Species Act, which is to conserve species that are at risk of extinction.

Even under normal workload conditions, the consultation process can be difficult,

in part because decisions about how species will be protected must often be based

on uncertain scientific information and on professional judgment. Decisions resulting from consultations are sometimes challenged in lawsuits, and responding to the

lawsuits can increase workload and delay activities. These problems were magnified

in the late 1990’s, after several fish species in the Pacific Northwest were listed as

threatened or endangered. The new listings increased the Services’ consultation

workload significantly in Idaho, Washington, and Oregon, and the Services were unable to respond quickly. As a result, many activities that Federal agencies proposed

were delayed for months or years. Action agencies and others criticized the consultations as unduly burdensome.

Our testimony, which is based on ongoing work that you requested, addresses (1)

key efforts to improve the consultation process in the Pacific Northwest and (2) concerns about the consultation process identified by officials from the Services and

other Federal agencies, and by nonFederal parties, including environmental advocacy groups. To gather their views on consultations, we administered a structured

questionnaire to 61 officials with the Services and the Army Corps of Engineers, the

Bureaus of Land Management and Reclamation, and the Forest Service in Idaho,
38

Oregon, and Washington. We conducted 133 additional interviews with agency officials in headquarters and field offices and with nonFederal parties; we also visited

various locations in the three States. Prior to issuing this testimony, we shared a

preliminary draft with the agencies we reviewed and incorporated their comments

as appropriate. We conducted our work in accordance with generally accepted government auditing standards. Our final report, which we anticipate issuing in late

August 2003, will present additional information about the adequacy of agency data

bases that are used to maintain key information on individual consultations. Our

report will also provide Service and action-agency perspectives on improvements

made to the consultation process.

SUMMARY

Efforts by the Services and action agencies to improve the consultation process

have focused on increasing the number of staff that conduct consultations, improving the efficiency of the process, and providing additional training and guidance for

consultation staff and nonFederal parties. For example, both of the Services have

increased their staff levels in certain offices, and the National Marine Fisheries

Service has established new offices, among other things, to facilitate consultations

at remote locations. To improve efficiency, the Services have increased their use of

consultations that address multiple activities, minimizing the need to consult on individual ones. For example, one consultation in western Oregon covers ten types of

routine activities in three national forests and two Bureau of Land Management districts. Another improvement, called streamlining, uses interagency teams for consultations to improve communications among the Services and action agencies on

multiple activities, get agreement on the potential effects of an activity faster, and

help resolve problems that arise. Finally, the Services and the action agencies have

worked, both individually and together, to develop and refine additional guidance

and training for staff conducting consultations. Interagency efforts include refresher

training on the streamlining process and development of Web sites that provide

staff with preparation instructions for, and examples of, biological assessments and

other key consultation documents.

Despite the improvement efforts, Service and action-agency officials, as well as

nonFederal parties, continue to have concerns with the consultation process. A key

problem that lengthens the consultation process is that the Services and action

agencies do not always share an understanding of what constitutes a complete biological assessment. According to Service and action-agency officials, this can lead to

multiple requests by the Services for information from the action agencies about an

activity until the Service is satisfied that a biological assessment adequately assesses the effects of a proposed activity on listed species. Multiple requests for information also sometimes stem from Service biologists’ unfamiliarity with action-agency programs, partly owing to high staff turnover. In addition, action-agency officials

noted that the Services and the action agencies attempt to ensure that biological

assessments are ‘‘bullet proof’’ by making them so comprehensive that they will be

immune to any legal challenges. Action-agency officials also expressed a concern

that Service and action-agency roles are not clearly defined. For example, according

to action-agency officials, Service officials sometimes make judgments about whether

an activity should occur or how it should occur, rather than simply judging its potential effects on species. In response, Service officials commented that the purpose

of the consultation process is to discuss the potential effects of proposed actions

early in the planning process and to explore options that will avoid jeopardy. Service

and action-agency officials also identified a lack of sufficient resources-particularly

at the Services-as a key concern, stating that staffing increases have not kept pace

with their growing workloads. Among the nonFederal parties, permit applicants expressed concerns about the time and expense required for the consultation process.

For example, the average permit processing time for 19 permits issued in 2002 for

building private docks or for similar activities on Lake Washington (near Seattle)

was about 2 years and added about $10,000 to applicants’ costs. Environmental

groups said land management decisionmaking processes, such as consultation, are

often closed to them until after final decisions are made, and that the only way to

make their voices heard is through administrative appeals and lawsuits.

Background

The Endangered Species Act prohibits the ‘‘taking’’ of any threatened or endangered species of animal and defines ‘‘take’’ as to harass, harm, pursue, shoot, wound,

kill, trap, hunt, capture, or collect, or to attempt to engage in any such conduct. Federal agencies must comply with prohibitions against taking species listed as threatened or endangered and must consult with the Services to determine the effect, if

any, that their activities may have on listed species. In particular, Federal agencies
39

1 Anadromous species live part of their lives in fresh water and part in saltwater.

must ensure that their activities do not jeopardize the continued existence of any

listed species, or destroy or adversely modify habitat designated as critical for those

species. If any proposed activities will jeopardize a species or adversely modify its

critical habitat, the Services will identify alternatives to those activities.

The Fish and Wildlife Service and the National Marine Fisheries Service together

have responsibility for implementing the Endangered Species Act. The Fish and

Wildlife Service is responsible for the protection of terrestrial, or land-dwelling, and

freshwater animal and plant species. Endangered or threatened terrestrial animals

in the Pacific Northwest include the Northern spotted owl, the grizzly bear, and the

Canada lynx. The Service also manages land in national wildlife refuges and, like

other land-managing agencies, must consult with its own biologists in determining

the effect of its activities on listed species. The National Marine Fisheries Service

is responsible for the protection of oceandwelling species and anadromous species,

such as salmon.1

Several Federal agencies manage land in the Pacific Northwest or conduct activities there, many of which require consultation under the Endangered Species Act. • The Army Corps of Engineers (Corps) supports navigation of the nation’s waterways by maintaining and improving channels. In Idaho, Oregon, and Washington, the Corps also operates 12 dams and reservoirs that provide flood control,

generate hydroelectric power, protect fish and wildlife, and support recreation and

other activities. In addition, the Corps issues permits to parties who wish to conduct

activities in lakes, streams, and wetlands; these activities include dredging or filling

waterways, and building structures ranging from docks and driveways to housing

developments. • The Bureau of Land Management manages about 28 million acres of Federal

land in Idaho, Oregon, and Washington. The agency issues permits for and manages

such activities as livestock grazing, recreation, mining, and timber harvests; many

of these activities require consultation. • The Bureau of Reclamation’s core mission is to deliver water and hydroelectric

power throughout 17 western States. In the Pacific Northwest, it operates and

maintains 28 dams and administers 54 reservoirs. Its primary activities that require

consultation are dam construction, operation, and maintenance. • The Forest Service manages about 45 million acres of national forest in Idaho,

Oregon, and Washington. The agency issues permits for, manages, and must consult

on activities such as timber harvesting; recreation; livestock grazing; mining; environmental restoration; and rights of way for road construction, ski areas, and access

to private land.

Improvement Efforts Have Focused on Staffing Resources, Efficiency, Guidance, and

Training

The Services and action agencies have increased the number of staff that conduct

consultations. Specifically, the Fish and Wildlife Service increased the number of biologists in some of its offices in order to address their growing consultation workload. The National Marine Fisheries Service also increased staff levels at several offices, and opened several new field offices in 2001 to facilitate consultations at remote locations. Previously, the geographic distance between the locations made consultations difficult. In addition, some action agencies have found it useful to provide

funding for one or more Service biologist positions to specifically work on, or give

priority to, that action agency’s consultations. For example, the Corps’ Seattle district provides funding for a Fish and Wildlife Service biologist position. The district

gives the Service a list of upcoming activities, and the Corps-funded Service biologist works on consultations for those activities.

To improve the efficiency of the consultation process, the Services have increased

their use of consultations that address multiple activities, minimizing the need to

consult on individual activities. These multipleactivity consultations, often referred

to as programmatics, sometimes allow action agencies to approve activities that

meet predetermined criteria without additional consultation. Programmatics may

cover repetitive activities with similar effects, such as road and recreation trail

maintenance, or a variety of activities affecting a particular area or group of species,

such as forest fuels treatment, grazing, and watershed restoration projects conducted in bull trout habitat. Multiple-activity consultations may also cover these

types of activities in a specific region, as in three western Oregon national forests

and two Bureau of Land Management districts, where one consultation covers ten

categories of routine activities.

Another improvement effort, streamlining, is intended to reduce the time spent

on consultations by facilitating early planning, up-front coordination, and commu-
40

nication between the Services and action agencies. Under the streamlined process,

officials work on interagency teams that meet regularly to discuss upcoming actionagency activities and review draft biological assessments. The belief is that with improved communication, more trust will develop between the Services and action

agencies, and problems will be easier to resolve when they arise. Accordingly, for

formal consultations that go through streamlining, the Services, the Bureau of Land

Management, and the Forest Service set a goal of reducing the time allotted from

the current legal requirement of 135 days to 60 days. Streamlining is currently used

for most Bureau of Land Management and Forest Service activities in the Pacific

Northwest. In addition, the Bureau of Land Management and the Forest Service are

involved in a pilot process in some locations in Idaho and Oregon. In this process,

the action agencies have been delegated the authority to certify that certain activities meeting pre-established criteria are unlikely to adversely affect listed species

and can therefore proceed.

Both the Services and the action agencies have provided additional training and

guidance to improve understanding of the consultation process and one another’s

roles and authority, including the following.

The Services have developed refresher training on the consultation process, have

prepared guidance on how to prepare a high-quality biological assessment, and provide continuing professional education on evaluating the biological effects of proposed activities.

• The Services, the Bureau of Land Management, and the Forest Service have

developed an interagency Web site with links to the Endangered Species Act and

its regulations and to guidance on streamlined consultation procedures. They plan

to add examples of biological assessments and other documents as guidance for

teams using streamlined procedures.

• The National Marine Fisheries Service currently provides links on its Web site

to biological opinions and to a tracking system that shows the status of consultations. The Service also plans to launch a separate Web site this year to provide

guidance to action-agency biologists and others on preparing biological assessments.

• The Army Corps of Engineers has developed Web sites to inform citizens about

the permitting and consultation processes. These Web sites include instructions on

applying for permits for activities such as pier and dock construction.

Several action-agency officials told us that they also sometimes use site visits to

educate stakeholders (e.g., the Services, the action agency, and interested nonFederal parties) about a proposed activity. An Army Corps official, for example, said

the Corps has taken Service biologists out on dredges to increase the biologists’ understanding of dredging operations and their likely effect on species. In another example, a Forest Service biologist convened onsite meetings of all the stakeholders

in a consultation about the proposed development plan for a ski area in Washington.

These stakeholders (representatives of the Forest Service, the Fish and Wildlife

Service, the ski area, the State, and a local hunting group) walked through the proposed development areas and discussed ways to prevent the development from adversely affecting the species involved. This onsite collaboration, according to the Forest Service biologist, gained agreement by all stakeholders on how the development

could avoid adversely affecting listed species. It also may have forestalled litigation

by the State and the local hunting group, which had previously opposed the proposed development plan.

Despite Improvement Efforts, Concerns Remain about Consultations

Despite ongoing efforts to improve consultations, Service and Action–Agency officials continue to have concerns about the consultation process. The absence of

shared criteria for complete biological assessments, Service biologists’ lack of knowledge about action-agency programs, and fear of litigation were frequently mentioned

by Service and action-agency officials as significant concerns. In addition, according

to some Action–Agency officials, Service and action-agency roles are not clearly defined, which leads to Service officials sometimes recommending changes to agencies’

proposed activities beyond what action agencies think is necessary to minimize the

negative effect on species. In response, Service officials commented that the purpose

of the consultation process is to discuss the potential effects of proposed actions

early in the planning process and to explore options that will avoid jeopardy. Service

and action-agency officials were also concerned about a lack of sufficient resources,

particularly at the Services. Among nonFederal parties, concerns were expressed

about the time and cost required for consultations and about a perceived lack of

openness and effectiveness in the consultation process.
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Officials Do Not Have a Common Understanding of the Information Needed in Biological Assessments

A key problem that lengthens the consultation process is that the Services and

action agencies do not always have an understanding of what constitutes a complete

biological assessment-that is, one that provides sufficient scientific information to

determine an activity’s effect on a species. Because of this lack of common criteria,

and because complete scientific information is rarely available for listed species, officials often rely on their judgment and experience to determine the likely effect of

activities on species. Some Service officials we interviewed said that they often do

not receive sufficiently detailed information from the agencies in a biological assessment about the activity so that they can independently assess its likely effects on

the species. They therefore request additional information and do so until they are

satisfied that the assessment adequately addresses the effects of the proposed activity on the species. On the other hand, some action-agency officials said they believe

that the Services require much more detailed information than is necessary to determine whether they agree with the action agency’s assessment of the activity’s effects. Many Service and action-agency officials said that these requests for additional information and associated discussions can delay the consultation process and

cause frustration.

Disagreements over the detail needed in biological assessments are exacerbated

because many officials perceive the consultation process as personality-driven. Specifically, Service and action-agency officials said that sometimes officials on both

sides of the issue take unyielding positions on consultations, either on behalf of the

activity or the listed species, and they waste time arguing. In these instances, the

process takes much longer to complete than when participants are able to compromise. In addition, action-agency officials said some Service biologists-particularly

new ones-can be overly zealous in their efforts to protect species and may be unlikely to compromise; at the same time, action agencies do not always involve the

Services early enough in consultation, making the process difficult. In other cases,

officials told us that some individuals that are key to the consultation process lack

the interpersonal or negotiation skills necessary to resolve conflicts that arise in the

process. One action-agency official noted, ‘‘there is no room in the process for zealots-on either side.’’

National Marine Fisheries Service officials recognize the need for better guidance

regarding the level of detail required in biological assessments and are developing

training for their biologists, along with a Web-based template and checklist for action agencies. Service officials told us that they believe deadlocked disagreements

over biological assessments are less common than they used to be, and when they

do occur it is sometimes because issues are not elevated to management for resolution when they should be. Furthermore, they believe that increased staff, planning,

and field offices have helped alleviate these issues.

Service Biologists Are Unfamiliar with Action–Agency Programs

Service and action-agency officials agreed that Service biologists are sometimes

unfamiliar with action-agency programs and activities and that the time required

for Service biologists to learn about activities and how they may negatively affect

species can lengthen the consultation process. High turnover among Service biologists is one factor that contributes to their lack of familiarity with action-agency activities. In one example, Service biologists did not understand the process of mining

for gold in streams until they were given a field demonstration. Allowing the Service

biologists to see the mining equipment in operation helped facilitate the consultation process because the biologists did not have to ask numerous clarifying questions

to understand the activity’s potential impact. Although site visits can help familiarize biologists with action-agency activities, because of resource limitations, Service and action-agency officials said they are unable to make site visits a routine part

of consultation.

Service and Action–Agency Officials Are Concerned about Litigation

Service and action-agency officials alike cited the fear of litigation as a significant

concern that lengthens the consultation process. Since 1999, the Services have been

affected by at least 19 lawsuits involving consultations in courts with jurisdiction

in Idaho, Oregon, and Washington. For example, according to a Forest Service official in Oregon, at least two dozen timber projects have awaited consultation for 2

years because a court ruled that the National Marine Fisheries Service used insufficient scientific data to support a determination that natural vegetation growth
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2Pacific Coast Federation of Fishermen’s Associations v. National Marine Fisheries Service,

265 F.3d 1028 (9th Cir. 2001).

would adequately mitigate the effects of logging.2 This decision invalidated more

than 20 existing biological opinions for timber harvests, which will await formal consultation until the National Marine Fisheries Service implements a strategy for addressing the court’s concerns. In addition, both Services must respond to notices of

lawsuits and agreements that settle lawsuits.

According to action-agency officials, such court rulings have led Service officials

to apply the same level of scrutiny to all activities, regardless of the level of risk

they pose to listed species. Action-agency officials believe that the Services attempt

to ensure that all biological assessments are ‘‘bullet proof‘‘-or so comprehensive that

they are impervious to legal challenge-and this adds to the time and cost of consultation. As a result, Service officials apply similar scrutiny to activities that are

less likely to have long-term negative impacts, such as trail maintenance or habitat

restoration, as they do to activities with much higher potential for long-term negative effects, such as mining. Some action-agency officials recognized that this fear

of litigation similarly causes them to put more details in their biological assessments than they otherwise would. Furthermore, Interior officials expressed concerns

that existing litigation, and the risk of future litigation, may be interfering with the

consultation process and diverting to litigation a disproportionate amount of the

funds intended for Endangered Species Act implementation.

Service and Action–Agency Roles in Consultations Are Not Clearly Defined

According to action-agency officials, Service and action-agency roles are not clearly

defined. Some action-agency officials expressed concern that Service biologists sometimes make judgments about whether an activity should occur, rather than just its

potential effects on species. Action–Agency officials told us they believe decisions

about activities’ design should be left to the action agencies. The Department of the

Interior’s Assistant Secretary for Water and Science recently discussed this concern

in an address to Bureau of Reclamation employees. The Assistant Secretary asserted that it is the Bureau’s responsibility to determine how its proposed activities

should be designed and the Services’ responsibility to issue biological opinions on

those activities’ potential impact on species. He emphasized that the Bureau should

not include components in its proposed activities that it believes are not necessary

for avoiding negative effects to listed species, simply because the Services want

those components included. The Bureau’s Commissioner also issued a policy statement reiterating the Assistant Secretary’s position that it is the Bureau’s responsibility-not that of the Services-to define its proposed activities and to provide a biological assessment that is based on the best available science. The policy states that

the Bureau should rely on the Services to respond with a scientifically sound biological opinion-which may include a determination that an activity will adversely affect

a listed species. In that event, Bureau and Service officials would work together to

develop acceptable measures for mitigating the activity’s detrimental effects. In commenting on a draft of this statement, Service officials said that the purpose of the

consultation process is to discuss the potential effects of proposed actions early in

the planning process and to explore options that will avoid jeopardy.

Insufficient Staffing Resources Are a Key Concern

Service and action-agency officials identified a lack of sufficient resources-particularly at the Services-as a key concern that limits timely completion of consultations.

Service and action-agency officials are concerned that although staff levels have increased in recent years, staffing has not kept pace with their growing workloads.

For example, data from the Fish and Wildlife Service’s office in Portland, Oregon,

show that while the office’s budget for consultations increased approximately 40 percent between fiscal years 1998 and 2002, the number of consultations for which each

biologist was responsible increased about 90 percent. One consequence of this disparity between resources and workload is that the Services cannot always meet regulatory timeframes. Furthermore, officials said that there is an upward trend in the

types of activities that require consultation. For example, as a result of a court ruling in the mid–1990’s, the Bureau of Land Management and the Forest Service

must consult with the Services on their land management plans. This ruling created

a substantial new workload for the agencies and the Services, and they are still

working to complete the consultations in some areas.
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Some NonFederal Parties Are Concerned about the Length and Cost of the Permitting Process

NonFederal parties wishing to conduct activities requiring consultation because

they involve Federal permits or licenses also expressed concerns about the time and

cost required for the process. When nonFederal parties apply to an action agency

for a permit or license, they must go through reviews required by the action agency

for approval. These reviews can include consultation. Action agencies either prepare

(sometimes at the applicant’s expense), or ensure that applicants have arranged for

the preparation of, a biological assessment; the agency then reviews the biological

assessment and requests additional information as needed. According to a Service

official, economic impacts and the scope of the proposed activity are considered during consultation, in addition to whether or not the activity will jeopardize listed species or adversely modify critical habitat.

In one example, a private landowner waited about 3 years-including time for Forest Service permit review and consultation-related activities-for a permit that would

allow him to cross Forest Service land to harvest his privately owned timber stand.

To cross the Forest Service land, the landowner had to improve an old logging road

and construct about half a mile of new road, which he did himself, work valued at

about $9,000; he also reimbursed the Forest Service about $6,800 for the costs to

prepare a biological assessment for the consultation. Further, according to the landowner, when he was finally able to harvest the timber its market value had dropped

by one-third to one-half from its anticipated value. The Forest Service biologist who

worked on this consultation noted that it was affected by numerous complicating

factors, including a court decision barring the Fish and Wildlife Service from issuing

biological opinions on activities affecting spotted owls and a new policy for dealing

with private landowners.

In another example, the average time for the Corps to process 19 permits issued

in 2002 for building private docks or for similar activities on Lake Washington (near

Seattle) was about 2 years. This time included the consultation time spent by each

Service, as well as the time spent by the action agency to help the permit applicant

complete a biological assessment and meet other Corps requirements for the permit.

For these permits, consultation added about $10,000 to nonFederal parties’ costs.

Officials from the Services noted that these types of delays were not uncommon

when bull trout and salmon were first listed because so many activities, many of

them in urban areas, were affected. A National Marine Fisheries Service official

stated that these listings created an ‘‘automatic backlog’’ of consultations that overwhelmed them. A Fish and Wildlife Service official also noted that the delays were

at least partly due to their unfamiliarity with the effects that building docks could

have on bull trout. The bull trout was the first aquatic species that they had to deal

with in the Pacific Northwest.

Environmental Groups Are Concerned that Consultations Lack Openness and Effectiveness

Environmental advocacy groups also expressed concerns with the consultation

process. Representatives of two environmental advocacy groups said land management decisionmaking processes, such as consultation, are often closed to them until

after final decisions are made, and that the only way they can make their voices

heard is through administrative appeals and lawsuits. One representative expressed

concern that the streamlining process lacks transparency and compromises the

Services’ role of scrutinizing action-agency activities. Service officials noted that the

Endangered Species Act does not require public participation or public comment in

the consultation process. One environmental group’s representative expressed concern that the Services do not have a comprehensive view of a species’ status across

its range and therefore are limited in their ability to determine the potential effects

of proposed activities. For example, the bull trout may or may not be significantly

affected by an activity in one stream, but unless the Services know the trout’s status

across its range, they cannot make informed decisions about how an activity will

affect the species as a whole.

Mr. Chairman, this completes my prepared statement. I would be happy to respond to any questions that you or Members of the Subcommittee may have.

STATEMENT OF ALAN GLEN, AUSTIN, TX

Good morning Mr. Chairman and Members. My name is Alan Glen, and I am a

lawyer from Austin, Texas. I am particularly interested in the topic of interagency

consultations under the Endangered Species Act (‘‘ESA’’) and am hopeful that the
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interest and efforts of this Subcommittee will help to enhance the consultation process and make it a more efficient tool for species conservation.

I. Introduction

My testifying for increased efficiency in the ESA consultation program is a little

bit like a tax lawyer testifying for streamlining the tax code. A significant proportion of my work involves assisting clients in navigating the complex and acronymrich ESA consultation process. Our firm represents clients, ranging from developers,

to utility companies and State and local governments, across the Nation in ESA

matters. My experience with consultations under the ESA is firsthand, having handled dozens of consultations involving a wide variety of activities and species.

Through this experience, I have seen significant conservation and economic benefits

derived from resolution of endangered species conflicts through the consultation

process. Unfortunately, I have also recognized maddening inefficiencies and uncertainties, many created by the very agency they afflict. I do see the Fish and Wildlife

Service (‘‘Service’’) making positive strides to improve the efficiency and effectiveness of the consultation process, but some problems remain.

Statistics regarding the ESA consultation process are often cited in an effort to

demonstrate that the program is working, and with little impact on government and

economic activity. We are told that thousands of consultations are processed each

year, with only a handful resulting in a ‘‘jeopardy’’ conclusion. These statistics, however, do not reveal the enormous cost in terms of time, money, project changes, and

mitigation property or payments associated with completing these thousands of consultations. Perhaps the pending GAO report will shed some light into the trenches

of the process, where most of my labor is performed.

Today, I will focus briefly on some of what I refer to as the self-inflicted wounds

of ESA consultations: areas in which the Service may be making life harder on itself

than necessary or appropriate. First, I will mention the trend toward lowering the

thresholds or ‘‘triggers’’ of the consultation process, resulting in many more consultations with perhaps little conservation benefit. Next, I will discuss the use of

delay beyond the legally required timeframe for the completion of consultations, and

how illegal delays are sometimes used as a tool for extracting concessions that are

not otherwise required by law. Last, I will mention the use and impact of ‘‘draft’’

jeopardy conclusions which can be a tool to extract costly mitigation far beyond

what the law requires. The Service has been making progress in addressing some

of these concerns on a policy level. In practice, though, they still arise with some

degree of frequency.

II. Lowering Consultation Thresholds

The Service conducts thousands of ESA consultations every year. Many of these,

however, involve activities with little, or purely speculative, biological impacts. Because the thresholds required for a consultation to actually modify a project or activity (the project must be found to jeopardize or at least ‘‘take’’ a listed species), are

so much higher than the threshold required to merely initiate consultation (that a

species might be affected, even if purely beneficially), these marginal to no impact

consultations end up amounting to delay and cost for little conservation benefit.

Moreover, the trend toward lowering the thresholds to initiate consultation is severely impacting the ability of other Federal agencies, perhaps most notably the

Corps of Engineers and the EPA, to have efficient general or nationwide permitting

programs. The lower thresholds mean that many projects with little or no impact,

that might otherwise have only the briefest of interchanges with the Federal Government, are instead kicked into an ESA consultation that can cause delays of over

a year.

A very recent example of this trend toward lowering of consultation thresholds are

the cactus ferruginous pygmy owl consultation guidelines (Attachment ‘‘A’’) worked

out between the Corps and the Service for the Corps’ nationwide permitting program in southern Arizona. These guidelines define a development project’s potential

impacts on the owl so broadly that consultation would be required on dozens, if not

hundreds, of projects not located in critical habitat for the species and in fact miles

and miles from any known owls. Moreover, because the guidelines state that, where

consultation is triggered, the Corps will require applicants to obtain an individual

permit from the Corps, a time-consuming and expensive process, even though the

project would otherwise qualify for a much more efficient nationwide permit authorization. These guidelines have the effect, therefore, of increasing the work load of

two Federal agencies and increasing the time and cost associated with projects’ Federal environmental approvals, all in exchange for little if any real species conservation. To its credit, the Service is beginning to recognize the inefficiencies of these
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guidelines and has expressed an interest in working with appropriate stakeholders

to improve the process.

A similar example of lowering the consultation threshold occurred with the Service’s Edwards Aquifer Water Quality Recommendations (Attachment ‘‘B’’) in central

Texas These guidelines have since been withdrawn as a result of a settlement in

a lawsuit we filed on behalf of the National Association of Homebuilders. However,

prior to the withdrawal of these guidelines, they operated in a manner very similar

to the cactus owl guidelines. Under the aquifer guidelines, the position of the Service was that every development project in a 350-square-mile area should consult

with the Service regarding potential impacts on the endangered Barton Springs salamander, a small amphibian that lives in the Barton Springs swimming pool in

Austin’s Zilker Park. The Federal trigger for these consultations was the otherwise

very efficient EPA general permit for construction-related stormwater discharges applicable to every development project over five acres. The Service’s position requiring consultation was contrary to its often-stated view that no single project would

result in harm to the salamander. In this case, the lowered consultation threshold

resulted in more than mere delay for a number of projects. Applicants were entitled

under the EPA general permit to conduct ‘‘informal’’ consultations with the Service,

but if differences could not be resolved in informal consultation, the general permit

did not authorize resolution through formal consultation. In other words, applicants

were stuck in a Catch–22; they were required to initiate informal consultation with

the Service, but could not require the Service to finally ‘‘put it in writing’’ in formal

consultation. The Service was overtly telling developers, ‘‘if you agree to these

project modifications, we will let you out of the consultation; if not, you’re stuck.’’

With no practical way for applicants ultimately to hold the Service accountable for

its extractions, most applicants simply gave up and made concessions that in most

instances could not have been required of them if consultation were properly concluded.

III. Delay as a Tool of Extraction

One of the frequently cited benefits of the ESA Section 7 consultation process is

that, unlike the process for approving habitat conservation plans under Section

10(a), it is subject to specific and generally reasonable statutory timeframes. For example, formal consultation is required to be concluded within 135 days. Unfortunately, at least in my experience, these timeframes are observed much more often

in the breaches than in compliance. While this fact may largely be due to the heavy

workload and limited budget of the Service, it can and does give rise to an implicit

trading of processing time for conservation benefits that would not otherwise be the

obligation of the applicant to provide. For the private sector, particularly on larger

activities or projects such as pipelines and large-scale developments, time is very,

very expensive, and the time it takes to process environmental approvals may directly affect a project’s competitive position. The Service sometimes takes advantage

of this fact by, either implicitly or expressly, offering an applicant a quicker turnaround if they make concessions. This practice would not be particularly disturbing

if the concessions were those that could lawfully be required by the Service at the

end of a normal process. But, it has been the case repeatedly in my experience that

the concessions are purely a trade for quicker processing.

A good example of this circumstance is the so-called ‘‘alternative consultation

process’’ informally adopted by the Service for the Navasota ladies tresses (‘‘NLT’’)

(a species of orchid). (See Attachment ‘‘C,’’ correspondence and draft Notice of Intent

to Sue). Under this alternative process, projects, principally pipelines and some real

estate developments, which may affect NLTs or their habitat, can simply offer to

pay a per-acre conservation fee and receive an expedited approval through consultation. Because the fee, even at tens of thousands of dollars, often pales in comparison

to the project cost of unspecified delay, many applicants happily pay it. Indeed, this

would be a beneficial arrangement for all involved, if at the end of the day the fee

was legal. However, because plants are not protected under the ESA Section 9

‘‘take’’ prohibition, there is no lawful basis for this fee. The Service is simply selling

time.

Another problem that arises with respect to consultation timeframes is the Service’s understandable, though not lawful, desire to delay the initiation of consultation

or extend the period of consultation beyond the statutorily required timeframe in

order to allow the applicant to gather more data concerning the species in question.

Many species can be observed only seasonally and for short durations. In these circumstances, the Service is too often tempted to seek to require delays in order to

allow for more complete survey data. The Service’s own regulations and the courts,

however, reject that approach. Information is never perfect, and the Service is required to make its judgments based on the data available within the statutorily pre-
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scribed timeframe. Recently, I was involved in a large, regionally important infrastructure project which, although it had received all of its major Federal environmental approvals, faced the potential of significant delay to allow time to perform

some additional surveys for a plant.

IV. Draft Jeopardy Opinions

With the much-publicized statistic of how few final jeopardy opinions the Service

renders per year in ESA consultations, it is surprising that I have personally been

involved in at least four written draft jeopardy opinions and several more specifically promised if my client refused to relent. Again, this is an area in which the

Service is making progress, but, at least up until the recent past, in my experience

the Service’s issuance, or overt threat of issuance, of draft jeopardy opinions, can

be another unwarranted tool of extraction. Attachment ‘‘D’’ includes two attorney

letters responding to draft jeopardy opinions issued on projects in Pima County, Arizona. In both instances, the draft opinions were based on clearly erroneous understandings of the applicable regulations and facts. Also, in both instances, the draft

opinions were accompanied by demands for the applicant’s provision of costly mitigation which, at least in my view, far exceeded the Service’s authority to require.

In the instance involving the Pima pineapple cactus, the mitigation was ultimately

reduced from an initial demand that the applicant purchase and permanently protect 400 acres of cactus habitat, to a payment of less than $20,000 to a research

program. In the instance involving the cactus owl, due to severe economic pressure

to avoid further delay, the applicant largely relented to the mitigation demand, even

though there were no owls on the project site and the applicant proposed of its own

accord to leave approximately half of the property in its natural condition.

V. Conclusion

Recently, I have observed the Service making significant strides to improve the

ESA consultation process. Difficulties nonetheless remain, and I consider it appropriate and beneficial that this Subcommittee is directing its attention to these

issues.
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STATEMENT OF JOHN F. KOSTYACK, SENIOR COUNSEL, NATIONAL WILDLIFE

FEDERATION

Good morning, Senator Crapo and members of the Subcommittee. I am here to

testify on behalf of the National Wildlife Federation, the nation’s largest conservation education and advocacy organization. I appreciate the opportunity to come here

today to talk about the consultation process under Section 7 of the Endangered Species Act (ESA). I would like to make three observations about our 30 years of experience with this key feature of our nation’s most important wildlife law, and provide

three policy recommendations for the future.
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LESSONS FROM 30 YEARS OF IMPLEMENTING SECTION 7

1. Section 7 is Fundamentally Sound

A key focus of today’s hearing is the Subcommittee’s March 22, 2002 request to

the General Accounting Office (GAO) for a study of the Section 7 consultation process. Although the request letter is 15 months old and the Subcommittee’s views on

Section 7 may since have evolved, it is nonetheless important that its assertions not

be left unrebutted.

The Subcommittee’s effort to gather statistical information about how Section 7

operates makes sense. However, the request letter to the GAO is harshly and unfairly critical of the consultation process. Contrary to the arguments in the letter,

Section 7 consultations have not consumed inordinate time and money. In fact, this

key provision of the ESA has accomplished a great deal of conservation with a relatively small investment of Federal resources. As with any statutory provision, improvements could be made with implementation of Section 7; but the basic structure

of the consultation process is a good one and should be left undisturbed.

Section 7 contains several crucial tools for conserving the nation’s threatened and

endangered species and the ecosystems on which they depend. Particularly important is Section 7(a)(2), which requires all Federal agencies that carry out, fund or

permit actions affecting listed species to consult with the U.S. Fish and Wildlife

Service (FWS) or the National Oceanic and Atmospheric Administration (NOAA) on

avoiding jeopardy and critical habitat modification in connection with those actions.

This consultation provides a crucial opportunity for the Federal Government to ‘‘look

before it leaps’’ into potentially harmful activities. As a result of the thousands of

Section 7(a)(2) consultations that take place every year, Federal agencies now routinely adjust their actions to protect imperiled species while carrying out or facilitating economic activities.

Another key tool, although given far less attention than Section 7(a)(2), is the Section 7(a)(1) conservation provision. Section 7(a)(1) requires all Federal agencies to

develop and implement a program to conserve listed species, and to do so in consultation with FWS or NOAA. In enacting Section 7(a)(1), Congress wisely put the

burden on all Federal agencies engaged in activities affecting listed species to help

promote the ESA’s goal of species recovery, and to consult with the expert wildlife

agencies in devising their strategies for fulfilling this conservation duty.

2. Section 7 Consultations Provide Important Benefits to Listed Species Even in

Cases When Neither Jeopardy Nor Adverse Modification of Critical Habitat is

Found

At the heart of the Subcommittee’s March 2002 letter is the concern that only 0.3

percent of projects reviewed under Section 7 between 1996 and 2002 were found to

jeopardize a protected species or to adversely modify critical habitat. The Subcommittee infers from this statistic that ‘‘only one out of every 300 consultations involved a project with a potential to violate the ESA,’’ and that resources are therefore being wasted on ‘‘elaborate consultations on projects that pose no significant

threat to species.’’

This is simply not an accurate depiction of reality on the ground. The fact that

no jeopardy and no-adverse-modification conclusions have been the outcomes of most

consultations is not evidence that the projects under review had no potential to violate the ESA, or that they posed no significant threat to the species. In fact, the

thousands of consultations with no jeopardy and no-adverse-modification outcomes

mostly represent species conservation success stories. Rather than responding to

evidence of potential ESA violations with enforcement actions, Federal wildlife agencies have worked collaboratively with action agencies and others to negotiate ‘‘winwin’’ solutions solutions where projects move forward after adjustments are made

to avoid unnecessary damage to fish, wildlife and plant species and their habitats.

Examples of these ‘‘win-win’’ outcomes can be found across the country. For example, in Florida, when you drive across the portion of Interstate 75 known as Alligator Alley, you can see the results of a consultation between FWS and the Federal

Highway Administration concerning the impact of I–75 improvements on the endangered Florida panther. Tucked under the highway are several wildlife crossings that

allow the panther to roam across its range while avoiding vehicle collisions. These

crossing now serve as models for other wildlife passages planned elsewhere in the

country.

In Nebraska, the Whooping Crane Critical Habitat Maintenance Trust is using income from a $7.5 million endowment, created as the result of a Section 7 consultation, to finance habitat protection, land acquisition, and other programs to conserve

the critically endangered whooping crane and other species threatened by dambuilding along the Platte River. On the Upper Colorado River basin, as a result of
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a cooperative program stimulated in part by Section 7, the Bureau of Reclamation

is altering the timing and magnitude of releases from a series of dams to help address habitat requirements of the endangered fishes downstream.

Progress has been slower on the Klamath, Missouri, Rio Grande and other river

ecosystems where fish, wildlife and plant species hover on the brink of extinction,

but thanks to Section 7, these species are finally receiving some attention. In the

absence of Section 7, there would be little hope for the coho salmon of the Klamath

Basin, the pallid sturgeon and piping plover on the Missouri, the silvery minnow

on the Rio Grande, or the natural systems for which these species serve as indicators. Section 7 represents our best hope for achieve a balance among development

and conservation goals in our river basins and other ecosystems, so that both people

and wildlife can thrive. 3. The Vast Majority of ESA Consultations are Streamlined

The Subcommittee’s letter asserts that ‘‘each of these [ESA Section 7] consultations requires extensive studies and reports by the Federal action agency and one

or both of the Services, and extends for months or years before ending with the inevitable no-jeopardy finding that is so often obvious from the start.’’ In fact, the vast

majority of consultations are informal ones involving minimal time or paperwork.

FWS statistics show that roughly 97 percent of its consultations from 1996 through

2002 were resolved informally. NOAA Fisheries’ statistics for 2001 also show that

the vast majority of its consultations are resolved this way.

Informal consultations are, by definition, those that are resolved with ‘‘no adverse

effect’’ findings by FWS or NOAA Fisheries. Under Section 7 regulations, such a

finding does not have any paperwork requirements, and there is no need for a formal consultation or a biological opinion. Often, ESA compliance issues are resolved

in a single phone call, memorialized with a one paragraph letter.

Despite the streamlined nature of the informal consultation process, significant

conservation benefits are realized. In an informal consultation, FWS or NOAA will

often recommend modifications to project proposals that, if adopted, will lead to a

no-adverse-effect conclusion. Harm to the species is avoided, and the project goes

forward without significant disruption.

RECOMMENDATIONS FOR THE FUTURE OF THE SECTION 7

CONSULTATION PROGRAM

Set forth below are NWF’s policy recommendations for the procedural aspects of

the Section 7 program. NWF’s recommendations regarding Section 7’s critical habitat protection were provided in my testimony before the Subcommittee 3 months

ago. If requested, I would be pleased to provide additional recommendations on how

to make the remaining substantive protections of Section 7 work more effectively.

1. Greater Transparency into Consultation Outcomes Is Needed to Systematically

Evaluate the Performance of the Section 7 Program

In its March 2002 letter, the Subcommittee requests that the GAO investigate the

disposition of consultations by obtaining statistics on the following outcomes: withdrawal by requesting agency; modification of proposed agency action; issuance of biological opinion; issuance of letter of concurrence that formal consultation is not required due to ‘‘not likely to adversely affect’’ finding. Unfortunately, nowhere in the

March 2002 letter is there a request for information concerning what conservation

measures were put in place, and what actions harmful to listed species were avoided, as a result of Section 7 consultation. In the absence of such information, it is

extremely difficult to evaluate the relative costs and benefits of the Section 7 process.To ensure that Section 7 works as effectively as possible, Congress should fund

a comprehensive program for tracking the results of consultations and monitoring

the performance of resulting conservation measures and programs. The data should

be made available on the Internet for public inspection. If such steps were taken,

Congress, the Administration and the public would be in the position to discuss and

debate species conservation strategies based on a comprehensive look at past implementation of Section 7 on the ground.

Interestingly, the habitat conservation planning (HCP) program under Section 10

of the ESA, which governs non–Federal activities, has already achieved far greater

transparency than the Section 7 program governing Federal activities. All permits

and corresponding HCPs are currently listed on the FWS website, and the various

documents reflecting the terms of each of the permits and HCPs are available for

public review in a centralized library. Moreover, as a condition of receiving a permit

under Section 10, applicants must agree to submit annual reports with data concerning permit implementation.

At a minimum, the level of transparency in the Section 7 program should be

brought up to the level of the Section 10 program. Considering that Section 7 is ap-
95

plied in so many more circumstances than Section 10 (roughly 77,000 Section 7 consultations were completed in fiscal year 2002 versus less than fifty Section 10 permits issued), the need for a systematic evaluation of the Section 7 program is arguably greater than with the Section 10 program.

2. Provide Funding to Enable the Wildlife Agencies to Respond to their Ever Increasing Workload

In its March 2002 letter to GAO, the Subcommittee requests that GAO investigate

several possible inefficiencies, such as duplication of work by FWS and NOAA, that

might be causing delays in the consultation process. Eliminating inefficiencies is a

worthwhile objective, one that the wildlife agencies themselves have been working

to achieve for several years now with, for example, the increased use of programmatic consultations and multi-stakeholder consultations. However, eliminating

inefficiencies alone will not solve the delay problem. Inadequate funding of the wildlife agencies is the single biggest obstacle to the timely completion of consultations.

So long as species continue to be placed at risk of extinction by human activity,

more species listings are inevitable. Each increase in the number of listings inexorably leads to more Section 7 consultations, as Federal agencies proposing projects

encounter greater numbers of listed species on the landscape. Continued growth in

human populations and in the size of the economy means that there are ever-increasing numbers of Federal projects being proposed that require Section 7 review.

Also, the expansion of the HCP program begun in the 1990’s means that there are

also increasing numbers of non–Federal projects requiring review by FWS and

NOAA biologists.

Congress should acknowledge these trends and provide the funding needed by

wildlife agencies to implement Section 7 successfully. Although ESA funding has increased in recent years, funding levels remain ridiculously low considering the enormity and complexity of the challenges facing the agencies. Moreover, the rate of

funding increases has not kept up with the rate of increase in the workload. For

example, in the past 7 years, the number of formal consultations handled annually

by FWS has grown fivefold while the consultation budget has only grown three-fold.

To ensure that Section 7 continues to protect listed species without inordinate

project delays, the budgets of FWS and NOAA Fisheries must be increased to reflect

the added responsibilities.

3. Reject ‘‘Self–Consultation’’ Initiatives Currently Being Proposed by the Administration

Finally, it is essential that Congress reject the Administration’s current proposals

to expedite project approvals by rolling back Section 7 safeguards. Rather than provide the obviously needed funding increases to enable Federal wildlife agencies to

fulfill their mandate to conserve listed species, the Administration would remove

crucial regulatory tools that the wildlife agencies need to be effective.

For example, on January 24, 2003, the Administration issued an Advanced Notice

of Proposed Rulemaking calling for the EPA, not FWS or NOAA, to make no-adverse-effect determinations concerning proposed pesticide registrations. By eliminating EPA’s duty to engage in informal consultations and to obtain FWS’s and

NOAA’s concurrence in no-adverse-effect findings, the Administration would remove

the wildlife experts from the picture, leaving listed species and their habitats increasingly vulnerable to pesticide contamination. EPA, which has long simply refused to uphold its ESA consultation obligations with respect to pesticides, would

be rewarded for its obstinacy. EPA alone would decide which chemicals would be

subject to FWS and NOAA’s scrutiny and which would be shielded from ESA review.

Similarly, the Administration has issued a series of proposals that would greatly

reduce the ability of FWS and NOAA to protect listed species from the impact of

logging operations. On June 5, 2003, for example, the Administration proposed to

allow the Forest Service, the Bureau of Land Management (BLM) and other land

management agencies to make their own no-adverse-effect determinations with respect to logging activities under the National Fire Plan. As with pesticides, FWS’s

and NOAA’s ability to protect listed species from threats posed by logging would be

severely curtailed.

In its June 5, 2003, proposal, the Administration attempts to justify the rollback

of protection of species on Federal lands by arguing that the land management

agencies have sufficient expertise to make their own judgments about ESA compliance. However, the Forest Service, BLM and other agencies have frequently demonstrated a bias toward resource extraction and resource extraction industries. In

many ESA consultations, wildlife conservation measures were put in place only

after Federal wildlife agencies negotiated extensively with the land management to

secure them.
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1 Enogex is a natural gas pipeline and energy company that operates the nation’s 10th largest

natural gas pipeline system with more than 10,000 miles of pipe, 13 processing plants and 23

billion cubic feet of gas storage, principally in Oklahoma and Arkansas. Oklahoma City-based

OGE Energy Corp. (NYSE: OGE) is the parent company of Enogex and Oklahoma Gas and Electric Company (OG&E). OGE Energy and its subsidiaries have about 3,000 employees.

OG&E, a regulated electric utility, serves approximately 720,000 retail customers in a service

territory spanning 30,000 square miles in Oklahoma and western Arkansas, and wholesale customers throughout the mid-continent region. OG&E has eight power generating facilities with

combined capacity of approximately 5,700 megawatts.

For thirty years, the Federal wildlife agencies have played a crucial role in protecting threatened and endangered species from harmful Federal projects. Unlike

the land management agencies, which have a narrow focus on their particular landholdings, the wildlife agencies continually monitor what is happening across the

species’ range and maintain familiarity with the latest science on species conservation. Unlike many action agencies, which are charged with carrying out or approving economic development projects, Federal wildlife agencies have no conflict of interest. Their sole mission is to conserve fish, wildlife and plants and the ecosystems

on which they depend.

Congress should reject any and all efforts to weaken the ability of FWS and

NOAA to utilize the Endangered Species Act to conserve our nation’s imperiled wildlife.

CONCLUSION

Thank you again for the opportunity to testify. I welcome the opportunity to answer any questions that the Subcommittee may have.

STATEMENT OF PATRICIA D. HORN, VICE PRESIDENT, ENOGEX INC.

Chairman Crapo and other members of the Fisheries, Wildlife and Water Subcommittee, I am pleased to share with you the experiences of Enogex Inc. (‘‘Enogex’’)

concerning the consulting process pursuant to Section 7 of the Endangered Species

Act (‘‘ESA’’).

My name is Patricia Horn and I am Vice President of Enogex.1 Our company

takes great pride in our environmental performance. We know that environmental

responsibility is important to the quality of life of our customers, the communities

we serve and our own employees and their families. It is also critical to our success.

We are a company committed to complying with and, when possible, exceeding

government-established environmental standards. We seek to continually monitor,

assess and improve our environmental performance. We also seek to foster strong

working relationships with the local, State and Federal agencies that monitor our

environmental stewardship.

Finally, we believe we have a dual responsibility to protect our natural resources

and to provide safe, reliable and reasonably priced power and gas transportation

services. The company will, therefore, bring to any emerging environmental policy

discussion the need for a sensible balance between environmental gain and its resulting costs and resources.

The purpose of this testimony is to outline the historical interpretation and the

more recent philosophy and change of the U.S. Fish and Wildlife Service (‘‘USFWS’’)

in its informal and formal consultations relating to protection of an endangered species believed to exist in areas where Enogex conducts pipeline construction activities

in Oklahoma and Arkansas.

Background

Enogex and the oil and gas industry conduct a wide variety of operations from

construction of well pads and access roads to laying gathering and transmission

pipeline systems for the delivery of natural gas to intra and inter-state markets.

Enogex conducts its activities in the majority of counties in Oklahoma and in numerous counties in Arkansas.

In order to proceed with oil and gas construction activities, Enogex requests applicable environmental clearances or informal consultations relating to any endangered

species that may be present in the areas of the planned construction. Enogex requests these clearances from the USFWS. An endangered species, the American

Burying Beetle (Nicrophorus americanus) (‘‘ABB’’) has been identified as existing in

Oklahoma and Arkansas.

The ABB was listed as endangered in 1989. At the time of listing it was believed

that there were only populations in Rhode Island and Oklahoma. As of 2002, populations are now known from Rhode Island, Oklahoma, Nebraska, South Dakota,
97

Kansas, Massachusetts and Arkansas. The beetle is listed as existing in 17 Oklahoma Counties and 4 Arkansas Counties. It is suspected in other counties in these

two States. (These known and suspected counties will be referred to as ‘‘the ABB

Counties’’)

The ABB is a large beetle that ranges from 1 to 1.5 inches in length, has four

red-orange spots on its wing covers, and is distinguished by its larger size and its

orange-red pronotum. The beetles are habitat generalists, occurring in many different habitats. They feed on carrion and lay their eggs in or adjacent to a buried

vertebrate carcass. It is suspected that carrion availability in a given area is more

important than the vegetation or soil structure. The beetle is typically active in

Oklahoma and Arkansas from mid–May to mid–September. Adults are presumed to

be an annual species, fully nocturnal and are usually active only when nighttime

temperatures exceed 60 F (15C). The remainder of the year it hibernates. The ABB

has been recorded traveling as much as 2 miles per night.

Historical Treatment

Historically, Enogex has requested environmental clearances relating to any endangered species in the ABB Counties from the USFWS in Tulsa, Oklahoma and

Conway, Arkansas. Informal consultations relating to projects being initiated in the

ABB Counties have always resulted in a ‘‘no adverse impact’’ finding by the

USFWS. Such clearances from the USFWS were typically determined within a few

days to a little more than a month with the responses generally provided within 30

days. Accordingly, projects received clearances and were allowed to proceed without

delay.

Enogex’s main construction activities relate to laying gathering or transmission

pipeline to connect producing natural gas wells to its pipeline system to allow the

produced natural gas to be marketed. To be competitive and allow Enogex the ability to provide these services, wells must be connected efficiently and without delay.

It is not feasible to begin the construction of the connecting pipeline until it is determined that a well being drilled will produce in commercial quantities. Upon this determination, Enogex customers expect and demand that the pipeline be constructed

and placed in service without delay to transport the natural gas produced to the

market place. If Enogex is unable to predict and understand the timing required to

timely complete its construction, it cannot be competitive and meet the expectations

of the well operators, working interest owners or royalty owners in the producing

well.

Prior to late 2002, Enogex submitted environmental clearance requests or informal consultations to the USFWS for the ABB Counties and received clearances that

either no endangered species were present or, if present, the proposed project would

have no adverse effect on the ABB. During years 2000 through 2002, Enogex submitted 54 informal consultations to the Tulsa, Oklahoma USFWS and 46 to the

Conway, Arkansas USFWS and each time received the clearances to proceed with

the planned pipeline construction. A change in these clearances being granted without comment began in July, 2002.

Initial Change in Consultation Process

By letters dated July 16 and 18, 2002, Enogex was advised by the USFWS that

two proposed pipeline projects in Latimer County, Oklahoma were in the vicinity

of where the ABB may occur. The USFWS, at this time, recommended that the pipeline projects be implemented outside the ABB’s active period (early October through

April) and thereby avoid impacts on the species. If this recommendation was not

feasible, the agency recommended continuously baiting beetles away from the

project area using chicken parts or mice to ensure that beetles would not be adversely impacted by the proposed projects. The USFWS advised that if the proposed

projects could be implemented outside of the beetle’s active period or if the recommended baiting protocol was followed, then the ABB would not likely be adversely impacted by the projects. Therefore, no further Section 7 consultation would

be needed.

Drastic Change in Consultation Process

In October, 2002, in response to requested informal consultations relating to pipeline construction projects to connect two recently completed natural gas wells in

Latimer County, Oklahoma, Enogex was advised by USFWS of a drastic change in

treatment relating to the USFWS’s informal consultation policy relating to the ABB.

The USFWS advised that sufficient site-specific information on the occurrence of

beetles within the project areas was not available and that therefore the USFWS

could not provide an accurate assessment of the impacts of the projects on the species. The USFWS recommended that Enogex conduct a survey for the presence of

the ABB in the project areas. The USFWS advised that the survey should be con-
98

ducted by a biologist with knowledge of the life history of the ABB and who has

a Section 10 permit from the USFWS to conduct such surveys. Due to the beetle

being active only during the warm summer months, the USFWS advised that the

survey could only be conducted between late April and early September. If beetles

were observed, further Section 7 consultation would be required.

If Enogex could not proceed until after a survey in the summer, the connection

of these newly completed wells by Enogex would be delayed by at least 8 months.

Enogex responded quickly to understand the request and data that would be required to properly initiate a formal consultation immediately. Enogex retained a biologist to conduct field surveys. It consulted with the EPA to determine what further information needed to be provided to EPA so that a formal consultation could

be requested. Enogex provided detailed project information, construction protocol,

operations and maintenance protocol, geological survey maps, survey plats, storm

water pollution prevention plans and recently completed habitat surveys to the

USFWS and EPA. The EPA formal consultation letter was sent to USFWS on November 27, 2002. The final Biological Opinion (‘‘BO’’) from the USFWS was received

on January 23, 2003.

The BO issued by the USFWS determined that after reviewing the current status

of the ABB, the environmental baseline for the action area, and the cumulative effects of the proposed action, the projects were not likely to jeopardize the continued

existence of the ABB across its entire range. No critical habitat has been designated

for this species, therefore none was affected. The BO provided numerous restrictions, implementation of required terms and conditions relating to construction practices and established a permitted take.

Immediate Effects of Change to Pending Commercial Well Connects

As noted, these most recent requests for consultations to the USFWS related to

two recently completed natural gas wells ready to produce natural gas to the market

place. One of the wells was not connected to Enogex and the connection was awarded to a competitor. This resulted in significant revenue loss to Enogex exceeding

$1,000,000 over the life of the well. Additionally, because the delay prevented the

natural gas in the well from reaching the market, the well producer lost approximately $2,000,000. After receipt of the BO by Enogex and extensive education and

training to its operators and contractors, the second well was connected to Enogex.

The delay in the treatment of the ABB consultation resulted in a loss to Enogex

exceeding $150,000. Additionally, the delay caused the well producer to lose approximately $2,500,000 because the natural gas in the well could not get to the market.

Future Implications

This recent change in treatment and approach of the ABB by the USFWS is not

based on any new data or science about the ABB. Instead, it is our understanding

that this change is based upon new interpretation of existing data differently from

previous reviews. Currently, the USFWS is responding with a very aggressive approach for the purpose of preservation of the ABB. Enogex has been informed that

all proposed construction projects located within the ABB Counties will be exhaustively scrutinized and formal consultation initiated.

If a pipeline, oil and gas operator or other construction company wishes to construct during the ABB hibernating season (late September to late April) and the

project triggers a Federal nexus, the company will be required to enter into formal

consultation with the USFWS. The result will be the issuance of a Biological Opinion that will State restrictions, construction practices and permitted take of the species. Such consultation, if not delayed, is required to be completed within 135 days

after the Formal Consultation is officially requested. A Federal nexus trigger includes projects that exceed 5 acres of soil disturbance, cross jurisdictional waters or

involve mechanized clearing of forested wetlands, and include all FERC regulated

projects.

The USFWS has noted construction activities presented to it for consultation in

the ABB Counties in 2002 included pipelines, roads, cell towers, residential developments, bridges, mining, petroleum production, sewer lagoons, commercial developments, recreational developments, fiber optics, cable and electrical lines and water

treatment facilities. Clearly, the implications of this new procedure and expansive

interpretation of the ABB data will have far reaching effects to any construction activity in these ABB Counties.

As noted, Enogex’s experience in the past is that it took approximately 30 days

to receive clearances to proceed with pipeline construction. Under the new interpretation, the USFWS has 135 days to complete the formal consultation. The most recent construction projects for which formal consultations were entered into by
99

Enogex took approximately 4 months to receive what the USFWS called ‘‘expedited’’

clearance.

In addition, Enogex has been required to hire a third party biologist to survey the

proposed project area for the presence of the beetle. These surveys are time consuming and expensive to complete. Enogex estimates an average of $5,000 is incurred for each project in order to provide data relating to the specific area and the

presence or absence of the ABB.

Enogex (and all effected parties) will be required to expend enormous resources

of time, energy and money to establish construction programs, training, third party

experts and to implement the expansive conditions and requirements to meet the

conditions now being imposed by the USFWS in these areas. Such additional costs

and burdens must be questioned when it has not been established that necessary

preservation or recovery of the ABB will result.

It is also believed that this new, expansive approach in the preservation philosophy by the USFWS in one district will be implemented in other areas. Enogex has

recently been advised that this same process will be implemented in Arkansas.

Conclusion

Along with numerous oil and gas industry trade associations such as Mid–Continent Oil and Gas Association, Oklahoma Independent Petroleum Association, Gas

Processors Association and Oklahoma Farm Bureau, Enogex is seeking to address

the USFWS’s procedural changes in the protection of the American Burying Beetle.

Enogex believes that the first step needs to focus on whether the facts present relating to the ABB merit this comprehensive and far reaching change in consultations

and clearances being granted. After accurate and complete data is established then

the measures necessary to properly preserve this endangered species can be implemented. Until this step is undertaken and accomplished, actions—such as the recent

actions taken by the USFWS—only tend to create unnecessary hardship on the

agency and unnecessary hardship on the public attempting to do business in these

areas, and they result in no true protection to the ABB. Enogex is hopeful that this

issue can be resolved without affected parties having to resort to a costly and timeconsuming litigation process.

Mr. Chairman and members of this Committee, Enogex appreciates and seeks any

assistance that this Committee can provide to address this critical issue.

STATEMENT OF JIM CHILTON, ARIVACA, AZ ON BEHALF OF THE NATIONAL CATTLEMEN’S BEEF ASSOCIATION AND THE PUBLIC LANDS COUNCIL ON THE ENDANGERED

SPECIES ACT

Introduction

Good morning, Chairman Crapo and Distinguished Members of this subcommittee, my name is Jim Chilton and I am a rancher from Arivaca, Arizona. My

family first started ranching in Arizona in 1888. Arivaca, however, goes back much

further than that. Father Keno first founded the town in 1690 when it became a

center for grazing cattle he brought with him from Mexico. Today, the town has a

population of 1500 people. The largest employer in the town and surrounding area

is ranching. My father, brother, and I run approximately 1,250 cattle on 85,000

acres: 48,000 acres of Arizona school trust lands; 35,000 acres of Forest Service

land, and 2,000 private deeded acres. I appreciate the opportunity to be here today

to provide my story on section 7 consultation of the Endangered Species Act to the

Committee on behalf of the sheep and cattle rancher members of the Public Lands

Council and the National Cattlemen’s Beef Association.

The Public Lands Council (PLC) represents sheep and cattle ranchers in 15 western States whose livelihood and families have depended on Federal grazing permits

dating back to the beginning of last century. The National Cattlemen’s Beef Association (NCBA) is the trade association of America’s cattle farmers and ranchers, and

the marketing organization for the largest segment of the nation’s food and fiber industry. Both PLC and the NCBA strive to create a stable regulatory environment

in which our members can thrive.

Ranching out west has been part of the landscape, the economy, and the culture

for approximately three centuries. About 214 of the 262 million acres managed by

BLM are classified as ‘‘rangelands,’’ as are 76 million of the 191 million acres managed by the Forest Service. More than 23,000 permittees, their families, and their

employees manage livestock to harvest the annually renewed grass resource grown

on this land. Western ranching operations provide important additional benefits to

the Nation by helping to preserve open space and reliable waters for wildlife, by

serving as recharge areas for groundwater, and by supporting the economic infra-
100

structure for rural communities. Our policy is to support the multiple use and sustained yield of the resources and services from our public lands which we firmly believe brings the greatest benefit to the largest number of Americans.

My Story

Federal land management agencies so seriously misapplied the Endangered Species Act (ESA) to the land in my Federal allotments that I unfortunately was forced

to conclude that the Forest Service and the Fish and Wildlife Service (FWS) were

using the Act to force me out of the business of ranching on historic grazing lands.

The agencies took these actions even though thirty years of data in the Coronado

National Forest files, detailed production and utilization studies by nationally recognized range management scientists, and reports by numerous other researchers

showed my allotments to be currently in good condition and are on an upward trend

in which an exceptional number of high value native climax species have been preserved. This struck me as deeply unfair, and I was not willing to accept the judgment of their actions without a fight.

I have spent hundreds of thousands of dollars on lawyers and litigation and tens

of thousands more to have respected range scientists and specialists assemble the

best site-specific data possible. We spent countless hours of work with top-ranking

consultants, days and weeks of lost time in meetings and legal wrangling, and

months assembling a mountain of scientific evidence to show that cattle grazing

does not adversely impact the Sonora chub or the lesser long-nosed bat. Even

though many other permittees may face similar challenges from the land managing

agencies, not all grazing permittees facing similar Federal actions are able to mount

this kind of elaborate defense which ultimately proved successful.

Section 7 Consultation: What Went Wrong

In 1998, a Forest Service biologist asserted that grazing on my allotment (‘‘the

Montana’’ allotment) was likely to adversely affect the Sonora chub, a listed species.

The adverse call was astonishing. In 1997, the Forest Service removed 20 acres from

the Montana allotment along the ‘‘California Dry Gulch’’ adjoining the border to protect the chub. The excluded area had lush riparian growth and had been part of

a successful experiment-in-progress to demonstrate that rest-rotation grazing could

enhance riparian condition. In Arizona Cattle Growers’ Association v. U.S. Fish and

Wildlife Service, 273 F.3d 1229 (9th Cir. 2001), the court considered the very actions

addressed today and found, among other things, that the chub ‘‘are essentially confined to the California Gulch, an area from which livestock are excluded.’’ The

Southwestern Naturalist, June 1990, describes the Sonora chub as abundant in

Mexico where the chub dominates its 5,000 square mile watershed and constitutes

99.97 percent of the total number of fish and 96.9 percent of the biomass of the species.

In a similar vein, a Forest Service botanist concluded in 1998 that cattle grazing

on the Montana allotment were likely to adversely affect the lesser long-nosed bat,

a listed species, even though the bat had never been found on the allotment. One

dead bat was found 10 miles east of the allotment in 1959, but that is the extent

to which the migratory bat has ever had contact with the Montana allotment. Research has shown that these bats are not food-limited even on the ranches where

they have roost caves. No roost sites occur on our allotment.

Relying on his scientists, the Forest Supervisor signed a biological assessment for

the Montana allotment in November 1998, asserting that grazing could harm the

minnow and bat. Once the consultation process commenced, the Forest Service and

FWS refused to allow me or my representatives to participate in meetings or other

discussions prior to the issuance of the draft FWS Biological Opinion. We were excluded even though we had applicant status for the consultation. The FWS similarly

excluded ranchers from the consultation process in the Sierra Nevada consultation

process. Of course, the draft Biological Opinion represents a largely settled judgment by the agency, which may be further adjusted in response to public comments

but is rarely ever reversed.

Nevertheless, I had my team of lawyers, range, riparian, soils, and fish experts

submit comments on the draft Opinion. The final Biological Opinion issued by the

FWS in April 1999 largely ignored my submitted comments in the sense that they

did not respond substantively to the points. The conditions included by the FWS in

the Opinion to benefit the chub and bat added an estimated $25,000 of expenses

annually in managing the allotments. The Forest Service issued a Montana Allotment Management Plan in September 1999 that was based on the Biological Opinion. The plan allowed for my cattle to use 45 percent of the forage and leave 55

percent for wildlife and esthetics. The plan also replaced the fixed permit number

of 500 cows with a ‘‘range’’ of 400 to 500 cows per year (subject to annual determina-
101

tion). These restrictions decreased the market value of the allotment by approximately $150,000.

A Federal district court decision struck down the Biological Opinion in December

2000. Nevertheless, the FWS and Forest Service reinitiated consultation on the chub

and bat. A new draft Biological Opinion was issued by the FWS in March 2001

eliminated grazing on 1,200 acres along the California Dry Gulch to protect the

chub. I persuaded the FWS Field Supervisor through discussions and the presentation of exhaustive documentation that the Dry Gulch is an intermittent and

ephemeral stream, not the perennial stream repeatedly referred to in the draft Biological Opinion. The Supervisor ultimately restored the 1,200 acres that had been

withdrawn from grazing. The Ninth Circuit issued the Arizona Cattle Growers’ opinion in 2001 holding that the FWS lacks authority to impose conditions in permits

for listed species on land where the species had not been found.

SECTION 7 CONSULTATION: POSSIBLE SOLUTIONS

1. Sound Science

Perhaps the most obvious failure in the ordeal described above is that the agencies failed to use sound science, which in this case really equates with common

sense, when they embarked on consultation for the Sonora chub and the lesser longnosed bat. These species were never found on my allotments, yet the government

was prepared to impose onerous restrictions on my livelihood to help them.

Sound science starts with disinterested evaluation of species listing and delisting

proposals by objective scientists utilizing peer review of their work. FWS employees

can have their judgment obscured at times by their institutional interest in administering the ESA. Because of the tremendous impact ESA can have on economics,

communities, and local land use generally, we believe additional procedures are in

order to ensure that no interest is unfairly minimized or excluded prior to a decision. In particular, we would like the ESA to be amended to require the National

Academy of Science or some other reputable third party to concur in FWS decisions

to list or delist species or in the contents of Biological Opinions.

2. Applicant Status

Another major failure of the consultation process in my instance was the refusal

on the parts of the agencies to allow myself, who was legally recognized as having

applicant status in the consultation process under FWS regulations, or any members of my legal or scientific team to participate in any Forest Service and/or FWS

discussions, meetings, or deliberations prior to the issuance of the draft FWS opinion. Numerous times my lawyers asserted that under the law and under FWS regulations they had the right to participate in the process as applicants and still we

were denied access to the discussions about my allotment. By not allowing me to

be there, I feel that decisions were not made based on fact, but instead were based

on irrelevant factors.

I would have wanted my oral testimony to be heard and taken into account by

agency officials in the Forest Service and the Fish and Wildlife Service as they

made decisions concerning the future of my livelihood on the allotment. I would

have wanted the agencies to listen to presentations by my experts, and then take

the testimony of those experts into consideration. I would have appreciated some responsiveness from the agencies. Instead, we were kept out of the discussion completely during the first consultation. Agency decisionmaking would have benefited

tremendously by a more complete illumination of the facts and science affecting the

species.

The general issue is that all members of the public who are potentially adversely

affected by the results of a consultation under the ESA should be permitted, as a

matter of law, to participate fully in the consultation.

3. Mitigating Alternatives

If the Forest Service feels it necessary to remove a permittee from the land pursuant to the terms of a Biological Opinion issued under the ESA, the agency should

be required, as a matter of law, to consider alternatives to keep that rancher in

business. Public land grazing keeps many ranchers’ operations viable, and to be

forced off of the land without any rectification could be the kiss of death to many

public land ranchers. The Forest Service should have to consider if other, comparable range is available for the public land rancher to graze his cattle on. It is

a principle of fairness if land is to be taken away, the land should be replaced with

equally economically viable land.
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CONCLUSION

I want to thank you again for this opportunity to present the views of the cattle

industry with respect to section 7 consultation under the ESA. We look forward to

working with you to craft legislation that will both respect the need to protect species and be respectful of the ranchers and their families who have worked western

lands for so many generations.

STATEMENT OF WILLIAM J. SNAPE, III, VICE PRESIDENT AND CHIEF COUNSEL, DEFENDERS OF WILDLIFE

Introduction

Thank you, Mr. Chairman and Ranking Member of the Subcommittee on Fisheries, Wildlife and Water. On behalf of Defenders of Wildlife (Defenders), where I

am vice-president and chief counsel, as well as our approximately one million members & supporters, I appreciate the opportunity to address the value of inter-agency

consultation under the Endangered Species Act (‘‘ESA’’ or ‘‘Act’’), 16 U.S.C. Sections

1531 et seq., pursuant to Section 7 of the Act. 16 U.S.C. §1536. I am also chairman

of the board for the Endangered Species Coalition, which represents approximately

400 citizen groups, scientific entities and small businesses on behalf of a strong and

vibrant Act. See generally www. stopextinction.org. My biography was circulated to

this Committee earlier this year in connection with testimony on ESA critical habitat.

By definition, my written testimony can merely touch upon the many varied consultations now going on across the country. I would be happy to answer any questions regarding the policy themes I raise herein. Familiarity with Section 7 of the

ESA is presumed in this testimony. For excellent background information, see, e.g.,

American Bar Association, Endangered Species Act: Law, Policy and Perspectives

(2002); Stanford Environmental Law Society, The Endangered Species Act (2002) at

78–103; and Daniel Rohlf, Jeopardy Under the ESA: Playing a Game Protected Species Can’t Win, 41 Washburn Law Journal 114 (2001). Also relied upon was Senator

Crapo’s March 22, 2002 letter to the General Accounting Office (GAO).

I wish to make three basic points this morning about the ESA consultation proc- ess: 1) Too frequently, the focus of consultation is mere short-term survival of the

species, not recovery, which is (and should be) the true goal of the Act;

2) Species with critical habitat designations tend to fare much better in

consultation than species without such designations; and

3) The consultation process itself is of value to wildlife and humans alike.

SURVIVAL VS. RECOVERY

Case Studies: Woodland caribou and grizzly bear

In our estimation, the current problem over standards in the consultation process

derive from several questionable changes contained in the 1986 Section 7 regulations. One change pertains to the definition of ‘‘jeopardize’’, which now means, as

a result of the 1986 rules purportedly still in effect, ‘‘an action that reasonably

would be expected, directly or indirectly, to reduce appreciably the likelihood of both

the survival and recovery of a listed species in the wild . . .’’ 50 C.F.R. §402.02 (emphasis added). At least one Federal court has found the Section 7 regulatory standards to be illegal because they conflate the notions of ‘‘survival’’ and ‘‘recovery’’ contrary to Congress’ intent. Sierra Club v. U.S. Fish and Wildlife Service (FWS), 245

F.3d 434 (5th Cir. 2001).

Nowhere is this legal problem more evident than in northern Idaho, eastern

Washington, and western Montana, where the highly endangered woodland caribou

hangs by a tether. With only 30–40 individual adults left in the U.S. wild, by all

scientific accounts this species needs all the old growth forest habitat it can get for

breeding, feeding and sheltering. U.S. FWS, Southern Selkirk Mountain Woodland

Caribou Recovery Plan (1994). In this same area, a remnant population of grizzly

bears, numbering no more than a dozen or so in the U.S., is also jeopardized by Federal agency actions. U.S. FWS, Grizzly Bear Recovery Plan (draft revised, 1993).

Yet, in example after example, the Forest Service which administers most of the

woodland caribou’s remaining habitat allows actions on Federal public lands that

harm the species and prevents its conservation, almost as if it is managing the species for fingernail survival. For instance, the Colville National Forest recently approved a request from the Stimson Lumber Company to build a road and secure industry access in unroaded forest recovery areas for the woodland caribou and grizzly

bear; this project will definitely adversely affect both species. U.S. FWS, Biological
103

Opinion on the Stimson ANILCA Access Easement Project at 58–68. In another instance of woodland caribou habitat degradation, the Idaho Panhandle National Forest recently announced a doubling of the Chips Ahoy timber sale. 68 Fed. Reg.

33906 (2003). Other so-called ‘‘salvage’’ timber sales in prime woodland caribou recovery habitat are still pending. See, e.g., 65 Fed. Reg. 34654 (2000). Expanded

snowmobiling use and trails, some of it illegal, is also harming woodland caribou

on Forest Service lands. See, e.g., Trevor McKinley, Snowmobile Mountain Caribou

Interactions, (May 9, 2003 draft). The grizzly bear is now threatened by a number

of increased uses on Federal public lands, including the exponential increase in oil

and gas permits being issued by the Department of the Interior and related agencies.

THE IMPORTANCE OF CRITICAL HABITAT

Case Studies: Pygmy Owl and Silvery Minnow

One need read no further than the plain language of the ESA Section 7(a)(2) to

understand the importance of critical habitat during the consultation process: ‘‘Each

Federal agency shall, in consultation with and with the assistance of the Secretary,

insure that any action authorized, funded, or carried out by such agency is not likely

to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of (critical) habitat . . .’’

(emphasis added). As the FWS has stated in the context of the northern spotted owl

critical habitat designation, ‘‘the adverse modification standard may be reached closer to the recovery end of the survival continuum, whereas the jeopardy standard

traditionally has been applied nearer the extinction end of the continuum.’’ 57 Fed.

Reg. 1822 (1992).

Two species in the Southwest the Rio Grande silvery minnow and the cactus ferruginous pygmy owl both vividly demonstrate the importance of critical habitat for

most species during Section 7 consultation. With regard to the pygmy owl, the Army

Corps of Engineers ended consultation on several important estate development

projects that would negatively impact identified pygmy owl recovery habitat immediately after a Federal court vacated the pygmy owl critical habitat designation. National Association of Home Builders v. Norton, slip op. (D. Arizona Sept. 19, 2001).

With just approximately 18 adult pygmy owls identified in the United States, and

habitat loss and destruction being the key factors in the species’ decline, this imperilled bird (like the woodland caribou and grizzly bear) needs all the prime desert

habitat it can get. See, e.g., 62 Fed. Reg. 10730 (1997)(final listing rule for pygmy

owl, emphasizing the central importance of habitat protection for the species).

With regard to the silvery minnow a recent U.S. Court of Appeals decision reinforces how critical habitat helps not only individual species, but also entire ecosystems. Rio Grande Silvery Minnow et al. v. Keys, slip op. (10th Cir. June 12,

2003). It should also be noted here that, despite the rhetoric by some to the contrary, this decision is balanced and requires only that the Bureau of Reclamation

consider wildlife imperilled with extinction when dealing with water shortages

under Federal water contracts. Id.

Thus, we are extremely concerned by the Bush Administration’s announcement

last month that it will seek to delay once again its work on the critical habitat designation for over thirty threatened and endangered species. Having successfully engineered its own budget crisis, the Administration now seeks to deny affirmative

habitat protection for those species that most need it, including the pygmy owl, including many species that contribute to California’s biological diversity, and including the bull trout that is negatively impacted by U.S. and Canadian forestry actions

alike.

MANY BENEFITS OF THE CONSULTATION PROCESS

Case Studies: Sonoran pronghorn, Lynx, Migratory Birds

With all due respect, we disagree that: 1) most ‘‘no jeopardy’’ findings under the

Section 7 process are ‘‘inevitable’’ or that 2) ‘‘more and more of these unneeded consultations’’ provide ‘‘no benefit’’ imperilled wildlife species. Crapo Letter to GAO at

1.

First, the high incidence of ‘‘no jeopardy’’ opinions has as much to do with the

political and economic pressure that project applicants apply upon the action agency

as it does with the biological integrity of the agency actions in question. See Oliver

Houck, The Endangered Species Act and Its Implementation by the U.S. Departments of the Interior and Commerce, 64 University of Colorado Law Review 277,

326 (1993)(‘‘Taken together, Interior’s regulations present a composite picture of an

agency doing everything possible within law, and beyond, to limit the effect of protection under Section 7(a)(2).’’). Second, even when a no jeopardy opinion is validly
104

1See also David Malin Roodman, Paying the Piper: Subsidies, Politics and the Environment

(1996); Elizabeth Losos et al., Taxpayers’ Double Burden: Federal Resource Subsidies and Endangered Species (1993); Thomas Power, Not All That Glitters: An Evaluation of the Impact of

Reform of the 1872 Mining Law on the Economy of the American West (1993)(all three reports

highlight examples of Federal agency expenditures that are economic and ecological losers).

written, the statutory language (and practice) of the ESA is that ‘‘reasonable and

prudent alternatives,’’ ‘‘reasonable and prudent measures,’’ and ‘‘terms and conditions’’ by FWS or the National Marine Fisheries Service (NMFS) can all positively

impact the final agency action going through consultation. See, e.g., ESA, 16 U.S.C.

§1536(b)(4). Avoidance, minimization and mitigation are important concepts in the

Section 7 and 10 processes. See generally Michael Bean and Melanie Rowland, The

Evolution of National Wildlife Law (1997).1

A case in point is the highly endangered Sonoran pronghorn, of which as few as

20 individual adults now inhabit the United States. Listed since 1967 when the

original voluntary endangered species law was passed by Congress, this desert species has declined due to a number of individual agency actions that have degraded

its habitat, most of which is on Federal land (e.g., DOD, FWS, BLM, NPS, Border

Patrol). A Federal court has ruled, consequently, that the Federal family must do

a much better job cumulatively assessing and acting upon threats to the Sonoran

pronghorn. Defenders of Wildlife v. Babbitt, 130 F.Supp. 2d 121 (D.D.C. 2001). If

anything, the subsequent consultations pursuant to this judicial decision have usefully identified threats and actions impacting the pronghorn. The problem has been

getting the action agencies to do the right thing. As one of several examples, despite

recognition that hot desert cattle grazing in the Sonoran Desert is adversely impacting the Sonoran pronghorn (an earlier GAO study already has concluded that hot

desert grazing is an economic disaster for the Federal Government), the Bureau of

Land Management in its ‘‘no jeopardy’’ opinion has essentially allowed ‘‘business as

usual.’’ U.S. FWS, Biological Opinion for Five Livestock Grazing Allotments in the

Vicinity of Ajo, Arizona (2002).

Another example of proper consultations leading to wiser governmental decisions

pertains to the lynx and northern national forest management. Under court order

to designate critical habitat for this species, we believe the FWS (and the Forest

Service, which tends to be the action agency with regard to this species) would help

both the lynx and the national forest program by rigorously analyzing the impact

of certain projects upon meso-carnivore protection. See generally Leonard Ruggiero

et al., Ecology and Conservation of Lynx in the United States (1999). However, the

recent proposal by the Bush Administration to allow the Forest Service to make its

own consultation decisions on actions ‘‘likely to adversely affect’’ listed species turns

the notion of independent wildlife analysis on its head, and is illegal. 68 Fed. Reg.

33806 (2003).

Similarly, it is blatantly illegal for the Services to allow the Environmental Protection Agency (EPA) to opt out of consultations altogether with regard to its pesticide approval program. 68 Fed. Reg. 3786 (2003). As Defenders has noted in detailed comments to the EPA and the Services, our Federal Government’s top biologists cannot be written out of the process to evaluate the safety of new chemicals

that come on line almost every day. This is an issue not only for many wildlife species, and particularly the migratory birds discussed by Rachel Carson almost forty

years ago, but also for human health.

CONCLUSION

We believe Section 7 of the ESA is fundamentally sound. With adequate financial

resources, we believe the FWS and NMFS possess the ability to streamline consultations (and related environmental reviews) when necessary to do so. Long opposed

by many industry applicants, we believe the time has come to add sunshine to the

relatively closed Section 7 process in order to better understand the process and to

potentially fine tune it. Self-consultation by action agencies is not the way to go.

Holding action agency expenditures accountable to good fiscal and ecological oversight is where we should be heading.

Thank you for your time and attention. I would be happy to answer questions or

respond to comments.
105

STATEMENT OF RICHARD DIEKER, PRESIDENT OF THE YAKIMA BASIN JOINT BOARD

ESA SECTION 7 CONSULTATIONS

CHAIRMAN CRAPO AND MEMBERS OF THE SUBCOMMITTEE: I am here testifying

today on behalf of the Yakima Basin Joint Board, an association of major irrigation

districts in the Yakima River Basin, Washington. The Board has been attempting

to work with the National Marine Fisheries Service (now ‘‘NOAA Fisheries’’) and the

U.S. Fish & Wildlife Service on Section 7 Endangered Species Act issues for nearly

5 years.

As a result of the Services’ actions, or more accurately lack of actions, the Board

has experienced significant hardship, expense, and delay which has hindered the legitimate and valuable operation of the Yakima Reclamation Project.

Our experience has led us to conclude the Section 7 consultation process is seriously flawed because of the arbitrary, dilatory, and negative administration of the

process by NMFS and USFWS.

Both services have often even refused to include the Board in many Section 7 consultation discussions, even though the Board has requested to be treated as, and

has been advised that we are being treated as, an ‘‘applicant’’ in the Section 7 consultation.

The Yakima Reclamation Project was begun in 1905, and has been the backbone

of the irrigated economy in the Yakima River Basin since construction was largely

completed in 1917. The Project includes 6 dams in the Cascade Mountains that

store winter and spring runoff for use in the hot and dry summers. The Project has

been completed and operating since 1917, except for the Kennewick division which

was completed in the 1950’s. It has been a very successful Reclamation project.

More information on the history of irrigation in the Yakima River Basin is included

in Appendix A–1.

Under Section 7 of the ESA, the Bureau of Reclamation has consulted with NMFS

and USFWS regarding the operation of the project, to the extent the Bureau has

discretion in its operations. The Bureau also consulted with NMFS and USFWS regarding repair or reconstruction of one of the Project dams,

Keechelus dam, under the Safety of Dams Act. That Keechelus dam consultation

is the subject of litigation which is still on appeal to the U.S. Ninth Circuit Court

of Appeals.

The following issues and relevant information describes the Board’s consultation

experience. More detail about each subject is presented in the Appendicessome appendices, which are identified with the same letter as in the titles.

A. SPECIFIC ESA SECTION 7 PROBLEMS EXPERIENCED BY THE BOARD

(1) Consultation Has Cost Board, its Members and their waterusers over $1.7 Million; YBJB scientific expertise

The Board and its members have incurred and paid more than $1,000,000 to its

fish biologists, more than $239,902.00 to attorneys, and more than $530,000 for

dedicated staff time and other costs responding to the ESA Section 7 consultations

on the operations of the Yakima Reclamation Project, on the Keechelus dam repair

consultation, and for other ESA compliance issues.

Section 7 consultation costs have been a severe financial burden to YBJB landowner/waterusers whose irrigated crop income and production have been adversely

impacted in the past five (5) years by drought and depressed prices of major Project

asparagus, fresh fruit (apples, etc.), hops, mint and other irrigated crops.

Attached Appendix ‘‘A–2’’ contains more details about YBJB’s consultation related

costs.

Most of these costs and expenses were required to provide the best available

science to the U.S. Bureau of Reclamation for its use in the Section 7 consultations

on the operations of the Yakima Reclamation Project and its ESA Section 7 consultation.

The Board has, since 1992, retained experienced, independent and professionally

qualified fish biology advisors and consultants: (1) who are familiar with, and

knowledgeable about, fish, habitat, State and Federal laws and regulations and

other activities and conditions in the Yakima River Basin, the Western United

States, Alaska and Canada, and (2) who have contributed to the preparation of this

testimony and statement. Since the listings of the Bull Trout and Steelhead, the

overwhelming majority of their time has been spent on ESA issues or performing

research that is directly relevant to and has been used in the Section 7 consultation.

Appendix ‘‘A–3’’ contains brief statements describing the qualifications of the

Board’s fish biologists.
106

(2) Delays in Resolution of the Consultation; Bureau of

Reclamation consultation chronology

For nearly 5 years, Tthe Board has been actively involved in ESA Section 7 consultation and has helped the Bureau of Reclamation respond to issues raised by

NMFS and USFWS (the ‘‘Services’’) in the Project operations consultationproblems

for nearly 5 years. The Section 7 consultation on Project operations is still not complete.

The Board’s Section 7 consultation expenses started in August, 1998 when a Bureau representative formally notified the Board’s president that the Bureau was required to consult with NMFS. Previously, the Board’s biologists had reviewed and

commented on the proposed listings of the fish. After the consul-tation started, the

Board’s biologists provided input and assistance to the Bureau while the Bureau

was developing its ‘‘Biological Assessment.’’ The Biological Assessment is the first

step of a formal Section 7 ESA consultation. In 1999, The Bureau presented a draft

‘‘Biological Assessment’’ to the Services for their review and comment. The Bureau

submitted a Final Biological Assessment to the Services in August, 2000. Under Section 7 and its implementing regulations, the Services are supposed to conclude the

consultation by issuing a ‘‘Biological Opinion.’’ Section 7 of the ESA requires consultations to be completed within 90 days, subject to extension only to 150 days unless the applicant consents to a longer period. It has been almost 3 years, over 1000

days, and no Biological Opinion has been issued.

To the Board’s knowledge, there has still not yet been no resolution of the original

basic issues such as the scope of the consultation, new issues have surfaced, problems, new problems keep surfacing, and there is no realistic timeframe for completion. The Services that would allow the Yakima system to function. The twohave

hired large numbers of staff to deal with new endangered species listings, largely

designated by themselves, to assist with their workload. The effect of agency expansion, however, has only served to allow the Services to attempt to ir expanded their

authority over Yakima Reclamation Project operational and maintenance issues,

and the extension of consultation far into the future.

Appendix A–4 is a chronology of consultation activities prepared by the Bureau

of Reclamation’s Yakima Office which shows the Bureau’s efforts to conclude the

consultation.

(3) Consultation requires education and Expense

The new hires by the Services have often been inexperienced junior-level biologists who must negotiate complex and contentious technical issues. The results of

their questionable decisions has required the Board to retain recognized experts in

fisheries science to more correctly examine the issues raised, provide accurate analyses, and educate the new hires in the science they are supposed to administer.

Appendix A–5 contains more detail on this subject.

(4) ESA administrative rules are vague

The classification of hatchery fish by NMFS under the ESA, and the subsequent

judicial review of that classification, is a good example of the Services’ arbitrary interpretation of the ESA. Judge Hogan found that NMFS wrongly excluded hatchery

fish from the population under consideration for listing and sent the issue back to

NMFS for reconsideration. (See, infra, p. 31) There are many other examples of

vague administrative rules that wrongly interpret the ESA, including the appropriate definition of an ESA ‘‘species’’, what is meant by ‘‘evolutionarily significant’’,

who determines ‘‘evolutionarily significance’’, and differences in interpretation of responsibility by NMFS and USFWS.

Another classic example of NMFS arbitrariness is the listing of Steelhead trout

as threatened. It is known beyond dispute that Steelhead are genetically identical

to rainbow trout and in fact interbreed with rainbow trout. Rainbow trout are plentiful in the Yakima River, which supports a trophy fishery for them. Yet, Steelhead

were listed as threatened, and NMFS has refused to delist them.

Appendix A–6 contains more detail on these issues.

(5) Impartial analyst or biased advocate?

The legal structure of the ESA is contrary to the precept of keeping scientific data

and analysis independent of the influence of political objectives. The service which

is expected in the ESA Section 7 consultation process to act as a ‘‘neutral analyst’’

while determining deciding whether or not to list a species is the same service

charged with regulating activities which might affect the species of concern. The potential for the service to act in its own self-interest and expand it’s own administrative power and budget is obvious. Congress and the executive branch should amend

the ESA and/or require by regulation an independent review of the species’ ‘‘status’’
107

to avoid the services’ ‘‘conflict of interest’’ when the same service is responsible for

both analysis and advocacy.

B. ADMINISTRATIVE ERRORS AND ESA MISINTERPRETATION

During the past decade, NMFS has greatly expanded the ESA list of Pacific salmon it considers ‘‘threatened’’ or ‘‘endangered’’. species. The pace and scope of these

listings is indicative of obvious, substantial flaws with the Services’ interpretation

and administration of the Act. These expensive, time-consuming listing problems

can be traced back to NMFS policies which redefine the intent and purpose of the

Act to: (1) conserve genetic diversity rather than protect actual species, sub-species,

or distinct population segments, (2) redefine the unit at risk to be an ‘‘Evolutionary

Significant Unit’’ or ‘‘ESU’’, a concept introduced to satisfy the genetic conserva-tion

goals only incorrectly assumed by NMFS, and (3) further subdivide the units at risk.

An example of this last problem is the implementation of policies to exclude fish of

hatchery-origin from listed populations of the same population segment, regardless

of their relationship to naturally spawning fish which was considered and rejected

by Judge Hogan, noted above and infra, p. 25.

More detail on this subject is contained in Appendix B.

C. IMPROPER LISTING OF SPECIES; COLUMBIA RIVER SALMON, STEELHEAD TROUT AND

BULL TROUT ARE NOT THREATENED WITH EXTINCTION

Salmon and steelhead in the Columbia Basin have experienced declines in abundance since the end of the 19th century[BJI1]. Decreased abundance was, howeverin

large part, a result of overfishing and of an intentional Federal Government decision

to develop the Columbia River water resources for greater economic benefit. As a

result, only about 20 percent of the historical habitat remains available to spring

chinook and steelhead.

When the Federal Government made the decision to developthose the Columbia

River’s water resources, it also decided to establish hatcheries to produce salmon

and steelhead to maintain the fisheries, and later to supplement natural spawning

populations. Those efforts were largely successful, in conjunction with the changing

ocean environment. Numbers of chinook salmon and steelhead returning to the Columbia in the last 4 years have been higher than any comparable period since the

1930’s. Steelhead are not at risk of extinction, yet there is no serious discussion of

delisting, and the power of the Services power keeps expanding.

Similarly, there is no evidence that bull trout are at risk of extinction. Bull trout

status now in relationship to their historical abundance in the basin is poorly

known, mostly because of a lack of information on historical abundance. Bull trout

were listed because of this lack of information, without any actual knowledge or evidence that they were at risk of extinction, or even declining in numbers. Natural

production continues throughout the system and abundance seems to be increasing

mostly because of a restriction on fishing. Bull trout have much lower population

densities than steelhead and salmon because, as a predator species, lower abundance is a strategy that favors survival in headwater reaches and smaller streams.

Bull trout are obviously not at risk of extinction in the Yakima Basin. Their numbers are stable or increasing.

More detail on this subject is available in Appendix C.

D. THE UNITED STATES HAS NO LEGAL AUTHORITY TO CHANGE THE USE OR REALLOCATE

YAKIMA RECLAMATION PROJECT SURFACE IRRIGATION WATER WHICH IS OWNED BY

YAKIMA RECLAMATION PROJECT LANDOWNER/WATERUSERS; THE U.S. IS A ‘‘TRUSTEE’’ FOR THE BENEFIT OF PROJECT IRRIGATOR LANDOWNER/ WATERUSERS.

Yakima Reclamation Project landowners and waterusers have, according to the

United States Supreme Court, a constitutionally protected, vested Washington State

approved and certificated ownership ofrights to Yakima Reclamation Project surface

water. and water rights pursuant under Federal and Washington State water rights

law. The Bureau of Reclamation is obligated by law and contract to annually deliver

to Board members their full annual entitle-ments. The Washington State Supreme

Court has confirmed that the irrigator’s Project water rights are only subject only

to a substantially diminished Treaty fish water rightto protection of fish for substantially limited because the Yakama Nation filed a claim in the Federal Indian

Claims Commission against the U.S., negotiated a settlement and was, in 1968, paid

$2.1 million by the U.S. as part of the final settlement of three (3) land claims plus

the Nation’s fishing diminution claim all of which were dismissed with prejudice.

Nonetheless, yet both NMFS and USFWS have been attempting through their actions to modify or restrict the use of established irrigator water rights. The Services

continue to attempt to use the consultation process to modify these vested water
108

rights despite their own regulations which recognize that consultation is required

only for the Bureau’s discretionary acts. The Board does not believe the Bureau has

legal discretion to take any part of these vested irrigation water rights and reallocate them for ESA or any other purpose including fish.

Appendix D provides additional background on the legal rights of Yakima Reclamation Project irrigator landowner/waterusers.

E. CONCLUSION

The Endangered Species Act is important national legislation. The Board supports

the ESA, but only as it was originally passed by Congress. The Board Yakima Basin

Joint Board, a group of public water suppliers who deliver water supplied by the

United States Bureau of Reclamation Yakima Project in central Washington State,

considers the problems it has encountered with the ESA, and particularly in the

Section 7 Consultation process, to have reached crisis proportions. The serious and

disabling problems created are the result of erroneous administration and administrative interpretation of the Act by the NMFS and USFWS, and weakness in the

Act itself that permit service errors. problems. Testimony on the controversial concepts and abuses in administration of the Act has been identified in this presentation.

Bull trout and steelhead trout are listed as a threatened species under the Endangered Species Act throughout the Columbia Basin, including the Yakima River when

in fact neither species is at risk of extinction. Consequently, the Board has had to

expend considerable time and over one million dollars on legal and scientific advice

to maintain their constitutionally protected water rights and provide the best available science to the Bureau of ReclamationUSBR, NMFS, and the USFWS for use

in the Section 7 consultation occurring on the operations of the Yakima Reclamation

Project.

This ESA burden exists because both bull trout and steelhead were listed by services that NMFS and USFWS have misinterpreted the ESA to protect genetic diversity, rather than subspecies or distinct population segments as defined by the

ESAAct. Pacific salmon, steelhead, and bull trout in the Columbia Basin are not at

risk of extinction, but the misinterpretation of the ESA Act has allowed the widespread listings of these species through arbitrary internal agency policy decisions.

These decisions have been upheld by the courts because of the great deference the

courts show to the services which administer the ESA.

Congress must clarify the ESA to prevent the misinterpretations that have resulted in the listing of species that are at no risk of extinction. Congress must remove the Services discretion to list ‘‘ESUs’’ rather than subspecies or distinct population segments. Congress must take action to correct the flaws in the administration of the ESA that have resulted in grievous hardships to water users and private

land owners, and to prohibit the very controversial genetic diversity concepts originating from the services’ policy memoranda rather than from the congressional legislation. It will be necessary that Congress must precisely define its goals, objectives

and expected actionsbe precisely redefined to , and leave no uncertainty about the

purpose of the Act and the extent of its authority. Congress must provide , as well

as providing clear guidelines on agency actions, administration of those actions, and

the consultation process, and put teeth in the provisions, routinely ignored, that

consultations proceed on time.

Congress will, by positive action, remove the discretion that has caused the Ninth

Circuit and other Circuits of the Federal Court of Appeals to defer to the services’

misinterpretation of the ESA and the resulting seizure of power.

APPENDICES

APPENDIX A–1

Yakima River Basin, Irrigation in the Yakima River Basin

and the Yakima Reclamation Project

The Yakima River Basin (‘‘Basin’’) in south-central Washington State is the approximate 6,155 square mile, 4 million acre (an area larger than the State of Connecticut) surface water drainage of the 214+ mile Yakima River and its tributaries.

The Basin is bordered on the west by the Cascade Mountains with desert/steppe

rangeland on the east, north and south. The Yakima River’s headwaters are on the

eastern slopes of the Cascades and flows generally from northwest to southeast until

it empties into the Columbia River between Kennewick and Richland, Washington.

Annual Basin precipitation (mostly snow) on the eastern slopes of the Cascades

during late fall, winter and early spring may exceed 120 inches but both snow and
109

rain in the irrigated farming areas of Benton, Kittitas and Yakima Counties annually average only between eight (8) and ten (10) inches.

Irrigated agriculture, the main economic activity in the Yakima River Basin, uses

approximately 1,000 square miles of the Basin’s area.

(1) Pre–1905 Irrigation

By 1902, there were an estimated 121,000 acres under irrigation in the Yakima

Basin, representing about 25 percent of the present irrigable development. This

acreage was served by natural flows in the river and tributaries, with none of the

present large storage dams and reservoirs in existence. The natural runoff was inadequate to insure a dependable water supply for the development even at the turn

of the century.

Because of early over appropriation of available water supply, no additional irrigation development for many fertile acres in the Valley was feasible unless two things

were accomplished: First, existing claimants had to agree to restrict their water

usage to beneficial use and equitable distribution, particularly in the low late summer period; and second, water storage was necessary to salvage the early season

runoff for supplying irrigation needs for new land development.’’ [Lentz, Review of

the Yakima Project and Other Data, (1974), pp. 1–2]

(2) Post–1905 Irrigation; the Yakima Reclamation Project

The U.S., between 1913 and 1933, developed the Yakima Reclamation Project by

constructing six (6) irrigation water storage reservoirs (Bumping, Clear Creek, Cle

Elum, Keechelus, Kachess and Rimrock) with total active capacity of 1,070,700 acrefeet (‘‘a/f’’), as well as diversion and conveyance facilities between 1906 and 1958 for

the five (5) major Yakima Reclamation Project divisions (Kennewick, Kittitas, Roza,

Sunnyside and Yakima-Tieton) plus the Wapato Irrigation Project (‘‘WIP’’).

The water storage reservoirs are operated to conserve winter and spring water

(‘‘runoff’’) for release during the low water summer irrigation season.

The Yakima Reclamation Project’s 465,000 acres of irrigable land annually requires approximately 2,500,000 acre-feet of water to successfully grow marketable

crops.

An ‘‘acre-foot’’ of water is the amount of water needed to cover an acre of land

to a depth of one (1) foot of water.

Yakima Reclamation Project landowner/waterusers have repaid, and continue to

annually pay, the U.S. for all Yakima Reclamation Project construction, annual

maintenance, operation and repair of the storage reservoirs allocable to irrigation.
110

Figure 1. The western portions of the Yakima Basin are forested mountains of the

Cascade Range, while the eastern, low elevation portions of the Basin are arid agricultural and range land. Over 465,000 acres of agricultural land is served by the

Yakima Reclamation Project.

APPENDIX A–2

Consultation has cost the Board, its members and their waterusers over $1.7 million

(1) Joint Board Biologist Fees: $1,060,943.00

Since 1998, the Board has spent $1,060,943.00on biologists. The work done by

those biologists since that time has either been directly related to the Section 7 consultation or has been research that is relevant to and useful in the Section 7 consultation.

(2) ESA-related Attorneys Fees and Cost Estimates:

$239,902.00

Joint Board members estimate they have spent at least the following amounts on

attorneys fees and costs on matters directly related to ESA matters. Because of divisions of labor among the members’ attorneys, the Kennewick Irrigation District’s attorneys and the Yakima Tieton Irrigation Districts attorneys have spent the most

time and effort on ESA matters.
111

a. Kennewick Irrigation District

$

1998 ......................................................................................................................................................................... 12,170

1999 ......................................................................................................................................................................... 18,387

2000 ......................................................................................................................................................................... 5,312

2001 ......................................................................................................................................................................... 6,634

2002 ......................................................................................................................................................................... 16,159

2003 to date ............................................................................................................................................................ 12,501

$71,163

b. Roza Irrigation District

Roza Irrigation District estimates that its share of ESA-related attorney’s fees are

approximately $50,000.

c. Sunnyside Division

$

8/98 to 12/98 ........................................................................................................................................................... 2,125

1999 ......................................................................................................................................................................... 7,750

2000 ......................................................................................................................................................................... 5,923

2001 ......................................................................................................................................................................... 9,116

2002 ......................................................................................................................................................................... 3,825

1/03 to 7/03 ............................................................................................................................................................. 5,000

$33,739

d. Yakima Tieton Irrigation District

YTID estimates that its share of ESA-related attorney’s fees are approximately

$50,000. This does not reflect all ESA-related work done for YTID’s benefit because

YTID’s attorneys were splitting the bill for their Yakima River ESA-related work

between YTID and other clients.

e. Kittitas Reclamation District

Kittitas Reclamation District estimates its ESA-related attorneys fees have been

$35,000.

TOTAL ATTORNEYS FEES AND COSTS: $239,902.00

(3) ESA-related Staff Cost and Other Cost Estimates: $534,786.00

a. Kennewick Irrigation District

Kennewick’s Secretary/Manager estimates that he spends a minimum of 2 days

per month on ESA matters. Prorating his annual salary for the period since June,

1998 results in a staff time loss of: $63,440.

b. Roza Irrigation District

Roza estimates that its Secretary/Manager (now retired and part time spends approximately 10–15 percent of his time on ESA related matters)

c. Sunnyside Division

SVID estimated costs related to ESA: $113,652

Average Monthly meetings w/ some relation to ESA since Jan 1998:

At least 7 meetings per month with multiple staff members concerning YBJB,

WSWRA, AFW, Tri-County, and YRBWEP

d. Yakima Tieton Irrigation District

Did not provide estimate

e. Kittitas Reclamation District

i. KRD Manager: $29,040

Average Monthly meetings w/ some relation to ESA since Jan 1998: 5.5 yrs x 12

months x 5 meetings x 4 hrs per meeting x $22 payscale = $29,040

Meetings include YBJB, KCWP, KRD Board, Manastash Creek, Tucker Creek,

Taneum Creek, YRBWEP, Tri-County, WSWRA, AFW)

ii. KRD GIS Staff: $12,562
112

iii. KCWP staff: $5000 per yr over 4 yrs: $20,000

iv. NRCS/KCCD: $7,500 per yr over 4 yrs: $30,000

v. KCWP/KCCD related activities: $15,000 per yr over 2 yrs: $30,000

vi. Additional District related Costs: $236,092

YRBWEP: KRD Comp plan and addendum: $130,000

Taneum Creek Gage Stations and related hardware: $50,000 ($10,000 per station

x 5 stations [Confluence of Yakima, Bruton Ditch, Taneum Ditch, Taneum Ck above

chute, Mann Ditch]. Taneum Creek Gage Stations / operations and related staff

time: 5.5 yrs x ave yr $5266 = $28,962. Taneum fish passage contract (weir pools

at Mann Ditch): $27,130.44.

Total: $236,092

TOTAL KRD ESA STAFF TIME AND OTHER ESA EXPENDITURES: $357,694

TOTAL BIOLOGISTS, ATTORNEYS, STAFF AND OTHER COSTS ATTRIBUTABLE TO ESA: $534,786

APPENDIX A–3

YBJB Scientific Expertise

(1) Ernest L. Brannon, Ph.D. is a Professor emeritus at the University of Idaho

who has specialized in salmonid life history, ESA listed salmonid species, engineered habitat, aquaculture and is a Distinguished Research Professor in fisheries.

(2) Steven P. Cramer has been a fisheries consultant to private firms, State and

Federal agencies, and Indian tribes since 1987, after serving 13 years with the Oregon Department of Fish and Wildlife (ODFW), where he directed major research

programs. Mr. Cramer has participated on the Technical Advisory Team set up by

NMFS for the ESA reviews of both Coho and steelhead on the West Coast. He has

worked closely with the key NMFS biologists responsible for completing the ESA

status reviews for anadromous salmonids. He has been the lead author on six major

reports supplied to NMFS for ESA status reviews of Coho and steelhead populations. Three times, Steve Cramer has been contracted to guide ESA status reviews

for fish populations in an entire State, including Coho in Oregon, steelhead in Oregon, and steelhead in California. He was selected by Bonneville Power Administration to organize and lead a team of Northwest consultants to prepare a series of

11 reports on recovery issues of threatened and endangered Snake River salmon.

(3) D. Brent Lister. Mr. Lister is a fishery biologist with 25 years of experience

as a consultant in salmon enhancement and fish habitat impact analysis, and 15

years experience as biologist and senior program manager with the Canada Department of Fisheries and Oceans on both the Pacific and Atlantic coasts. His key expertise is in stream habitat utilization and population dynamics of salmon and

steelhead. Since 1990, Mr. Lister has been retained as a consultant to the Yakima

Basin Joint Board on ESA consultations and status reviews relating to steelhead

and bull trout, and on a variety of issues concerning river flow regime effects on

salmon spawning, and the rearing and seaward migration of juvenile salmonids.

(4) Patrick A. Monk, consulting fish biologist for the Yakima Basin Joint Board,

an association of major irrigation districts and municipalities in the Yakima River.

Mr. Monk’s has worked on a wide variety of fisheries management projects, including Endangered Species Act analysis and consultation and designing and conducting

field studies of fish and their habitats. Mr. Monk holds a Master of Science degree

in Fishery Resources, University of Idaho (2002), and a Bachelor of Science in Zoology, University of Wisconsin-Madison (1989).

(5) Thomas R. Payne, Certified Fisheries Scientist, is Principal Associate of Thomas R. Payne & Associates, Fisheries Consultants, located in Arcata, California. He

is a specialist in the application of the Instream Flow Incremental Methodology

(IFIM) to determine the impacts of flow alteration on aquatic ecosystems. In the

past 15 years, he has conducted or reviewed over two hundred instream flow studies

on proposed and existing hydroelectric and irrigation projects. Projects have been located in areas ranging from mountain streams in Hawaii to major rivers on the

East Coast, with an emphasis on high gradient streams in the Pacific Northwest.

Work associated with IFIM and directed by Mr. Payne includes fish population sampling, habitat mapping and typing, hydraulic measurements, habitat use determinations, computer simulations, license application preparation, agency negotiations,

post-project analysis, and expert witness testimony.

(6) Kenneth L. Witty, senior fisheries consultant, started his career in fisheries

a district biologist for the Oregon Department of Fish and Wildlife (ODFW) in 1963.

The focus of his work with ODFW was inventory and management of fish resources

and inventory and protection of their habitats. He administered the Lower Snake

River Fish and Wildlife Compensation Plan in Oregon. Since retiring from ODFW,
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Mr. Witty has worked with S.P. Cramer and Associates, Inc., focusing on the preparation of (1) reports assessing fish populations, trends and risk assessments, genetics, competition/predation, and re-introductions, (2) biological assessments for the

ESA, 404 permits including Section 10 authorization to sample listed fish, and gravel fill/removal permits, (3) habitat surveys, restoration, and carrying capacity estimates, (4) hatchery siting, design, and brood stock collection, and (5) passage evaluation at main-stem dams.

APPENDIX A–4

Bureau of Reclamation Consultation Chronology

YFO O&M consultation timeline

6/24/98 ..... *COM001*Request for species list from FWS to initiate consultation on YFO operations

7/23/98 ..... ESA Mtg with FWS. Discussion covered how to approach compliance. OK’d with a BO for interim period until

IOP complete. FWS approved outlined process for proceeding with BA. Reservoir operations (bull trout access, fluctuations and productivity, a minimum for Rimrock pool 10,000AF), activities below the reservoirs

(hydro graphs, passage at storage dams, show all diversions, identify screens and ladders, Clear Cr Ladder), operations post flip-flop

7/28/98 ..... Memo from BR to FWS concerning relationship of IOP to consultation suggesting a meeting

8/10/98 ..... NMFS/BOR discussed biological issues including, describing the fish protective facilities, facility maintenance, instream flows. NMFS suggests getting data from YN

12/2/98 ..... e-mail from FWS to BR concerning draft sections of the BA supplied to FWS

12/4/98 ..... Mtg with FWS @ Moses Lake. FWS comments on Reclamation data development and biological assessment

outline. Outline included w/ agenda.

9/1/1999 ... Transmit draft BA to FWS and NMFS and request comments. Hand delivered to NMFS and made PowerPoint

presentation

10/14/1999 Memo from FWS to BR transmitting comments on draft BA

11/30/1999 Met with NMFS to discuss Salmon Creek and spoke with Fransen about comments on the draft YFO ops BA

12/1/1999 Meeting with FWS to discuss comments on draft BA

5/25/00 ..... Met with NMFS to discuss BR consultations including YFO ops and Keechelus. NMFS raised issue of ‘‘jeopardy’’ at Keechelus if passage not included. ‘‘No train wrecks′′

8/7/2000 ... Sent final BA to FWS and NMFS. Offered to meet and discuss BA.

9/22/2000 Memo from FWS to BR indicating that BA was adequate to initiate consultation which began on August 8,

2000 and was to be completed on or before December 20, 2000.

12/20/2000 135 day consultation period ends on YFO Ops

1/19/2001 Memo from FWS notifying us and irrigation districts that FWS was going to use 60 extension provided to coordinate more with NMFS and BR.

2/19/2001 First 60 extension for FWS ends for YFO ops BO

3/12/2001 2001 Drought Operations Mtg. @ BOR. Discussion included Rimrock Lake, Easton Ladder, flushing flows, etc.

3/27/2001 Memo from FWS to BR requesting 60 day extension to provide for additional coordination with BR.

3/30/2001 FWS/BOR Yakima Field Office Section 7 Consultation Mtg. @ BOR. Discussion included Legal and Contractual

Considerations, 2001 Operations, Brief overview of BA

4/13/2001 FWS/NMFS/BOR Section 7 Consultation Meeting @ Kittitas Reclamation Office. Discussion included FWS/NMFS

comments on Yakima Project Operations BA, and presentation of FWS Recommendations on Drought Operations. 4/6/01 comments by USFW on the Yakima Operations Biological Assessment FWS and NMFS commit to draft BO’s in Aug/September timeframe.

4/30/2001 Letter Received from USFW to the BOR: Request for Extension on Section 7 Consultation on the Yakima

Project Operations and Maintenance. Committed to formulate BO by July 18 and transmit draft BO by September 1, 2001

5/11/2001 Meeting with NMFS and FWS to discuss BA. Discussed 4/30 letter from FWS to BOR. Handout prepared by

Steven P. Cramer and Ray Beamesderfer entitled Simulation of Bull Trout Impacts at Rimrock Reservoir

Resulting form Entrainment at Drawdown as well as graphs with fish counts and size

6/7/2001 ... Two field trips hosted by ID’s to look at irrigation systems

7/18/2001 Per 4/307/2001 request, FWS to have formulated BO on YFO ops

9/1/2001 ... Per 4/30/2001 request, FWS to deliver draft BO on YFO ops

9/17/2001 Meeting with FWS to discuss YFO ops and Keechelus consultation.

9/21/2001 Meeting with NMFS and WA State to discuss Keechelus and O&M consultation. NMFS commits to assign staff

to work on both and commits to a White Paper on the O&M consultation

3/15/2002 Conference call with NMFS and FWS. Both agencies commit to White Papers outlining there assessment of

affects of the proposed action on listed species and a jeopardy/no jeopardy analysis.

6/27/2002 Meeting with NMFS and FWS. NMFS provides an incomplete internal review draft of their White Paper dated

6/26/2002. FWS indicates their White Paper is still under development.
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Bureau of Reclamation Consultation Chronology—Continued

YFO O&M consultation timeline

7/11/2002 Meeting with NMFS and FWS. NMFS provides completed internal review draft of their White Paper. BOR commits to provide comments by 1 Aug. FWS commits to providing their White Paper by ‘‘mid-August’’ (Aug

16). Agencies lay out tentative schedule to complete consultation by Oct. 2003. Includes a peer review

process for baseline and project affects analysis.

8/2/2002 ... BR sends comments to NMFS on draft White Paper

8/19/2002 Conference call to discuss joint agency letter outlining process and schedule for completing O&M consultation. On advice of consul letter it is decided to delay sending letter due to Keechelus lawsuit.

11/20/2002 Meeting with NMFS and FWS to discuss baseline and proposed action. FWS provides draft version of White

Paper

12/04/2002 Meeting with NMFS and FWS to continue discussion about baseline and proposed action. Comments on FWS

White Paper discussed. FWS agreed to lead peer review process. Parties agree to develop affects matrices.

12/09/2002 Conference call with NMFS and FWS to discuss baseline issue relative to the presence of the dams. Parties

eventually agree that dams are in the baseline.

12/19/2002 E-mail from FWS indicating that 8/2000 BA is inadequate for consultation purposes and indicates that consultation should be put on hold until it is revised.

12/31/2002 Phone call to FWS to discuss 12/19 e-mail. General agreement that consultation can proceed with a target

date for completion of October 2003 and BR would provide additional information as requested and if

available to further consultation process.

1/06/2003 Meeting with FWS and NMFS. Agree to schedule to complete consultation in October 2003. Interim dates for

peer review process included. Worked on affects matrix. Discussed dam/baseline issue again.

1/08/2003 Met with ID’s to bring them up to speed on meetings with NMFS and FWS since 11/2002.

1/22/2003 Meeting with FWS and NMFS. Peer review process discussed. Meeting focused on affects matrix for two example reaches—Cle Elum Reservoir and Granger-Prosser.

1/30/2003 Meeting with FWS, NMFS and ID’s. FWS reports on peer review process being developed. More discussion

about dams/baseline, FWS indicates the issue needs to be elevated and BR agrees. Work on matrix—outline data sources and analysis techniques for Cle Elum as an example for other reaches.

1/31/2003 Phone call with FWS to discuss dams/baseline issue. Agreed issues needed to be elevated

2/13/2003 Meeting with FWS, NMFS and ID’s to discuss Yakima Project maintenance details. FWS reports on peer review

process. Parties agree to have matrices available by March 3.

2/19/2003 Phone call to FWS on dams/baseline issue. FWS indicated they did not believe now was the time to elevate

issue but rather wait until draft BO was done.

2/20/2003 BR memo to FWS in reply to 12/19/2002 email agreeing to time extension till end of October 2003 to complete consultation

2/28/2003 Meeting with FWS and NMFS to discuss consultation and peer review. FWS proposes very abbreviated peer review process which NMFS doesn’t like and then entire process is dropped. Agree on interim dates to complete consultation—affects analysis by mid-May, BR review by 6/1, release draft BO by 7/15, take comments and re-release late September with final the end f October. Also agreed to develop joint briefing

paper on dams/baseline issue.

3/7/2003 ... Met with FWS to develop joint briefing paper on dams/baseline issue

3/19/2003 Met with FWS to review joint briefing paper on dams/baseline issue. Discussed need to elevate issue quickly,

FWS was to explore and get back to BR.

3/26/2003 3/27/2003E-mail exchange with FWS concerning elevation of dams/baseline issue

4/10/2003 Meeting with FWS to discuss dams/baseline issue. BR feels dams are in the baseline and FWS believes affects of the presence of the dams are an affect of the proposed action.

4/11/2003 E-mail from FWS on dams/baseline issue and jeopardy analysis. FWS believes dams and their impacts could

be part of the baseline, proposed action or both and for purposes of jeopardy analysis it make little difference.

4/23/2003 BR transmits draft effects analysis to FWS and NMFS

5/2/2003 ... Phone call to FWS to arrange meeting to discuss draft affects analysis and potential misunderstandings.

FWS doesn’t commit.

5/6/2003 ... E-mail to FWS in response to 4/11 e-mail

5/7/2003 ... Phone call to FWS to arrange meeting to discuss draft affects analysis and potential misunderstandings.

FWS indicated they had an internal discussion schedule for 5/9 and would then get back about arranging

a meeting.

5/14/2003 Phone call to FWS to arrange meeting to discuss draft affects analysis and potential misunderstandings.

FWS 5/9 discussion did not occur so meeting can’t be scheduled.

6/18/2003 E-mail from FWS concerning baseline issue. Frames issue as BR’s reluctance to treat future affects of proposed action as effect of the action.
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APPENDIX A–5

Consultation Requires Education

NOAA and the U.S. Fish and Wildlife Service should insure biologists conducting

ESA consultations are fully qualified because of the high stakes involved for both

the species of concern and local and regional economies.

ESA consultations can result in significant, negative, destructive consequences on

local and regional economies. After NMFS (now NOAA Fisheries) listed Pacific

salmonids over most of the West Coast, NMFS was ill-equipped to handle the large

volume of consultations required by the listings. NMFS hired additional staff to cope

with the work load, but in our experience NMFS staff in the field consulting on ESA

issues are often junior-level biologists with limited knowledge of the species and the

factors affecting them.

Consequently, the decisions of ESA administrative personnel are often contrary

to good science and to common sense, and many entities and individuals required

to consult before obtaining government permits hire biologists from consulting firms

with generally high levels of expertise and experience to resolve the problems created by services personnel. Thus, ESA consultations frequently consist of novices

from the services consulting with experts from the scientific arena, who must first

educate the services novices before proceeding with the consultation process. Services biologists should be able to understand both technical and policy issues before

they are responsible for complex and contentious ESA consultations, but often are

not.

APPENDIX A–6

ESA Administrative rules are vague

ESA rules are often vague, increasing the potential for litigation, and leaving too

much discretion to the individual agency biologists involved directly in ESA consultations.

(1) Hatchery fish not counted.

The treatment of hatchery fish, and the decision from Judge Hogan (Alsea Valley

Alliance vs. Evans, infra, p. 31) in September, 2001, is just one example of arbitrary

and vague decisions made by The National Marine Fisheries Service (NOAA Fisheries). In the Alsea Valley Alliance case, Judge Hogan held that NMFS had arbitrarily decided that hatchery fish were not to be included in the status of a population or species under consideration for listing.

Although hatchery fish from the same parental source as wild fish cannot be differentiated from those wild fish, and their progeny will revert to wild fish when

spawned in the wild, NMFS decided that only the wild component of the population

should be included in the numerical status of the population when deciding whether

the ‘‘species’’ was at risk, and in essence was subdivided the population into what

NMFS thought was suitable and unsuitable members. The only difference between

the hatchery and wild fish are the identifying marks applied in the hatchery. Genetically, physically, and reproductively they were the same fish.

(2) Proposed Bull Trout critical habitat.

Recently, USFWS proposed critical habitat rules for bull trout. A review of the

proposed critical habitat rules revealed the following weaknesses:

The designation of the appropriate ‘‘environmental baseline’’ conditions forms the

basis for evaluating actions which may affect listed species, but the application of

the concept is inconsistent between the action agencies (NOAA/USFWS).

The USFWS may exclude areas from critical habitat designation if the benefits

of excluding areas outweigh the benefits of inclusion. However, the proposal does

not define benefits, or establish any verifiable criteria for including or excluding

habitat.

Critical habitat should, to comply with ESA, include only the specific areas within

the geographic area occupied by the species at the time it is listed, and which contain the physical and biological features essential to conservation of the species.

Critical habitat must be limited geographically to what is essential to conservation

of the species although more extensive habitat may be required to maintain the species over the long term, critical habitat only includes the minimum amount of habitat needed to avoid short-term jeopardy or habitat in need of immediate intervention. These provisions of the ESA are violated by USFWS’ proposed bull trout critical habitat. For example, USFWS proposes to include two (2) streams in the

Yakima Basin, Taneum Creek and the Teanaway River, as critical habitat, even

though these streams do not currently support bull trout. There has been no discussion with stakeholders (YBJB and others) about whether or not these streams
116

should be included in critical habitat to avoid short-term jeopardy. No economic impact analysis has been performed on this designation of critical habitat.

Definitions of important biological concepts are often lacking when new rules are

proposed under the ESA. For example, the term ‘‘population’’ is an important biological concept. The ESA rules are, however, so vague that on one hand the entire

Columbia River basin population of bull trout is considered a ‘‘distinct population

segment’’ for the purposes of listing the fish, while designation of critical habitat

and for a finding of one or two redds in a stream reach is considered a population

for the purposes of recovery planning.

APPENDIX B

Administrive errors and ESA misinterpretation

Serious and unnecessary negative impacts on Pacific Northwest economy and

way-of-life have resulted from the misapplication of the Endangered Species Act

(ESA). These impacts have occurred because of the policy of the National Marine

Fisheries Service (NOAA, formerly National Marine Fisheries Services or NMFS) as

the administering agency of the ESA for anadromous Pacific salmon.

It is necessary to recall that the purpose of the Endangered Species Act (ESA)

of 1973, including amendments through 1996, is ‘‘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,’’ [ESA, Sec 2(b)].

It is also necessary to recall what the Statute means by the term species. The

term ‘‘includes any subspecies of fish or wildlife or plants, and any distinct population segment of any species or vertebrate fish or wildlife which interbreeds when

mature’’ [ESA, Sec 3(16)]. Therefore, conservation is to include the species at risk

and the ecosystems they depend on, and the term ‘‘species’’ refers not only to the

traditional (taxonomic) species such as the condor, grizzly bear, or northern spotted

owl, but also to any distinct population segment (DPS) of a species which interbreeds when mature.

NOAA has redefined the ‘‘purpose’’ of the ESA, the unit at risk, and what constitutes members of the unit, all of which are contrary to the wording of the Act.

(1) Purpose of the ESA expanded

The first unauthorized NOAA decision under the Act was declaring that conserving the genetic diversity of the species was the major goal of the Act. It was

stated by Waples (NOAA Tech. Memo. 194, 1991) that such a framework accomplished the major goal of the Act, which was ‘‘ to conserve the genetic diversity of

species (taxonomic) and the ecosystems they inhabit’’. The genetic characteristics

that were uniquely associated with the population unit would have to contribute to

the overall genetic diversity of the taxonomic species. Therefore, NOAA decided

that, rather than limiting the ESA to conserving species, subspecies, or DPSs,

NOAA’s administration of the Act would be to preserve genetic diversity. Preserving

the genetic diversity of a species, however, requires very different and much broader

protections than what is required for conserving species at risk of extinction.

NOAA’s decision was flawed

because it created a purpose for the ESA different from and substantially more

burdensome than, the purpose stipulated by Congress—to conserve ecosystems and

species at risk.

(2) Unit at Risk

A second, but related, unauthorized NOAA decision was to overlook the statutory

definition of the unit at risk, i.e. ‘‘species,’’ ‘‘subspecies,’’ and ‘‘DPS,’’ and to adopt

the framework that stated a population or a group of populations would be considered distinct under the Act ‘‘if it represents an Evolutionary Significant Unit (ESU)

of the biological species’’ (NOAA Tech. Memo. NOAA F/NWC–194NOAA, Waples

1991).

NOAA then concluded that to qualify as an ESU the population or group of populations must be (a) reproductively isolated from other conspecific population units,

and (b) represent an important component in the evolutionary legacy of the species.

NOAA concluded that isolation need not be absolute, but sufficient to allow evolutionary differences to accrue that would define the unit as genetically distinct. These

were subjective criteria and open to the interpretation of the administering action

agency.

NOAA established a unit different than species, subspecies, or distinct population

segments around which to administer the Act. An ESU is not a unit defined by Congress as deserving protection under the ESA, nor does it fit the definition of a DPS,

for which it was meant to substitute.
117

1In the Alsea Valley Alliance v. Evans, 161 F. Supp. 1154 (D. Or. 2001), Judge Michael Hogan

of the United States District Court for the District of Oregon ruled that NOAA was ‘‘arbitrary

and capricious’’ in its decision to list the Oregon Coast Coho salmon distinct population segment

(DPS) (or ‘‘Evolutionarily Significant Unit’’ (ESU)) under the ESA. According to Judge Hogan,

NOAA cannot list naturally spawning fish separate and apart from hatchery fish in the same

DPS (or ESU). ‘‘The central problem with the NOAA listing decision of August 10, 1998, is that

it makes improper distinctions below that of a DPS, by excluding hatchery populations from listing protection even though they are determined to be part of the same DPS as natural Coho

populations.’’ 161 F. Supp at 1162.

Congress intended that a DPS was an interbreeding unit, and that meaning was

clearly stated by Congress in the wording of the Statute. But NOAA clearly states

that ESUs are not limited to interbreeding units. In fact, Utter et al. (American

Fisheries Symposium 17:149–165,1985) confirms the point that ESUs are not to be

considered panmictic (i.e. interbreeding), because NOAA there states the ‘‘definition

of an ESU by no means implies a single panmictic unit’’.

The issue is that NOAA decided to substitute multiple, non-interbreeding populations as a unit at risk, and therefore entitled to protection in place of the DPS

defined by Congress as the interbreeding population unit. The substitution of ESU

for DPS was a flawed NOAA decision because it created a different category with

different criteria to classify population units than what was stipulated by Congress.

NOAA’s creation of ESUs as a category at risk combined with NOAA’s purpose

to preserve genetic diversity, allowed NOAA to include, for example, all Chinook

salmon in NOAA’s classification of ESUs. Several populations can be lumped together based on genetic similarity and listed within a single ESU, whether or not

each population warrants such treatment. Every population of Chinook salmon from

the US/Canada border to southern California is a member of an ESU and nearly

a hundred separate populations have been included in the listings. These listings

are contrary to congressional instructions, ‘‘to use the ability to list sparingly and

only when the biological evidence warranted such action’’ (96th Congress, 1st Session, 1979 Senate Report 151). NOAA did not use the ability to list ‘‘sparingly’’.

Moreover, even listings were contrary to the instructions to list only when the biological evidence warranted such action. For example, hundreds of thousands of Chinook salmon were returning each year over that geographical area, and recently

near record numbers in the Columbia River have returned over the last 3 years, yet

several ESUs in the Columbia Basin are listed at risk of extinction.

However, regardless of the demonstrated strength of Chinook salmon and

steelhead trout returns to the Columbia over the last 4 years, water users are still

subjected to restrictive regulations on the use of water and adjoining land, justified

under the pretense that Chinook and steelhead trout are at risk. NMFS has adopted

a ‘‘no net loss’’ policy that prevents any new water use out of the entire mainstem

Columbia River. The incongruity of these policies is underscored by the fact that

commercial and sport fisheries are still allowed to harvest the reputed endangered

species, with well over 400,000 Chinook harvested annually off the coasts of Washington, Oregon, and California.

(3) Subdividing the Unit at Risk—exclusion of hatchery fish.

The third major flaw in NOAA’s policy decisions was its subdivision of the unit

at risk. The ESA is ‘‘to provide the means whereby the ecosystems upon which endangered species and threatened species depend may be conserved’’ [ESA 1973, Sec

2(b)]. Under such mission-oriented legislation all fish within the identified unit at

risk should be included in the census that determines their status, and in any plan

to protect them.

NOAA, however, made another unauthorized decision which allowed NOAA to establish categories of the same fish and treat them differently. NOAA decided that

hatchery fish were excluded from the numerical assessment of populations reviewed

for listing, unless they were considered essential to the recovery of those populations. This unauthorized policy resulted in a U.S. District Court ruling against

NOAA in Alsea Valley Alliance v. Evans.1

This third flaw, therefore, was subdividing the unit at risk. Myers et al. (NOAA

Tech. Memo. NOAA-NWFSC–35, 1998) stated in the Chinook salmon status review

that ‘‘attention should focus on natural fish which are defined as the progeny of naturally spawning fish’’. This was reiterated by Waples (NOAA Tech. Memo. NOAA

F/NWC–194NOAA, 1991) in the discussion on what constituted a ‘‘species,’’ and also

where it was indicated that NOAA will determine ‘‘the role (if any) of artificial propagation in development of recovery plans for listed species’’. The NOAA policy on

artificial propagation under the ESA (Hard et al. NOAA Tech. Memo. NOAANWFSC–2, 1992), again reconfirmed that in the view of NOAA ‘‘the primary objective of the ESA is the conservation of species in their natural ecosystems’’.
118

The wording in the ESA reads ‘‘to provide the means whereby the ecosystems

upon which endangered species and threatened species depend may be conserved’’

[ESA 1973, Sec 2(b)]. The term ‘‘conserved’’ is defined in the language of the ESA

to include propagation. In the case of salmon, propagation means hatchery production. The ESA does not state or imply that we should discriminate against hatchery

fish when making biological assessments or recovery plans, but rather indicates that

hatchery propagation is a legitimate technology to sustain the species under the

ESA. Hatchery produced salmon came from wild populations and are part of the legacy of those wild fish. They represent the same discrete and distinguish-able elements of the wild population, as demonstrated in genetic analyses, including Myers

et al., NOAA Tech. Memo. NOAA-NWFSC–35 (1998). The final irony is that the

progeny of hatchery fish spawning naturally are considered ‘‘wild’’ fish by NOAA.

The ESA does not provide for or allow NOAA to distinguish between life history

forms of the same species by listing one and excluding the other. A prime example

is the listing of steelhead trout, and the exclusion of rainbow trout from the listing.

Rainbow trout and steelhead trout interchange life history forms, are indistinguishable genetically, and represent an ‘‘ecosystem’’ that has existed for thousands of

years, yet steelhead trout are listed in four separate ESUs and rainbow trout are

excluded. Part of the problem is the limited biological perspective of the Services

in making the listing decision, but the fact remains that if rainbow trout were included in the ESUs there would have been no possible justification to list steelhead

trout because rainbow trout are numerous throughout the Columbia River Basin.

The Yakima River has a renowned trophy rainbow trout fishery which are genetically indistinguishable from Yakima River steelhead trout, and in fact interbreed

with Yakima River steelhead trout.

The three problems identified, i.e. (1) preserving genetic diversity, (2) creation of

the ESU classification, and (3) subdividing the unit at risk, have created unnecessary and costly administrative burdens on the public, the State, and the Federal

Governments. NOAA Fisheries’ arbitrary and erroneous policy decisions have no

justification, are clearly inconsistent with the wording of the Statute, and should be

considered a serious breach of confidence in NOAA’s administration of the law.

APPENDIX C

Improper listing of species: Columbia River Salmon, Steelhead Trout and Bull Trout

are not threatened with extinction

The National Marine Fisheries Service (NMFS) made the determination that the

Upper Columbia River Spring Chinook, Lower Columbia River Chinook, and Upper

Snake River Spring/Summer Chinook, Snake River Fall Chinook, Upper Columbia

River Steelhead Trout, Lower Columbia River Steelhead Trout, and Snake River

Basin Steelhead Trout were in danger of extinction or likely to become endangered

in the foreseeable future, and listed them respectively under the Endangered Species Act (ESA).

Similarly, bull trout in the Columbia River Basin have also been listed by United

States Fish and Wildlife Service (USFWS), involving Lower, Mid-, and Upper Columbia and Snake River populations. Contrary to the impressions given by such listings, Chinook salmon, steelhead trout, and bull trout species are, however, not at

risk of extinction in the Columbia Basin. This represents a serious incongruity between the rationale for having listed these species at risk and the actual status of

Chinook, steelhead trout and bull trout in the Columbia River system.

In essence, this incongruity is at the foundation of the problems associated with

the ESA, and originates with the administration of the Statute emanating from the

policies developed by NMFS and USFWS, and not from the Act itself.

As described in Appendix B, the error in listings of Chinook and steelhead were

from policy memoranda and represented major departures from the precepts of the

ESA. Listing of bull trout followed similar errors of ESA interpretation.

With regard to the Columbia River Basin, the status of wild salmon, steelhead

trout and trout was very much influenced by Federal development programs in the

west, with efforts concentrated largely around the extensive water resources of the

Columbia. Of the 673,400 square kilometers of Basin (Mullan et al. 1992), 191,660

square kilometers were made inaccessible to anadromous fish species with the construction of Grand Coulee Dam on the mainstem Columbia River (Fish and

Hanavan 1948), and 189,070 square kilometers were blocked by Hells Canyon Dam

on the Snake River, reducing access to only 40 percent of the original stream area

available to anadromous salmonids (Netboy 1980).

Sixty-four percent (64 percent) of the remaining mainstem fish habitat on the Columbia and Snake Rivers has been changed from flowing stream to reservoir environ-ments (ODFW & WDFW 2000). Furthermore, extensive introductions of exotic
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fish species have been made by USFWS and State agencies. Bass, crappie, perch,

walleye, shad, carp and brook trout were introduced in the Columbia River and in

many cases exotic species out-number native fish.

The point often ignored by, or unknown to, anyone attempting to expand production of wild salmonids in the Columbia River system is that the reductions of populations experienced by these species and the introductions of exotic fish were intentional changes which resulted from planned development of the river.

Federal irrigation and hydroelectric projects greatly enhanced the economic base

of agriculture in Idaho, Oregon, and Washington, and expanded urbanization in otherwise arid land east of the Cascade Mountains. The cost of economically developing

the Pacific Northwest was loss of fish habitat and wild fish. Congress established,

however, fish hatcheries as the surrogate for wild Chinook and steelhead trout in

the Columbia River Basin, and maintained anadromous fish runs through such

measures. Congress assured sustained salmon and steelhead trout production in the

Grand Coulee Maintenance Project, the Magnuson-Stevens Act, the Mitchell Act,

and other compensation programs, as Federal law and they have successfully

achieved that objective. Consequently, hatchery fish have been contributing to, and

are thus part of, naturally spawning wild populations for over 90 years in the Basin.

Therefore, the suggestion that Chinook salmon and steelhead trout are at risk in

the Columbia is not supported by the data (Brannon 2000, Brannon et al, 2002).

As shown in Table 1, Chinook salmon adult returns passing Bonneville Dam have

averaged over 600,000 fish in the last 4 years, three times the average returns when

these fish were listed in the early 90’s. Similarly, in the last 3 years, steelhead trout

have increased well over twice their previous average return, with both steelhead

trout and Chinook demonstrating returns greater than experienced since before the

1930’s, and wild fish are well represented among returning populations.

In a like manner, bull trout are well represented throughout the Columbia River

Basin, although they are reported in low numbers. They are present in all of the

twenty-five separate regions identified in the Columbia system, which demon-strates

that bull trout, as a species, are not at risk of extinction. The fact remains that until

recently bull trout were given no attention and very little is known about their historical numbers in any of these regions. As a ‘‘predator species’’ that routinely undergoes extensive distribution throughout the system, bull trout’s evolutionary strategy would be to avoid concentrating in large numbers, especially where food resources are limited as is often the case in the upper, more mountainous reaches of

the watersheds. The bull trout’s recently discovered wide ranging distribution within the Columbia River Basin indicates that bull trout are effectively self-sustaining,

and their relatively low population density is not a matter of a threat of extinction,

but rather the consequence of life history evolution which offers favorable survival

opportunities in the type of habitat bull trout seek.

In each case where salmon, steelhead trout, or bull trout have been listed, the

listing decision has been largely the result of limited knowledge about the biology

of the species, as well as the tendency for NMFS and USFWS biologists to adopt

general conservation measures rather than limiting themselves to the objective of

the ESA.

Chinook salmon, steelhead trout, and bull trout are not at risk of extinction so

the general conservation programs for these species are the responsibility of State

agencies, not the ESA or the services.

Table 1. Adult wild and hatchery Chinook and steelhead trout passage at Bonneville Dam on the Columbia River over the last three 4 year spawning cycles (total

Chinook includes jacks, total steelhead is wild plus hatchery).

Chinook, Steelhead Trout

Year Spring Summer Fall Total Wild Total

2002 ................................................................................. 268,813 127,436 474,554 925,452 143,045 481,203

2001 ................................................................................. 391,347 76,156 400,410 971,331 149,582 633,464

2000 ................................................................................. 178,302 30,616 192,815 491,928 76,220 275,273

1999 ................................................................................. 38,669 26,169 242,143 343,276 55,064 206,448

1998 ................................................................................. 38,342 21,433 189,085 280,944 35,701 185,094

1997 ................................................................................. 114,000 27.939 218,734 387,088 33,580 258,385

1996 ................................................................................. 51,493 16,034 205,358 296,635 17,375 205,213

1995 ................................................................................. 10,192 15,030 164,197 240,050 — 202,448

1994 ................................................................................. 20,169 17,631 170,397 243,450 39,174 161,978

1993 ................................................................................. 10,820 22,045 126,472 277,657 — 188,386

1992 ................................................................................. 88,425 15,063 116,200 256,299 — 314,973
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Chinook, Steelhead Trout—Continued

Year Spring Summer Fall Total Wild Total

1991 ................................................................................. 57,346 18,897 150,190 274,644 — 274,535

References

Brannon, E., M. Powell, A. Talbot, and T, Quinn. 2002. Columbia River Chinook

salmon and steelhead population structure. BPA Report. Project Number 98–004–

03.

Brannon, E. L. 2000. Assessment of the ESA Listing of Columbia River Anadromous

Salmonids with Emphasis on Chinook Salmon. Center for Salmonids and Freshwater Species at Risk, Aquaculture Research Institute, University of Idaho, Moscow, Idaho 83843.

Fish, F.F., and M.G. Hanavan. 1948. A report on the Grand Coulee Fish Maintenance Project.

Mullan, J.W., K.R. Williams, G. Rhodus, T.W. Hillman, and J.D. McIntyre. 1992.

Production and habitat of salmonids in mid-Columbia River tributary streams.

Monograph I, U.S. Fish and Wildlife Service, Box 549, Leavenworth, WA 98826.

Meyers, J.M., R.G. Kope, G.J. Bryant, D. Teel, L.J. Lierheimer, T.C. Wainwright,

W. S. Grant, F.W. Waknitz, K. Neely, S.T. Lindley, and R.S. Waples. 1998. Status

review of Chinook salmon from Washington, Idaho, Oregon, and California. NOAA

Technician Memorandum NMFS-NWFSC–35. U.S. Dept. of Comm/NOAA/NMFS/

NWFSC. 443 pp.

Pacific Fishery Management Council. 2000. Ocean salmon fisheries off Washington,

Oregon and California. Report to National Oceanic and Atmospheric Administration. NA07FC00026.

APPENDIX D A

The United States has no legal authority to change the use or reallocate Yakima Reclamation Project surface irrigation water which is owned by Yakima Reclamation Project landowner/waterusers; the U.S. is a ‘‘trustee’’ for the benefit of

Project irrigator landowner/ waterusers

The 1902 Reclamation Act, Section 8 (43 USC 383) provides:

′′§ 383. Vested rights and State laws unaffected

′′Nothing in this Act shall be construed as affecting or intended to affect or to in

any way interfere with the laws of any State or Territory relating to the control, appropriation, use, or distribution of water used in irrigation, or any vested right acquired thereunder, and the Secretary of the Interior, in carrying out the provisions

of this Act, shall proceed in conformity with such laws, and nothing herein shall in

any way affect any right of any State or of the Federal Government or of any landowner, appropriator, or user of water in, to or from any interstate stream or the waters thereof. (June 17, 1902, ch. 1093, § 8 in part, 32 Stat. 390.)’’ (Emphasis added)

The Yakima Reclamation Project water rights are, pursuant to 43 USC 383 abovequoted, as well as unambiguous Federal and Washington State water law, the vested property of the YBJB landowner/waterusers whose predecessors-in-interest appropriated, beneficially used Yakima Reclamation Project water on their land and

perfected their Yakima Reclamation Project water rights [See, Lawrence vs.

Southard, 192 Wash. 287, 73 P.2d 722 (1937).]

The U.S. Supreme Court in Ickes vs. Fox, 300 U.S. 82, 95–96 (1937), which involved YBJB landowner/waterusers in the Sunnyside Division of the Yakima Reclamation Project, analyzed the 1902 Reclamation Act, Federal and Washington

State water law, the Yakima Reclamation Project’s surface water rights including

ownership of them, the U.S.’s perpetual water delivery contracts with, and obligations to, YBJB landowner/waterusers, and unambiguously held:

‘‘ . . . . Appropriation was made not for the use of the government, but, under the

Reclamation Act, for the use of landowners; and by the terms of the law and of the

contract already referred to, the water rights became property of the landowners,

wholly distinct from the property right of the government in the irrigation works.

Compare Murphy vs. Kerr, 296 Fed. 536, 544, 545. The government was and remained simply a carrier and distributor of the water (Id.), with the right to receive

the sums stipulated in the contracts as reimbursement for the cost of construction

and annual charges for operation and maintenance of the works. As security therefore, it was provided that the government should have a lien upon the lands and
121

the water rights appurtenant thereto—a provision which in itself imports that the

water rights belong to another than the lienor, that is to say, to the landowner.

‘‘ . . . . And in those States, generally, including the State of Washington, it has

long been established law that the right to the use of water can be acquired only by

prior appropriation for a beneficial use; and that such right when thus obtained is

a property right, which, when acquired for irrigation, becomes, by State law and

hereby express provision of the Reclamation Act as well, part and parcel of the land

upon which it is applied.’’ (Emphasis added)

The United States has no legal authority, discretion, or surface water right approved or certificated by Washington State to consumptively or non-consumptively

‘‘re-allocate’’ or use YBJB landowner/waterusers’ Yakima Reclamation Project surface irrigation water for any purpose other than for the irrigation of YBJB landowner/waterusers’ land except for the substantially diminished treat fishery water

right affirmed by the Washington State Supreme Court in DOE vs. Yakima Reservation Irrigation District, et al., 121 Wn.2d 257, 850 P.2d 1306 (1993).

The U.S. is, in addition, obligated by its ‘‘perpetual’’ contracts executed with YBJB

members for the benefit of YBJB landowner/waterusers and also, as their trustee,

to annually store and deliver the entire Yakima Reclamation Project’s total water

supply available (‘‘TWSA’’) as defined in KRD, et al. vs. SVID, et al., U.S. District

Court (E.D. Wash. 1945) (less the substantially diminished treaty fishery water) for

each landowner/wateruser’s annual use and reuse as irrigation water to the full extent of each YBJB landowner/wateruser’s Yakima Reclamation Project water and

water right entitlement.

The U.S. Supreme Court in Nevada vs. United States, 463 U.S. 110,m 122–123,

127–128, 103 S.Ct. 2906, 77 L.Ed.2d 509 (1983), quoting from 43 USC 383, California vs. U.S., 438 U.S. 645, 664 (1978), Fox vs. Ickes, supra, and Nebraska vs. Wyoming, 325 U.S. 589, 613–614 (1945), unambiguously concluded and held:

‘‘In California vs. United States, 438 U.S. 645 (1978), we described in greater detail the history and structure of the Reclamation Act of 1902, and stated:

‘‘The projects would be built on Federal land and the actual construction and operation of the projects would be in the hands of the Secretary of the Interior. But the

Act clearly provided that State water law would control in the appropriation and

later distribution of the water.’’ Id. at 664 (emphasis added).

‘‘In the light of these cases, we conclude that the Government is completely mistaken if it believes that the water rights confirmed to it by the Orr Ditch decree in

1944 for use in irrigating lands within the Newlands Reclamation Project were like

so many bushels of wheat, to be bartered, sold or shifted about as the Government

might see fit. Once these lands were acquired by settlers in the Project, the Government’s ’ownership’ of the water rights was at most nominal; the beneficial interest

in the rights confirmed to the Government resided in the owners of the land within

the Project to which these water rights became appurtenant upon the application

of Project water to the land. As in Ickes vs. Fox and Nebraska vs. Wyoming, the law

of the relevant State and the contracts entered into by the landowners and the United

States make this point very clear. (Footnote omitted)

‘‘The Government’s brief is replete with references to a fiduciary obligation to the

Pyramid Lake Paiute Tribe of Indians, as it properly should be. But the Government seems to wholly ignore in the same brief the obligations that necessarily devolve upon it from having mere title to water rights for the Newlands Project, when

the beneficial ownership of these water rights resides elsewhere.’’ (Emphasis added)

YBJB member entities, also acting as ‘‘trustees’’ for the benefit of their landowner/

waterusers, have executed ‘‘perpetual’’ contracts with the United States, obligating

the U.S. to annually deliver to YBJB member entities their landowner/ waterusers’

full, annual Yakima Reclamation Project irrigation water and water right entitlements.

Four (4) of the YBJB member entities (Kittitas, Roza, Sunnyside and YakimaTieton) landowner/waterusers’ annual irrigation water and water right entitlements

were unconditionally confirmed in the 1/31/45 ‘‘Judgment’’ in KRD, et al. vs. SVID,

et al., U.S. District Court (E.D. Wash. 1945).

Æ