U.S. GOVERNMENT PRINTING OFFICE

49–524 CC WASHINGTON : 1998

S. HRG. 105–594

NOMINATIONS OF DONALD J. BARRY AND

SALLYANNE HARPER

HEARING

BEFORE THE

COMMITTEE ON

ENVIRONMENT AND PUBLIC WORKS

UNITED STATES SENATE

ONE HUNDRED FIFTH CONGRESS

SECOND SESSION

ON

NOMINATIONS OF DONALD J. BARRY, TO BE

ASSISTANT SECRETARY FOR FISH AND WILDLIFE AND PARKS,

DEPARTMENT OF THE INTERIOR

AND

SALLYANNE HARPER, TO BE

CHIEF FINANCIAL OFFICER,

ENVIRONMENTAL PROTECTION AGENCY

FEBRUARY 3, 1998

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

(

For sale by the U.S. Government Printing Office

Superintendent of Documents, Congressional Sales Office, Washington DC 20402
COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS

ONE HUNDRED FIFTH CONGRESS

JOHN H. CHAFEE, Rhode Island, Chairman

JOHN W. WARNER, Virginia

ROBERT SMITH, New Hampshire

DIRK KEMPTHORNE, Idaho

JAMES M. INHOFE, Oklahoma

CRAIG THOMAS, Wyoming

CHRISTOPHER S. BOND, Missouri

TIM HUTCHINSON, Arkansas

WAYNE ALLARD, Colorado

JEFF SESSIONS, Alabama

MAX BAUCUS, Montana

DANIEL PATRICK MOYNIHAN, New York

FRANK R. LAUTENBERG, New Jersey

HARRY REID, Nevada

BOB GRAHAM, Florida

JOSEPH I. LIEBERMAN, Connecticut

BARBARA BOXER, California

RON WYDEN, Oregon

JIMMIE POWELL, Staff Director

J. THOMAS SLITER, Minority Staff Director

(II)
(III)

CONTENTS

FEBRUARY 3, 1998

Page

OPENING STATEMENTS

Allard, Hon. Wayne, U.S. Senator from the State of Colorado ............................ 18

Baucus, Hon. Max, U.S. Senator from the State of Montana .............................. 4

Chafee, Hon. John H., U.S. Senator from the State of Rhode Island ................. 1

Kempthorne, Hon. Dirk, U.S. Senator from the State of Idaho ........................... 5

Sessions, Hon. Jeff, U.S. Senator from the State of Alabama ............................. 6

Thomas, Hon. Craig, U.S. Senator from the State of Wyoming .......................... 4

WITNESSES

Barry, Donald J., nominated to be Assistant Secretary for Fish and Wildlife

and Parks, U.S. Department of the Interior ...................................................... 7

Biography .......................................................................................................... 30

Committee questionnaire ................................................................................. 31

Prepared statement .......................................................................................... 28

Responses to additional questions from:

Senator Chafee .......................................................................................... 37

Senator Kempthorne ................................................................................. 38

Harper, Sallyanne, nominated to be Chief Financial Officer, Environmental

Protection Agency ................................................................................................. 24

Biography .......................................................................................................... 43

Committee questionnaire ................................................................................. 46

Letters:

Grizzle Company ....................................................................................... 45

EPA, Office of General Counsel ............................................................... 55

Memorandum, Ethics Agreement, from Sallyanne Harper to EPA Ethics

official, with attachments ............................................................................. 57

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

Responses to additional questions from Senator Chafee ............................... 61

ADDITIONAL MATERIAL

Article, Who Watches the EPA, Denver Post, February 2, 1998 ......................... 20

Letters:

Grizzle, Charles L., The Grizzle Company ..................................................... 45

Herman, Steven A., Assistant Administrator, Office of Enforcement and

Compliance Assurance and William P. Yellowtail, Regional Administrator, EPA Region ....................................................................................... 18

Hight, Robert C., Executive Officer, California State Land Commission .... 41

Peterson, R. Max, International Association of Fish and Wildlife Agencies .................................................................................................................. 2

Powell, Ray, M.S., D.V.M., Commissioner of Public Lands, Western States

Land Commissioners Association ................................................................ 42

Relative to the nomination of Donald J. Barry, several former Assistant

Secretaries for Fish and Wildlife ................................................................. 2

Memorandum, Ethics Agreement, from Sallyanne Harper to EPA Ethics official, with attachments ......................................................................................... 57

Statement, Humane Society of the United States ................................................ 42
(1)

NOMINATIONS OF DONALD J. BARRY AND

SALLYANNE HARPER

TUESDAY, FEBRUARY 3, 1998

U.S. SENATE, COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS, Washington, DC.

The committee met, pursuant to notice, at 2 p.m. in room 406, Senate Dirksen Building, Hon. John H. Chafee (chairman of the

committee) presiding. Present: Senators Chafee, Baucus, Thomas, Kempthorne, Allard,

Wyden, and Sessions.

OPENING STATEMENT OF HON. JOHN H. CHAFEE, A U.S.

SENATOR FROM THE STATE OF RHODE ISLAND

Senator CHAFEE. Good afternoon. I want to welcome everyone here. This is a hearing on the nominations of Donald J. Barry and

Sallyanne Harper. This is before the full committee and members

will be coming in. As many people know, there are luncheon caucuses of each of the respective parties held on Tuesdays. The Republican one was running very late today. As for the Democratic

one, I can only assume likewise. So we look forward to additional

Senators coming in.

What we will first do is take up the Presidential nomination of

Donald J. Barry to be Assistant Secretary for Fish and Wildlife and

Parks in the Department of the Interior.

The President nominated Don Barry on November 7, just before

Congress adjourned. The paperwork of both candidates is in; it is

my intention that the committee, hopefully, will be able to act on

these nominations before the end of the week.

Why don’t you come up, Mr. Barry, and take a seat at the table.

I would like to give a special welcome to Mr. Barry, and at the

same time if he might perhaps introduce the members of his family. I understand your wife is here, and your parents?

Mr. BARRY. Yes, that’s correct. Teiko Saito is my wife, and my

parents, George and Kathryn Barry.

Senator CHAFEE. Good. We are delighted that you are here.

Don Barry is an excellent candidate for the position before him.

He has a long record in public service in natural resource policy

and management. If confirmed, the laws and programs within this

committee’s jurisdiction that he will oversee include the Endangered Species Act, the National Wildlife Refuge System, the Coastal Barrier Resource System, the Wallop-Breaux Act, the North

American Wetlands Conservation Act, and the Duck Stamp Act,

and there are others in addition.
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Don Barry has been in natural resource policy and has seen it

through congressional eyes and administrative eyes. The committee

first had reason to take note of Don Barry when he worked as Majority General Counsel for the House Merchant Marine and Fisheries Committee in the late 1980’s. For 14 years of his 23-year career he served in a number of capacities within the Department of

the Interior. In a remarkable display of unanimous support, all

eight of his predecessors, both Republicans and Democrats, have

written a glowing letter of recommendation on his behalf. Without

objection, the letter will be printed in the hearing record.

[The referenced letters follow:]

INTERNATIONAL ASSOCIATION OF FISH AND WILDLIFE AGENCIES,

Washington, DC, January 27, 1998.

Hon. JOHN CHAFEE, Chairman,

Committee on Environment and Public Works,

U.S. Senate, Washington, DC.

DEAR MR. CHAIRMAN: I write to share with you the strong support of the International Association of Fish and Wildlife Agencies for Donald J. Barry’s nomination

for Assistant Secretary of Interior for Fish, Wildlife and Parks. Mr. Barry has longstanding, close and cooperative relationship with the State fish and wildlife agencies, which, as you are aware, are all members of the International Association of

Fish and Wildlife Agencies. I urge your quick and favorable recommendation that

the Senate confirm Mr. Barry and ask that you facilitate expeditious floor action

to fill this position which has been open for many months.

As you are aware, Mr. Chairman, the State fish and wildlife agencies have principal authority for fish and wildlife within their borders. Even where Congress has

given the Federal agencies certain conservation responsibilities (for migratory birds,

listed threatened and endangered species, and anadromous fish), the States’ jurisdiction remains concurrent. This thus requires close collaboration between Federal

and State agencies if conservation objectives are to be met. Mr. Barry has demonstrated keen knowledge of fish and wildlife law, understanding and respect for

the States’ authority for fish and wildlife, and an openness and willingness to work

cooperatively with us in advancing conservation objectives. We have worked closely

with Mr. Barry in his deputy and then acting capacity on several important activities including successful enactment of the National Wildlife Refuge System Improvement Act of 1997, Sikes Act Improvements of 1997, and ratification of Migratory

Bird Treaty amendments. We have and continue to work closely with Mr. Barry also

on administrative and legislative improvements to the Endangered Species Act, and

implementation of the Convention on International Trade in Endangered Species of

Fauna and Flora. In all of these efforts, Mr. Barry has been cooperative and responsive to the States’ interests and concerns.

Mr. Chairman, the fish and wildlife resources and the citizens of the United

States will be well served by Mr. Barry, and in recommending expeditious confirmation, I bring to you the full support of the Association for Mr. Barry.

Thank you for your attention to the Association’s perspectives.

Sincerely,

R. MAX PETERSON,

Executive Vice President.

Hon. JOHN H. CHAFEE, Chairman,

Committee on Environment and Public Works,

U.S. Senate, Washington, DC.

DEAR MR. CHAIRMAN: Each one of us has had the privilege and the honor of serving at the Department of the Interior as the Assistant Secretary for Fish and Wildlife and Parks. Spanning 26 years and six Administrations, we know first-hand

what the position of Assistant Secretary requires in terms of skills and experience.

While our personal views on the National Park Service and U.S. Fish and Wildlife

Service cover the political spectrum and may at times differ, there is one matter

that unites us all in common agreement: that Don Barry should be confirmed as

the next Assistant Secretary for Fish and Wildlife and Parks.

We have all worked directly with Don for many, many years and believe that he

is a person with exceptional integrity, knowledge and skill. He is straight-forward,
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honest and direct and is a superb consensus seeker and coalition builder. He has

always approached conservation issues in a constructive bipartisan manner and is

a person who follows through on his commitments and gets things done.

In addition to being a nationally recognized expert in wildlife conservation and

natural resource law, he has over 23 years of experience in working in, or with, the

Office of the Assistant Secretary for Fish and Wildlife and Parks, having served as

Counselor to the Assistant Secretary, Deputy Assistant Secretary, and Acting Assistant Secretary. In short, few people considered for Presidential appointment have

had as much direct experience with the office for which they have been nominated

as Don Barry has had with the Office of Assistant Secretary for Fish and Wildlife

and Parks.

For all of the above reasons, we urge your Committee to pass favorably upon

Don’s nomination for Assistant Secretary and to move it promptly to the Senate

floor.

Sincerely,

ROBERT HERBST,

Assistant Secretary.

NATHANIEL REED,

Assistant Secretary.

G. RAY ARNETT,

Assistant Secretary.

CONSTANCE HARRIMAN,

Assistant Secretary.

GEORGE T. FRAMPTON,

Assistant Secretary.

WILLIAM HORN,

Assistant Secretary.

HONORABLE MIKE HAYDEN,

Assistant Secretary.

Senator CHAFEE. In recent years Mr. Barry has worked extensively with members and staff of this committee on the reauthorization of the Endangered Species Act and other tough issues.

Without his tireless efforts I do not know whether we would have

succeeded in forging the consensus on the Endangered Species Act

reauthorization and reporting the bill out of this committee.

Throughout his career, and particularly in his work with the

Senate, Mr. Barry has demonstrated two qualities that have proven to be constants: a commitment to conservation of natural resources, and an ability to find solutions to difficult problems. I

must say that in this job he will need both of those capabilities.

Personally, let me just say that in any reincarnation that I might

have to come back to this world again, I’d like to be Assistant Secretary for Fish, Wildlife and Parks.

[Laughter.]

Senator CHAFEE. A close friend of mine, Nat Reid, had that job

and told me a lot about it. So if you see somebody that looks like

me lined up at that table for this job in the year 2040, you can say,

‘‘I knew that fellow before.’’

[Laughter.]

Senator CHAFEE. As the steward of the National Wildlife Refuge

System and the National Park System, your decisions are of great

interest and import. I know that you will be a strong advocate for

these national treasures.

Senator CHAFEE. And now, the ranking member of the committee, Senator Baucus.
4

OPENING STATEMENT OF HON. MAX BAUCUS, A U.S. SENATOR

FROM THE STATE OF MONTANA

Senator BAUCUS. Thank you, Mr. Chairman. I think I will be lined up there, too.

[Laughter.]

Senator BAUCUS. I agree with you. I, too, want to welcome Mr. Barry. We are very honored, frankly, to have you here, Donald, and we know that you’re going to do

very, very well. It is also good that your family is here—Teiko—would you stand, please, or have all your family stand so that we can all recognize

them, Teiko and George and Kathryn? [Applause.]

Senator BAUCUS. Mr. Chairman, you have outlined much of Mr. Barry’s past, which is all very good. I particularly want to commend you, Mr. Barry, for your help in working to reform the Endangered Species Act. Right here in this

room, along with many other locations, you were most helpful

along with many others in the Fish and Wildlife Service and the

Department. We thank you for your efforts. We’re not yet through. As you know, we have yet to reauthorize that act. It passed the full Senate and it passed the House, and I

am very hopeful that with the combined efforts of both parties, Republicans and Democrats, along with this committee and the Administration, we will continue forward. It is an example of how

teamwork and working together is so important in accomplishing

anything that is truly worthwhile. On the other hand, partisanship and headline-grabbing and so forth is very counterproductive. Not only does it not get the job

done, but it tends to cause people, correctly, to be disillusioned with

the whole process.

So I commend all of us, frankly, working together to get that bill

out of the committee, which as you know was reported out at 15

to 3 in a bipartisan bill, so we can get that enacted. And we will

continue to work with you on other issues—refuges, for example,

wetlands, international wildlife agreements, which are also very

important to our country. I just want to thank you for stepping up

and taking this assignment, and I thank the President for nominating you, and I look forward to working with you.

Thank you.

Senator CHAFEE. Senator Thomas.

OPENING STATEMENT OF HON. CRAIG THOMAS, A U.S.

SENATOR FROM THE STATE OF WYOMING

Senator THOMAS. Thank you, Mr. Chairman.

Mr. Secretary, it looks like this is going to be kind of a love-in

today. That’s fine. I won’t be able to stay long, but I did want to

come also to welcome you. I intend to be at your hearing tomorrow;

I am the subcommittee chairman of the Parks Subcommittee, so

that also, of course, is there.

I’m not quite as anxious to serve in that position as you are—

wolves, for example, are a troublesome thing that is hard to find

an answer to. I’m very much interested in the delisting process of

the grizzly bears, which seems to go on endlessly, as well as some
5

of the fish in the Colorado River. So there are some things that are

difficult, but I’m very impressed with your background and where

you’ve been, and I’m delighted that you’re here.

By the way, Mr. Chairman, the Secretary was good enough to

come to Yellowstone during this recess. We had a snowmobile trip

to look at the buffalo and all the problems that are there, and we

were pleased to have that.

So I do need to leave, but I will be back tomorrow, and I, too,

wanted to welcome you here and wish you well.

Thank you.

Mr. BARRY. Thank you very much.

Senator CHAFEE. Well, thank you, Senator. I appreciate your taking the time to be here because that’s helpful.

Senator Kempthorne.

OPENING STATEMENT OF HON. DIRK KEMPTHORNE, A U.S.

SENATOR FROM THE STATE OF IDAHO

Senator KEMPTHORNE. Mr. Chairman, thank you very much.

Mr. Barry, I want to congratulate you on your nomination and

acknowledge your wife and family; I believe your parents are here

with you, as well.

I am pleased to be here to offer some comments on the nomination of Don Barry to be Assistant Secretary for Fish, Wildlife, and

Parks. I have gotten to know Don over the years and believe that

he will be an effective and a successful Assistant Secretary.

Don has had a lifetime of experience with the Endangered Species Act, both as a House staffer and during his long tenure at the

Department of the Interior. To his credit, he has learned over that

time that the ESA doesn’t work as well as it should, or as it was

intended to work. So I support Don Barry to be Assistant Secretary

for two very important reasons.

As you all know, I spent the last 3 years working on the Endangered Species Act reauthorization. Negotiations at times have been

tense, but throughout the negotiations we have found Don Barry

to be a problem-solver. That is a commodity that is rare here in

Washington, DC.

The second reason that I support Don Barry is that he agrees

with Secretary Babbitt that the ESA needs changes to make it

work better for species and for property owners. And I will tell you

that Don has helped the negotiations to make those changes.

Don has a daunting task ahead of him in his new position if he

is confirmed, as I suspect he will be, and I strongly support that.

The challenges that he will face in protecting fish and wildlife are

profound. How will we, as a country, continue to protect all of our

native fish, wildlife, and plants without jeopardizing families and

communities? How will we protect fundamental property rights?

And how will we bring species back from the brink of extinction?

Cost overruns and Park Service projects are an embarrassment and

demonstrate that a lack of sound management oversight will always result in inefficiencies.

But I welcome Don Barry and hope that he will continue the

good working relationship that I’ve certainly enjoyed with his help

on the Endangered Species Act. I listened to Senator Baucus and

his comments, and I appreciate the partnership that we’ve estab-
6

lished on this committee. What we need to do is bring the ESA to

the floor. We need to deal with that issue, then send it from the

Senate to the House, where I think they will take it up, and I think

that we can finally do something meaningful for species and for

people.

Don, I want to give you credit as someone who has helped get

us to this point.

Thank you.

Mr. BARRY. Thank you very much.

Senator CHAFEE. Well, thank you, Senator. Your testimony is

particularly telling because you have worked so closely with Mr.

Barry over the years—I didn’t know it was 3 years. That makes us

all weary, doesn’t it? But you’ve certainly worked a long time on

the Endangered Species Act. It is my hope, as I know it is your

hope, that we can get to it this calendar year, and before long.

Senator KEMPTHORNE. Mr. Chairman.

Senator CHAFEE. Yes?

Senator KEMPTHORNE. May I, too, just excuse myself? I have to

return to an Armed Services hearing, but I wanted to be here to

show my support.

Senator CHAFEE. Thank you.

Senator Sessions.

OPENING STATEMENT OF HON. JEFF SESSIONS, A U.S.

SENATOR FROM THE STATE OF ALABAMA

Senator SESSIONS. Thank you, Mr. Chairman.

Mr. Barry, I enjoyed an opportunity to talk with you yesterday.

You come highly recommended. Our mutual friends whom we admire respect you, and I think that means a lot to me.

I noticed in your remarks you said there were three influences

important to you: your parents, the small-town environment, and

Boy Scouts. I can identify with that and I think those are good factors that influenced you. If you allow those characteristics and values that you learned in those institutions to guide you, I think

you’ll do very, very well.

You also mentioned that you wanted to use common sense and

avoid confrontation and avoid too much certitude and too many

loud voices. I think those are probably good, too.

Sometimes we have problems. I mentioned to you, as we chatted

previously, about the red cockaded woodpecker and the forest industry that is so important to my State. This morning I see in my

clips an article out of a Sunday paper, ‘‘Bird Taking Bite out of

Escambia Funds.’’ It’s an article about substantial reduction in timber cutting in the Escambia-Conecuh Forest, because they have a

growing red cockaded woodpecker population, which we want to

nourish. But apparently they are changing—and I would like to

just ask you if you would talk to me about this as time goes by—

apparently the Forest Service is moving from a timber cutting rotation of 80 years, which in Alabama 50 to 60 is normal, to 120 years

because the very older trees are more habitable for the woodpeckers. That is a very uneconomical plan. School systems in that

multicounty area benefit from the cutting, which apparently will be

reduced even further.
7

I have no doubt, and I’ve talked to a number of people this morning, that we could take the steps necessary to maintain the habitat

for the woodpecker without having this kind of problem.

Now, I think the question would be this. I think the Forest Service tends to want to blame it on the Fish and Wildlife Service, and

you may conclude it’s the Forest Service, but I do think the people

there, the school boards and superintendents, are raising questions

about that.

Would you be willing to talk to me about that? And if we could

determine that a better plan for handling that timber could be

identified, that you would support that?

Mr. BARRY. Senator, I am completely clueless and unfamiliar

with the particulars for that situation that you just described. I

would be more than willing to work with your staff to get more information about this particular case, talk to the Director of the

Fish and Wildlife Service, and then suggest that the Director of the

Fish and Wildlife Service, Jamie Clark, and I circle back to you

with more information once we’ve had a chance to learn more

about this problem.

Senator SESSIONS. Well, I understand that and I respect that.

Apparently there are 14 clusters of two to six woodpeckers in this

89,000 acre forest, and the goal was to have 200. The goal was to

go up to 200. I think the species is growing and rebounding rather

nicely around the country.

So this is the kind of thing where I believe if we use our good

judgment, we can maintain proper harvesting, because it’s not

healthy for a pine forest to get too old. Beetles get into it; trees

start dying from other causes; it can cause fire and other dangers.

So, Mr. Chairman, I appreciate that. I enjoyed my conversation

with Mr. Barry. I think he has the background and the integrity

to do a good job, and I look forward to working with him.

Senator CHAFEE. Thank you, Senator.

Mr. Barry, there are a couple of obligatory questions that I would

like to ask you now.

Are you willing, at the request of any duly constituted committee

of the Congress, to appear in front of it as a witness?

Mr. BARRY. I will.

Senator CHAFEE. Do you know of any matters which you may or

may not have thus far disclosed which might place you in any conflict of interest if you are confirmed in this position?

Mr. BARRY. I do not.

Senator CHAFEE. All right, fine.

Now why don’t you proceed with your statement, Mr. Barry.

STATEMENT OF DONALD J. BARRY, NOMINATED BY THE

PRESIDENT TO BE ASSISTANT SECRETARY FOR FISH AND

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

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

Many people who go through the nomination process before this

committee State how honored and humble they feel to be nominated for a higher office by the President of the United States. No

matter how frequently you may have heard this statement from

other nominees, it nevertheless is true. To be nominated as the As-
8

sistant Secretary for Fish, Wildlife, and Parks is the greatest honor

I have been accorded in a long career of public service. It is also

the greatest challenge and responsibility that I have been asked to

carry since arriving in Washington, DC 23 years ago.

I would like to express my deepest thanks to President Clinton

and Secretary Babbitt for placing their confidence and trust in me

and my ability to fulfill the responsibilities of Assistant Secretary.

When I reflect back upon the major forces or influences of my life

that have helped bring me before you today, three things stand out

in importance.

First and foremost has been the influence of my parents, highly

educated and completely devoted to each other and the four children that they raised. My parents taught me the importance of

many things in life, including the need for honesty and ethics in

dealing with people, the virtue of hard work and doing your best,

and the value of public service.

My parents also instilled in me at a very early age a deep appreciation for the outdoors and the beauty of nature. Whether it was

camping in Colorado, rock collecting in the Dakotas, bird watching

in Wisconsin, or canoeing in Minnesota’s boundary waters, our

family outdoor summer vacations stimulated my earliest thinking

about a career in conservation.

I admire my parents for many, many things, but most of all I admire and thank them for instilling in me a life-long love of the natural areas of this country, of wild things and wild places.

The second major influence in my life was growing up in a small

town in rural America. A former Congressman once lamented that

the biggest problem with Washington, DC was that people stayed

here too long and ended up confusing themselves with the rest of

the monuments.

Although I have lived in Washington, DC for almost a quarter

of a century, I believe that I have never lost touch with where I

came from or where my roots began. I grew up in a small agricultural community in southern Wisconsin, where hard work was a

way of life; honesty was considered a mandatory virtue; and public

service was considered your civic duty and not the 13-letter equivalent of a 4-letter word.

In a small rural community you learn very quickly the importance of being straight with people, of keeping your word.

The third major influence in my life was the Boy Scouts of America. Beginning at age 13, I spent nine of the best summers of my

life working on the staff of a Boy Scout camp in northern Illinois.

Advancing from the position of nature director to ultimately the

program director for the entire camp, my days in scouting enhanced my love of the outdoors and taught me early lessons of

leadership and the importance of a life of public service.

These three influences—my parents, growing up in a small, rural

town in the Midwest, and the Boy Scouts of America—have contributed significantly to what I stand for and believe in today.

It is my view that the position of Assistant Secretary for Fish,

Wildlife, and Parks is one of the most important positions in the

Federal Government today. While other positions may make

greater contributions in important areas such as public health or

education, no other governmental portfolio carries a greater trust
9

responsibility for the American people than one involving the conservation and enhancement of this Nation’s wildlife, cultural, historic, and park resources.

At times this daunting task seems to be beyond the capabilities

of any one person. As obvious as my own shortcomings may be, I

nonetheless believe there are four reasons why you should favorably consider my nomination to be considered for Assistant Secretary.

To begin with, I offer you my experience. I believe that my years

in Washington, DC have provided me with a clear understanding

of the varying roles and responsibilities of the office of Assistant

Secretary for Fish, Wildlife and Parks. I have either worked in or

worked with this particular office for almost a quarter of a century.

From 1975 to 1986, I provided legal advice to the Assistant Secretary for Fish, Wildlife and Parks through a variety of positions

in the Solicitor’s Office at the Department of the Interior. Since my

return to the Department in 1993 as a political appointee, I have

alternately served as the counselor to the Assistant Secretary, the

Deputy Assistant Secretary, and the Acting Assistant Secretary.

Moreover, during the 6 years that I worked for the House of Representatives I was responsible for the Merchant Marine and Fisheries Committee’s congressional oversight of the Assistant Secretary’s office. It thus could be said that I have interacted with

past Assistant Secretaries for Fish, Wildlife and Parks from a variety of angles.

I believe, therefore, that I have the practical experience and insight that one would want in an Assistant Secretary.

In addition with my familiarity with the office of Assistant Secretary, I have also worked for over 20 years with the two agencies

that this office oversees, the U.S. Fish and Wildlife Service and the

National Park Service. I served for 12 years as an attorney for the

Fish and Wildlife Service, including 6 years as that agency’s Chief

Counsel. As a result of this prior professional relationship, I have

longstanding personal ties with virtually every regional director in

the Service and most of the agency’s field supervisors.

Moreover, I have worked directly with the Director of the Fish

and Wildlife Service, Jamie Clark, for many years and believe that

we have established a solid record of solving problems together.

While my past involvement with the National Park Service may

not be as extensive as with the Fish and Wildlife Service, I nevertheless am familiar with key programs of the National Park Service and have established an excellent working relationship with its

Director, Bob Stanton.

I also have longstanding personal relationships with many of the

senior leaders in the National Park Service. For example, I met

two of the current regional directors for the Park Service while

working on park issues for the Department during the passage of

the Alaska Lands Act in the late 1970’s. I thus am no stranger to

the policies and programs of the National Park Service.

The second reason I would offer you to consider supporting my

nomination is my long record of bipartisan collaboration in preserving America’s natural resources. Mr. Chairman, I have never seen

a Democratic flock of geese or a Republican sunset over Yosemite

Valley. Labels of exclusive political ownership may be the bread
10

and butter for Washington pundits, but they are contrary to the

history of conservation in this country. Our greatest gains in preserving our natural, cultural, and historical legacy have occurred

when men and women of both political parties have set aside their

differences and forged a common ground on behalf of the American

people.

There are plenty of partisan political issues to be divided over.

The preservation of our parks and our wildlife resources should not

be among them.

The third reason for which I would hope you would favorably

consider my nomination is that I appreciate the special role reserved for the Congress by the Constitution in the development and

implementation of this country’s natural resource policies. Having

spent 6 years as General Counsel for a committee chairman in the

House of Representatives, I understand firsthand the importance of

balanced congressional oversight of the administrative implementation of our laws. So long as inquiries are fair, I will always welcome the input from Congress in assessing how well we are doing;

for, in the end, we are all accountable to the American people, and

only by working together can Congress and the executive branch

enhance the natural and cultural heritage of this country.

The final reason you should consider supporting my nomination

is my personal approach to solving problems. Quite frankly, easy

problems rarely work their way up the food chain to the desk of

an Assistant Secretary. All too often the problems are complex and

messy, involving large doses of conflicting facts and inflexible, dugin opponents, each convinced that the other side is horribly, horribly wrong.

Unfortunately, we seem to be losing our ability in this country

to respectfully disagree with one another without being disagreeable. Our society seems to be shouting more and listening less. I

believe that the reverse approach is necessary to be an effective Assistant Secretary. In order to fairly sort out conflicting facts and

points of view, an Assistant Secretary should be accessible to all

parties and be a particularly good listener.

Judge Learned Hand once noted, ‘‘The spirit of liberty is a spirit

that is not too sure it is right.’’ That spirit is jeopardized by too

much certitude, by too much righteousness, and by an unwillingness or an incapacity to stand in another’s shoes.

I pride myself on being a good listener and on being open and

accessible to different points of view. The fact that my candidacy

has been endorsed by the leadership of such polar opposites as the

Wilderness Society and the American Farm Bureau, the Safari

Club and the Humane Society, and the California League of Conservation Voters and the Southern California Building Industry,

will hopefully tell you more about my approach to solving problems

than my ultimate decisions themselves.

While many of these organizations will tell you that they disagree with some of my positions, they will also tell you that I am

fair, I am balanced, and I listen carefully to what they say; for in

the end, I am neither an ideologue from the right nor from the left.

I am simply from Wisconsin.

Winston Churchill once stated, ‘‘We make a living by what we

get. We make a life by what we give.’’ As I come before you today
11

I am asking you to give me another opportunity to serve the American people.

I am proud to be associated with two of the finest agencies in the

Federal Government, the National Park Service, and the U.S. Fish

and Wildlife Service. I am honored to work on a daily basis with

their dedicated employees, and I intend to be an advocate for our

National Parks and this country’s fish and wildlife resources. Anything less, in my mind, would disqualify me from this post.

President John F. Kennedy, in his inaugural address, distilled

the essence of public service in its purest form. He said, ‘‘I am certain after the dust of centuries has passed over our cities, we, too,

will be remembered not for victories or defeats in battle or in politics, but for our contribution to the human spirit.’’

With your confidence and support, I pledge to work diligently to

enhance the park and wildlife resources of this country. In this

small way I, too, may enhance the human spirit of this Nation.

Thank you.

Senator CHAFEE. Well, thank you very much, Mr. Barry, for a

fine statement.

I look on the National Parks as one of the great trusts given to

all of us in the Federal service, elected and appointed, and the Fish

and Wildlife Refuges and all of that are so important to our future

generations. So we think you are going to be a good caretaker for

that.

I would ask that you not be hesitant when you have difficulties—

I’m not asking you to jump the traces from your boss—but I want

to stress that this committee is out here to help you. We’re not in

an adversarial position; we’re here to help you solve problems.

You’re going to have a lot of problems. Some we will not be able

to solve. Some we may not agree with you on. But you’re going to

have a sympathetic ear in this committee and we want you to feel

free to use it.

Senator Baucus.

Senator BAUCUS. Thank you, Mr. Chairman.

Mr. Barry, as you know, some of the environmental groups have

raised concerns about the Endangered Species Act, and particularly

the concern that it might not be fully funded. And I’m talking

about the reauthorized bill that passed out of this committee, that

it might not be fully funded through the normal appropriations

process.

Could you tell us, first, how much the President’s budget includes for the program, and second, what actions are you planning

to take to deal with that?

Mr. BARRY. Thank you. First of all, the President’s budget, which

was just released yesterday, contains the largest single increase in

endangered species funding, I think, in the history of the program.

The President is requesting an additional $36 million, which would

bring the overall budget for the program to about $113 million.

Now, in particular for Senator Sessions, this is an important figure because one of the amendments that you offered during the

committee markup was to readjust the authorization levels over

the 5 years covered by the bill that was working through this committee.
12

The authorization level in S. 1180, if I recall correctly, is $120

million for fiscal year 1999. The President’s budget is coming in at

$113 million. So even with the additional workload and responsibilities that we would have under your proposed legislation, I think

the President’s budget puts us in a good position, even without the

bill signed into law at present—I think we’re in a very good position to be able to implement it and to respond in a manner that

will get us off to an excellent start.

So I would—of course, not surprisingly—urge the members to

give favorable consideration to the budget proposal which has just

come out. We tried to the best of our ability to anticipate the requirements and responsibilities under the new act. We think we

have put together a budget which will allow us to begin to respond

accordingly.

Senator BAUCUS. I appreciate that. I think many would say—

that is, those who favor the Act—that the Administration’s budget

request, although more than in the past, is probably not sufficient

to implement the reforms fully. I would urge you in your capacity

as Assistant Secretary to work with OMB and others to remedy

that.

I was struck by your comment that you like to listen. That’s obviously a very good quality. The question I have, though, is what you

plan to do to encourage others to listen, those out in the field. What

plans do you have? I mention this in part because I believe that

often we around here tend—no disrespect to your history and background—tend to automatically fill positions with ‘‘experts’’ in that

area. For example, as IRS Commissioner, an accountant or a tax

lawyer, an Assistant Secretary who is a professional in the area.

And all that is important, but so much of the effectiveness of agencies has to do with how well they are managed and the people

skills that are either there or not there.

We in our country now are changing the nature of the person

that we are naming to be, for example, the IRS Commissioner. This

fellow is a management expert. He’s not an accountant; that is Mr.

Bob Rosotti. He’s a management expert. In fact, he was very much

part of a national effort to help turn IBM around back in the 1980’s

when IBM was king of the roost, could do no wrong, Big Blue, all

of that. They just sat on their laurels a little too much; and upstart

companies, Compaq and others, came along and lo and behold, IBM

wasn’t where IBM once was. And there was a huge problem of denial within the company. Once they had dealt with that, then they

finally started to peel away layers and started to get up, go out,

and just do a 180 degree change. Instead of waiting for the customers to come in and order computers, they went out and talked

to potential customers to see if they needed them.

So it’s very good that you listen, but you’re only one of many people who are probably not going to be directly talking to all of our

employers, who are the public.

If for a moment or two you could just reflect on some of your

ideas and what you institutionally plan to do in terms of the culture of the people you’re with to listen more and serve more. That’s

not to cast any disrespect or aspersions on the various agencies. It’s

just that we always have to go the extra mile and work even a little harder. I’m just curious as to what your thoughts might be.
13

Mr. BARRY. Well, I think there are two things that I would do.

First of all, I would set the example. You would be amazed at how

quickly people start to follow your lead, and they see the leadership

of their organization undertaking a particular task.

When I have to deal with a particularly tough issue, I hate having to make the decisions based just on pieces of paper that I get

fed to me while I’m sitting in Washington. I really believe that

Government needs to be accountable for the people and the resources that are being affected on the ground. So the way that I

try to demonstrate leadership in this area is to be willing to actually go out and sit down in the affected area with the people who

are most upset about the particular issue, on all sides of the issue,

and give them a chance to try to change my mind.

I think when you do that in a position at my level, people in the

agency start to watch you and they start to begin to follow your

lead and follow your patterns. So that would be the first thing that

would come to mind; it’s up to me to set the example.

I guess the second thing is that having worked in this area for

so many years, I know people on virtually all sides of these key issues. I have worked with them all. I think one of the things that

I would bring to the table is my ability to pull people together and

to suggest that we sit down with the Farm Bureau and the Environmental Defense Fund and the Wilderness Society to begin a dialog or a discussion to see if we can’t find common ground together.

That would be the second thing that I would do. I would not only

try to set the example myself, but I would urge others in the agencies to sit down and work among themselves.

Senator BAUCUS. I appreciate that, and I see my time is up. Just

one final question.

How do you want to be remembered? When all is said and done

and you are no longer Assistant Secretary, how do you want to be

remembered? Or remembered for what?

Mr. BARRY. You know, actually, I’ve thought about that a bit. I

think there are probably four things that quickly come to mind.

First, I would like to leave this office with a stronger, more effective—emphasis on effective—Endangered Species Act. Not an act

with bigger teeth, because I don’t believe that that ultimately accomplishes what we need to accomplish, but an act that actually

produces conservation benefits on the ground. I think that a lot of

the administrative reforms that we have developed are designed as

incentives with private landowners to increase their willingness to

work with us in partnership. So I think the No. 1 thing I would

like to be remembered for is having left the Endangered Species

Act intact, with a stronger footing and an enhanced amount of support and participation by private landowners. I don’t think we can

accomplish what we need to accomplish under that act unless we

get this support.

The second thing that I would like to do is to follow through on

some of the major environmental initiatives that were started in

the first term of this Administration. The effort to restore the Everglades is a once-in-a-lifetime major challenge for this country. It’s

easy to start initiatives, but it’s hard to keep them going. I think

one of my responsibilities is to build on the excellent record that

was started in the first term with the Everglades, with the Califor-
14

nia Desert, and so on, and to try to keep those on track, keep them

on target, and to enhance their effectiveness.

I think probably most importantly, though, I would like to be remembered as somebody who helped strengthen the two agencies

that I oversee. One of the major reasons I decided to come back to

the Interior Department in 1993 was to help get the next generation of leaders in place within the Park Service and the Fish and

Wildlife Service. I’m seeing that happening right now. I think

Jamie Clark will be a superb Director of the Fish and Wildlife

Service, and some of the regional directors that are being chosen

now are people who are quick-witted, that think outside the box,

and are interested in solving problems. So if I could look back in

another 2 years and see people like Jamie Clark scattered throughout the agencies, I will feel that this has really been time well

served.

The last thing, quite frankly, that I want to be remembered for

is somebody who had fun.

Senator BAUCUS. What are you going to do to have fun?

Mr. BARRY. Well, it sounds like a strange observation, but I

think we have all gotten way too serious and too burdened in this

city and have forgotten that governance should be a privilege and

something that you really find enjoyment in. I think even the worst

day in my office is still better than the best day in most other people’s offices, and I would like people who work with me to feel the

same way. Those of us that have the privilege of working on natural resource issues are incredibly fortunate. I go home every night

just being incredibly thankful, and I want to feel that same way

2 years from now and I would like people to think, ‘‘There’s a person who really had a lot of fun.’’

Senator BAUCUS. Well, I want to echo the Chairman’s thoughts,

that you work with us, because we want to help you, too. I do think

that if we do all that, we’ll both have fun.

Thank you.

Senator CHAFEE. Thank you.

Senator Sessions.

Senator SESSIONS. Thank you, Mr. Chairman.

I agree with Senator Baucus. You and I talked about this yesterday. You’ve got a significant agency with what looks like a good increase in your budgetary authority, and the tendency may be not

to face the tough managerial decisions that you need to make early

on in your tenure. Every dollar that you receive is taken from citizens of America, and they want it to work to preserve species and

not to preserve turf or jobs or bureaucracies or that kind of thing.

Mr. BARRY. Senator Sessions, if I could just mention one thing,

prior to coming here I had written down a couple of things regarding what I’d like to accomplish. I skipped over one point, if you will

allow me to read it.

I would like to enhance the quality of services to the American

people. I want people to feel they got their money’s worth. So I

completely concur in what you’re saying. Giving us more financial

resources, if we don’t use them wisely and effectively, really doesn’t

accomplish much, and I want people to feel at the end of the day

that they got good governance out of us.
15

Senator SESSION. The maximum protection for species and parks

that we could possibly get for the dollar has been entrusted to you.

I think that’s a good goal.

Looking at my schedule for the afternoon, I’m going to be meeting with some individuals from the Alabama Health Department,

the Alabama Association of School Boards, the University of Alabama, and some armed services issues, all of which would like

more money. So if you don’t get everything you would prefer to

have, it would be because we do have a lot of interested people who

really and sincerely believe that theirs is the most important issue

facing America, and it is sometimes difficult for us.

Two things, and then I would conclude.

The Habitat Reserve Program—you and I talked briefly about it.

We did add some money to that program. Do you believe that, with

leadership from your department, we could enhance the number of

private landowners who act as quasi-stewards of properties, with

some modest compensation from the Government to assist them?

Mr. BARRY. Senator, Jamie Clark is very interested in this idea,

and in the President’s budget, although it is a small amount, there

is $5 million proposed to use for small grants for small landowners

to encourage them to do proactive conservation things for endangered or threatened species. So this is parallel to the Habitat Reserve Program idea which is in the Senate bill, and it was our attempt to begin to line ourselves up in that general direction in support of that concept.

Senator SESSIONS. I just think that in terms of certain animal

species and plants, the size of the tracts may not need to be large;

10 acres or 15 acres may well help preserve a species. It would be

difficult for the agency to manage that, and private landowners

may be willing to join with you.

Finally, with regard—I apologize, Mr. Chairman, for asking a

question before you had had your remarks; coming in late, I assumed you’d made your remarks—but with regard to the situation

with the red cockaded woodpecker, that is not a light thing. It’s

pretty significant. I am open-minded about it. But to follow up,

would you be willing to listen if we have a problem there, and

maybe consider helping us solve that problem?

Mr. BARRY. Senator, the first thing I would need to do is learn

more about the scientific facts of the whole situation. The red

cockaded woodpecker is probably the one endangered species in the

south that has had more time and energy put into the development

of its recovery plan. There have been a lot of people who have

spent a lot of time working on it. I think they’ve revised the recovery plan at least once.

What I would want to do is to sit down with the Fish and Wildlife experts to learn more about it, and then sit down with your

staff—and you, if you are willing—to learn more about the specific

problems in that one forest that you described.

Senator SESSIONS. Well, that’s all I’m asking, that at some point

we be able to discuss it and you be open to discussion about it. If

it’s justified as apparently it is presently contemplated, so be it; if

not, if you would be willing to consider changes, we’d appreciate

that.

Thank you, Mr. Chairman.
16

Senator CHAFEE. Thank you, Senator.

I just wanted to say in connection with the red cockaded woodpecker, like others on this committee I’ve spent time on it, been up

and down in North Carolina, seen some of the situations there.

Some of the policies that have been developed—not statutory policies, but administrative policies by Interior and Fish and Wildlife—

have helped the private landowners a great deal, the so-called ‘‘safe

harbor’’ and ‘‘no surprise’’ policies. And in the Endangered Species

Act we put those into statute so that they can’t be attacked and

removed. I think that when you have an opportunity in your discussions to become more familiar with ‘‘no surprises’’ and ‘‘safe harbor’’—I think they are both big steps forward for this particular

species, as a matter of fact.

Senator Wyden.

Senator WYDEN. Thank you, Mr. Chairman.

Mr. Barry, I very much appreciate your interest in looking at innovative approaches in terms of involving private landowners and

how we’re going to meet the Endangered Species Act requirements.

I think the way we’re going to protect species in the 21st century

is to come up with creative new models for involving those private

landowners. As you and I have talked about, we are convinced in

Oregon that with our plan with the coho salmon, the first waiver

from an Endangered Species Act listing in the country, that we are

on our way to developing the kind of model that will make sense

for the future. I offered an amendment in the Kempthorne-Baucus

legislation to encourage more of these kinds of approaches.

My question to you is, with respect to the bill in two areas, the

habitat conservation plan and the ‘‘no surprises’’ policy, since the

passage of the committee bill there have been various ideas and

suggestions brought to us. Senator Baucus referenced some of the

comments with respect to the funding. As you know, I organized

a letter from a large group of Senators on that point specifically.

But the question I wanted to ask you was, with respect to the habitat conservation plan standard, the bill looks to a provision that

will not appreciably reduce the likelihood of the survival of a species, and it has been brought to our attention that the standard

ought to try to recover a species rather than just simply do no

harm.

In the case of the ‘‘no surprises’’ policy, the suggestion has been

largely to try to figure out a way to be able to use new information,

information that comes to light since the original agreement was

entered into, so as to be able to take advantage of additional scientific knowledge.

On these two points, how you would look to recover a species

rather than just do no harm, and second, how you would update

an HCP under a ‘‘no surprises’’ plan, do you have any ideas on how

you might use those standards and still keep this attractive to private landowners? In other words, you factor in new information as

part of an HCP plan; you would look to recover species rather than

just do no harm. But on both of those counts, both of them, do it

in a way that would still be attractive to private landowners so

that we can keep the centerpiece philosophy of the legislation?

Mr. BARRY. Senator, that’s quite a plateful. Let me try to start

off with the standard for HCPs.
17

I think first of all, Congress has to decide what the real goal is

here. In 1982, when Congress amended the Endangered Species

Act and authorized HCPs, the goal was fairly simple. It was to provide a mechanism under the act to authorize incidental take, up to

a certain level, in order to allow otherwise lawfully designed activities to take place.

I don’t believe at that time it was Congress’ intention to make

habitat conservation planning a mandatory recovery tool; it was to

authorize incidental take. Now, Congress did require that there be

conservation provisions and mitigation provisions, added in the

course of the negotiations on an HCP to ensure that an HCP would

not adversely affect a species in a significant way. I think since the

HCP program has started, a number of people have increased their

concerns that for some species it may have too significant an impact over the range of the species.

I think we need also to keep in mind that a number of the recovery plans that are in existence today were developed without habitat conservation planning in mind as a conservation tool. They

weren’t even considering that as an option, and I think that may

have influenced some of the terms and provisions of some of the recovery plans that we have today. One example that I will use, is

in your back yard. When they were working on the final recovery

plan for the northern spotted owl in the Pacific Northwest, they

used a scientifically valid and credible template for the establishment of spotted owl reserves. When it was applied to the area of

southwest Washington, which is very heavily private land, they estimated that the cost of implementation of that recovery plan could

range anywhere from $200 million to $2 billion.

Now, under the Kempthorne-Chafee-Baucus-Reid bill, one of the

signature features of the recovery planning process is the inclusion

of stakeholders in the recovery planning process. I think in the future, if that bill becomes law, habitat conservation plans will be

one of the valid tools for conservation that will be factored in right

from the get-go. I think it will be much easier to use recovery plans

as a measure, a yardstick, for assessing the appropriateness of an

HCP.

I am somewhat concerned that a lot of the older plans which

never took habitat conservation planning into account as a tool will

not work as effectively if recovery is the standard, because I think

the recovery plans never anticipated something like this.

Senator WYDEN. So on the first one you’re saying that as we

learn more about HCPs and you have newer plans, the standard

may in fact evolve from ‘‘do no harm’’ to actual recovery?

Mr. BARRY. I think that’s the case. I think also, though, we just

have learned that habitat conservation planning can be a much

more powerful tool, a much broader-scaled tool than we originally

anticipated. And I think the effect of an HCP on a species’ status

rangewide makes the question of recovery more valid.

I think the new bill would put us in a better position for using

HCPs as a recovery tool. I think it’s heading in that general direction.

With regards to ‘‘no surprises’’——

Senator CHAFEE. I’ll tell you what, we’ve got one more questioner

here plus another witness.
18

Do you have another question, Senator?

Senator WYDEN. I’d even take that one for the record, Mr. Chairman.

All I was asking on the second one is, I think we want to figure

out a way to be able to update an HCP with new information and

new science, while still keeping the private landowner with a sense

of certainty of what’s expected of him. And if you’d even answer

that for the record, I’d be interested.

Mr. BARRY. I think the way to do that is to build adaptive management provisions into your HCP.

Senator WYDEN. Thank you, Mr. Chairman.

Senator CHAFEE. OK, fine. Thank you very much, Senator.

Senator Allard.

OPENING STATEMENT OF HON. WAYNE ALLARD, A U.S.

SENATOR FROM THE STATE OF COLORADO

Senator ALLARD. Thank you, Mr. Chairman.

I had prepared a letter and article and I would ask that they be

made a part of the record.

Senator CHAFEE. Definitely.

[The referenced material follows:]

U.S. ENVIRONMENTAL PROTECTION AGENCY,

Washington, DC, January 28, 1998.

Hon. ROY ROMER, Governor,

Denver CO.

RE: S.B. 94–139; Colorado’s Audit Privilege and Penalty Immunity Law

DEAR GOVERNOR ROMER: In January 1997, the Environmental Protection Agency

(EPA) received a petition asking it to initiate proceedings to withdraw the State of

Colorado’s authority to administer the National Pollutant Discharge Elimination

System (NPDES) program under the Clean Water Act. The petition is from

Earthlaw, representing the Sierra Club, the Oil, Chemical & Atomic Workers International Union, Western Colorado Congress, and the High Country Citizen’s Alliance.

The basis of the petition is S.B. 94–139, enacted June 1, 1994, which creates an

evidentiary privilege and provides penalty immunities relating to environmental

audit reports and disclosures of violations of environmental laws. The petition alleges that because of these privileges and immunities, Colorado does not have the

minimum authority required to administer the NPDES program.

To assist EPA in evaluating the petition, EPA sent Colorado two letters asking

detailed questions about the impact of S.B. 94–139 on Colorado’s ability to administer federally-approved environmental programs. The first letter, dated July 3,

1997, focused on Colorado’s NPDES program. Colorado answered this letter on November 18, 1997. A second EPA letter, dated August 19, 1997, dealt with other

State environmental programs. To date, Colorado has not responded to the August

19 letter.

EPA’s analysis of Colorado’s November 18 response indicates that in order for Colorado to maintain the minimum required authorities to administer and enforce the

NPDES program, the State must amend S.B. 94–139. We are writing to you today

to lay out the changes that are needed. Listed below are the most critical issues

that require amendment, but EPA also has legal concerns relating to the burden

of proof in penalty proceedings, the in camera review process, and time periods for

completing audits and coming into compliance, which may be addressed through

statutory amendment or an Attorney General’s opinion. EPA believes that each of

these issues is significant from an environment and public health as well as from

a law enforcement perspective.

Privilege in Criminal Proceedings. State law privileges for environmental audit reports and related testimony in criminal proceedings impair the ability of prosecutors

to investigate and obtain sufficient evidence to prove criminal conduct. To preserve

Colorado’s ability to bring appropriate action against the most egregious violators
19

and to assess criminal penalties, as required by 40 CFR Section 123.27(a)(3)(ii) and

(iii), these privileges must be eliminated in criminal proceedings.

Information Gathering Authority. States administering NPDES programs must

have adequate authority to investigate compliance with any NPDES program requirement and to verify the accuracy of self-reported data or other information concerning possible violations, whether this is through copying records, inspecting facilities, or monitoring effluents. (See 40 CFR Sections 123.26(b) and (c).) The ability

to investigate compliance and obtain data rapidly is especially critical for situations

that may pose an imminent and substantial endangerment to human health and the

environment. To assure that Colorado has such authority, S.B. 94–139 must be

amended to clarify that its privileges do not apply to underlying facts in an audit

report, especially regarding effluent data (whether from permitted or unpermitted

discharges), and that information needed to support an order for emergency relief

must be accessible without resort to the in camera process.

Public Participation and Access to Information. Federal law applicable to the authorization of state NPDES programs requires that the public have access to information and be able to report violations. (See 33 U.S.C. Section 1318(b) and 40 CFR

Sections 123.26(b)(3) and (b)(4).) This is consistent with Congressional intent that

citizen plaintiffs play a role in enforcing environmental laws. Colorado must amend

its audit law to make it clear that it does not impair public access to information

that would otherwise be available under State or Federal law. Colorado must also

eliminate the sanctions against disclosure and the prohibition on testimony contained in the audit law so as not to impair or chill public reporting of violations.

Penalty Immunities. Colorado’s November 18, 1997 letter states that Colorado has

authority to assess penalties for all violations of NPDES permits and for violations

or orders issued by the Colorado Water Quality Control Division. However, States

administering NPDES programs must have the authority to assess civil and criminal penalties not only for these two classes of violation, but for all violations described in 40 CFR Section 123.27(a)(3). Colorado’s law must be amended to comply

with this regulation. It is especially critical that Colorado be able to obtain penalties

for violations that are due to criminal negligence, that result in economic benefit

to the violator, that cause serious harm, or that pose an imminent and substantial

endangerment to the public health or the environment.

Other states, including Utah, Michigan, and Texas, were faced with similar legal

issues with respect to their state audit laws and, with technical assistance from

EPA staff, enacted statutory amendments to resolve those issues. EPA staff are also

available to provide technical assistance to State of Colorado staff to ensure that

Colorado’s environmental programs meet pertinent legal requirements.

As noted above, EPA has received a response only to its letter pertaining to Colorado’s NPDES program. Although today’s letter focuses on the NPDES program requirements, similar legal requirements apply to other environmental programs. Depending on Colorado’s future response(s) regarding the effect of S.B. 94–139 on

other EPA-approved environmental programs, there may be a need for additional

statutory changes and/or Attorney General’s opinions.

We hope that we can work constructively to address these issues. If you have any

questions or comments, please do not hesitate to call Steve Herman at 202–564–

2440 or Bill Yellowtail at 303–312–6308. We would also encourage your staff to contact Kerrigan G. Clough, Assistant Regional Administrator (312–6241) or, for legal

matters, Thomas A. Speicher, Regional Counsel, Region VIII (312–7100). Thank you

for your attention to this matter.

Sincerely,

STEVEN A. HERMAN,

Assistant Administrator,

Office of Enforcement and

Compliance Assurance.

WILLIAM P. YELLOWTAIL,

Regional Administrator,

EPA Region VIII.

[From The Denver Post, Monday, February 2, 1998]

WHO WATCHES THE EPA?

The Environmental Protection Agency, spurred on by employee groups and the Sierra Club and other environmental groups, has picked a fight with the State of Colorado that we hope it eventually loses.
20

The EPA, in a Jan. 28 letter to Gov. Roy Romer, says the agency wants several

major modifications in the State law that allows firms to perform voluntary environmental audits and institute appropriate cleanup steps, all the while protecting

themselves from penalties that otherwise might be incurred.

The 1994 law contains a legislative declaration that the ‘‘environment is enhanced

by the public’s voluntary compliance with environmental laws and that the public

will benefit from incentives to identify and remedy environmental compliance issues.’’

Since then, according to State officials, there have been 28 such audits, 19 of them

involving air pollution laws. Immunity has been granted in just 18 of the cases, with

five still pending.

While this record was being compiled, the EPA has mounted what can only be

called a nationwide campaign to rewrite or repeal all voluntary audit laws in the

21 states that have them and to prevent their passage in the remaining states.

The agency has so far managed to get modest modifications in three states: Michigan, Utah and Texas.

Meanwhile, Congress in its most recent budget bill instructed the EPA to work

with States to allow implementation of self-audit laws. House Republicans say they

will offer federal environmental self-audit legislation again this year, a measure the

Clinton administration opposes.

Thus the stage is set for a three-way fight between the federal agency, Congress

and the various States. A number of legal experts believe the issue of State authority will eventually reach the U.S. Supreme Court.

So what should be done in the interim? In our view, nothing. The EPA doesn’t

have a good argument for changing the Colorado law. It wants revisions that would

ultimately undermine—not to say eliminate—the law’s usefulness. The Colorado Department of Public Health and Environment is therefore right to resist.

As for the Sierra Club and similar groups, it should be noted that they are not

disinterested scholars on theses issues. Under federal law these groups currently

enjoy the right to file third-party lawsuits and have the Government pay their legal

fees, even where the regulators and the affected firms have reached enforcement

agreements. Naturally, this power is threatened by laws, such as Colorado’s, that

encourage a level of privacy and voluntary compliance.

Senator ALLARD. I would just say, first of all, in regard to Don

Barry’s appointment and everything, I do plan to support him on

the floor and support him out of committee. We have had a discussion about some issues that were in Colorado, and I was pleased

by the fact that he seems to be sensitive to a lot of these local issues and to property rights, and as mentioned by Senator Wyden,

sensitive to trying to bring some definite closure so that when people deal with the agency, they have some sense that things will be

carried forward and their efforts will not be a waste of time.

So I just would like to say briefly that we did discuss the Lakewood Pipeline; we talked about the South Platte agreement, and

the fact that we would hope that neither one of the processes run

out of control, and that some common sense be brought to it. And

the Colorado Fish Recovery Program, which again is a program

that has been out there for some time—as a State legislator in Colorado, I know we appropriated millions of dollars to it, and I know

the Federal Government has spent a lot of money on this. I think

there comes a point in time when we need to ask the question:

after all the money that we’ve put in on the species recovery of that

program, what is going to be the end result? Can the people who

have been cooperating with the agency to try to assure that we

have a favorable conclusion, are we actually going to have a favorable conclusion, as everybody has anticipated?

And maybe you have a comment or two in regard to that.

Mr. BARRY. First of all just let me mention, on the Lakewood

Pipeline, I think—from what I have heard preliminarily—and this

is still subject to a final briefing—that you may have put your fin-
21

ger once again on a problem that needs to be corrected. We are still

pursuing that issue further, but preliminary reports suggest that

you may have once again discovered an implementation problem

that we need to correct.

With regards to the amount of money that has been put into the

Colorado Fish Recovery Program and what people can expect from

it, I think one thing that it has helped provide is some certainty

for the States and the water users that are participating in that

program. The Fish and Wildlife Service is basically using the mutually agreed-upon recovery measures as the yardstick to use in

section 7 consultations. The water users themselves have helped

define the end results of the consultation process, and I think that

helps them a lot.

Senator ALLARD. OK. And I’ve gotten your assurance that you

will continue to work with local governments, particularly in relation to things like the Rimrock Run. I know that one probably went

over the top of some other people; it went directly to the Secretary

of the Interior on that issue.

But what I would ask is, keep a real interest and kind of an ear

toward local issues and local concerns.

And then finally, just a brief question. Would you care to comment on the Endangered Species Act that we have reported out of

committee?

Mr. BARRY. Well, I think Jamie Clark, the Director of the Fish

and Wildlife Service, probably said it best when she testified on behalf of the Administration and indicated that we support the bill

as it was in front of the committee, going into the markup. It is

still the position of the Administration at this point that we will

continue to support that bill. Of course, that’s always subject to any

amendments that would ultimately come up on the floor. We think

that an awful lot of hard work has gone into this bill. There are

people on all sides of the debate who see things that they wish

were in the bill that are not in the bill. But I think it is a very

solid, serious piece of work that will ultimately enhance the conservation of endangered and threatened species, and I think it’s the

best bill that we can get that will clear both Houses and be signed

by the President.

Senator ALLARD. Thank you.

I yield back the balance of my time, Mr. Chairman.

Senator CHAFEE. Thank you very much, Senator.

We thank you very much, Mr. Barry. We appreciate your being

here.

Senator CHAFEE. Now, will Sallyanne Harper please come forward? She is nominated by the President to be the Chief Financial

Officer of the Environmental Protection Agency.

We welcome you, Ms. Harper.

Ms. Harper and I had an opportunity to meet beforehand, and

I find that she’s an excellent candidate. Regrettably, I have to be

at the Majority Leader’s office on another matter of some import,

so I would ask if Senator Allard would be kind enough to preside.

They will conduct this hearing, and obviously I will review the

record on it. What I hope to do is to move both of these nominations along as fast as we can.
22

So I thank you very much. I will ask you just two obligatory

questions, Ms. Harper, before I turn it over.

Are you willing, at the request of any duly constituted committee

of the Congress, to appear in front of it as a witness?

Ms. HARPER. I am.

Senator CHAFEE. Boy, you would really throw this thing into

chaos if you said no.

[Laughter.]

Senator CHAFEE. Do you know of any matters which you may or

may not have thus far disclosed which might place you in any conflict of interest if you are confirmed in this position?

Ms. HARPER. I do not.

Senator CHAFEE. All right, fine.

Now, I apologize that I cannot stay, and I want to thank Senator

Allard very much for taking over. Thank you.

Senator Allard [assuming the chair]. Thank you again, Ms. Harper. I would like to welcome you to the committee. It’s good to have

you here this afternoon.

I did have some issues that I wanted to bring up with you while

you are here, and I want you to understand that these issues probably have more to do with EPA in general than you specifically.

But I do feel it’s very important, because the issue that I’m going

to bring up is impacting the whole State of Colorado; in fact, potentially, it may impact some 21 States. It has sort of become a rallying cry for the people of Colorado and the legislature, and at least

one of the major papers has written an article, and this is the issue

of self-audits. I don’t know how familiar you are with self-audits,

but I hope that perhaps maybe my staff can get together with some

representatives of EPA, and maybe yourself, and talk about this.

Personally, I am not going to object to your going out of the committee; I’m going to support you getting out of the committee. But

until the State of Colorado gets a better response from the Environmental Protection Agency than what we’ve gotten now because of

the self-audit issue, I feel compelled that I’m going to have to put

your nomination on hold when it comes to the floor of the Senate.

The only reason we’re putting it on there is so that we can get a

response from the Environmental Protection Agency and the various parties involved to the self-audit issue in the State of Colorado. They did give us a response back, but it was rather dictatorial. And in the last budget that we had, we had a provision in

there that instructed the Environmental Protection Agency to cooperate with the States in implementing a self-audit program. The

tone of this letter was not one of cooperation; it was one of mandates.

So our office is reviewing the rule and regulatory process. We are

reviewing what it actually states in law; if there are provisions in

the law, obviously, we want EPA to enforce them. If there are regulations that have been implemented without the support of the law,

passed through the Congress, then we would like to address those

issues.

Senator BAUCUS. Mr. Chairman, may I ask you how long you’re

going to take here? This is a confirmation hearing.

Senator ALLARD. I recognize the Senator from Montana.
23

It is, but it’s important. I just would point out that it’s important

to her nomination, because when she goes to the floor there’s going

to be a hold put on it, and I want her to understand what is behind

it, and that it is something that can probably be resolved easily.

I wouldn’t be overly concerned about it, but the representatives

from the Environmental Protection Agency need to get in touch

with our office.

And it may very well affect your State, Senator. Colorado is one

of the first States, and we’re actually talking about the implementation of the law.

So I would just say in conclusion that we just want to get this

resolved as soon as possible, and with a little bit of communication

between our office and your boss, I think we can get it resolved.

Now I would recognize the Senator from Montana.

Senator BAUCUS. Mr. Chairman, I was asking you what you intend to do here, if you intend to continue to pursue this matter

here with the nominee, or whether you plan to take it up at some

other time.

I asked the question because I don’t think that the nominee is

prepared to deal with this issue.

Senator ALLARD. That’s why I didn’t ask her the question.

Senator BAUCUS. So if I might finish, Mr. Chairman, I just wondered what your intentions are. I think we shouldn’t put a hold—

nor should anybody, frankly—on her nomination on the Senate

floor because this position needs to be filled. She needs to do her

job. There are various ways to communicate, and I know you just

communicated with EPA; I’m sure they’re going to get the message,

and I was just asking again whether you intend to pursue this

matter here or not. I asked the question because she’s not prepared

to deal with the subject.

Senator ALLARD. Well, I didn’t expect her to be prepared to deal

with the subject, but I wanted her to understand the process and

some of the dynamics. I wanted to be up front and honest with her

so that she would know exactly what was happening as far as our

office is concerned. I don’t think it’s an insurmountable problem. It

may be a slight delay; it depends on how quickly the Environmental Protection Agency responds. If they respond in a timely

manner, then we can quickly move on. I understand the problem

with these kinds of vacancies, and for that reason I would hope

that the Environmental Protection Agency would respond quickly.

Now I would go ahead and yield back to the Senator from Montana. I think we can go ahead with the hearing process, and if you

would have any questions or comments, I would recognize you for

them.

Senator BAUCUS. Well, Mr. Chairman, I don’t want to make a big

deal out of this. I’m just asking a simple question for which I don’t

think I’ve received an answer yet.

Do you intend to pursue this here, or not?

Senator ALLARD. No.

Senator BAUCUS. Thank you.

Senator ALLARD. The Senator from Montana is recognized.

Senator BAUCUS. I have no statement, except, let’s get her confirmed.

Senator ALLARD. OK.
24

Do you have a statement for the committee?

Ms. HARPER. I do, Mr. Chairman.

Senator ALLARD. OK. I recognize you.

STATEMENT OF SALLYANNE HARPER, NOMINATED BY THE

PRESIDENT TO BE CHIEF FINANCIAL OFFICER, ENVIRONMENTAL PROTECTION AGENCY

Ms. HARPER. Thank you, Mr. Chairman. Thank you, Senator

Baucus. Good afternoon, Mr. Chairman and members of the committee.

It is a great honor to be here today as the President’s and Administrator Browner’s nominee as the EPA’s Chief Financial Officer. If confirmed, I would welcome this opportunity to serve the Administration and the American people to the best of my ability.

As a member of the Senior Executive Service, I have been privileged to serve in senior career Civil Service positions relating to financial management under three EPA Administrators. Nevertheless, I can say that the position for which I have been nominated

presents a unique and exciting challenge in this time of fundamental change at the Environmental Protection Agency.

With your support, our environmental mission has been reaffirmed and reinvigorated, and there is a strong focus on resultsoriented resource and financial management.

The American people expect the highest quality and integrity in

the use and management of their tax dollars. I share these expectations, and if confirmed, I will use all of my skill and energy to meet

them. I would like to present you with a brief summary of the principles that will guide me if the Senate chooses to confirm me as the

Chief Financial Officer.

I and my colleagues at EPA are driven by a strong personal commitment to a clean and healthy environment. At the same time,

having dedicated my professional career to fiscal resource management, I firmly believe that the mission of the agency can only be

accomplished in an atmosphere of fiscal responsibility and good

management. My goal since being appointed the Acting Chief Financial Officer in March 1996, and a goal implicit in such statutes

as the Government Performance and Results Act and the Chief Financial Officers Act, has been and will continue to be to enhance

EPA’s ability to reach its environmental objectives through the

most effective planning and resource management.

I will also work to ensure that the American public and Congress

have access to clear and comprehensive information on EPA’s financial stewardship and on the effectiveness of the agency’s programs, and I recognize that the most effective way for us to accomplish our environmental mission is through joint action with our

State partners.

The management challenge at EPA extends well beyond resource

management. The agency must evaluate every aspect of its work to

measure efforts against results. Are we spending scarce dollars to

our best advantage and achieving meaningful and measurable improvements in environmental quality? Can we show the American

public that we are meeting our environmental challenges and public health threats efficiently and effectively? In short, we are being
25

challenged to manage smartly against our bottom line, which is the

environmental quality for the people of this country.

To this end, I am deeply committed to the challenge of continuing the development of a comprehensive strategic planning, budgeting, analysis, and accountability program at the Environmental

Protection Agency. I believe we are on track and would like to

present some of the highlights of our work to date in these areas.

In September of last year we delivered to you the Environmental

Protection Agency’s Strategic Plan, as required under the Government Performance and Results Act. Through the process of developing this Plan, the agency, aided by the view of its partners and

stakeholders, engaged in an intensive evaluation of what we would

like our work to have achieved 5 years from now.

We have also made significant strides in the process of aligning

our budget structure with the strategic planning elements. This

will aid all participants in the budget process, both in the Administration and in the Congress, in future years as we approach the Results Act vision of clear linkages between environmental results

and our annual budget decisions.

We have begun to address the internal challenge of developing

an accountability system that moves us away from counting program outputs toward the measurements of environmental outcomes. This is a daunting challenge, but the cooperation of agency

managers and the support we are receiving from State representatives allows me to be confident of the success.

All of these activities, guided by the Chief Financial Officer, must

continue if we are to effect the major redirection for performancebased management envisioned by the Results Act. I pledge to continue these efforts.

Should I be confirmed, I look forward to working with the Administrator, with this committee, and other Members of Congress,

the broad constituency served by EPA, to ensure the financial resources entrusted to us are managed wisely.

I thank you.

Senator ALLARD. I thank you, Ms. Harper, for your statement.

We will now proceed to the members of the committee to see if we

have any questions.

Senator BAUCUS. Thank you, Mr. Chairman.

Ms. Harper, I understand your family is with you.

Ms. HARPER. Yes, Senator, they are.

Senator BAUCUS. Could you introduce all of them, please? I understand there are quite a few.

Ms. HARPER. I have stacked the hearing room, sir.

Senator BAUCUS. Well, we would like to see them. If you could

just introduce them and have them stand. This is a big day for you

and for them.

Ms. HARPER. Thank you, Senator.

This is my husband, Francis Nathans.

Senator BAUCUS. Francis.

Ms. HARPER. My sister, Dr. Harper-Petrozza.

My father, Thomas Harper.

My mother, Frances McCarron-Harper.

My sister, Mary.
26

And in the back row, my brother-in-law, Paul Kelly; my sister, Kate Harper; and Kate’s father-in-law, Paul Kelly.

Senator BAUCUS. And on the other side of the room?

[Laughter.]

Ms. HARPER. I think that’s my family, sir.

Senator BAUCUS. Ms. Harper, there is just one question that I have, and it’s on the minds—the general question—of a lot of

Americans, and that’s this new term that I learned the other day,

Y2K, otherwise known as converging through the Year 2000 a la

computers.

Can you tell us a little bit about what you’re doing at EPA and what EPA is doing and how EPA is going to solve that problem,

so that at least we don’t have that headache on our hands when

the clock ticks?

Ms. HARPER. Thank you, Senator.

EPA has been very aggressive in trying to make sure that we

have our Y2K, our Year 2000 conversion problems, taken care of

long before we hit the Year 2000. We have 61 mission-critical systems that are currently under very aggressive review, including the

financial systems and all of the major programmatic systems.

There are second tier systems, including such things as LANs, that

will follow behind the mission-critical systems, but we are currently on track to meet OMB’s revised government-wide milestones

so that our systems will be in compliance.

Senator BAUCUS. So you think you will have things all snapped

in place by the bewitching hour?

Ms. HARPER. It is a gamble, Senator. At this time we are on

track to do that. There are some systems that we are worried

about, but we are monitoring them very, very closely.

Senator BAUCUS. OK. I would just advise, if you have any problems, you will go to the people within the EPA administration, and

also work with this committee, because we want to help you make

sure you get that solved. It’s a huge problem. Can you give us a

rough estimate of how much EPA is going to have to spend to update?

Ms. HARPER. Senator, I would be happy to provide that for the

record. I don’t have it off the top of my head.

[Information to be supplied follows:]

EPA’s funding is as follows to address the problems associated with ensuring that

its critical computer systems are in full compliance with the Year 2000 initiative:

Fiscal year [In millions of

dollars]

1997 ........................................................................................................................................................................ $5.3

1998 ........................................................................................................................................................................ 13.0

1999 ........................................................................................................................................................................ 6.1

2000 ........................................................................................................................................................................ 1.0

2001 ........................................................................................................................................................................ 1.0

Total ............................................................................................................................................................... $26.4

Senator BAUCUS. I might tell you, and for those who are interested, the IRS is going to have to spend about $900 million on that

problem alone, in addition to all the other computer problems that

that agency has. It’s a tremendous problem, and I just urge you to

do what you have to do. We have lots of problems, and that’s one

we just don’t want to have to deal with also.
27

Thank you, Mr. Chairman.

Senator ALLARD. Thank you.

I just have a couple questions, along the same lines as the computer question from Senator Baucus.

Is the Environmental Protection Agency—do you share computers with other agencies? Or is your system a stand-alone system

just within the agency itself?

Ms. HARPER. Mr. Chairman, we have a number of different systems within the agency. We share our supercomputer, for instance,

with other agencies and departments that have an interest and a

need in using that. We also receive data from the States, the local

governments, and other Federal agencies, and exchange data with

them. So I think it is less an issue that we share systems than that

we share data that is moving in and through those systems.

Senator ALLARD. I guess that was my question, whether you had

a compatible system with the States, if you are working with them,

or the various Regional Offices.

Do you have a compatible system? Do you share data with the

Department of the Interior? Do you share data with the Agriculture Department? Or maybe some health agencies? Do you

share data, and do you have a compatible computer system, or is

it all pretty much on their own system and you have to use e-mail

through—this is not a good example, but some universal e-mail

carrier like America Online or something like that?

Ms. HARPER. Mr. Chairman, the expert in this area is our Chief

Information Officer. To my knowledge, we do share data, and we

have systems that are capable of transmitting data back and forth

to other systems. Our Office of Reinvention just last month met

with the States to try to work out better ways to use information,

to share data, to not duplicate, and to reduce the burden that we

sometimes put on our State partners in trying to get information.

They have, I believe, worked out an agreement on the best way to

proceed, so we are always looking for better ways to share information and data.

Senator ALLARD. The final question. How do you plan on keeping

yourself informed as to new legislative requirements that may be

placed upon you in your duties?

Ms. HARPER. There are a number of ways, Mr. Chairman, that

I will be keeping informed of new legislation and new legislative

requirements.

Our Office of Congressional and Intergovernmental Relations is

an excellent source of information, and we work quite closely together, in addition to which the Chief Financial Officers’ Council

has a legislative committee, of which I am a member, and we track

very carefully those pieces of legislation that would, for instance,

affect the chief financial officers, the financial or budgetary or planning legislation.

Senator ALLARD. Thank you.

Do we have any other questions from any other members of the

committee?

Senator BAUCUS. Mr. Chairman, I just wanted to ask Ms. Harper——

Senator ALLARD. The Senator from Montana is recognized.
28

Senator BAUCUS [continuing]. The same question I asked the previous witness.

How do you want to be remembered? What is your legacy?

Ms. HARPER. Senator, I would like my legacy to be that when I have left the Environmental Protection Agency, we have finally established a planning, budgeting, analysis, and accountability system where we know where we’re going; we budget our resources to

that plan; our resource allocation decisions are based on

prioritization along known and effective guidelines, and that we

hold ourselves accountable for achieving the environmental results

that the American public expects from us.

Senator BAUCUS. Well, I can tell you, you are approaching it with

great enthusiasm.

Thank you, Mr. Chairman.

Senator ALLARD. Thank you for appearing here today, Ms. Harper.

If there are no further questions, the committee is adjourned.

[Whereupon, at 3:30 p.m., the committee was adjourned, to reconvene at the call of the chair.]

[Additional material submitted for the record follows:]

STATEMENT OF DONALD J. BARRY, NOMINATED TO BE ASSISTANT SECRETARY FOR

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

Mr. Chairman, members of the committee: Many people who go through the nomination process before this committee state how honored and humbled they feel to

be nominated for higher office by the President. No matter how frequently you may

have heard this statement from other nominees, it nevertheless is true.

To be nominated as the Assistant Secretary for Fish and Wildlife and Parks is

the greatest honor I have been accorded in a long career of public service. It is also

the greatest challenge and responsibility I have been asked to carry since arriving

in Washington 23 years ago. I would like to express my deepest thanks to President

Clinton and Secretary Babbitt for placing their confidence and trust in my ability

to fulfill the responsibilities of Assistant Secretary.

When I reflect back upon the major forces or influences in my life that have

helped bring me before you today, three things stand out in importance.

First and foremost, has been the influence of my parents. Highly educated and

completely devoted to each other and the four children that they raised, my parents

taught me the importance of many things in life, including the need for honesty and

ethics in dealing with people, the virtue of hard work and doing your best, and the

value of public service. My parents also instilled in me at an early age a deep appreciation for the outdoors and the beauty of nature. Whether it was camping in Colorado, rock collecting in the Dakotas, bird watching in Wisconsin, or canoeing in Minnesota’s Boundary Waters, our family outdoor summer vacations stimulated my earliest thinking about a career in conservation. I admire my parents for many, many

things, but most of all, I admire—and thank them—for instilling in me a life-long

love of the natural areas of this country, of wild things and wild places.

The second major influence in my life was growing up in a small town in rural

America. A former Congressman once lamented that the biggest problem with

Washington, DC was that people stayed here too long, and ended up confusing

themselves with the rest of the monuments. Although I have lived in Washington,

DC for almost a quarter of a century, I believe that I have never lost touch with

where I came from, or where my roots began. I grew up in a small agricultural community in southern Wisconsin where hard work was a way of life, honesty was considered a mandatory virtue, and ‘‘public service’’ was considered your civic duty and

not the 13 letter equivalent of a four letter word. In a small rural community, you

quickly learn the importance of being straight with people—of keeping your word.

The third major influence in my life was the Boy Scouts of America. ginning at

age 13, I spent nine of the best summers of my life working on the staff of a Boy

Scout camp in northern Illinois. Advancing from the position of nature director to

ultimately the program director for the entire camp, my days in scouting enhanced

my love of the outdoors and taught me early lessons of leadership and the importance of a life of public service.
29

These three influences—my parents, growing up in a small town in the Midwest, and the Boy Scouts of America, have all contributed significantly to what I stand

for and believe in today. It is my view that the position of Assistant Secretary for Fish and Wildlife and Parks is one of the most important positions in the Federal Government today.

While other positions may make greater contributions in important areas such as

public health or education, no other governmental portfolio carries a greater trust

responsibility for the American people than one involving the conservation and enhancement of this Nation’s wildlife, cultural, historic and park resources.

At times this daunting task seems beyond the capabilities of any one person. As obvious as my own shortcomings may be, I nonetheless believe there are four reasons why you should favorably consider my nomination for the position of Assistant

Secretary. To begin with, I offer you my experience. I believe that my years in Washington, DC have provided me with a clear understanding of the varying roles and responsibilities of the office of Assistant Secretary for Fish and Wildlife and Parks. I have

either worked in, or worked with, this particular office for almost a quarter of a century. From 1975 to 1986, I provided legal advice to the Assistant Secretary for Fish

and Wildlife and Parks through various positions in the Office of the Solicitor at

the Department of the Interior. Since my return to the Department as a political

appointee in May 1993, I have alternately served as the Counselor to the Assistant

Secretary, the Deputy Assistant Secretary, and the Acting Assistant Secretary.

Moreover, during the 6 years that I worked for the House of Representatives, I was

responsible for the Merchant Marine and Fisheries Committee’s Congressional oversight of the Assistant Secretary’s office. It, thus, could be said that I have interacted

with past Assistant Secretaries for Fish and Wildlife and Parks from a variety of

angles. I, believe therefore, that I have the practical experience and insight that one

would want in an Assistant Secretary. In addition to my familiarity with the office of Assistant Secretary, I have also worked for over 20 years with the two agencies that this office oversees: the U.S.

Fish and Wildlife Service and the National Park Service. I served for 12 years as

an attorney for the Fish and Wildlife Service, including 6 years as that agency’s

Chief Counsel. As a result of this prior professional relationship, I have long-standing personal ties with every Regional Director in the Service, and most of the agency’s Field Supervisors as well. Moreover, I have worked closely with the Director

of the Fish and Wildlife Service, Jamie Clark, for many years, and believe that we

have established a solid record of solving problems together. While my past involvement with the National Park Service may not be as exten- sive as with the Fish and Wildlife Service, I nevertheless am familiar with the key

programs of the Park Service and have established an excellent working relationship with the Director of that agency, Bob Stanton. I also have long-standing working relationships with many of the senior leaders in the Park Service. For example,

I first met two of the Park Service’s current regional directors while working on

park issues for the Department during the passage of the Alaska National Interest

Lands Conservation Act (ANILCA) in the late 1970’s. Thus, I am no stranger to the

policies and programs of the National Park Service.

The second reason I would offer for you to consider supporting my nomination is

my long record of bipartisan collaboration in preserving America’s natural resources.

Mr. Chairman, I have never seen a Democratic flock of geese or a Republican sunset

over Yosemite Valley. Labels of exclusive political ownership may be the bread and

butter for Washington pundits, but they are contrary to the history of conservation

in this country. Our greatest gains in preserving our natural, cultural, and historical legacy have occurred when men and women of both political parties have set

aside their differences and forged a common ground on behalf of the American people. There are plenty of partisan political issues to be divided over—the preservation

of our parks and wildlife resources should not be among them.

The third reason I hope that you would favorably consider my nomination is that

I appreciate the special role reserved for Congress by the Constitution in the development and implementation of this country’s natural resource policies. Having spent

6 years as a general counsel for a Committee Chairman in the House of Representatives, I understand first-hand the importance of balanced congressional oversight of

the administrative implementation of our laws. So long as the inquiries are fair, I

will always welcome the input from Congress in assessing how well we are doing.

For in the end, we are all accountable to the American people, and only by working

together, can Congress and the executive branch enhance the natural and cultural

heritage of this country.

The final reason you should consider supporting my nomination is my personal

approach to solving problems. Quite frankly, easy problems rarely work their way
30

up the food chain to the desk of an Assistant Secretary. All too often the problems

are complex and messy, involving large doses of conflicting facts and inflexible, dugin opponents, each convinced that the other side is horribly, horribly wrong.

Unfortunately, we seem to be losing our ability in this country to respectfully disagree with one another without being disagreeable. Our society seems to be shouting more and listening less. I believe that the reverse approach is necessary to be

an effective Assistant Secretary. In order to fairly sort out conflicting facts and

points of view, an Assistant Secretary should be accessible to all parties, and be a

particularly good listener. Judge Learned Hand once noted that ‘‘The spirit of liberty

is the spirit that is not too sure it is right.’’ That spirit is jeopardized by too much

certitude, by too much righteousness, and by an unwillingness or incapacity to stand

in another’s shoes.

I pride myself on being a good listener and of being open and accessible to different points of view. The fact that my candidacy has been endorsed by the leadership of such polar opposites as the Wilderness Society and the American Farm Bureau, the Safari Club and the Humane Society, and the California League of Conservation Voters and the Southern California building industry, will hopefully tell

you more about my approach to solving problems than my ultimate decisions themselves. While many of these organizations will tell you that they disagree with some

of my positions, they will also tell you that I am fair, I am balanced, and I listen

carefully to what they say. For in the end, I am neither an ideologue from the right

nor from the left—I am simply from Wisconsin.

Winston Churchill once stated that ‘‘we make a living by what we get, we make

a life by what we give.’’ As I come before you today, I am asking you to give me

another opportunity to serve the American people. I am proud to be associated with

two of the finest agencies in the Federal Government, the National Park Service

and the U.S. Fish and Wildlife Service. I am honored to work on a daily basis with

their dedicated employees and I intend to be an advocate for our national parks and

this country’s fish and wildlife resources. Anything less, in my mind, would disqualify me from this post.

President John F. Kennedy in his inaugural address distilled the essence of public

service to its purest form. He said ‘‘I am certain after the dust of centuries has

passed over our cities, we, too, will be remembered not for victories or defeats in

battle or in politics, but for our contribution to the human spirit.’’ With your confidence and support, I pledge to work diligently to enhance the park and wildlife

resources of this country. In this small way, I too, may enhance the human spirit

of this nation. Thank you.

BIOGRAPHICAL STATEMENT FOR DONALD J. BARRY

Over the past 23 years, Don Barry has served under or worked with eight different Secretaries of the Interior, Members of Congress and non-governmental organizations on matters that directly affect the Office for the Assistant Secretary for

Fish and Wildlife and Parks. Through various positions, he has worked with a wide

range of public and private entities to solve natural resource problems. For the reasons that follow, he has the experience to serve as the Assistant Secretary for Fish

and Wildlife and Parks.

Executive Branch Experience—Don has worked for over 15 years within the Department of the Interior in a variety of positions that directly relate to the position

of Assistant Secretary, including serving as the Acting Assistant Secretary, Deputy

Assistant Secretary, Counselor to the Assistant Secretary and the Assistant Solicitor

(Chief Counsel) to the U.S. Fish and Wildlife Service.

Legislative Branch Experience—Don worked for over 6 years for the Chairman of

the House Merchant Marine and Fisheries Committee as the General Counsel for

Fisheries and Wildlife. In this capacity, he worked routinely with the Assistant Secretary for Fish and Wildlife and Parks and the Director of the U.S. Fish and Wildlife Service. He was responsible for all legislative matters involving endangered species, marine mammals, the National Wildlife Refuge System, wetlands, migratory

birds, water and energy development, and international wildlife agreements. He

also worked collaboratively with the House and Senate Natural Resource Committees on numerous land and water management initiatives, including those affecting

the National Park System.

Managerial Competency—Don has over 18 years of managerial experience in both

the government and as a Vice President with the World Wildlife Fund. As Assistant

Solicitor, he received six straight ‘‘Outstanding’’ management performance ratings

and received five Special Achievement Awards for superior legal services.
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Natural Resource Expertise—Don has experience in all aspects of natural resource

law and policy, including fish and wildlife conservation, national parks and wildlife

refuges, public lands, energy resources, Native American rights, Alaskan lands,

coastal and marine resources and wetlands. For example, he has worked on Endangered Species Act matters for 22 of the 23 years that the Act has been in existence,

having helped draft or develop every major ESA regulation and policy to date. He

has also participated in every ESA Reauthorization since passage of the original

Act. In addition, he has played a significant role in the drafting and implementation

of the Alaska Lands Act and the negotiation of various international conservation

agreements.
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RESPONSES BY DONALD J. BARRY TO ADDITIONAL QUESTIONS FROM SENATOR CHAFEE

Question 1. If you are confirmed as Assistant Secretary, what are your top priorities for the Fish and Wildlife Service and the National park Service? What legacy

do you hope to leave with the Department?

Answer. If confirmed as Assistant Secretary, the following would be among my

top priorities for the National Park Service and the U.S. Fish and Wildfire Service:

focusing on the budget priorities and needs for both agencies in order to maximize

the fiscal resources available for each agency; completing the ESA reauthorization

process and finalizing all ESA administrative reforms designed to enhance private

land owner and State and local government support for species conservation; assisting in the timely implementation of the National Wildlife Refuge System Improvement Act of 1997; resolving bison management and winter use controversies in Yellowstone National Park; supporting on-going restoration efforts for the Florida Everglades; and resolving past controversies surrounding the National Park Service’s

construction program.

As for the legacy I would care to leave behind upon my departure from the position of Assistant Secretary, four items stand out in particular:

(1) I would like to leave in place a more effective endangered species conservation

program that significantly accelerates species recovery efforts on the ground through

enhanced support and cooperation from private landowners and State and local governments.

(2) I would like to leave the Fish and Wildlife Service and the National Park Service with enhanced fiscal resources to accomplish their important missions and with

a new generation of leaders in place who are open to new approaches and ideas for

enhancing the effectiveness of their agencies’ programs.

(3) I would like to see strong continued progress in the implementation of the Administration’s major ecosystem restoration projects involving places like the Florida

Everglades and the desert landscapes of Southern California; and
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(4) I would like to expand within the agencies I oversee the sense of enjoyment and pride that used to be associated with government employment and public service.

Question 2. You have extensive experience in implementing the Endangered Spe- cies Act and in efforts to reauthorize the ESA. Many of the recent reforms that you

have helped to initiate, including the ‘‘no surprises’’ policy and the safe harbor

agreement, have formed the foundation for the bill that we reported out of Committee. How do you plan to draw on this experience in your new position? Answer. I would work to promote within the Fish and Wildlife Service the new

emphasis on cooperation and collaboration with private landowners which is inherent in both this Administration’s ESA administrative reforms and the various policy

provisions in S. 1180, as reported out of the Senate Environment and Public Works

Committee. Working closely with the Director of the Fish and Wildlife Service,

Jamie Clark, I would try to ensure that all of these new approaches are embraced

not only by the Washington and Regional leadership of the Service, but by the rankand-file field biologists as well. In addition, the Administration is pleased with the success of the ESA administrative reforms we have crafted and implemented. The Department of the Interior,

working closely with the Department of Commerce, will continue to initiate administrative reforms to make the Act more effective in conserving vulnerable species and

to improve the delivery of the Act in a manner that provides flexibility and certainty

to private landowners. In the next couple of months, we will be releasing a new Section 7 Handbook that improves, streamlines, and expedites the manner in which we

conduct interagency consultations. We will be finalizing our No Surprises Rule this

month and then completing the final Safe Harbor and Candidate Conservation

Agreement with Assurances Policies in the spring. In addition to making the development of new administrative reforms a priority, I look forward to continuing to

work with the Senate Environment and Public Works Committee and the House Resources Committee to reauthorize the ESA.

RESPONSES BY DONALD J. BARRY TO ADDITIONAL QUESTIONS FROM

SENATOR KEMPTHORNE

Question 1. One of the most important aspects of the Endangered Species Recov- ery Act of 1997 is Section 10 Habitat Conservation Planning. Lately, some private

property owners who would be otherwise interested in HCPs have expressed reservations based upon the standards which have been applied by the Administration

representatives. They fear that the use of a recovery standard in HCPs will effectively shift the burden of recovery to private property owners. Do you agree with

me that imposing a recovery standard burden on HCPs will provide a disincentive

to private property owners and discourage them from conserving important habitat

for species?

Answer. The section 10 process is an important opportunity to provide species pro- tection and habitat conservation within the context of non-Federal development and

land and water use activities. It does not explicitly require that every HCP recover

listed species, or contribute to the recovery objectives outlined in a recovery plan.

The issuance criteria under section 10 of the Endangered Species Act require that

the HCP applicant ‘‘ will, to the maximum extent practicable, minimize and mitigate’’ the impacts of any incidental taking authorized by a section 10 permit, and

that issuance of the permit ‘‘will not appreciably reduce the likelihood of the survival and recovery of the species in the wild’’. Neither the ESA nor its implementing

regulations demands that every HCP must result in a net benefit to or recovery of

the affected species.

Clearly, HCPs may, however, contribute to recovery of covered species because of

the conservation programs established and the long-term assurances provided. This

is especially true of regional and other large-scale HCPs that address all or much

of a species’ range. The Service encourages all HCP applicants to craft their HCP

so as to contribute to the conservation and recovery of federally listed, proposed, and

candidate species as well as overall biological diversity. Many HCPs do just that.

Based upon the particular biological facts in a given case, some HCPs may have

to support a species’ recovery. If an HCP covers most or the entire range of a species

or if it covers a severely depleted species, measures that are necessary for the longterm survival of the species as well as the eventual recovery must be embraced in

the plan. In such situations, the biological dividing line between survival and recovery may be meaningless.

Question 2. During our negotiations on the Endangered Species Act, we considered the value of using the best science to both list and delist species. In the last

Interior appropriations bill I inserted enough money to provide for a Habitat-based
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Population Viability Analysis for the Grizzly Bear in the Yellowstone Area. It is my

sincere hope that the results of this study will result in a prompt recommendation

from the Fish and Wildlife Service to delist the Grizzly Bear. Will you please describe progress on the habitat-based PVA and give me an idea of how soon we can

see delisting of this species?

Answer. The money made available for a habitat-based population viability analysis (PVA) was targeted for the Bitterroot ecosystem per language in the Senate Appropriations Committee report. Presently, Region 6 is negotiating a contract with

a recognized expert in population viability analysis. We expect to complete the PVA

this fiscal year, prior to completion of the final Environmental Impact Statement

and Record of Decision for grizzly bear recovery in the Bitterroot ecosystem.

The Service believes that it has made significant progress on implementing the

recovery plan and that the grizzly bear population in the Yellowstone Ecosystem is

well on its way to recovery; however, not all of the biological recovery criteria have

been met. In order to delist this population, the following recovery items must be

completed:

Completion of habitat-based recovery criteria. This is required by both the

grizzly bear recovery plan and litigation settlement provisions. The process is

ongoing and expected to be completed by the summer of 1998.

Completion of Conservation Strategy which will indicate how bears and their

habitat will be managed after delisting. The process is ongoing and expected to

be completed by December 1998.

Revision of the chapter on the Yellowstone population in the Grizzly Bear Recovery Plan to incorporate a more accurate methodology for estimating the female grizzly population in the Yellowstone ecosystem. The current methodology

is very conservative and does not account for unobserved females. This process

is ongoing and expected to be completed by December 1998.

Wyoming and Montana need to be able to control human-caused mortality following delisting. U.S. Fish and Wildlife Service representatives have discussed

this need with representatives from both States. This is now in the hands of

each State.

Once the above items are accomplished and the Yellowstone population of grizzly

bears meets all of the biological recovery criteria, the U.S. Fish and Wildlife Service

will propose delisting as promptly as possible.

The other population of grizzly bears in the lower 48 states are not as close to

recovery as the Yellowstone population. It is not possible to predict when these populations might be ready for delisting.

Question 3. As a result of information obtained at a hearing in 1995, I included

a ‘‘general scientific permit’’ in the bill to reauthorize the Endangered Species Act.

The purpose of the proposed changes is to streamline the Service’s permitting process by providing a qualified organization with a blanket permit for a set period of

time. The exact language has been dropped from the bill as passed by the Environment and Public Works Committee because of a promise from the Administration

that something can be worked out administratively.

Can you bring me up to date on progress on the subject of a general permit to

qualified organizations. Does it appear that an administrative solution will be sufficient, and a legislative solution will not be required to implement a ‘‘general scientific permit’’?

Answer. S. 1180 includes a provision specifically authorizing the issuance of scientific permits which may authorize a single transaction, a series of transactions,

or a number of activities over a specific period of time. In issuing or modifying such

a permit, the Secretary shall take into consideration the expertise and facilities of

the permit applicant and, consistent with the conservation of the affected species,

maximize the efficiency of the permitting process. The Fish and Wildlife Service is

in full support of this new language and is already considering ways to implement

these provisions. Senior managers of all of the Service’s permitting processes have

already begun their involvement in this effort, since there are issues which extend

beyond the Endangered Species Act to other U.S. laws which regulate taking and

trade in wildlife. The Service intends to focus on the scientific permitting needs of

the Peregrine Fund as a test model for this effort. This will result in a comprehensive plan for this new approach to permits for scientific purposes or to enhance the

propagation or survival of listed species. I believe this will significantly increase the

efficiency of our permitting process and lower the burden on permit applicants in

ways which will foster the conservation of the species, making additional consideration of any other legislative changes unnecessary.

Question 4. I understand that there is an extinction crisis on many island habitats

around the world, including United States islands. By virtue of their geographic iso-
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lation, the Hawaiian Islands provide homes to many unique forms of plant and animal life. Due to the decline of many native species the Hawaiian Islands are now

recognized as the endangered species capital of the nation. I believe immediate, focused recovery efforts like those proposed in S. 1180 are needed to halt the imminent extinction of the remaining native Hawaiian flora and fauna. In February

1997, Hawaii’s Congressional delegation joined a call for the formation of a Hawaiian Bird Secretarial Conservation Commission to address the problem. What is your

response to the request for a Secretarial Commission on Hawaiian flora and fauna?

Do you think the problem is critical in Hawaii? Are there other island habitats

under the jurisdiction of the United States that would benefit from such a Secretarial Commission?

Answer. There is clearly a need to enhance our efforts to address the serious de- cline of native species on the Hawaiian Islands, and the Fish and Wildlife Service

is actively considering the Hawaiian delegation’s proposal to establish a Secretarial

Commission or similar organization that could function as an umbrella organization

capable of taking a broad look at the enormous task of setting priorities and restoring parts of Hawaii’s natural environments, where possible. This commission could

be established under the auspices of the Endangered Species Act and function as

a recovery team for Hawaiian ecosystems, consisting of both resource professionals

and other individuals who live in the Hawaiian Islands. The Commission could become a successful partnership of public and private entities who share a common

concern for the welfare of Hawaii’s unique flora and fauna.

It is possible that other islands, such as the Mariana archipelago, could also bene- fit from the establishment of a Secretarial-level team or commission. However, we

would prefer to focus our efforts first on the Hawaiian Islands and explore the concept’s viability before broadening its application to other Pacific islands.

Question 5. I understand that you headed the U.S. delegation to the tenth Con- ference of the Parties (COP) to the Convention on International Trade in Endangered Species (CITES) in Harare, Zimbabwe. I also understand that the U.S. position on several issues were very much at odds with other parties to the Convention. Would you please describe to us the process that the United States went through in preparation of policy options for the 10th COP. I would especially like to know

what steps you have taken to look into the selection of issues, the development of

positions, and the manner in which issues were negotiated during the COP. As a result of your experience at the 10th COP, do you have any issues or policies that require the attention of the 105th Congress during the reauthorization of the

Endangered Species Act? Answer. The process of preparing for COP10 began with a Federal Register notice in March, 1996, requesting comments and suggestions for possible U.S. proposals.

Over the next 15 months, the Fish and Wildlife Service published six additional

Federal Register notices and conducted two public meetings in order to get public

comments and explain U.S. positions for COP10. Final U.S. positions were developed as a result of an interagency consultation process involving a number of Federal departments and agencies. As a result of this process, the United States submitted or co-sponsored 11 proposals for listing or delisting species. Of these, six proposals were approved, and one

additional proposal was eventually replaced by an alternative to listing proposed by

the U.S. and two other countries which was then accepted by consensus of the parties. Thus, 7 out of the 11 U.S. species proposals were approved by the COP. In addition, the U.S. also was involved in a number of successful efforts for the adoption

of interpretive resolutions, and worked for the withdrawal of one resolution which

was clearly in contravention of the terms of the CITES treaty. However, there was one situation at COP10 which was of significant concern to me. Two U.S. proposals for listing domestic species were opposed by U.S. States and

were eventually defeated or withdrawn. A third U.S. proposal which came up immediately after the other two also eventually had to be withdrawn, even though it was

actually supported by the States. In each case, the actual or perceived opposition

from the States was a major factor in the other countries’ decisions not to support

the proposals. This situation was clearly not acceptable, and even before COP10

ended I made a commitment to the States present that we would take assertive action to give them a much greater role in the development of U.S. proposals prior

to the next COP. In September 1997, I arranged a meeting with the President of

the International Association of Fish and Wildlife Agencies and other key State

leaders during the IAFWA Annual Meeting in Scottsdale, AZ. During that meeting,

we developed an outline of an entirely new relationship with the States to make

them full partners in our entire CITES process.

The Fish and Wildlife Service has implemented this concept through an agreement with the IAFWA which now allows designated representatives of the States
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to participate in each of the monthly interagency meetings where CITES issues are

reviewed and where U.S. proposed positions will eventually be developed for COP11.

Any unresolved issues will be brought to the attention of the FWS Director, and if

necessary to me, well before final decisions are made, so that there will be the

greatest possible opportunity for development of a consensus position with the

States on all proposals involving U.S. species.

In addition, the Fish and Wildlife Service also identified a parallel need to give

all interested parties a greater voice in the development of U.S. positions for COP11.

As a result, on January 29, 1998, the first Federal Register notice requesting initial

suggestions for U.S. proposals for COP11 was published, 22 months prior to the November 1999 anticipated date for COP11. This is 7 months earlier than the start

of the public process for COP10. This early start will allow much more time for public review and comment on all potential proposals, and for analysis of these comments to ensure that there is a full understanding of the likely consequences of all

proposals before final decisions are made. The January Federal Register notice also

identified three early candidates for potential downlisting or delisting and one species for listing. All of these contemplated actions were reviewed in advance and were

strongly supported by the States. I believe that these actions to involve the States

and all other interested parties earlier and much more closely in our CITES decisionmaking process will ensure that the United States develops well-justified positions for COP11 which will be supported by other CITES parties.

One other major issue at COP10 where the United States did not side the majority was the downlisting of African elephants proposed by Zimbabwe, Botswana, and

Namibia to allow resumption of trade in ivory. The United States opposed these proposals, not because of any concerns about these countries themselves—all of which

have done a good job with elephant management—but rather because of our concerns about weaknesses in the trade control system after the ivory leaves their borders. There is a very real possibility that under current conditions any reopening

of legal trade could lead to increased poaching and illegal trade in other countries

lacking the capacity to defend themselves against well-armed, well-organized poaching gangs. Other CITES parties shared the U.S. concerns to some extent, and the

final decision to downlist elephants included a number of stringent conditions which

the CITES Standing Committee must determine have been satisfied by March before any trade can take place.

During the COP, I took great care to express the U.S. position in a manner which

was fully respectful of the conservation achievements of Zimbabwe and the other

proponent countries. I also developed a strong personal relationship with my counterpart from Zimbabwe, the Deputy Minister of Mines, Environment, and Tourism.

As a result, we are developing a plan for increased cooperation between our two departments in the areas of national parks and wildlife management. The Deputy

Minister has accepted my invitation to come to the United States with his key staff

some time within the next few months for specific discussions about what would be

included in this new cooperative program and a tour of the training facilities of the

Fish and Wildlife Service and the National Park Service. This new relationship with

Zimbabwe would complement assistance which we have provided to all three countries from our African Elephant Conservation Fund and an ongoing dialog on CITES

issues.

Thus, I do not see any issues pertaining to our CITES process which are relevant

to the discussion of reauthorization of the Endangered Species Act. S. 1180, the Endangered Species Reform Act, reported out of the Senate Environment Committee,

does not change the CITES process and the Administration agrees with this approach.

CALIFORNIA STATE LANDS COMMISSION,

Sacramento, CA, February 3, 1998.

Hon. JOHN H. CHAFEE, Chairman,

Committee on Environment and Public Works,

Washington, DC.

DEAR SENATOR CHAFEE: It is our pleasure to endorse Donald J. Barry for the position of Assistant Secretary for Fish and Wildlife and Parks.

Mr. Barry has shown great depth in his understanding of the Endangered Species

Act gained through his 22 years of work in the Executive and Legislative branches

of government. He gained additional expertise in wildlife conservation and private

and public land use while he was Vice President for U.S. Land and Wildlife with

the World Wildlife Fund.
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As an example of his ability to turn concept into action, he has continued the momentum on a complex intergovernmental, public-private project in California to acquire and restore over 1,100 acres of wetlands at Bolsa Chica. He has provided the

policy direction and has committed the Fish and Wildlife staff necessary for the wetland restoration.

It is important to point out that he has been open and frank in his communications about Federal policy with State government agencies. This is a very refreshing

attribute!

Sincerely,

ROBERT C. HIGHT,

Executive Officer.

THE WESTERN STATES LAND COMMISSIONERS ASSOCIATION,

February 3, 1998.

Hon. JOHN H. CHAFEE, Chairman,

Committee on Environment and Public Works Committee,

Washington, DC.

DEAR SENATOR CHAFEE: I am pleased to endorse the appointment of Donald J.

Barry for the position of Assistant Secretary for Fish, Wildlife, and Parks of the Department of the Interior.

As President of the Western States Land Commissioners’ Association, I have had

the opportunity to work with Mr. Barry. We have found him to be dedicated and

knowledgeable about the issues he has addressed during his years of public service,

particularly fish and wildlife matters. He has dealt with us in a straightforward

manner regarding Federal policy as it relates to our State agency operations.

Our member states have extensive interaction with the agencies under Mr. Barry’s authority. His experience in natural resource matters in the executive, legislative and non-profit sectors are an asset. We look forward to continuing this positive

and successful relationship.

Please call me if I can be of further assistance.

Sincerely,

RAY POWELL, M.S., D.V.M.,

Commissioner of Public Lands.

STATEMENT OF THE HUMANE SOCIETY OF THE UNITED STATES

On behalf of the 5.8 million members and constituents of The Humane Society

of the United States (HSUS), I endorse the nomination of Mr. Donald J. Barry to

be Assistant Secretary of the Interior for Fish and Wildlife and Parks and commend

his confirmation by the U.S. Senate.

The HSUS is committed to the creation of policy that both protects wildlife and

secures their future in the natural world. With his vast experience in both national

and international wildlife and habitat issues, Mr. Barry has the ability to take

strong action to help wildlife at home and abroad. The officers and staff of The

HSUS look forward to working with Mr. Barry and offer our best wishes for success

as Assistant Secretary for Fish and Wildlife and Parks.

STATEMENT OF SALLYANNE HARPER, NOMINATED TO BE CHIEF FINANCIAL OFFICER,

U.S. ENVIRONMENTAL PROTECTION AGENCY

Good afternoon, Mr. Chairman and members of the committee. It is a great honor

to be here today as the President’s and Administrator Browner’s nominee as the

EPA’s Chief Financial Officer. If confirmed, I would welcome this opportunity to

serve the Administration and the American people to the best of my ability.

As a member of the Senior Executive Service, I have been privileged to serve in

senior career civil service positions relating to financial management under three

Administrators. Nevertheless, I can say that the position for which I have been

nominated presents a unique and exciting challenge in this time of fundamental

change at EPA. With your support, our environmental mission has been reaffirmed

and reinvigorated, and there is a strong focus on results-oriented resource and financial management.

The American people expect the highest quality and integrity in the use and management of their tax dollars. I share these expectations and, if confirmed, will use

all of my skill and energy to meet them. I would like to present to you a brief sum-
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mary of the principles that will guide me, if the Senate chooses to confirm me as

the Chief Financial Officer.

I, and my colleagues at all levels at EPA, are driven by a strong personal commit- ment to a clean and healthy environment. At the same time, having dedicated my

professional career to fiscal resource management, I firmly believe that the mission

of the Agency can only be accomplished in an atmosphere of fiscal responsibility and

good management.

My goal since being appointed Acting Chief Financial Officer in March 1996—and

a goal implicit in such statutes as the Government Performance and Results Act

(GPRA) and the Chief Financial Officers Act—has been, and would continue to be,

to enhance EPA’s ability to reach its environmental objectives through more effective planning and resource management. I will also work to ensure that the American public and Congress have access to clear and comprehensive information on

EPA’s financial stewardship and on the effectiveness of the Agency’s programs. And

I recognize that the most effective way for us to accomplish our environmental mission is through joint action with our State partners.

The management challenge at EPA extends well beyond resource management.

The Agency must evaluate every aspect of its work to measure efforts against results. Are we spending scarce dollars to our best advantage in achieving meaningful

and measurable improvements in environmental quality? Can we show the American public that we are meeting our environmental challenges and public health

threats efficiently and effectively? In short, we are being challenged to manage

smartly against our bottom line, which is environmental quality for the people of

this country.

To this end, I am deeply committed to the challenge of continuing the development of a comprehensive strategic planning, budgeting, analysis and accountability

program at EPA. I believe we are on track and would like to present some of the

highlights of our work to date in these areas.

In September of last year, we delivered to you the Environmental Protection

Agency’s Strategic Plan, as required under GPRA. Through the process of developing this Plan, the Agency, aided by the views of its partners and stakeholders, engaged in an intensive evaluation of what we would like our work to have achieved

5 years from now.

We have also made significant strides in the process of aligning our budget structure with the Strategic Plan elements. This will aid all participants in the budget

process—both in the Administration and in Congress—in future years as we approach the GPRA vision of clear linkages between environmental results and budget

decisions.

We have begun to address the internal challenge of developing an accountability

system that moves us away from counting ‘‘program outputs’’ and toward the measurement of environmental outcomes. This is a daunting challenge, but the cooperation of Agency managers and the support we are receiving from State representatives, allows me to be confident of success.

All of these activities, guided by the Chief Financial Officer, must continue if we

are to effect the major redirection toward performance-based management envisioned by GPRA. I pledge to continue these efforts.

Should I be confirmed, I look forward to working with the Administrator, this

Committee and other Members of Congress, and the broad constituencies served by

EPA, to ensure the financial resources entrusted to us are managed wisely. Thank

you for this opportunity to address you.

BIOGRAPHICAL SKETCH OF SALLYANNE HARPER

Sallyanne Harper, currently the Environmental Protection Agency’s (EPA) Acting

Chief Financial Officer (CFO), has dedicated her professional career to fiscal resource management. Ms. Harper’s public service experience is notable for her leadership of effective, productive and motivated organizations. She makes her personal

commitment to excellence a part of the organizational culture, resulting in a climate

that fosters respect within the organization and with business partners, constituents

and stakeholders.

In her capacity as Acting CFO, Ms. Harper has responsibility for developing and

managing EPA’s new Planning, Budgeting, Analysis and Accountability (PBAA) System. This system will integrate strategic and annual planning, budgeting, scientific

analysis, and fiscal and program accountability, enabling EPA to focus its efforts on

the highest priority environmental issues and also assure efficient use of taxpayer

dollars in fulfilling the many environmental and public health demands placed on

the Agency.
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Ms. Harper came to EPA in 1987, following 10 years of increasingly responsible

positions in Procurement and Contracting with the Navy. She served as the Associate Director for Superfund and RCRA Procurement Operations until 1989, when she

became Director of EPA’s Financial Management Division. Named Deputy CFO in

1992, Ms. Harper served as Acting Assistant Administrator for Administration and

Resources Management and CFO from May to November 1993, and again from July

1995 to March 1996.

Ms. Harper has also served the Federal financial management community in a

number of leadership capacities. She is a former chair of the Federal Financial Manager’s Council and the CFO Council’s Government Performance and Results Act Implementation Committee. She currently serves as Secretary/Treasurer of CFO Council as well as chair or co-chair of several of the CFO council’s committees.

Ms. Harper graduated Magna Cum Laude from LaSalle University and received

her MBA in Finance and Investments from George Washington University in 1987.

She is a graduate of the Executive Excellence Program of the Federal Executive Institute and the Harvard University John F. Kennedy School of Government’s Senior

Managers in Government Program. Her recent awards include two Meritorious

Presidential Rank Awards, the Washington Chapter AGA Distinguished Leadership

Award, and EPA’s Bronze, Silver and Gold Medals for Exceptional Service.
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RESPONSES BY SALLYANNE HARPER TO QUESTIONS BY CHAIRMAN CHAFEE

Question 1a. What specific recommendations do you have to help the agency make

its programs and operations more efficient?

Answer. EPA has used the Government Performance and Results Act (GPRA) as

an opportunity to make our programs and operations more efficient. For example,

our FY 1999 Annual Plan to Congress is the first budget that reflects EPA’s new

approach of goal-based budgeting. In particular, we have developed key performance

goals which assist us in measuring environmental progress. Future resource decisions will be based on the achievement of these goals. We have also created the Office of the Chief Financial Officer, with a new Planning, Accountability and Analysis

office, which works directly with our budget and finance divisions to ensure that

budgeting, planning, and accountability are part of the same operational process. In
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addition, there are other initiatives underway to help the Agency better manage its

programs and improve customer support by reducing the administrative burden. For

example, we are working to implement the new managerial cost accounting standard so that managers will have the cost information they need to help in their priority setting and evaluation processes. We are also continually upgrading our financial

systems to meet changing requirements and better serve our customers.

Question 1b. What can Congress do to be helpful to that end?

Answer. We intend to work closely with Congress as we strive to develop the systems and processes necessary to improve resource management in the Agency. We

would also welcome feedback from Congress on how we have restructured our

budget in compliance with the Government Performance and Results Act as well as

on the development of the Agency’s goals and measurements. We will also seek the

advice of the Senate Environment and Public Works Committee as we identify areas

that have potential to increase the Agency’s efficiency.

Question 2. If confirmed as Chief Financial Officer, what contributions do you

hope to leave with the Agency?

I would hope to leave the Agency a fully-implemented, comprehensive strategic

planning, budgeting, analysis, and accountability program. Such a program, as envisioned in the Government Performance and Results Act of 1993 (GPRA), would provide the very clear linkages that we need between environmental results and budget

decisions. Such a legacy would ensure that we could reach our environmental and

public health objectives effectively and efficiently for many years to come.

Question 3. Page four of your testimony mentions the Agency’s moving away from

‘‘program outputs’’ toward the measurement of environmental outcomes. Would you

give us a specific example of this change?

Program outputs are the direct results of day-to-day work performed by EPA employees, and they are generally easy to identify and measure. An example from the

Agency’s water program is the issuance of wastewater discharge permits. These permits are developed by EPA staff and by State staff in those states delegated to run

this Clean Water Act program. The programmatic result of these outputs is generally measured by estimating the pounds of pollutants that are no longer discharged to the water bodies receiving the wastewater effluent. EPA and the states

can readily track and measure these two types of results.

But what really matters in the long run is whether the quality of the water in

the receiving stream, lake or estuary is improving in a measurable way. This is

what we mean by the term ‘‘environmental outcome.’’ While EPA and the states currently measure water quality, we need to make improvements in the quality, consistency, and scope of these assessments (for example, only 17 percent of the Nation’s rivers and streams are regularly assessed). While it is important to know that

all dischargers subject to the statute are permitted and meeting their discharge requirements (and, in fact, this output information helps us determine how best to

achieve the environmental outcome), we believe the success of our surface water

program is best judged by whether the waters support their intended uses—such

as serving as a source of drinking water; for commercial or recreational fishing; and

for boating and other recreational uses.

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