U.S. GOVERNMENT PRINTING OFFICE

43–036 CC WASHINGTON : 1997

S. HRG. 105–151

NOMINATION OF JAMIE RAPPAPORT CLARK

HEARING

BEFORE THE

COMMITTEE ON

ENVIRONMENT AND PUBLIC WORKS

UNITED STATES SENATE

ONE HUNDRED FIFTH CONGRESS

FIRST SESSION

ON

THE NOMINATION OF JAMIE RAPPAPORT CLARK TO BE DIRECTOR,

U.S. FISH AND WILDLIFE SERVICE

JULY 16, 1997

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
(II)

COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS

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

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CONTENTS

Page

JULY 16, 1997

OPENING STATEMENTS

Allard, Hon. Wayne, U.S. Senator from the State of Colorado ............................ 7

Baucus, Hon. Max, U.S. Senator from the State of Montana .............................. 3

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 ........................... 4

Thomas, Hon. Craig, U.S. Senator from the State of Wyoming .......................... 6

Wyden, Hon. Ron, U.S. Senator from the State of Oregon .................................. 5

WITNESSES

Clark, Jamie Rappaport, nominated by the President to be director, U.S.

Fish and Wildlife Service .................................................................................... 8

Prepared statement .......................................................................................... 23

Responses to additional questions from:

Senator Allard ........................................................................................... 29

Senator Boxer ............................................................................................ 33

Senator Chafee .......................................................................................... 24

Senator Inhofe ........................................................................................... 31

Senator Sessions ........................................................................................ 39

Senator Smith ............................................................................................ 35

Senator Thomas ......................................................................................... 27

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NOMINATION OF JAMIE RAPPAPORT CLARK

WEDNESDAY, JULY 16, 1997

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

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

Senate Dirksen Building, Hon. John H. Chafee (chairman of the

committee) presiding.

Present: Senators Chafee, Kempthorne, Thomas, Allard, Baucus,

and Wyden.

OPENING STATEMENT OF HON. JOHN H. CHAFEE,

U.S. SENATOR FROM THE STATE OF RHODE ISLAND

Senator CHAFEE. Good morning, everyone. We want to welcome

all here today.

This is a hearing on the nomination of Jamie Rappaport Clark

for the position of director of the Fish and Wildlife Service. The

President nominated Ms. Clark on July 9, and it is my intention

to move quickly on this nomination, hopefully to allow the Senate,

if they should so choose, to confirm this nomination before the August recess.

I am delighted to introduce Ms. Clark to the panel.

I understand you are accompanied by your husband. Is he here?

Ms. CLARK. Yes, sir, here is my husband, Jim.

Senator CHAFEE. Well, I understand that you have gone the full

measure here, and that you were married on a wildlife refuge.

Ms. CLARK. Yes, I was.

Senator CHAFEE. Where does that come under the purposes of

the Refuge Act?

[Laughter.]

Ms. CLARK. I can assure you, it was a ‘‘compatible use.’’

[Laughter.]

Senator CHAFEE. Compatible use. Well, we won’t carry that any

further.

Now, if confirmed, Jamie Clark will be responsible for developing

and carrying out policies to conserve, protect, and enhance the Nation’s fish and wildlife and their habitats. A number of challenging

tasks fall on the shoulders of the Fish and Wildlife Service Director, including the management of the National Wildlife Refuge System; implementation of the Endangered Species Act; fish hatchery

management; recreational fishing programs; management of nonindigenous and exotic species; conservation and management of migratory waterfowl, and wild birds.
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The breadth of management tools that the service uses to carry

out its mission is no less impressive. The service does its job

through grant programs, land acquisitions, and user fee programs,

such as the ‘‘duck stamp.’’

I am pleased to report that Ms. Clark is an outstanding candidate for the tasks at hand. Throughout her educational and professional experiences, she has been involved on a daily basis with

the principles of fish and wildlife management. She worked with

the Fish and Wildlife Service for over 8 years, both at the regional

level and at headquarters. For the past 4 years of her tenure she

has held the position of assistant director of Ecological Services.

In her current position as assistant director she has worked

closely with and reported directly to both the acting director of the

Service, John Rogers, and former director, Mollie Beattie in the implementation of the Endangered Species Act and habitat protection.

She has also overseen habitat restoration programs, wetlands protection, and other Service initiatives involving natural resource

protection.

Before joining the Fish and Wildlife Service, Jamie Clark was

the lead technical authority for fish and wildlife management on

U.S. Army installations worldwide.

It’s my understanding that you are—I hate the term, ‘‘Army

brat’’—that your dad was in the service?

Ms. CLARK. Yes, Mr. Chairman, he was in the Army.

Senator CHAFEE. And you grew up, moving around? He was a

professional military officer, full-time?

Ms. CLARK. Mr. Chairman, he was in the Corps of Engineers,

and I spent my childhood years moving every year and a half.

Senator CHAFEE. From 1984 to 1988 she managed the Natural

and Cultural Resources Program within the National Guard. She

was also a research biologist for the U.S. Army Medical Research

Institute and worked for the National Institute for Urban Wildlife

as a wildlife biologist.

Ms. Clark’s educational background is equally impressive and

suits her well for the position for which she has been nominated.

She holds a master’s degree in wildlife ecology from the University

of Maryland and a bachelor’s degree in wildlife biology—is that also

from the University of Maryland?

Ms. CLARK. It’s from Towson State University.

Senator CHAFEE. Towson State, in Maryland.

She has worked closely with the committee staff and committee

members on the Endangered Species Act, and I have heard nothing

but outstanding reports of your ability to work with the Administration and Congress. All of this will serve you well, if confirmed.

The Fish and Wildlife Service is an agency with the wonderful

but difficult task of serving as an advocate for fish and wildlife. It

must protect these public resources in the face of much criticism

and question. The Service is charged with fulfilling its own mission

in light of competing and sometimes conflicting mandates of other

Federal agencies. It also must address the contentious issues of private property rights, water rights, and takings. The Service has

done a remarkable job in recent years of developing initiatives that

deal with many of these issues. The internal guidance documents

for permits; the new safe harbor, candidate conservation, and ‘‘no
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surprises’’ policies; the policy for Native Americans, and the

streamlining initiatives for Federal agencies have all led to better

implementation of the Endangered Species Act, better public relations and, ultimately, better protection for the species.

So I am delighted that you have been nominated for this position. It seems to me that you have the experience, the insight, and

the strength to lead the Fish and Wildlife Service to continue these

initiatives that I have mentioned and to develop new ones to face

the challenges ahead.

Senator CHAFEE. Senator Baucus.

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

FROM THE STATE OF MONTANA

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

I, also, want to welcome Ms. Clark to this hearing, as well as her

husband, Jim.

I understand that your parents are not here, and it’s sort of a

bittersweet moment that they’re not here, because they rarely—if

ever—take vacations, and they are now on a vacation, and you did

not want to draw them away from their vacation.

[Laughter.]

Senator BAUCUS. But I know that if they were here, they would

be extremely proud of you. We all wish them well, too.

Mr. Chairman, it is clear to me that Ms. Clark has the background and experience for this job, but the fact, as you pointed out,

that she married a wildlife biologist at a national wildlife refuge

really shows her commitment to this line of work.

She has also held a wide range of positions at the Service, and

I believe that this has given her a solid knowledge of how the

agency works. I hope it also has given her a few ideas on how the

agency can work even better.

It is a tribute to her performance that President Clinton has recognized a career civil servant to lead the Service at this time. That

doesn’t always happen, and I’m very happy that it did happen this

time.

As you mentioned, Mr. Chairman, the Service faces major challenges, not the least of which is helping this committee work

through the reauthorization of the Endangered Species Act. I think

we on this committee recognize that the ESA needs to do a better

job of protecting species and being easier for landowners to deal

with; those are the twin demands. It is clear that Ms. Clark understands that. Since last year, she has demonstrated her expertise

and sound judgment time and time again as she has helped you,

Mr. Chairman, Senator Kempthorne, Senator Reid, and me to deliberate over various legislative reforms to the ESA, and I thank

you for that.

Furthermore, as assistant director of Ecological Services, she has

been instrumental in implementing the various administrative reforms that have benefited both the landowners and the species, so

I think she recognizes the twin demands that reauthorization must

satisfy to help us achieve our goal.

Mr. Chairman, I appreciate the timeliness with which you have

scheduled this hearing. The President nominated her only 1 week

ago; that’s very fast and very speedy, and much faster than a lot
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of nominations and appointments, as we all know. I hope this is

a harbinger of a speedy vote in this committee and on the floor. I

look forward to her testimony today and to working with her in the

future.

I might add, Mr. Chairman, that there is a lot of interest in this

nomination. At 8:15 this morning there was somebody standing in

line to come into the hearing room.

So you have one person at least, Jamie, who is very interested

in your nomination, and I don’t think it was your husband.

[Laughter.]

Senator BAUCUS. Thank you.

Senator CHAFEE. Thank you, Senator.

Senator Kempthorne, I want to thank you very much for being

willing to chair this hearing when it appeared that I might not be

able to be here, so thank you.

OPENING STATEMENT OF HON. DIRK KEMPTHORNE,

U.S. SENATOR FROM THE STATE OF IDAHO

Senator KEMPTHORNE. Happy to do so, Mr. Chairman. Thank you

very much.

Mr. Chairman, I first met Jamie Clark a few years ago when she

came to my office with former Director Mollie Beattie on an official

visit, and I want to say that since then Jamie has worked closely

with me and my staff in our effort to reauthorize the Endangered

Species Act. Jamie has distinguished herself as someone who is

able to find innovative solutions to difficult problems, to listen to

others, and to think creatively. I value that greatly.

I look forward this morning to hearing about Ms. Clark’s plans

for the Fish and Wildlife Service. Idaho has over 65 percent of its

land in Federal ownership, so we have an up-close and personal experience with the Fish and Wildlife Service and other Federal

agencies. What isn’t owned by the Federal Government is controlled in one way or another through the Endangered Species Act.

Idaho currently has 26 endangered and threatened species, so the

Fish and Wildlife Service plays a large role in the lives of virtually

every Idahoan.

I will be particularly interested to hear Jamie’s perspective on

the reauthorization of the Endangered Species Act. Senator Chafee,

Senator Baucus, Senator Reid, and I have been working on a comprehensive bill to improve the Endangered Species Act since January 1995. The Administration has been involved from the beginning, and Jamie has played an important role in our discussions.

On a personal note, I can tell you that we have felt her absence

from the negotiating table this year. I hope that Jamie will address

her views on ESA reform and the role that she can play to make

an improved ESA the law of the land.

I will also be asking Ms. Clark to address some of the very difficult wildlife issues that we are facing in the State of Idaho. In

just the last month alone, the Fish and Wildlife Service has issued

proposed rules on the reintroduction of the grizzly bear and the

listing of the bull trout. Either one of these decisions, if finalized,

could have a substantial impact on the lives, again, of virtually

every Idahoan. Because of the very real impact of these decisions,

I hope the Service will make a greater effort to work together with
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the State of Idaho and its stakeholders before it takes any final action.

So, Ms. Clark, I look forward to your testimony, and Jamie,

again, you are someone that I think will be very good in this position.

Senator CHAFEE. Thank you, Senator.

Senator Wyden.

OPENING STATEMENT OF HON. RON WYDEN, U.S. SENATOR

FROM THE STATE OF OREGON

Senator WYDEN. Thank you, Mr. Chairman. I want to commend

you for holding this important hearing and moving ahead in a

timely way. Ms. Clark is one of those rare people who gets high

marks from just about everybody who has worked with her, and I

am pleased to see the bipartisan support.

Mr. Chairman, I am especially interested in working with Ms.

Clark on the approach that Oregon is moving ahead with, where

we are pioneering in the area of the Endangered Species Act. Our

State is going forward with a very different approach in terms of

wildlife management. Recently the Federal Government indicated

that Oregon was not going to have the coastal salmon listed on the

Endangered Species Act because our State was going to be given

a chance to try this new approach.

What the approach essentially says is that our State, with respect to the coastal salmon, will meet every single requirement of

the Endangered Species Act, every requirement—all the biological

requirements, all of the requirements of the Act—but that we want

the opportunity to first try a home-grown, locally driven approach

to meeting the requirements of the Act.

I will tell you, Mr. Chairman and colleagues, that in our State

this has people working together who never worked together. In

the past, the people who are now working together on this approach with respect to the coastal salmon were generally part of

what I call the ‘‘lawyers’ full-employment program,’’ where they

spent most of their day in Federal Court suing each other. This

now has people working together, and I think it provides a nationwide precedent for trying something very creative, very fresh.

By the way, along the lines of what Senator Kempthorne has

been talking about in a number of fora over the years, and I am

interested in Ms. Clark’s views on this—Ms. Clark, as you know,

we are looking at watershed councils and a variety of other approaches for pursuing these new policies. There may be other ways

to go about doing it, but I am very hopeful on your watch, and we

are looking forward to seeing you confirmed in this position, that

you will really use this position as a kind of ‘‘bully pulpit’’ to push

for these kinds of new home-grown, locally driven solutions.

Mr. Chairman, I thank you for the time and I look forward to

working with you and Senator Baucus and Senator Kempthorne

and others who have been involved in this statute for a number of

years.

Senator CHAFEE. Thank you, Senator.

Senator Thomas.
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OPENING STATEMENT OF HON. CRAIG THOMAS, U.S. SENATOR

FROM THE STATE OF WYOMING

Senator THOMAS. Thank you, Mr. Chairman.

Welcome, Ms. Clark. It’s nice to have you here. I had read of

your background and was impressed, but I am more impressed

after your agent has been touting you here. I think that’s fine.

The issue, of course, is where the agency will go and how the

agency will behave with respect to the problems that we have. Of

course, I remember John Turner from Wyoming being the director

not long ago; John was a good friend and continues to be.

It seems to me that one of the challenges before us is to take a

look, as we have tried rather unsuccessfully over the last couple of

years, at some of the environmental laws that have been in place

for some time, 20 years or so, and learn from that 20 years how

we can make them better—for instance, the Endangered Species

Act. But we haven’t had a lot of support from the Administration

to do that, and I think we ought to try to do it, whether it’s wetlands or endangered species or clean water or natural management

of wildlife in National Parks or brucellosis, which is very much a

part of your problem in places like the Elk Refuge in Jackson, WY.

We need to come to some solutions, and we haven’t done that.

We’ve talked a lot about it, but we really haven’t.

You certainly have a good background, and I’m enthusiastic

about your nomination, but I do say that there are some things we

have to move forward on; grizzly bears, for example—when are we

going to delist grizzly bears, when all the scientific evidence shows

that we are much beyond the goal that we intended, but we continue not to do it? The same is true with the management of

wolves, artificially reintroduced into the park. Now, what are we

going to do when they go out of the park? We haven’t gotten much

support from your agency in terms of how we’re going to do it. Our

Game and Fish believes that the Fish and Wildlife Service should

manage them until they are delisted. I don’t know exactly how that

will work.

So I guess all I’m saying to you—and I hope you will deal with

some of those issues in your statement—is that there are some

things to do, and frankly, not everyone is quite as happy as others

in terms of the performance of this agency. One of them is dealing

with local agencies. We hear a lot of talk about partnerships, but

when it comes down to the bottom line, it’s a one-way partnership.

For instance, we have some water projects in Wyoming in which

the Corps of Engineers and the Forest Service and the Fish and

Wildlife Service cannot agree, and it’s gone on for years, and the

local people pay the tab. Now, it shouldn’t be that way. So instead

of just talking about partnerships, I hope that we indeed have

some.

So I certainly am impressed—and it’s nothing to do with you personally, but I don’t think that all is perfectly well with the agency

in terms of its working with other people. It seems to me that

that’s probably the key. The Senator from Oregon talks about doing

some things there; well, I hope all the States have some opportunities. We are quite different in the way we are structured. From

Rhode Island to Wyoming it’s a different operation and we need to

recognize that.
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So I’m glad that you are here. I look forward to your statement,

and thank you.

Senator CHAFEE. Thank you, Senator.

Senator Allard.

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

FROM THE STATE OF COLORADO

Senator ALLARD. Thank you, Mr. Chairman.

Yesterday I met with Ms. Clark and appreciated her candor and

straightforward answers to my questions. I personally don’t feel

there’s any problem with the confirmation, but I do want to bring

up several issues relating to Colorado here in my opening remarks.

First, on the recent agreement reached in the principal States of

Colorado, Nebraska, and Wyoming, and the Department of the Interior to protect endangered species on the Central Platte River,

this agreement has taken a long time to reach. While the principles

are agreed to, Fish and Wildlife will review the program under

NEPA over the next 3 years. This review needs to be thorough and

efficient, and I am sure that the nominee and many members of

this committee can share plenty of examples of how NEPA has run

out of control, wasting time and money, while doing nothing for the

environment and the parties involved.

I will be paying very close attention to this process as it moves

forward. Should the NEPA turn out to be overly cumbersome and

decidedly inefficient, I will not support having Federal dollars continuing to support a process that ceases to be helpful to the species

and to the water users of that drainage basin.

Second, to date the Colorado River Recovery Program has been

successful in garnering the support of divergent groups and numerous States. I want to be assured that if the additional $100 million

in State and Federal money is spent, it will provide certainty to

water users under section 7. The end result of all the money that

we have spent and all the money that we may spend should be that

Colorado is assured that we can develop our apportionment under

the Colorado River Compact.

To that end, I hope, Ms. Clark, you will be able to tell me today

whether the programmatic biological opinion being prepared on the

program will answer this question. Also, will Fish and Wildlife accept the program for section 7 consultations?

Again, I want to be very clear that my support for this program

is based upon it providing certainty and uniformity to Colorado

water users, and if it does not provide that function, it merely becomes an unnecessary public works project that we can’t afford.

Finally, I want to address a letter that the Acting Fish and Wildlife Service Director, John Rogers, wrote to the Farm Service

Agency last November. In that letter he addressed a section of the

Farm Bill that I worked very hard on. This section limited the ability of the USDA to place an environmental easement on active

farmland or cropland that was placed in inventory; in other words,

it had gone through foreclosure and the Government had ended up

with it.

It is my view that Mr. Rogers’ letter was attempting to undercut

Congressional intent by arguing that certain types of agricultural

land were, in fact, not agricultural land, and therefore should have
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easements placed on them, thus lowering the productivity and

value of that land. I hope that you will look over this letter and

the law and actually go back into the committee testimony—I was

chairman of that subcommittee of the Agriculture Committee on

the other side—and look at those comments. I think you will find

that the Congressional intent, certainly my intent, was to use a

broad-term approach to what we call ‘‘agriculturally productive

land.’’ In this letter he is saying that haying—you know, there is

a lot of haying in New Mexico, Wyoming, Colorado, and Nebraska—that it would not be considered farmland. The clear intent

of that committee—and certainly mine, I believe, if you look at the

record—is that that was designed to be classified as agricultural

land. In that letter from Fish and Wildlife Service to Mr. Butrock

with the Farm Service Agency, from Acting Director John Rogers,

he tries to make the interpretation that we had not intended for

that to be classified as farmland. I think that is a very important

issue for those States that put up a lot of native hay.

So I would appreciate your taking a close look at those issues.

I felt you were very responsive to our concerns, and I look forward

to working with you in the future.

Senator CHAFEE. Thank you, Senator.

Now, Ms. Clark, if you want to proceed with your statement, we

will look forward to it.

STATEMENT OF JAMIE RAPPAPORT CLARK, NOMINATED BY

THE PRESIDENT TO BE DIRECTOR, FISH AND WILDLIFE

SERVICE

Ms. CLARK. Thank you, Mr. Chairman. Good morning, Mr. Chairman and all of you on the committee.

It is a great honor for me to be nominated by President Clinton

as Director of the Fish and Wildlife Service, the Nation’s premier

Federal fish and wildlife conservation agency, and to have that

nomination considered here today by the committee.

It is also a privilege as a career civil servant to be considered for

this position from within the ranks of our agency.

I have met with many of you over the past few days and found

that we have significant common beliefs in the importance of conserving our natural heritage. I haven’t had the chance to meet with

all of you, but I am committed to doing so, and I am available to

meet with any of you if your time permits.

If I am confirmed, I look forward to continuing to work together

with all of you over the next few years, focusing on our common

commitment to fish and wildlife conservation. I care deeply about

what we do at the Fish and Wildlife Service, and I am committed

to our mission to protect, conserve, and enhance fish and wildlife

and their habitats.

I am very proud of the job that we do. Our 7,000 employees are

dedicated, motivated, and professional. They represent the best tradition of public service. Together we continue to work to protect

that delicate balance of living in association with our natural environment.

Love of nature and the outdoors has been a major force in my

life since I was a small child. As you know, I grew up in the military, in the Army, moving on an average every year and a half.
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That certainly brought many challenges as a child, but it also gave

me opportunities to see many areas of the United States. I fondly

remember exploring spectacular open spaces on horseback, seeing

new birds and other wildlife, and discovering unique habitats.

My passion for nature and wildlife eventually led me into the

field of wildlife biology. My studies ranged from peregrine falcon reintroductions in northern Maryland, to my graduate thesis that involved working with hunters to evaluate white-tailed deer populations to ensure optimum herd density.

I learned first-hand the role of hunting as an effective wildlife

management tool, and I share with hunters, anglers, and other outdoor enthusiasts an appreciation of wildlife that comes from long

hours in the field observing nature.

As we have discussed this morning, I even married a wildlife biologist. The ceremony took place on Matagorda Island National

Wildlife Refuge off the coast of Texas, where my husband, Jim, was

the refuge manager. Jim is a nature photographer and writer and

we spend all of our available free time exploring our National Wildlife Refuges, our National Parks, and forests, looking for new

places to observe nature and, of course, new scenes to capture on

film.

During my last 8 years with the Service I have been part of an

agency undergoing significant change. Although the Service remains committed to its statutory obligations and mandates, like

the Migratory Bird Treaty Act and the Endangered Species Act, I

believe—as others do—that we need to continue to look for new

and innovative ways to achieve species and habitat conservation.

Most importantly, we have greatly expanded our work with partners outside the Service, whether they are State wildlife agencies,

local governments, sportsmen’s organizations, conservation groups,

corporations, or individual private citizens.

In the course of this transformation, the Service is learning to assume many different roles, depending on our situation. Our State,

Federal, tribal, and private partners have great capabilities, as

many of you have mentioned this morning, to provide leadership

and assistance in the management and recovery of our natural resources. We recognize this, and we are refining our ability to be a

team player—knowing when to lead, when to assist, or when to follow, to accomplish common goals. I expect this process will continue.

I realize many folks associate me with endangered species programs. Although my years with the Service have focused primarily

on habitat restoration, environmental contaminants, and endangered species conservation, my early years as a resource professional were spent working for the National Guard Bureau and the

Department of the Army addressing land use management and environmental planning issues. I was responsible for developing and

implementing fish and wildlife conservation practices Army-wide,

emphasizing integration of wildlife management activities with

complex military missions.

I spent much of my time in the field, visiting military installations throughout the country, working to balance wildlife conservation needs with military readiness objectives. I also developed land

management programs to ensure that military lands continue to
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support both wildlife conservation and military needs. I worked

hard with military trainers and engineers, as well as with other

Federal agencies and conservation organizations to ensure that neither military training nor wildlife habitat requirements were compromised.

From these experiences early in my career I learned the importance of listening to all sides, effectively communicating specific

needs, and working collaboratively with others to achieve multiple

goals on land supporting competing demands.

The Fish and Wildlife Service is widely recognized as the national and international leader in wildlife conservation, and, if confirmed, I will continue to ensure that that hard-earned reputation

is maintained and enhanced. Again, to do this, an ever-growing emphasis on partnerships and looking at the big picture is essential.

With more than 1,000 species on the list of endangered and threatened species, I know too well the feeling of frustration and failure

associated with each new addition to the list. There is no way that

we in the Service or any other public agency can single-handedly

conserve our Nation’s wildlife resources. We must work hard to leverage our own resources and our expertise with those of others to

effect changes on the ground.

Since transferring to the Fish and Wildlife Service in 1989, I

have spent considerable time looking for new ways to achieve wetlands conservation, to address and recover declining species, to restore degraded habitats, and to address the increasing concern

about the effect of environmental contaminants on our natural resources. I have worked in partnership with folks like the ranchers

in southern Arizona and New Mexico through the Malpai Borderlands Group; private landowners on Hawaii’s Big Island, to prevent

the extinction of the Hawaiian crow, while preserving the integrity

of their commercial farming and ranching operations; and with the

States of Illinois, Indiana, and Kentucky to balance the economic

needs of the coal mining industry with wildlife conservation.

Again, all of these experiences have reinforced in me the value

and importance of partnerships. Each of these partnerships was

characterized by genuine trust, cooperation, mutual respect, and a

desire for economic and environmental security. I believe the future

of fish and wildlife conservation depends on collaborative partnerships such as these.

The Service also must continue our concerted efforts to reach out

to the public and to important constituencies with a stake in our

fish and wildlife resources. I have participated in numerous partnership efforts and firmly believe that involving stakeholders and

other agency expertise early on reaps long-term benefits for fish

and wildlife resources and the economy. As the Service gains experience in this way of doing business, I believe we will all realize

the expanded skills that we must master to learn to listen more effectively, to work as a team player, to be open-minded, and to be

prepared to take whatever approach is most effective in accomplishing our task.

I am convinced that as people better understand the connection

between ecosystem health and quality of life, our success at managing for ecosystems and ensuring economic viability will continue to

increase. The Service needs to continue to communicate to others
11

the fundamental message that the fate of wildlife and humans

alike is linked to the well-being of the environment around us.

The Service is dedicated to addressing change, not only in how

we explore new ways to conserve and manage our wildlife resources, but also in recognizing the importance of a workforce reflective of our Nation’s citizenry. Increasing the diversity of our

workforce is an important element in improving our efforts to develop unique and innovative approaches and strategies for wildlife

conservation. A skilled workforce—diverse in cultures, experiences,

and ideas—is equipped to buildupon traditional and successful approaches by identifying new and fresh ideas for addressing conservation issues. The richness of this experience is an asset, and

its absence is an enormous liability. I believe I can help the Service

continue to work toward its goal of a diverse and skilled workforce.

Americans are passionate about wildlife, and that passion fuels

the Fish and Wildlife Service. This is an exciting time to be at the

helm of this agency. If confirmed as Director, I look forward with

great enthusiasm and excitement to the challenge of leading an

agency dedicated to conserving, protecting, and enhancing fish and

wildlife and their habitats for the continuing benefit and enjoyment

of the American people. I pledge to work with you, the American

public, other Federal, State, tribal, and private entities, and with

the outstanding employees of the Service to continue protecting our

Nation’s natural heritage for generations to come.

Senators thank you again for the honor of your consideration.

Senator CHAFEE. Thank you very much, Ms. Clark.

Now we will have some questions. We will have 6 minutes each,

and everybody will get their chance, and then we’ll go around again

quickly.

I have several questions I would like to ask you.

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

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

Ms. CLARK. Yes, Mr. Chairman, I am.

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. CLARK. No, Mr. Chairman.

Senator CHAFEE. Now, first of all, I want to join with you in your

praise of the Fish and Wildlife Service, 7,000 employees who are

dedicated, motivated, and professional. It has been my opportunity

to work with them, both at home and around the country, and I

think they are an outstanding group and we’re lucky to have them.

It’s right for you, as the head of the whole organization, to be proud

of this Service and do everything you can to help them increase in

their skills and educational qualities.

You mentioned that you have seen cooperation and you talked

about cooperation with the other players. I want to stress that. It

isn’t that the Service hasn’t been doing it, but I just want to urge

you on in working with the State fish and wildlife organizations,

in working with private foundations that will donate land—the Nature Conservancy, for example—and through that cooperation, in

my State, anyway, we have been able to acquire substantial pieces

of open land that would not otherwise be available. Frequently we

have the situation where the Nature Conservancy and other pri-
12

vate foundations, with the State, will fund the purchase of additional parcels of land contiguous to fish and wildlife areas, with the

Fish and Wildlife Service subsequently being responsible for the

policing of the areas and the protection of them because the Nature

Conservancy, for example, doesn’t have the personnel to be able to

do that.

You mentioned that you have seen the restoration of wetlands.

I, myself, had the opportunity—Senator Faircloth and I and some

others went down to see some wetlands restoration, so-called ‘‘mitigation banking,’’ just south of the Potomac here, down toward

Fredericksburg. What’s your view on that? Do you think it’s been

pretty successful?

Ms. CLARK. Mitigation banking?

Senator CHAFEE. Well, just the restoration of wetlands. Then follow it on with the mitigation banking.

Ms. CLARK. Well, Mr. Chairman, we have had numerous positive

successes with wetlands restoration, whether we’re restoring degraded wetlands or enhancing existing wetlands. It’s through programs like our North American Waterfowl Management Plan and

the grants under the Wetlands Conservation Act, our Partners for

Wildlife Program, the work that we’re doing on our National Wildlife Refuges, as well as our activities with other Federal agencies,

that I believe we have achieved enormous success with wetlands

conservation.

However, I do believe we have a long way to go. We still have

wetlands—particularly forested wetlands—that are in decline, and

I think there are numerous opportunities for us to continue to work

towards the goal of conserving and restoring wetlands.

Mitigation banking is an exciting opportunity. It focuses on

leveraging existing wetlands and to recovering wetlands complexes,

so it has been an important and valuable tool in wetlands conservation, if applied properly.

Senator CHAFEE. You think it works pretty well?

Ms. CLARK. It has the opportunity to work pretty well. It has——

Senator CHAFEE. Have you ever seen one that really works?

Have you ever seen a restored wetlands that you think is nearly

up to its pristine situation?

Ms. CLARK. I have not myself, but I have listened to reports of

them.

The challenge for us in conserving or restoring wetlands is

whether we have restored the functions and values. It’s not just

making another wet area in the environment; it’s whether we restore the functions and values. There is a lot of science and research going into wetlands reestablishment, and I remain optimistic that it can be done.

Senator CHAFEE. Now, as Senator Kempthorne mentioned, we

appreciate the work you’ve done on the Endangered Species Act reauthorization that we are trying to do here, with Senator Baucus

and Senator Reid and Senator Kempthorne and myself. So you

have been spending a lot of time on that and, of course, the National Wildlife Refuge bill, which passed the House in a vote that

sounds impossible, 407 to 1. I don’t know who that 1 was. We’ll get

to that here, too, very shortly.
13

Is there any other legislation that you want to bring to our attention that you’ve been working on?

Ms. CLARK. Well, I have been working——

Senator CHAFEE. Those are two pretty big ones right there, so

don’t feel you have to come up with another one. I’m just curious.

[Laughter.]

Ms. CLARK. That’s a pretty good day job for me.

[Laughter.]

Ms. CLARK. The agency, though, has certainly been involved in

many other legislative initiatives, whether it’s the reauthorization

of Superfund, whether it’s preparing for Clean Water Act reauthorization, Migratory Bird Treaty Act issues; but certainly, at the top

of our list has been reform of the Endangered Species Act and passage of organic legislation for the Refuge System.

Senator CHAFEE. All right.

Senator Baucus.

Senator BAUCUS. Thank you, Mr. Chairman.

Ms. Clark, I just want to mention a project that occurred in Montana which impressed me very, very much——

Senator CHAFEE. Impressed, or depressed?

Senator BAUCUS. Impressed.

[Laughter.]

Senator BAUCUS. Very much. It was largely at the behest of the

Fish and Wildlife Service, and it’s called Blackfoot Challenge. You

may know about it.

Almost once a month I have a workday at home in Montana. I

show up someplace at 8 o’clock with my sack lunch, and I’m there

to work all day long at this job, whether it’s waiting tables, working in sawmills, mines, nursing homes, whatever it is. One day I

worked with Rick Foot at the Rick Foot Ranch in the Blackfoot

Challenge Program. As you know, the Blackfoot Challenge Program

is an effort by concerned people in the Big Blackfoot Drainage on

the Rick Foot Ranch to reroute the tributary of the Big Blackfoot

going through his place, to allow bull trout to spawn. In the old

days ranchers would just plow right through those streams, and

the water would run fast and the trout couldn’t spawn.

But the Fish and Wildlife Service has been working for years and

years, building up the trust of the people in the area. You have two

wonderful people in the Service who are based out of Great Falls,

MT, and for a couple of years they would sit down with the ranchers at the local bars and have beer together, just talking over

things, and gradually, slowly but surely, they would get the trust

of the ranchers; and after the ranchers, some of the townspeople;

and then the State government, and all concerned.

The day I was there we had a backhoe tractor and we were rechanneling. We were planting willows and putting in some big

rocks and doing all we could to just help change this channel.

I mention this because this was an example of cooperation. Essentially, these people worked on this project because those higher

up weren’t doing the job; that is, the heads of the agencies weren’t

talking to each other, whether it was the State of Montana or the

Fish and Wildlife Service or whatnot, so they, down at the lower

echelons, decided to take it upon themselves just to do it. I guess

they got the blessings of those above, because they all sort of knew
14

each other. Some at first were very suspicious of each other, but

gradually the trust was built up, and it has worked out very, very,

very well. I mention it also because when I talked to the two Fish

and Wildlife Service people, I said, ‘‘Boy, this is great. Why isn’t

there more of this?’’ And the answer I got was, ‘‘Well, gee, there

could be more of this; but, you know, we’re just a little part of the

Fish and Wildlife Service budget. We don’t get very much.’’

I’ve forgotten the name of their part——

Ms. CLARK. The Partners for Wildlife Program?

Senator BAUCUS. It could have been. I am putting in a big plug

for these people and this section of the Fish and Wildlife Service

because they are doing what I think should be done. It’s at the

local level; not Washington, not Helena, MT, but just the folks locally getting the job done the way they want it done and the way

that works. I just urge you to keep that up. It works very, very

well, at least in my experience in Montana.

Can you comment on the project that I’m talking about, if you

know about it, or the part of the Fish and Wildlife Service whose

mission it is to try to put these cooperative plans together?

Ms. CLARK. Well, I have heard great things about the Blackfoot

Challenge. It serves as one of our models for partnerships in the

Fish and Wildlife Service, working collaboratively with all the constituents and stakeholders that you mentioned.

I can speak about the Partners for Wildlife Program. It’s under

my organizational responsibility today. The Partners Program and

the discussion that you just had about partnerships is what I believe is very much indicative of our entire agency, whether it’s our

Partners Program, our North American Program, our employees in

the National Wildlife Refuge System, our fish hatcheries, in local

ecological services or management assistance offices.

As I said in my statement, it’s part of our trend towards more

collaborative partnerships for conservation. The Partners for Wildlife Program is a program that is predicated on voluntary partnerships. Our employees, as members of the local community, go out

and leverage our dollars with those of others to effect conservation

on the ground. It’s an extremely positive program and we’re very

proud of it.

Senator BAUCUS. I just encourage you to do a lot more of it, because it’s working there.

Ms. CLARK. Absolutely.

Senator BAUCUS. On the other hand, as you know, the discretionary spending budgets—once you calculate inflation—are being

effectively cut; that is, there’s one-half of 1 percent increase, generally, in discretionary spending in the budget that is going

through the Congress over the next 5 years, which effectively is a

cut.

What would your priorities be under those circumstances?

Ms. CLARK. Our priorities remain balanced among those programs that achieve the best gain for fish and wildlife conservation.

As reflected in the President’s budget, our priorities are associated

with migratory birds, the health of our Refuge System, endangered

species, and wetlands conservation, and we balance all of our programs to achieve those mission objectives. Partners for Wildlife is

certainly one of those very positive programs.
15

Senator BAUCUS. I’ll get back to that.

This may be unfair, but I do pick up at home a bit of a sense

that Fish and Wildlife Service doesn’t listen as much, perhaps, to

people as it should, compared with some other agencies. I’ve picked

that up, too; I’ve just sensed it generally. I’ll just tell you, there’s

nothing like going out early and talking to people way before something happens—or maybe, not happen—because if you do go out

there early, several things happen. No. 1, you learn something; you

learn something that you might not have known before. Second,

you probably will find a different way of doing it; there are all

kinds of ways to skin a cat. And you engender the trust of the people.

I urge you to get your people out of Washington, out of your head

offices, as much as you possibly can, to get out in the field and just

see people and talk to people.

Ms. CLARK. I would be glad to, myself included.

Senator BAUCUS. Thank you.

Senator CHAFEE. Thank you.

Senator Kempthorne.

Senator KEMPTHORNE. Mr. Chairman, thank you.

Ms. Clark, as you know, the Fish and Wildlife Service recently

issued a proposed rule to list the bull trout as an endangered species, even though the State of Idaho had developed a bull trout

plan, and various members of the regulated community were in the

process of trying to develop prelisting agreements for bull trout

with the Fish and Wildlife Service.

Is the Service willing to commit to work with the State of Idaho

and public and private stakeholders to develop prelisting agreements for the bull trout, and to consider these agreements when

it decides whether or not to list the bull trout?

Ms. CLARK. Absolutely, Senator. As you know, the bull trout was

proposed as the result of a court order that was part of a court debate for quite a long time. We have been very much involved with

the State of Idaho and other constituents in attempting to address

the status and conservation needs of the bull trout early on.

The Fish and Wildlife Service does not believe that adding species to the list is a success; quite frankly, it’s the opposite. It’s a

failure. We are very much committed to working out the status of

species and addressing the decline of species before they have to

stumble onto the Endangered Species List. Quite frankly, we are

absolutely very much with you on addressing the conservation

needs of the species early on, and we will consider fully any commitments and any conservation programs prior to making a final

decision by next June.

Senator KEMPTHORNE. All right. That’s very helpful. I appreciate

that.

Now, another one of the issues that we’ve been dealing with is

the Bruneau Hot Springs snail. Is the Fish and Wildlife Service

willing to commit to work with the State of Idaho—and again, public and private stakeholders—to develop a conservation agreement

for the Bruneau snail? Will the Fish and Wildlife Service commit

to monitor water levels in the aquifer for the remainder of the year,

and to include the data from that monitoring in any future decision?
16

Ms. CLARK. The Bruneau Hot Springs snail is a listed species

today, and we are absolutely committed to working with the State

of Idaho and other constituents to address recovery strategies for

this snail. Monitoring is an important part of that, particularly

given the change in water years, and I will certainly pledge to go

back and work with the U.S. Geological Survey, as well as the service, to figure out the most appropriate way to ensure a monitoring

regime for the snail.

Senator KEMPTHORNE. All right.

Again, the U.S. Geological Survey has put in the wells; we have

seen a recharge of the aquifer over the last 2 years. It is critical

information that should be included.

Ms. CLARK. Absolutely.

Senator KEMPTHORNE. With regard to the Fish and Wildlife Service releasing last week a draft EIS on the reintroduction of the

grizzly bear in Idaho, while the draft EIS would provide for a citizens’ management committee that would include individuals nominated by the Governor, I am concerned that the underlying decision to release grizzly bears in Idaho was made without consulting

with the Idaho Department of Fish and Game. Can you assure me

that grizzly bears will not be released in Idaho within the next 18

months, and that the State of Idaho will have an opportunity to

work with the Service to define the conditions regarding this issue?

Ms. CLARK. I will assure you, Senator, that I believe we have

ample time to work together with you, the State, and other interested parties to address the concerns of the State of Idaho, to address the needs of the grizzly bear, and to ensure that all of our

collective interests are met.

Senator KEMPTHORNE. Is the Service willing to commit to work

with Idaho Fish and Game and other State agencies before the release of any grizzly bears in the State in order to ensure that public safety is protected?

Ms. CLARK. Absolutely, Senator. Actually, there are discussions

ongoing in the States of Idaho and Montana today which include

everything from extending the public comment period on the environmental impact statement, to addressing changes in the public

hearing schedule, to pulling together a coalition to address the very

issues that you are concerned about.

Senator KEMPTHORNE. Will the Service provide clarification on

the authority of the citizens’ management committee to ensure that

its decisions on the management of any grizzly bear population in

Idaho will not be arbitrarily reversed by the Secretary?

Ms. CLARK. Yes, Senator, we will.

Senator KEMPTHORNE. In your written testimony you made the

statement, ‘‘We need to look for new and innovative ways to

achieve species and habitat conservation.’’ I certainly agree with

you in that statement. That’s why we have included more flexible

habitat conservation plans, safe harbor agreements, and the ‘‘no

surprise’’ policy in our ESA bill.

What do you envision are the best new alternatives to conserve

species and their habitats, and how do you expect that the Service

will try to implement them?

Ms. CLARK. Well, some of the opportunities that you just mentioned are very much at the forefront. All of the innovative tools
17

that we have developed thus far, and others we are looking forward

to developing in the future, have common themes of species conservation, certainty for the regulated public, and involvement of affected stakeholders. We are continuing to solicit other creative

ideas. We have been working with many of you and your staffs to

do so.

The kinds of activities or programs or policy initiatives that we

are looking at should be predicated on addressing decline of species

before they require Endangered Species Act protection, and maximizing the opportunities of the States and other parties to manage

the species within their jurisdictions.

So I think the sky is the limit. I think we have tremendous opportunities, and there are a lot of creative minds committed to

wildlife conservation. We ought to certainly be having those discussions.

Senator KEMPTHORNE. All right. Thank you very much.

Senator CHAFEE. Senator Wyden.

Senator WYDEN. Thank you, Mr. Chairman.

Ms. Clark, in my view, when the Federal Government gave the

OK for the Oregon Coastal Salmon Plan, that was essentially a

green light for an unprecedented, first-of-its-kind approach for recovering a species. Do you think that the Oregon approach has the

potential to be a nationwide model?

Senator CHAFEE. Why don’t you tell us a little bit, without going

into too much detail, what is the Oregon approach? Just now it’s

Oregon, isn’t it?

Senator WYDEN. It is. You’ve got it, Mr. Chairman.

[Laughter.]

Senator WYDEN. What it is about—and I’m glad you asked, because it touches on my——

Senator CHAFEE. I won’t take it out of your time.

Senator WYDEN. I thank you.

The traditional approach to saving a species, of course, is that

you list it, and then you have a recovery plan. That’s the way we’ve

always done ‘‘business as usual,’’ and of course at home and in the

rural west there is great concern about some of the economic consequences and some of the disruption.

What Oregon has essentially done is said, ‘‘Give us a chance to

bring people together on a local level with a State plan; give us

some time to make it work; and we will tell the Federal Government that we will meet all the requirements of the act.’’ So essentially there are two schools to this: the traditional approach, you

list it on a Federal listing, and then you go on to your recovery

plan, and what Oregon is talking about is a different approach. We

have a State plan, and because the Federal Government is convinced that it is biologically sound, the State is given a chance to

make it work.

Senator CHAFEE. Thank you.

Ms. CLARK. Senator Wyden, you touched on the important points.

We are absolutely committed to conservation objectives that address the biological needs of species and retain as much management flexibility for the States and others as possible.

Where States, local governments, and individual citizens step forward to conserve species before they need the protections of the
18

Endangered Species Act, it is good for species and good for the potentially regulated public. That’s a win-win situation. That’s a direction in which our agency is moving, along with the National Marine Fisheries Service, and a direction that I think is very critical

to the future of wildlife conservation, so we heartily endorse those

kinds of programs.

Senator WYDEN. Let’s say that the Oregon approach is struck

down on process grounds. The act, as you know—there is essentially the biology; Oregon has said, ‘‘We’re going to meet every one

of the biological requirements,’’ but supposing a judge strikes it

down on process grounds and says, ‘‘You know, my reading of this

statute is that you can only do it the traditional way. You’ve got

to have a listing and then a recovery plan, and what Oregon wants

to do with a State plan and State dollars and time for doing it

doesn’t meet the requirements of the act from a process standpoint.’’ Would the Administration be sympathetic to a change in the

law on process grounds in order to encourage these kinds of State

initiatives?

Ms. CLARK. Well, Senator, I will tell you that I have spent a lot

of time in courts in the last few years with endangered species issues. It’s a program that has been very much surrounded by litigation, as you well know.

When we have process debates we oftentimes lose, but in these

particular instances, with candidate conservation initiatives, addressing the species’ needs prior to an Endangered Species Act listing, the debate will be over the merits. If we, in partnership with

the States or other involved parties, are committed to the structure

and the intent and the specifics of a conservation plan, we will be

right beside you, arguing for the support of that plan.

Senator WYDEN. Well, that sounds encouraging, but I think we

may—I hope with every ounce of my strength that we don’t end up

with that here when the Chairman and Senators Kempthorne and

Baucus are dealing with the Endangered Species Act. But I feel

very, very strongly that we ought to keep the biological requirements of this act. We can do it. People at home want to do it. They

want to protect species, but, by God, there’s a better process, and

we’ve seen it work in our State.

One last question that I wanted to touch on. We in Oregon in the

Willamette Valley have had a very serious situation with the dusky

geese, which is an overpopulation of Canadian geese. We’ve had the

number triple in the last 5 years and there have been millions of

dollars in crop losses and damage to Oregon’s farmers. Essentially

all sides—environmental, the science community, the farmers—

agree that in effect the hand of man was not involved here.

What might the Service do to reduce the extraordinary damage

that the geese are doing to private lands and crops, again, consistent with good science?

Ms. CLARK. Well, the dusky geese issue has been an interesting

challenge for all of us. As I understand it, the population declines

that have been observed and monitored since the early 1960’s are

as the result of an earthquake in Alaska that allowed for access by

predators to the nesting grounds of the duskies. We have been

monitoring the declines, working with the Pacific Flyway Council.
19

Collectively, today, we are looking at a number of things, exploring flexibilities in the hunting season to try to address the increasing numbers of the other subspecies of geese; and looking at habitat modification needs. We are very much committed to working

along with the Council and the States to address the very real depredation that is occurring as a result of the other, more populated

subspecies of geese.

We are concerned, however, and we continue to monitor the population declines of the dusky subspecies, and as I understand it,

the population is somewhere between 7,000 and 10,000 geese,

which is precipitously low for that subspecies. But I am committed

to continuing to try to work, along with the Council and the State,

to look at flexibilities to address both issues, the long-term health

of the dusky and the very severe depredation that is occurring from

the other geese species.

Senator WYDEN. Thank you.

Thank you, Mr. Chairman.

Senator CHAFEE. Thank you, Senator.

Senator Thomas.

Senator THOMAS. Thank you, sir.

I’m not sure I understood one of your earlier comments. I think

the question was, would the Secretary override an advisory committee decision, and you said no. Is that what you meant?

Ms. CLARK. The question on the grizzly bear from Senator

Kempthorne?

Senator THOMAS. I don’t know where it came from, but it had to

do with an advisory committee, and the question was, would the

Secretary override it, and you said no.

Ms. CLARK. I believe, Senator—and Senator Kempthorne might

help me out here—that the question had to do with the Secretary’s

override of jurisdiction with the Citizens’ Management Committee

that we have developed and put forth in the draft environmental

impact statement and proposed rule for the reintroduction of the

grizzly bear.

The Secretary intends to delegate full authority to the Citizens’

Management Committee, so long as the committee’s acts and decisions——

Senator THOMAS. Right. That’s the caveat.

Ms. CLARK [continuing]. Are in support of recovery of the grizzly

bear.

Senator THOMAS. OK. Well, I just wanted to make sure that I

understood, because we’ve had quite a bit of experience with that.

And to say he won’t override it is a stretch. OK.

You talked about partnerships and you apparently have a number of them. Do you support the idea of having local and State

agencies being cooperating agencies in the NEPA process?

Ms. CLARK. In the NEPA process? I’m not a NEPA expert, Senator, but I certainly support the involvement of local and State

agencies in all of our fish and wildlife conservation work.

Senator THOMAS. Well, we’re going to seek to make them. We can

talk about cooperating, but do they really have a seat at the table?

That has to do with being a cooperating agency. So I hope that

when that arrives, that talking about partnerships is an easy thing

to do——
20

Ms. CLARK. Absolutely.

Senator THOMAS [continuing]. But having a real role is not really

quite as easy.

What about grizzly delisting in Yellowstone in Wyoming? That’s

been pending now for some time. Everyone recognizes that we have

exceeded the goals. What is your position on that?

Senator CHAFEE. I missed that question, Senator. What was it?

Senator THOMAS. Delisting grizzly bears in Yellowstone and the

Wyoming area.

Senator CHAFEE. I think that is a good question. I’m interested

in this whole delisting process. But never mind, the question was

strictly with the grizzly bear.

Ms. CLARK. OK, let me respond to grizzly bears first.

We are absolutely supportive of delisting the grizzly bear when

appropriate to do so. I believe there is a huge debate, and I would

be glad to get more specifics back to you for the record, Senator—

over whether or not all of the goals outlined in the recovery plan

for delisting the Yellowstone population have been met.

Ms. CLARK. The last 2 years we have had higher than normal

mortality of our female bears with cubs. That is being closely monitored by us and some of our constituents, as you probably well

know. We are very much committed to delisting the Yellowstone

population as soon as possible. We are working on habitat-based

criteria as a result of a lawsuit settlement, and we intend to complete that as soon as possible. As for the specific timeframes and

more of the specifics I would be glad to get back to you on it.

Senator THOMAS. I wish you would. I mean, the Yellowstone officials and others for several years have said that it ought to be

delisted, but it doesn’t seem to move.

I think you need to be a little more specific sometimes. To say,

‘‘Well, as soon as all the conditions are met’’—well, that could be

never, if you want to continue to stress it. I just think people have

lost some confidence in what you indicated when you said, ‘‘These

are the goals,’’ and then when most people are persuaded that the

goals have been met, still nothing happens.

Ms. CLARK. I agree with you, Senator. I certainly believe it’s our

responsibility to articulate the specific requirements of a delisted

population. I believe there has been a lot of confusion and debate

over the grizzly bear population. I will certainly get back to you

with some more specifics.

Senator THOMAS. I would be grateful if you would. There has

been a considerable amount of, frankly, loss—not only of domestic

animals, but even the people are concerned.

What about the brucellosis issue with the livestock that surrounds Yellowstone Park? Do you have a role? Do you have a suggestion? Do you have any remedies for what you’re going to do

there?

Ms. CLARK. Our agency certainly has a role. We have been working with the team of State and other Federal agency experts that

are dealing with the brucellosis. I don’t know much about the brucellosis issue, but I’d certainly be glad to get you back some specifics for the record.
21

Senator THOMAS. I think specifically, of course, is the management of the buffalo herd in Yellowstone which is, I suppose, largely

a function of Yellowstone Park management.

Ms. CLARK. Right.

Senator THOMAS. But the Elk Refuge, which is in your agency,

is also a very real part of that.

Ms. CLARK. Yes, it is.

Senator THOMAS. So it’s something that needs to be resolved. I

hope that we can find some solutions so that we don’t run into the

same kind of thing that we did last winter, which was not very

pleasant for anyone, certainly.

Ms. CLARK. No, it wasn’t.

Senator THOMAS. As I understand it, you have in your agency

nearly 92 million acres that you manage. Do you have notions of

additions to that? How do you see the future in terms of acquisitions, in terms of additions to that 92 million acres?

Ms. CLARK. Well, certainly, Senator, we support additions where

they meet the needs of the intent of the Refuge System. We have

a modest land acquisition budget on an annual basis that is aimed

primarily at rounding out refuges. What I mean by that is addressing the in-holdings on our refuge lands primarily. So certainly our

acquisition program continues, but it is very focused and specific.

Senator THOMAS. What would be your impressions of some kind

of a policy that, if you have significant new acquisitions, that there

be some tradeoffs? Somebody mentioned that in the west, 65 percent of the land belongs to the Federal Government now. What

would be wrong, if you wanted to acquire a thousand acres from

another agency, with disposing of a similar value, such as BLM?

Ms. CLARK. Well, that’s a great question, Senator. What I will

say—and I won’t speak for BLM or any of the other Federal land

agencies——

Senator THOMAS. Go ahead, if you want to.

[Laughter.]

Ms. CLARK. Not with a microphone, I won’t.

[Laughter.]

Ms. CLARK. But what I will tell you is that the National Wildlife

Refuge System is a unique network of lands, committed to fish and

wildlife conservation. That’s a very different mission than some of

our other——

Senator THOMAS. I understand that, but I hope you understand

that there is some concern in the west about increasing Federal

ownership, when some States are up to nearly 90 percent. Certainly, inevitably, there are some excess lands. It’s an idea that I

think we ought to pursue.

Senator CHAFEE. She’ll take all the money you’ve got for new

land purchases for wildlife.

[Laughter.]

Senator THOMAS. Thank you, Mr. Chairman.

Senator CHAFEE. Anything extra, send our way.

Senator THOMAS. If you want to purchase some, Rhode Island.

[Laughter.]

Senator CHAFEE. Anything else, Senator?

Senator THOMAS. No, thank you.
22

Senator CHAFEE. As I mentioned, we are going to have a committee business meeting here a week from tomorrow, the 24th, at 9:30,

and it would be my hope that we could then consider this nomination. As I mentioned before, I am anxious to get it out on the floor,

and if the committee and the Senate so approves, to have it all

completed before we leave for the August recess.

I would just like to bring to everybody’s attention the success of

some of these programs that we’ve had here that have come

through this committee. One of them that has had great success—

you mentioned it, Ms Clark—is the North American Waterfowl

Management Plan, which was signed just 11 years ago by the

United States and Canada and later Mexico joined in on it. To

date, under that, over 4 million acres have been protected, restored, or enhanced in the United States and Canada, and 20 million additional acres have been protected in Mexico.

Our statistics show—and I would be curious to know if this coincides with your statistics—that the wetlands conservation efforts

are really paying off. Not since 1955—these are some statistics that

I compiled this year, actually—not since 1955 have we seen such

a spectacular migration of waterfowl as during the past 2 years. In

1996, an estimated 89.5 million ducks, which is 6.5 million more

than in 1995 and 18.5 million more than in 1994 and 24 million

more than in 1993—in other words, these are the largest figures

in the past 40 years. I gave you an awful lot of different figures

there, but I think the key one is that in 1996, 90 million ducks migrated south for the winter. That’s an incredible figure, and the

largest since 21 years earlier.

Is that what your figures show?

[Laughter.]

Ms. CLARK. Yes, Mr. Chairman.

[Laughter.]

Ms. CLARK. I’m sure you have good figures.

Senator CHAFEE. Thank you. So you are an enthusiastic supporter of the North American Waterfowl Management Plan?

Ms. CLARK. Absolutely. It has been great. We need to be mindful

that it is partnerships like the North American that have achieved

the kinds of statistics that you were just able to share, and have

gone a long ways toward achieving both wetlands and migratory

bird conservation.

Senator CHAFEE. All right.

Well, I don’t see any others here with questions. There may be

some questions submitted in writing to you, and I would ask that

you get those back very promptly.

Senator CHAFEE. As I mentioned, it’s my intention to consider

this nomination a week from tomorrow.

Thank you very much, Ms. Clark.

Ms. CLARK. Thank you, Mr. Chairman.

[Statements and additional information follow:]

Senator CHAFEE. That completes our hearing.

[Whereupon, at 12:42 p.m., the committee was adjourned, to reconvene at the call of the chair.]
23

PREPARED STATEMENT OF JAMIE RAPPAPORT CLARK, NOMINEE FOR DIRECTOR OF THE

U.S. FISH AND WILDLIFE SERVICE

Good morning Mr. Chairman and members of the Committee. It is a great honor

to be nominated by President Clinton as Director of the U.S. Fish and Wildlife Service, the Nation’s premier Federal fish and wildlife conservation agency, and to have

that nomination considered by this committee. It is also a privilege, as a career civil

servant, to be considered for this position from within the ranks of the agency.

I have met with many of you over the past few days and found that we have significant common beliefs in the importance of conserving our natural heritage. If I

am confirmed, I look forward to continuing to work together with all of you over

the next few years, focusing on our common commitment to fish and wildlife conservation.

I care deeply about the work we do at the Fish and Wildlife Service and I am

committed to our mission to conserve, protect, and enhance fish and wildlife and

their habitats. I am proud of the job we do. Our 7,000 employees are dedicated, motivated, and professional. They represent the best tradition of public service. Together, we continue to work to protect that delicate balance of living in association

with our natural environment.

Love of nature and the outdoors has been a major force in my life since I was

a small child. I grew up in the military, moving on an average every year and a

half. That certainly brought many challenges, but it also gave me opportunities to

see many areas of the United States. I fondly remember exploring spectacular open

spaces on horseback, seeing new birds and other wildlife, and discovering unique

habitats.

My passion for nature and wildlife eventually led me into the field of wildlife biology. My studies ranged from peregrine falcon reintroductions in Northern Maryland

to my graduate thesis that involved working with hunters to evaluate white-tailed

deer populations to ensure optimum herd density. I learned first hand the role of

hunting as an effective wildlife management tool, and 1 share with hunters, anglers,

and other outdoor enthusiasts an appreciation of wildlife that comes from long hours

in the field observing nature.

I even married a wildlife biologist. The ceremony took place on Matagorda Island

National Wildlife Refuge, where my husband Jim was the refuge manager. Jim is

a nature photographer and writer and we spend all available free time exploring

national wildlife refuges, national parks, and forests looking for new places to observe nature and, of course, new scenes to capture on film.

During my 8 years with the Fish and Wildlife Service, I have been part of an

agency undergoing significant change. Though the Service remains committed to its

statutory obligations and mandates like the Migratory Bird Treaty Act and the Endangered Species Act, I believe, as others do, that we need to continue to look for

new and innovative ways to achieve species and habitat conservation. Most importantly, we have greatly expanded our work with partners outside the Service—

whether they are State wildlife agencies, local governments, sportsmen’s organizations, conservation groups, corporations, or individual private citizens.

In the course of this transformation, the Service is learning to assume many different roles, depending on the situation. Our State, Federal, Tribal, and private

partners have great capabilities to provide leadership and assistance in the management and recovery of natural resources. We recognize this and we are refining our

ability to be a team player—knowing when to lead, when to follow, or when to assist

to accomplish common goals. And I expect this process to continue.

I realize that many folks may associate me with endangered species programs. Although my years with the Service have focused primarily on habitat restoration, environmental contaminants, and endangered species conservation, my early years as

a resource professional were spent working for the National Guard Bureau and the

Army as a wildlife biologist addressing land use management and environmental

planning issues. I was responsible for developing and implementing fish and wildlife

conservation practices Army-wide; emphasizing integration of wildlife management

activities with the military mission. I spent much of my time in the field visiting

military installations throughout the country, working to balance wildlife conservation needs with military readiness objectives. I also developed land management

programs to ensure that military lands continued to support both wildlife conservation and military training objectives. I worked hard with military trainers and engineers, as well as with other Federal agencies and conservation organizations, to ensure neither military training nor wildlife habitat requirements were compromised.

From these experiences early in my career, I learned about the importance of listening to all sides, effectively communicating specific needs, and working collabo-
24

ratively with others to achieve multiple goals on lands supporting competing demands.

The Fish and Wildlife Service is widely recognized as the national and international leader in wildlife conservation, and, if confirmed, I will work to ensure that

hard-earned reputation is maintained and enhanced. Again, to do this, an evergrowing emphasis on partnerships and looking at the big picture is essential. With

more than 1,100 species on the list of endangered and threatened species, I know

too well the feeling of frustration and failure associated with each new addition to

the list. There is no way the Service or any other public agency can single-handedly

conserve our Nation’s fish and wildlife resources. We must work hard to leverage

our own resources and expertise with those of others to effect change on the ground.

Since transferring to the Fish and Wildlife Service in 1989, I have spent considerable time looking for new ways to achieve wetlands conservation, recover declining

species, restore degraded habitats, and address the increasing concern about the effect of environmental contaminants on our natural resources. I have worked in partnership with folks like the ranchers in southern Arizona and New Mexico through

the Malpai Borderlands Group; private landowners on Hawaii’s Big Island working

to prevent the extinction of the Hawaiian crow while preserving the integrity of

their commercial farming and ranching operations; and the States of Illinois, Indiana, and Kentucky to balance the economic needs of the coal mining industry with

wildlife conservation. Again, these experiences reinforced in me the value and importance of partnerships. Each of these partnerships was characterized by genuine

trust, cooperation, mutual respect, and a desire for economic and environmental security. I believe the future of fish and wildlife conservation depends on collaborative

partnerships such as these.

The Service also must continue our concerted efforts to reach out to the public

and to important constituencies with a stake in our fish and wildlife resources. I

have participated in numerous partnership efforts and firmly believe that involving

stakeholders and other agency expertise early on reaps long-term benefits for fish

and wildlife resources and the economy. As the Service gains experience in this way

of doing business, I believe we will realize the expanded skills that we all must master to learn to listen more actively, to work as a team player, to be open-minded,

and to be prepared to take whatever approach is most effective in accomplishing the

task.

I am convinced that as people better understand the connection between ecosystem health and quality of life, our success at managing for ecosystems and ensuring economic viability will continue to increase. The Service needs to communicate

to others the fundamental message that the fate of wildlife and humans alike is

linked to the well-being of the environment around us.

The Service is dedicated to addressing change, not only in how we explore new

ways to conserve and manage our wildlife resources, but also in recognizing the importance of a workforce reflective of our Nation’s citizenry. Increasing the diversity

of our workforce is an important element in improving our efforts to develop unique

and innovative approaches and strategies for wildlife conservation. A skilled

workforce, diverse in cultures, experiences, and ideas is equipped to build upon traditional and successful approaches by identifying new and fresh ideas for addressing

conservation issues. The richness of this experience is an asset, and its absence is

an enormous liability. I believe I can help the Service continue to work toward its

goal of a diverse and skilled workforce.

Americans are passionate about wildlife, and that passion fuels the U.S. Fish and

Wildlife Service. This is an exciting time to be at the helm of this agency. If confirmed as Director, I look forward with great enthusiasm and excitement to the

challenge of leading an agency dedicated to conserving, protecting, and enhancing

fish and wildlife and their habitats for the continuing benefit and enjoyment of the

American people. I pledge to work with you, the American public, other Federal,

State, Tribal, and private entities, and with the outstanding employees of the Service to continue protecting our Nation’s natural heritage for generations to come.

Senators, thank you again for the honor of your consideration.

RESPONSES TO ADDITIONAL QUESTIONS FROM SENATOR CHAFEE

Question 1. It is rare indeed when a career civil servant rises through the ranks

to become the director of an agency, particularly in the span of time you have been

with the Fish and Wildlife Service. How will this background and experience shape

your duties as Director, with respect both to policy issues and to the management

of the Service?

Answer. During my 8 years with the Fish and Wildlife Service, I have been part

of an agency undergoing significant change. It is increasingly clear to me, and to
25

my colleagues in and out of the Service, that we need to continue looking for new

and innovative ways to achieve species and habitat conservation. Identifying new

and innovative conservation measures for both species and habitat will be my goal

as a policymaker; implementing these measures effectively will be a measure of my

success as a manager. Service employees, other government agencies, and non-government organizations are finding creative approaches to conservation questions almost every day. Ensuring that those approaches are successful is our greatest challenge. The Service must work hard to leverage our own resources and expertise with

those of State wildlife agencies, local governments, sportsmen’s organizations, conservation groups, corporations, and individual private citizens to effect change on

the ground. We must refine our ability to be a team player—knowing when to lead,

when to follow, and when to assist to accomplish common goals. That is the direction I intend to set.

I believe my experience has given me a unique and useful perspective on working

with the Service’s partners to achieve the Nation’s conservation goals. My early

years as a resource professional were spent working for the National Guard Bureau

and the Army as a wildlife biologist addressing land use management and environmental planning issues. I was responsible for developing and implementing fish and

wildlife conservation practices Army-wide; emphasizing integration of wildlife management activities with the military mission. As a consequence, I recognize and understand the need to balance wildlife conservation needs with other objectives.

Working to achieve balance also meant that I was actively engaged with military

trainers, engineers, other Federal agencies, and conservation organizations in developing and implementing real world solutions. From these experiences, I learned

about the importance of listening to all sides, effectively communicating specific

needs, and working collaboratively with others to achieve multiple goals on lands

supporting competing demands.

Since joining the Service in 1989, I have spent considerable time looking for new

ways to achieve wetlands conservation, recover declining species, restore degraded

habitats, and address the increasing concern about the effect of environmental contaminants on our natural resources. I have worked in partnership with folks like

the ranchers in southern Arizona and New Mexico through the Malpai Borderlands

Group; private landowners on Hawaii’s Big Island working to prevent the extinction

of the Hawaiian crow while preserving the integrity of their commercial farming

and ranching operations; and the States of Illinois, Indiana, and Kentucky to balance the economic needs of the coal mining industry with wildlife conservation. I

believe the future of fish and wildlife conservation depends on collaborative partnerships such as these.

Question 2. In recent years, the Service has undertaken many initiatives in implementing the Endangered Species Act. These include the ‘‘no-surprises’’ policy, the

safe harbor and candidate conservation policies, streamlining agreements, among

other. Some of these initiatives are being considered in the context of legislation;

and some of these initiatives have been considered fairly controversial. I am certain

that all of these have significant consequences to both the agencies and individuals

subject to the law. I have two questions.

(a) First, with respect to Federal agencies, how have these initiatives affected the

Service’s interaction with other agencies?

Answer. These three recent initiatives are currently under review by the public,

including the States, and other Federal agencies. The Service is now collecting and

evaluating these comments. To date, the reaction from other Federal agencies has

been favorable. The policies should benefit Federal agencies because they encourage

greater participation of all stakeholders in recovery of listed species, or, in the case

of the Candidate Conservation Policy, in precluding the need to list species. In the

case of the No Surprises and Safe Harbor policies, if the public voluntarily assumes

a greater role in recovery of listed species, Federal agencies may have their role

lessened and species may be recovered in less time. Removing species from the list

of protected species removes a regulatory burden from both the public and from Federal agencies. In the case of the Candidate Conservation Policy, if candidate conservation agreements sufficiently remove the threats to candidate species and the

need to list the species is precluded, both the public and other Federal agencies benefit. There is no need to impose regulations and the cost to both the public and Federal agencies is lessened. The Service has numerous candidate conservation agreements with other Federal agencies for species occurring on Federal lands. The conservation agreement for the Jemez Mountain salamander with the U.S. Forest Service in New Mexico has been working to conserve this species for more than 5 years.

Question 2(b). Second, with respect to private landowners, how are you monitoring

the effectiveness of these initiatives?
26

Answer. The Service has a monitoring obligation for any agreement designed to

conserve species or minimize the impacts of activities on species. Such agreements

include Section 7 biological consultations, Section 10(a)(1)(B) permits that accompany Habitat Conservation Plans, No Surprises agreements, Safe Harbor agreements, and Candidate Conservation agreements. Monitoring is composed of two

functions: monitoring implementation and monitoring effectiveness. In monitoring

implementation, it is the Service’s responsibility to ensure that the measures included in the agreement are being implemented by the action agency or permit holder. The Service takes this responsibility seriously. To a large degree, the increases

the President’s fiscal year 1998 Budget requests for the Consultation Program and

the Recovery Program are designed to ensure that the Service has the necessary resources to monitor the increasing number of biological opinions, permits, and agreements. The Service also plays a role in monitoring the effectiveness of the measures

intended to conserve species. Sometimes Service biologists collect and interpret the

relevant data. More often, the responsibility to monitor the effectiveness is part of

the consulting Federal agency or permit holder’s responsibility. The agreement in

these cases provides that these other parties use agreed-upon methods to monitor

for effectiveness, and report the results to the Service.

Question 3. Recently, the Service has lost a number of court decisions regarding

its decision not to list certain species or designate critical habitat for certain species.

Specifically, the Service has lost decisions relating to the Barton Springs salamander, the bull trout, and two species in the Tongass National Forest, in which

the Service relied on ongoing or developing conservation initiatives. I am a little

concerned both with the track record of the Service and the underlying bases for

the Service’s initial decisions not to list these species. It would be one thing if those

decisions were upheld by the courts, but in light of the rejection by the courts, are

you developing any guidance on how to incorporate newly developed conservation

efforts into your listing decisions?

Answer. Yes, the Service is currently developing guidance concerning the role conservation agreements and other conservation measures should play when making

listing determinations.

I believe that it is important to engage the public and private sectors in conserving declining species, preferably before species reach the point where they require

listing. The Service has entered into approximately 40 candidate conservation agreements in the last 4 years and 5 of these led to withdrawals of listing proposals. One

such conservation agreement is the northern copperbelly water snake agreement,

where numerous coal companies and the States of Illinois, Indiana, and Kentucky

ensured conservation of the species habitat, resulting in removal of threats to the

species sufficient to preclude the need for listing under the Act.

Your question refers to adverse court decisions on the use of conservation agreements. The Barton Springs salamander is the only agreement where a court ordered

the species to be listed despite a conservation agreement. This court decision was

based on an unusual record, where the FWS had addressed the listing issue over

several years, with the conservation agreement coming very late in the process. We

do not regard this court decision as generally applicable to other cases.

In the case of the Queen Charlotte goshawk and the Alexander Archipelago wolf

on the Tongass National Forest, the court set aside a not warranted listing determination. But here the Service’s primary reasons for determining that listing was

not warranted was that there was insufficient information to substantiate threats

to either species. We also concluded that given the Forest Service’s mandate to manage for viable populations of all native vertebrate species, the wolf and goshawk

would likely not need the protection under the Act after a revised forest management plan was issued. Now that a revised plan has been issued, the Service will

review whether the species need the protection of the Act.

The Service’s original bull trout petition finding, which was challenged in court,

was that listing the bull trout in the U.S. was ‘‘warranted but precluded’’ by other

higher priority listing activities. This decision was based in part on planned protective measures on public lands. The court determined that the Service should not

have relied upon future management actions like those planned measures when

making its determination of threats. The Service did not rely on these conservation

measures when making a final determination, but used them only in its attempt to

prioritize use of its limited resources in order to first protect other species that do

not enjoy ongoing protections. The Service believes, in the case of the bull trout, this

was the right decision. Nevertheless, the Service recognizes that the Court has

raised a valid question, and we are currently developing guidance to address this

issue.
27

The Service has an overall outstanding record when making determinations on

whether species need the protection of the Act. For example, since the listing moratorium was lifted in April 1996, the Service has published final rules for 133 species,

proposed rules for 18 species, and withdrawals of proposals for 9 species, for a total

of 160 listing decisions. It is noteworthy that so few of these determinations have

been set aside in court.

RESPONSES TO ADDITIONAL QUESTIONS FROM SENATOR THOMAS

Question 1. What is your view on the role of cost-benefit analysis with respect to

the natural resource damage assessment and restoration process?

Answer. Under the existing CERCLA natural resource damage assessment regulation, natural resource trustees consider a variety of factors, including costs and benefits, in evaluating alternatives to restore resources lost or injured as a result of

hazardous substance releases. Trustees focus on making the public whole for losses

to publicly owned or managed resources resulting from a release of hazardous materials or oil. In this process, trustees consider both on-site and off-site restoration alternatives. I support the Administration’s position that the goals of CERCLA and

the Oil Pollution Act (OPA) are to protect public health and the environment in the

most cost-effective and sensible way. CERCLA and OPA declare that natural resources are held in trust for the public, and mandates that those who pollute the

environment, not the American public, must be held accountable for restoring, replacing or acquiring the equivalent of natural resources injured or lost as a result

of their actions. Thus, costs and benefits are important, but not controlling factors

in selecting restoration actions to make the public whole for losses sustained as a

result of hazardous materials or oil entering the environment.

Question 2. Under your leadership, how would technical and financial realities be

taken into account in formulating plans for remediation?

Answer. In conducting remediation under CERCLA, the U.S. Department of the

Interior and the U.S. Fish and Wildlife Service follow the National Contingency

Plan (NCP), which requires consideration of technical feasibility and cost. As you

know, the NCP contains extensive criteria for remedial actions under CERCLA.

Question 3. Would the planned use for the property be taken into account in formulating remediation activities and requirements?

Answer. In evaluating the adequacy of remedial action alternatives to eliminate

risks to human health and the environment, the U.S. Fish and Wildlife Service considers future land use. For example, in remediating contamination on wildlife refuges, we consider the purposes of the refuge for protecting wildlife, as well as visitor

activities on the refuge.

Question 4. What efforts will you make to ensure that the costs involved in the

restoration of natural resources do not exceed the value of the property, thereby discouraging redevelopment?

Answer. The FWS has significant responsibilities under CERCLA and OPA

related to its management, control and protection of land and natural resources.

These resources belong to the public and include migratory birds, anadromous fish,

and endangered species. We will continue to take our stewardship responsibilities

seriously and focus on making the public whole in those situations where natural

resources have been lost or degraded as a result of contamination of the environment. In selecfing a restoration action, we consider a variety of actions, usually both

on-site and off-site, and consider numerous factors (including cost) to identify the

most appropriate and cost-effective restoration alternative.

Question 5. What steps do you intend to take to encourage early and meaningful

participation by PRPs in the assessing and rectifying natural resource damages?

Answer. The CERCLA and natural resource damage assessment regulations require us to invite PRPs to join in the natural resource damage assessment process

at the planning stage. The Service encourages this participation as it facilitates assessment, settlement and restoration. I will continue to encourage early PRP involvement in the Service’s implementation of the NRD Program. We have successfully secured the input of many PRPs and they, in tum, have provided trustees with

settlement agreements that provide for restoration either through payment of damages or through ‘‘in-kind’’ settlements. Similarly, I strongly support the use of Biological Technical Assistance Groups at the remediation stage, composed of parties

with interest and expertise in the site.
28

Question 6. Do you support placing a cap on damages or other mechanisms for

limiting liability of PRPs for natural resource damages?

Answer. As you know, the Administration has maintained a steadfast commitment to maintaining the trustee’s ability to effect meaningful restoration of injured

natural resources because it is so vital to the Nation’s well being. For this reason,

I support the Administration’s opposition to legislative proposals that would place

caps on liability for restoration, other than what is already contained in CERCLA.

Caps risk denying the public compensation for its losses and could result in ineffective restoration or completely prohibit restoration for the most serious cases of injury caused by long-term hazardous substance release.

Question 7. If not, what measures would you take to promote expeditious settlements and prompt remediation?

Answer. I will continue to support efforts during CERCLA implementation that

reaffirms the commitment to the principle that the polluters, not the American people, should be responsible for cleaning up toxic waste and for restoring resources

injured as a result of the release of the waste. Current implementation by the EPA

and the States allows for remediation decisions to occur as quickly as resources will

allow. The Service, under my leadership, will continue to assist the EPA and the

States to work within the Congressionally mandated responsibilities of CERCLA to

protect public health and the environment. We have a successful track record of providing technical assistance to cleanup agencies that has resulted in the adoption of

remediation techniques that have resulted in less injury to natural resources during

response and remediation and the reduction of restoration challenges that have allowed natural resources to return to the State they were in before the release.

Question 8. How do you intend to promote the equitable treatment of PRPs in natural resource damage cases?

Answer. The Service has secured several negotiated settlements with PRPs resulting in in-kind settlements that have allowed PRPs to directly provide restoration

of injured resources, rather than rely on trustee implementation. I will continue to

encourage the U.S. Fish and Wildlife Service to invite PRP involvement as early as

possible in the process to not only cut costs, but also to effect restoration of the natural environment as early as possible. Such involvement by all interested parties

early in the process ensures fair and equitable treatment of all affected parties. Key

issues are identified early, options can be developed openly among participants, and

decisions made with relevant and up-to-date information. Such coordinated decisions

ultimately treat all participants more fairly.

Question 9. What is the FWS role and involvement in managing the brucellosis

problem around Yellowstone and National Elk NWR?

Answer. The FWS’s role in managing brucellosis issues in the Greater Yellowstone Area is limited to management of brucellosis in the bison and elk in the Jackson Hole, WY area which frequent the Refuge during the year. The Service is using

a four-pronged approach to manage brucellosis in these populations: (1) controlling

animal numbers, (2) participating in scientific research efforts to develop an effective vaccine, (3) minimizing the possibility of transmitting the disease by rehabilitating an outdated irrigation system to improve forage production and distributing

animals more widely on the Refuge, and (4) working with partners to secure land

or easements to separate elk and bison to minimize possibility of interspecies transmission.

The National Elk Refuge was created in 1912 to provide elk feeding areas to mitigate for human encroachment onto elk winter range in the Jackson Hole area. Elk

are a State managed species. Thus, the FWS manages the habitat, the State of Wyoming manages the animal numbers, and the State and FWS share costs of supplemental feeding. Because the perimeter of the refuge is not fenced, the only currently

feasible mechanism for limiting the numbers of animals on the refuge is to manage

the harvest, a State regulated activity. Because the elk and bison both migrate onto

and off the Refuge, Grand Teton National Park, BLM, and Forest Service property,

the Service must work with all of these partners and the State of Wyoming to accurately assess numbers of both species so the State can implement effective hunting

regulations.

The Fish and Wildlife Service cooperated with the State of Wyoming in an experimental vaccination program on the Refuge in which approximately 2000 elk were

vaccinated. It was labor intensive and difficult because of conditions at the Refuge,

and was not a demonstrable success. Scientifically tested, effective, safe, orally administered vaccine must be developed for vaccination to be effective in such condi-
29

tions, and the Service is working with other Federal agencies to contribute to the

development of such a vaccine.

The Service has recently consulted with the Natural Resource Conservation Service to develop plans for an effective, modern irrigation system to increase forage production on the Refuge. Preliminary estimates are that with an updated irrigation

system, the Refuge could produce up to six times as much forage, almost eliminating

the need for supplemental feeding in most years. This would widely distribute elk

across the Refuge and greatly minimize possibilities of transmission of brucellosis.

In naturally distributed populations of elk, about 1 percent of the population tests

seropositive for brucellosis, and this is just about the same number as the error rate

for the test.

Finally, the Service is working with partners to find wintering habitat off the Refuge for the small Jackson bison herd. Separating bison from elk would prevent possibilities of interspecies transmission of brucellosis.

Question 10. What is the status of delisting the Grizzly Bear? The ‘‘standards’’ for

delisting have not been clear and the time line has continually changed. Could you

clarify what the ‘‘standards’’ are and the time line for delisting.

Answer. The approved grizzly bear recovery plan delineates 6 separate recovery

areas. Each population can be recovered and delisted separately, independently of

the others. Recovery goals include such things as the number of females observed

with cubs, human-caused mortality levels, human-caused female mortality levels,

and occupancy of bear management units. The required level for each measure will

vary among the 6 areas. The Recovery Plan does not delineate specific timeframes

for delisting because many of the goals are dependent on exterior forces that are

impossible to predict. As an example, the Yellowstone population is well on its way

to recovery: the Yellowstone population of 33 females with cubs in 1996 exceeds the

recovery goal of 15. Occupancy and mortality goals have also been met, but the

human-induced female mortality goal is still being exceeded. In addition, as a result

of a recent settlement of the Grizzly Bear Recovery Plan lawsuit brought by the

Fund for Animals, National Audubon Society and three dozen other conservation

groups, the Service is required to develop, measure and achieve habitat-based recovery criteria before delisting the bear. These criteria are being developed now by an

interagency team and will be ready by fall of 1997. In addition, before the Yellowstone bear can be delisted, Montana and Wyoming must change State laws that currently allow high levels of bear mortality. The Service and the Interagency Grizzly

Bear Committee (IGBC) hope to resolve all the Yellowstone delisting issues in the

near future in order to delist the Yellowstone population as soon as possible.

The Northern Continental Divide population has also met its ‘‘female with cubs’’

recovery goals, but not some of the other objectives. The other three existing populations in the Selkirks, Cabinet/Yank, and Northern Cascades ecosystems are currently making little or no progress toward recovery. The Bitterroot recovery goals

will be established by a Citizens Management Committee if and when bears are introduced into the ecosystem and sufficient scientific and commercial information becomes available. If 25 bears are introduced into the Bitterroot over a 5-year period,

a tentative recovery goal of 280 bears over the 5,785 square miles of designated wilderness may take as long as 100 years.

In summary, 2 of the current 5 grizzly bear populations are well on their way to

recovery, but the Service and the IGBC must meet several requirements before

delisting is possible. We hope to meet those requirements in the near future. Time

lines have not been established for any of the populations because recovery and

delisting are highly dependent on external forces and because bears reproduce

slowly.

RESPONSES TO ADDITIONAL QUESTIONS FROM SENATOR ALLARD

Question 1. Recently, Colorado, Wyoming, Nebraska and the U.S. Department of

Interior agreed in principle to a program to protect species in the Central Platte.

Fish & Wildlife will have a crucial role to play in this agreement because the first

stage is a 3 year NEPA process.

Ms. Clark, I’m sure we have both seen NEPA’s run wild. Please indicate to me

how you would intend to ensure that the process is controlled so that it performs

its function in the time allotted and that it is not an excuse for rewriting the agreement?

Answer. The Central Platte agreement is an excellent example of the kind of collaborative partnerships that will be key to balancing the environmental, economic

and social needs of society in the future. Colorado, Nebraska and Wyoming all deserve special recognition for the enlightened approach they are taking in conserving
30

the fish and wildlife resources of the Platte Basin. The Fish and Wildlife Service

is committed to making this agreement work in order to provide greater certainty

of Platte River flows for a variety of uses, including agriculture, electric utilities,

and other water uses as well as wildlife. I can assure you that I will do all I can

to ensure that the NEPA process is completed in a timely and effective manner.

I believe there are several aspects of the agreement that will help keep the process on track. The agreement includes a description of the proposed program that

will be one of the alternatives considered under the NEPA process. All parties realize that the proposed program must be properly analyzed in the NEPA process, but

they also recognize that it is in everyone’s long-term interest to ensure that the proposed program remains substantially intact. The agreement also established an 8-

person Governance Committee with representatives from the States, water users,

environmentalists and the Department of the Interior to review, direct, and provide

oversight for agreement activities. Oversight of the NEPA process will be one of the

major concerns of the Governance Committee. I believe the Governance Committee

will have a direct interest in seeing that the NEPA process is carried out in a timely

and effective manner to reach the agreement’s goals. Finally, the Bureau of Reclamation and the Fish and Wildlife Service, as the two Federal agencies directly responsible for the NEPA process, will be cooperating closely. Both agencies were intimately involved in negotiating the agreement in principle and both have an interest

in assuring that the agreement remains essentially intact.

Question 2. What is the status of the programmatic biological opinion being prepared on the Colorado River Recovery Program?

Answer. The biological opinion dealing with historic projects and new depletions

on the Colorado River above the 15 mile reach of the Grand Valley is under development at this time, pending completion of the hydrological analyses being done by

the Colorado Water Conservation Board. A draft biological opinion is tentatively

scheduled for completion in October 1997, with a final opinion to be completed four

to 6 months after the draft.

Question 3. Will this opinion fulfill its intended function of allowing development

of Colorado’s apportionment under the Colorado River Compact and protecting the

various fish species?

Answer. The intended goal of the Upper Colorado River Recovery Program is to

recover the endangered fish while allowing the States to meet their compact entitlements. The Recovery Program is also intended to serve as a reasonable and prudent

alternative for water depletion impacts in the Upper Colorado River Basin. The specific purpose of the programmatic biological opinion is to determine the degree to

which the recovery program can serve as the reasonable and prudent alternative for

historic and new depletions, considering the status of the fish populations and the

recovery program accomplishments. At this time, the Service has not made a final

determination on this issue. While the biological opinion being developed must be

consistent with the requirements of the Endangered Species Act, I believe we can

protect species while still protecting Colorado’s allocation.

Question 4. Eventually, State and Federal contributions to this project will be

about an additional $100 million. I’ve heard some complaints that Fish and Wildlife

is not accepting this program as an acceptable method of meeting Section 7 consultation requirements. Can you give me some assurances that you will review this

program with the goal of ensuring it provides certainty to those on the Colorado

River and its tributaries?

Answer. The Fish and Wildlife Service has consulted on nearly 300 water development projects in the Upper Colorado River Basin since the inception of the Recovery

Program in 1988. The biological opinions for each of these projects have identified

reasonable and prudent alternatives that allow the projects to go forward but successfully offset the environmental impacts. It is difficult to continue to deplete water

from a river system while trying to recover fish species that depend on the same

water. However, all parties have done an admirable job so far, and I expect this to

continue into the future. I will continue to work closely with the Service’s Denver

Regional Office to ensure that the Program continues to function smoothly.

Question 5. Will the new Animas-LaPlata project require any type of consultation

with Fish and Wildlife?

Answer. That will have to be determined as the new project plan is developed.

The Service completed a biological opinion on the Animas-LaPlata project several

years ago based on the planned project at that time. If the future project is significantly different from the planned project that the previous biological opinion addressed, a revised or new biological opinion may be required.
31

RESPONSES TO ADDITIONAL QUESTIONS FROM SENATOR INHOFE

Question 1. What do you see as the proper role of the State in the NRD process?

Answer. Each State shares trustee responsibility with the U.S. Department of the

Interior through the U.S. Fish and Wildlife Service, other Federal natural resource

management agencies, and tribes. States, in partnership with all affected natural

resource trustees, are working cooperatively and collectively to evaluate and quantify injuries to fish, wildlife and other natural resources and to secure restoration

of injured natural resources. Working in partnership, states, tribes, and Federal

natural resource trustees provide the best assurance for success in protecting and

restoring injured resources.

Question 2. What options would you consider to provide States with greater opportunities to manage cleanups of sites within their borders and to promote their pursuit of innovative and cost-effective restoration programs?

Answer. States are encouraged to continue their cooperative technical assistance

efforts among state, tribal and Federal organizations responsible for both the cleanup of the site and protection and restoration of natural resources, as a proven and

effective way to ensure that the risks to both human health and ecological resources

within individual State borders are evaluated thoroughly during remediation. We

have a successful track record in assisting the EPA and our State partners in selecting response and remediation decisions that consider and protect fish and wildlife

resources. We are pursuing opportunities for closer coordination of remediation and

restoration activities. EPA is aggressively seeking our help and the Service stands

ready to provide technical assistance to both the EPA and individual States during

response and remediation decisionmaking to protect fish and wildlife resources. As

you know, the EPA works with States directly to establish remediation goals. Increasingly, the Service has provided technical advice that has resulted in the reduction of Natural Resource Damage (NRD) liability by helping the EPA or the State

to identify and/or select response and remediation techniques and strategies that result in accelerated restoration of injured resources.

Question 3. A number of states have established programs under which entities

that successfully complete voluntary and mandatory remediation actions are released from liability for damages under State environmental laws. As a result of

Pennsylvania’s model program, for example, 64 sites have been cleaned up since establishment of the program in July 1996, compared with 8 of the 103 Superfund

sites located in Pennsylvania that have been cleaned up over the course of

Superfund’s 16 year history. As the Director of the Fish and Wildlife Service, would

you support a parallel statutory release of liability under CERCLA for entities that

successfully complete remediation activities in connection with NRD claims and obtain a release from the State?

Answer. Coordination between the natural resource trustee entities of the Federal

and State jurisdictions currently provide protection to fish and wildlife species,

whether they are resident populations within the borders of one or many States as

well as for those that migrate across State boundaries, making temporary stops

within any one individual State. It is the migratory nature of many fish and wildlife

resources and the interstate commerce relationship that created Federal protective

statutes that currently exceed any one individual State’s ability to protect such species during all phases of their migration. It is this Federal responsibility for protecting migratory fish and wildlife that serves as a strong complement to every State

authority exercised within their sovereign boundaries. This State and Federal partnership affords our Nation’s fish and wildlife resources their maximum stewardship

and protection not only in any one State, but throughout entire Regions and

flyways. We currently have very strong working relationships with many of our

State natural resource trustees, and we do currently evaluate NRD liability at particular sites collectively. As such, when we jointly release a Responsible Party from

NRD liability or grant a covenant-not-to-sue, it is our collective finding that binds

both the State and the Federal Governments. For these reasons, our greatest

strengths and abilities to protect fish and wildlife resources are afforded by building

strong and complementary partnerships between State and Federal natural resource

trustees, rather than by abrogating our Federal protective mandates through exclusion of Federal partners from such extensive State decisions.

Question 4. What plans do you have to ensure that the damage assessment process does not result in the unnecessary duplication of work by State and Federal entities?

Answer. The U.S. Fish and Wildlife Service has a strong history of entering into

formal trustee agreements with many of our State and Federal partners to secure
32

cooperative damage assessments and NRD claims. By entering into such trustee

agreements as early as possible during the pre-assessment phase of the NRD process, all participants can share information early, plan necessary investigations cooperatively to take advantage of shared resources, and execute investigations synergistically to avoid duplicative sampling or studies. We have also encouraged our

State and other Federal trustees to join us in settlement negotiations. We in the

FWS have been coordinating with our State and Federal partners since the beginning of the NRD program. We have been able to stretch limited resources with partnership planning and investigations that have yielded mutually beneficial results

for cooperative NRD negotiations. Examples of such successful partnerships include

settlements for the Tenyo Maru, the Cantara Loop, and Apex Houston Oil Spills.

The Service takes CERCLA’s coordination requirement very seriously. It was designed to provide safeguards against inconsistencies and conflicts in both remediation and restoration decisionmaking. Memoranda of Understanding are in place to

ensure effective coordination between both State and Federal entities on these decisions. Additionally, in most EPA Regions there are Biological Technical Assistance

Groups (BTAGs) composed of scientists from resource management agencies, including the States, that work closely with EPA when EPA conducts ecological risk assessments and cleanups. As Director of the U.S. Fish and Wildlife Service, I will

continue to encourage the cooperative efforts currently enjoyed by the Service’s NRD

program through its formal cooperative trustee agreements with its other Federal

and State partners, through cooperative contaminant investigations, through encouraging public involvement in NRD restoration, and by continuing the Service’s

technical assistance capabilities and opportunities. Further, I will commit myself to

ensure there is no duplication of work by State and Federal entities.

Question 5. What changes or measures would you suggest to increase the level

of cooperation between State and Federal officials?

Answer. The Service has a long tradition of working closely on NRD issues with

our State, tribal and Federal partners. Cooperation could be greatly increased

through encouraging more informal and formal communication and sharing of information and expertise. The Service is an avid supporter of State cooperative associations and contributes to and hosts symposia, conferences, and issue initiatives that

provide informal forums for mutual exchange of information and concerns. I will

continue to support working relationships solidified through personnel exchanges,

such as IPA’s, through shared training opportunities among our National Conservation Training Center and State counterparts, and through partnered investigations

designed to address operational fish and wildlife issues affecting a broad spectrum

of State and Federal interests. Also, I believe that we can share natural resource

data bases, such as Geographic Information Systems, that are beneficial and are applicable to a multitude of uses and analyses. The benefits of using common data

bases are immense in terms of consistent claims, reducing costs, increasing knowledge base among trustees and PRP’s, and expediting settlement and restoration decisions.

Question 6. What steps would you take to support efforts by the State to reach

an expeditious settlement of State claims with PRP’s in order to proceed quickly to

the restoration stage?

Answer. The U.S. Fish and Wildlife Service currently works cooperatively with

many of its State and Federal partners to avoid injury to fish and wildlife resources

during response and remediation actions to minimize restoration challenges after

cleanup is achieved. If after cleanup, restoration actions are necessary, these actions

are pursued as quickly as resources allow in order to provide favorable conditions

for the injured resources to return to the State they would have been in had the

release not occurred. I firmly believe that the current cooperative nature of the NRD

Program is the quickest way to achieve cost-effective restoration. Cooperation

assures not only the State and Federal trustees that their collective concerns are

met, but also provides the PRP with certainty that all affected parties are incorporated into the hazardous waste cleanup and site restoration, thereby effectively

negating surprises during planning and implementation phases of the process.

Question 7. Do you support the listing of the Fox River/Green Bay area on the

NPL?

Answer. Yes, this area is highly contaminated with PCB’s, with injuries to fish

and wildlife resources documented for over 30 years. There have been fish consumption advisories on this site for many years because the State of Wisconsin has concluded that there is a risk to human health. The listing of the site by EPA will enable issues of risk to human health and the environment to be addressed in the remediation process. The NPL process will assist in identifying the most cost-effective
33

solutions to the cleanup and provide incentives for the PRPs to participate in a more

significant way. We plan to work closely with EPA to seek consistency, to the greatest extent possible, of remediation and restoration activities.

Question 8. Was DOI consulted by EPA with respect to the proposed listing? What

position did it take?

Answer. Yes. The Department supported the listing.

Question 9. How would the listing affect voluntary efforts that are underway as

a result of the January 1997 agreement?

Answer. It will help this effort by adding more financial resources and expertise

from EPA to the cleanup. It also will provide additional incentives for the PRPs to

make commitments to cleanup the river. All parties agree that a negotiated settlement based on a voluntary cleanup is preferable to litigation. The NPL listing will

provide additional certainty that the Fox River will actually get cleaned up and restored. The Service will continue to support all parties working together, and has

agreed to work cooperatively with the State, EPA and the 2 tribes in a Memorandum of Agreement which was signed on July 11, 1997.

Question 10. Is the NPL listing just another way to assert Federal control over

the restoration process?

Answer. No. Efforts to date have focused on restoration of natural resources but

not remediation of the river. NPL listing will bring EPA to the site to oversee the

remediation process. It is in the public’s best interest, as well as in the interest of

the Responsible Parties, for all relevant units of government to be involved in addressing this problem so that all cleanup and restoration issues can be resolved. The

Federal Government is an affected and interested party in this matter. The NPL

process will introduce certainty that progress will be made in responding to threats

to human health and the environment and injuries to natural resources.

RESPONSES TO ADDITIONAL QUESTIONS FROM SENATOR BOXER

Question 1. How will establishment of a regional office in Sacramento improve

service to California?

Answer. The establishment of a regional office in Sacramento will greatly improve

service delivery in California and Nevada. The reorganization will provide additional service to the public and the Service’s many other customers and partners

to meet their needs in the increasingly complex natural resource environment facing

California and Nevada. In particular, improved services to the public are needed for

the Bay/Delta restoration initiative, the recovery of endangered species, meeting the

demand for habitat conservation planning assistance, restoring habitats injured by

spills of oil or hazardous substances, and meeting the rapidly increasing expectations for Service refuge and fisheries facilities. California is already home to more

than 30 million people, and is projected to grow by more than 58 percent by the

year 2020. Growth in metropolitan areas of Nevada has been similarly explosive.

Currently, Region 11, based in Portland, Oregon, has a workload greater than any

other region in the country. Even with the creation of a new region, the workload

in California and Nevada will exceed those of many other regions. For example,

California alone has about 20 percent of the nation’s listed species and about 10 percent of the nation’s recovery plans for listed species. The 109 listed species in California and Nevada comprise 24 percent of the species that need recovery plans in

the future. In addition, California and Nevada have been national leaders in the development of Habitat Conservation Plans. The Service is responsible for 112 Habitat

Conservation Plans in various stages of development in those two states and must

monitor the approved plans; this workload far exceeds that of any other region. The

Sacramento office will also serve more than three million acres of refuge properties

within California and Nevada; once again more refuge land than many other regions. The establishment of a regional office in Sacramento will improve services by

placing a dedicated Regional Director on the ground in California; streamlining review of section 7 consultations; streamlining approval of Habitat Conservation

Plans; and providing a quicker response to damages. In sum, the Service

decisionmakers will be closer to the customers that the agency serves and the office

will be better staffed to meet the current and future needs of those customers.

Question 2. What is the Service doing to shorten the review times for environmental analysis?

Answer. The Service has taken several steps to shorten the review times for environmental analysis. The Service’s current National Environmental Policy Act
34

(NEPA) procedures encourage agency personnel to use streamlining techniques,

such as scoping of alternatives and impact, incorporation by reference, joint process

(i.e., public reviews and joint documents) with other Federal and State agencies, and

the establishment of cooperative agency agreements in planning and decisionmaking

of Service actions. In January 1997, the Service revised its NEPA procedures to expand and update the list of categorical exclusions (actions not requiring the preparation of environmental analyses) and to identify more instances when environmental

assessments, rather than environmental impact statements, are appropriate. These

improvements effectively shorten the time periods for agency decisionmaking, while

still providing consideration of alternatives and analysis of Service proposals and

permit approvals where environmental impacts are anticipated. The Service has

also developed NEPA training courses for Service personnel, conducted by the Service’s National Conservation Training Center, in Shepherdstown, WV, that provide

instruction on streamlining techniques for Service activities, including section 10

habitat conservation plans, refuge comprehensive management planning, and grants

programs. Over 200 Service employees are training annually in this effort.

Question 3. Are there any species in California being considered for listing?

Answer. Yes. A total of 28 candidates are being considered for Federal listing in

California. Candidate species are plants and animals for which the Fish and Wildlife Service has sufficient information on their biological status and threats to propose them for listing as endangered or threatened under the Endangered Species

Act. However, development of a proposed listing regulation is precluded by other

higher priority listing activities. The candidate species in California include:

Amole, Cammatta Canyon

Amole, Purple

Buckwheat, Ione

Buckwheat, Irish Hill

Buckwheat, Red Mountain

Campion, Red Mountain

Checkerbloom, Keck’ s

Checkerbloom, Parish’s

Chub, Cowhead Lake

Larkspur, yellow

Larkspur, Baker’s

Lathyrus, tow-flowered

Lupine, Nipomo Mesa

Manznita, Ione

Penny-cress, Kneeland Prairie

Phlox, Yreka

Rabbit, riparian brush

Rat, San Bernardino Kangaroo

Salamander, California tiger

San-verbena, Ramshaw

Shrew, Bueana Vista Lake

Stonecrop, Read Mountain

Tarweed, Santa Cruz

Tarweed, Gaviota

Thistle, La Graciosa

Trout, McCloud River redband

Woodrat, San Joaquin Valley

Yerba santa, Lompoc

A total of 54 species have been proposed for Federal listing as endangered or

threatened under the Endangered Species Act in California, and await final decisions. The proposed species include:

Adobe-lily, Greenhorn

Allocarya, Calistoga

Alumroot, island

Bear-grass, Dehesa

Bird’s-beak, soft

Bluecurls, Hidden Lake

Bluegrass, Napa

Bluegrass, San Bernardino

Brodiaea, Chinese Camp

Brodiaea, thread-leaved

Buckwheat, Irish Hill

Buckwheat, Ione
35

Buckwheat, southern mountain

Butterfly, callippe silverspot

Butterfly, Behren’s silverspot

Carpenteria

Ceanothus, Vail Lake

Checker-mallow, Kenwood Marsh

Cinquefoil, Hickman’s

Clarkia, Springville

Clarkia, Vine Hill

Crownscale, San Jacinto

Cypress, Gowen

Dandelion, California

Dudleya, munchkin

Dudleya, Santa Cruz Island

Dudleya, Santa Rosa Island

Flannelbush, Mexican

Larkspur, Baker’s

Larkspur, yellow

Lily, Pitkin Marsh

Lupine, Mariposa

Manzanita, Ione

Manzanita, pallid

Milk-vetch, Clara Hunt’s

Monkeyflower, Kelso Creek

Mountain-mahogany, Catalina

Navarretia, Piute Mountains

Navarretia, prostrate

Paintbrush, ash-grey

Phlox, Yreka

Piperia, Yadon’s

Pussypaws, Mariposa

Rattleweed, coastal dunes

Rock-cress, island

Rock-cress, Johnston’s

Sandwort, Bear Valley

Sedge, white

Sheep, bighorn (Peninsular)

Splittail, Sacramento

Thistle, Suisun

Valley Barberry, Nevin’s

Whipsnake, Alameda

Woodland star, San Clemente Island

RESPONSES TO ADDITIONAL QUESTIONS FROM SENATOR SMITH

Question 1(a). As the Chairman of the Senate Superfund, Waste Control and Risk

Assessment Subcommittee, I am interested in knowing your views on the Natural

Resources Damages (NRD) program of CERCLA and how you, as part of the Federal

trustee team, would work with PRPs and State trustees to restore confidence in the

NRD program. As such, I request that you respond to the following questions:

According to the April 1996 GAO report on natural resource damage settlements,

as of April 1995, $33.9 million had been collected through settlements in the five

largest natural resource damages (NRD) cases but only $3.6 million had been spent.

The GAO found, however, that expenditures had gone ‘‘mostly to reimburse trustees

for performing past damage assessments and to pay for preparing natural resource

restoration plans. With the exception of one small experimental restoration project,

no restoration actions had been taken with the moneys collected as of July 1995.’’

A follow-up GAO report issued in November 1996 reported that settlements had

been reached at 62 sites in addition to the five large NRD settlements discussed in

the first report. Only 19 percent of the funds collected from these 62 settlements

had been allocated for performing damage assessments, planning or restoration.

Further, as of July 1996, restoration had been completed at only one site.

Can you explain why more actual restoration work has not taken place?

Answer. It is important to note that the NRD process is still relatively new. We

did not receive appropriations until Fiscal Year 1992 and we were developing guidance and procedures to implement these important Congressional mandates. As settlements are received and cooperative working relationship between the State and
36

Federal trustees develop, the U.S. Fish and Wildlife Service (FWS or Service) is

moving into an era of undertaking actual restoration work. I would agree that the

pace of spending on actual restoration needs to increase. I am informed that since

the release of the GAO Report, additional funds have been allocated to assessment

and restoration work at a number of sites, including the following sites listed in the

GAO report: Applied Environmental Services, New York; Army Creek Landfill,

Delaware; Bunker Hill Mine, Idaho; Charles George Reclamation Landfill, Massachusetts; Coker’s Sanitation Service Landfills, Delaware; Crab Orchard NWR, Illinois; Douglass Road/Uniroyal Inc., Landfill, Indiana; Hi View Terrace, New York;

Jack’s Creek/Sitkin Smelting and Refinery, Pennsylvania; Saegertown Industrial

Area, Pennsylvania; Sharon Steel Corp., Utah; Southern Ohio Coal, Ohio; and Wide

Beach Development, New York. Of the $27.1 million identified as collected settlements in the November 1996 GAO report, a total of $9,162,243, or 34 percent, has

been allocated as of July 1997. This is compared with 19 percent allocated as of July

1996.

Restoration planning is underway at a number of these sites, including the Applied Environmental Services, Crab Orchard NWR, Hi View Terrace and Wide

Beach Development Sites. Since the GAO Report, Restoration Plans have been completed for a number of sites including the Douglass Road Site (Indiana), the FisherCalo Chemical Site (Indiana), the Fish Creek Oil Spill (Indiana), the Envirochem,

Northside Landfill, and Great Lakes Asphalt Sites (Indiana), and the Coakley Landfill (New Hampshire). Restoration work at these sites will commence in the near future as working relationships are formalized, contracts are negotiated and released,

and construction begins.

It is important to note that the GAO report to which you refer focuses strictly on

restoration activities for which damages under CERCLA were collected and deposited to the Department’s Natural Resource Damage Assessment and Restoration

(NRDAR) Fund. Because of this limitation, the report omits a number of restoration

projects undertaken as a result of the Service’s involvement. These settlement dollars have been deposited in court registry accounts or represent ‘‘in-kind’’ settlements where Responsible Parties (RPs) actually perform the restoration action

under a consent decree or administrative order. Also, the report does not include

restoration projects which have been undertaken pursuant to the Oil Pollution Act

(OPA). One example is the Apex Oil Spill (Texas) settlement. At that site the Service will participate in a $2.2 million dollar project that will restore and enhance

nearly 750 acres of wetland and aquatic habitat. Another example of such work is

the Motco Superfund Site (Texas) where the RPs created a replacement salt marsh

that is now managed as a local park. The GAO report also does not include restoration projects undertaken by the RPs either as part of the remediation process in cooperation with the EPA or undertaken by the RPs at the request of the trustees

to resolve natural resource damage claims. Two examples of such projects are the

purchase and enhancement of about 80 acres of wetland to resolve a NRD claim for

a site in Ohio, and the creation of a marsh by the RPs at the Wildcat Landfill (Delaware) to replace one that was filled in the remedial process. These projects, which

were excluded in the GAO report, represent a significant bulk of settlements in

terms of dollars and benefits to the natural resources and the public.

Question 1(b). As Director of the U.S. Fish and Wildlife Service, what steps would

you take to expedite the pace of initiating restoration projects under the NRD program?

Answer. The Service is now moving into an era of implementing restoration

projects. By building upon our past successes, we have increased the pace of our restoration program. We have greater experience with various restoration techniques

that can be applied to new sites. In addition, we have existing Memoranda of Agreement, funding mechanisms, and cooperative working relationships with RPs, other

natural resource trustees, conservation organizations, and other government agencies that provide technical expertise and logistical support. We can use these tools

to get new projects off the ground faster and in a more focused fashion to the benefit

of the natural resources and the public.

Question 2(a). According to the April 1996 GAO report, agency officials have explained ‘‘that restoration had not begun at sites because of continuing litigation, the

need to coordinate with the Environmental Protection Agency’s cleanup process and

other site-specific reasons.’’

What actions has the agency taken in the past year to respond to the GAO report’s findings?

Answer. As manager of the Department of the Interior’s NRDAR Fund, the FWS

has implemented a number of reforms which will ultimately improve the pace of res-
37

torations at NRD sites. These reforms, which focus on improving communications

and providing project funding faster and more efficiently, include the following:

• Streamlined the approval process required for release of restoration funds from

the Departmental NRDAR Fund. Approval and release of funds can now occur in

days, compared to weeks and even months previously;

• Provided training to field staff on simplified mechanics of NRDAR Fund, with

an emphasis on required documentation and how to request a release of restoration

funds. Delays caused by inadequate documentation have been reduced significantly;

• Clarified that reasonable restoration planning costs can be funded from restoration settlements. Earlier Fund guidance discouraged use of settlement dollars for

planning purposes and, as a result, restorations were delayed. Since the policy

change, restoration planning efforts have increased substantially;

• Improved communications between Fund managers and field staff. Field and regional staff are now notified on monthly basis of all settlements and payments received and interest earned; and

• Improved working relationships with Justice, EPA, and NOAA financial staffs

in order to more quickly identify and resolve problems in carrying out financial

terms of settlements.

Question 2(b) What plans, if any, do you have to decrease the amount of litigation

and delay that currently plagues the NRD program?

Answer. I will continue to support Service efforts to encourage meaningful involvement from the PRPs, as well as other Federal, State, and tribal entities early

on in the NRD process. To date, the Service has secured several negotiated settlements with PRPs resulting in settlements that have staved off litigation. Involvement by all interested parties early in the process helps ensure fair and equitable

treatment of all affected parties and helps limit litigation and unwarranted delays.

Further, the FWS was instrumental in developing a funding mechanism within

the NRDAR Fund to allow Bureaus to work more cooperatively with RPs in conducting damage assessments. Under the recently approved process it is easier to conduct

RP-funded cooperative assessments, provide RP’s an opportunity to participate in

and influence what studies are conducted, and decrease the likelihood of contentious

litigation, since both sides will share a common source of data.

An effort to revise existing authorizing language in the Department’s NRDAR account is presently before Congress. The proposed changes seek to clarify the authority of the NRDAR fund to administer joint NRD recoveries by being able to transfer

settlement receipts to other non-Interior and State trustees to implement joint restoration plans. Congressional approval of the requested changes will help remove

obstacles to cooperative restoration efforts and will improve relationships with State

trustees. I believe this will ultimately speed up the pace of restorations.

Lastly, I support the proposal submitted last October by the Administration that

outlined reforms for the natural resource damage (NRD) provisions of CERCLA. The

proposed reforms were designed to reduce litigation and expedite restoration. Also,

they were specifically designed to shift the emphasis away from spending money on

litigation and to focus instead on spending money on restoration of injured natural

resources. This shift was in response to concerns that too much time and money

were spent on damage assessment and not enough emphasis was placed on restoring injured resources. I will continue to support such reforms designed to improve

the NRD program by providing greater clarity concerning restoration, by assuring

more timely and more orderly presentation of claims and by discouraging premature

litigation.

Question 3(a). Regarding the Fox River site in Green Bay, Wisconsin, I understand that Federal, State and tribal trustees met on a number of occasions to attempt to reach agreement on division of responsibilities for the damage assessments

to be performed and on the designation of a lead authorized official but were unable

to come to an agreement. I understand further that in light of the failure to reach

agreement, State officials asserted their authority to serve as the lead authority for

State natural resources and on January 31, 1997, entered into an agreement with

the PRPs, who contributed $10 million for resources assessment and restoration

projects.

What steps could we expect you to take to support the State of Wisconsin’s effort

to reduce transaction costs and cooperate with PRPs to address natural resource

damage without protracted and expensive litigation?

Answer. This question, as well as some of the following questions regarding the

Fox River have been overtaken by events. The Service initiated the effort to work

with the State of Wisconsin to address natural resource damage in the Fox River/

Green Bay environment using a collaborative approach. Initially, the Governor elect-
38

ed not to participate. However, in the fall of 1996, we were able to begin discussions

at the staff level regarding how to work together on this problem. We have always

stated our preference to resolve natural resource damage issues through negotiation

rather than litigation. This culminated in a July 11, 1997 agreement signed by the

FWS (representing DOI), 2 tribes, NOAA, EPA and the State of Wisconsin to work

together by blending the State activities, the FWS NRDA activities and EPA’s activities into one process—with a firm pledge to work together for the public benefit.

I am confident this process will result in a complete solution to cleanup, restoration

and compensation for lost resource values of the Fox River and Green Bay area. It

is our hope that this joint governmental effort, which has been DOI’s goal, will result in a negotiated settlement with the PRPs that will avoid litigation.

Question 3(b). It is my understanding that the parties to the Fox River agreement

have encouraged the participation and involvement of the Federal Government in

their efforts and have specifically invited the Federal Government to become a party

to the agreement reached in January. Is that correct? What was your involvement

in that decision?

Answer. The DOI was not involved in the development of the State/company

agreement that was signed in January. It was signed without any consultation with

the DOI, EPA or the tribes that have trusteeship for natural resources. The agreement contains provisions that are unacceptable to the Federal and tribal trustees

and would need to be substantially modified. While the agreement contains a commitment for a $10 million down payment in order to begin cleanup, this is a very

small commitment given the magnitude of the problem. However, it is a start and

we support any effort to begin to cleanup the river and bay.

Question 3(c). Is it true that the Department of the Interior has refused to participate in this agreement and decided to conduct its own assessment even though it

will cover virtually the same resources already being addressed by the State and

the PRPs under the terms of the agreement?

Answer. It is not true that DOI has refused to participate in the agreement and

decided to conduct its own assessment. The Interior Department initiated the Natural Resources Damage Assessment (NRDA) process years ago and invited the State

of Wisconsin to participate. Although the Governor initially declined, we have continued to reach out to the State to work with us as joint natural resource trustees.

This goal has been achieved as evidenced by our signing an agreement with the

State on July 11, 1997. The assessment called for in the State/company agreement

is limited in scope, and currently not well defined. Given the potential for duplication of effort with the Federal NRDA, we have agreed to work with the State to

coordinate our assessment activities through a NRDA workgroup authorized under

the July 11, 1997 Memorandum of Agreement.

Question 3(d). As Director of the U.S. Fish and Wildlife Service, would you advocate becoming a signatory to this agreement? If not, how do you plan to pursue assessment and remediation without unnecessarily duplicating efforts of the State at

the taxpayers’ expense?

Answer. I would consider becoming a signatory to the State/company agreement

if provisions that are unfavorable to the Federal and tribal trustees and the public

can be addressed satisfactorily. The Department will explore that possibility with

the affected parties in the future. As explained elsewhere, we have recently entered

into a agreement with the State to collaborate our efforts to clean up and restore

the Fox River and Green Bay environment, which should avoid unnecessary duplication of effort.

Question 3(e). In your view, is the Fox River situation one in which the Federal

Government has supported State efforts to reach a negotiated settlement of claims

with PRPs in order to move quickly to planning and implementing restoration activities?

Answer. The U.S. Fish and Wildlife Service initiated discussions with the State

in the fall of 1996 for the purpose of merging State, Federal and tribal efforts to

achieve a negotiated settlement with the PRPs in order to move quickly to cleanup

and restore the affected environment. The initial idea for a ‘‘downpayment’’ came

from the Service and is reflected in the State/company agreement. The Service has

always supported the idea of a voluntary cleanup and will continue to do so provided there are substantial commitments made by the PRPs toward cleanup and

restoration.

Question 3(f). What steps do you intend to take to resolve the differences between

the Administration and the State of Wisconsin?
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Answer. As previously stated, the Department of the Interior signed an agreement

with the State of Wisconsin on July 11, 1997 which forges a new partnership to

work together to cleanup and restore the Fox River and the affected environment.

Question 4(a). It is my understanding that EPA Region V is engaged in a process

that would lead to the NPL listing of Fox River, despite the explicit and vigorous

objection of Wisconsin Governor Tommy Thompson.

Wouldn’t a NPL listing simply require the devotion of additional time and resources to administrative activities rather than accelerate the cleanup/restoration

process?

Answer. A NPL listing proposal will bring additional Federal resources to the

table to plan and implement the cleanup. EPA has stated that NPL listing will accelerate the cleanup/restoration process. It may also accelerate the commitments of

the PRPs to the State’s voluntary program so that regulatory or legal actions in the

future by either EPA or DOI are minimized or avoided.

Question 4(b). What steps could we expect you to take to prevent further delay

of restoration activities as a result of the proposed listing?

Answer: The DOI will be working hard through the new committees established

by the MOA to support the cleanup and restoration efforts. We do not see the proposed listing as slowing down or delaying the ability of the PRPs to commit substantial resources to voluntarily cleanup and restore the river and affected environment.

As stated above, we believe the proposed NPL listing will accelerate the cleanup—

not delay it.

RESPONSE TO ADDITIONAL QUESTION FROM SENATOR SESSIONS

Question. I understand there have been some administrative problems with the

implementation of the Endangered Species Act in Alabama with species being listed

by the Fish and Wildlife Service office in Jackson, Mississippi and conservation

plans being implemented by the Alabama office. As director, do you have any plans

which would streamline the agency’s implementation of the Endangered Species

Act?

Answer. I am not aware of any administrative problems in the implementation

of the Endangered Species Act in Mississippi and Alabama. However, I have asked

the Acting Regional Director of the Southeast Region to look into this situation.

Please let me take this opportunity to explain how the Fish and Wildlife Service

delivers the Endangered Species Program across the Nation. The Washington Office

Division of Endangered Species provides staff support to the Director through the

Assistant Director of Ecological Services, develops policies for the consistent application of the Endangered Species Act, and acts as the liaison and provides technical

support to the Regional Offices and the field. Regional Offices provide direct supervision of the Service’s field stations and coordinate Service activities with other Regions and between and among field stations within their jurisdictional areas. Service Field Offices are given the responsibility of working with other Federal agencies,

State governments, Native American Indian Tribes, industries, farmers and ranchers, non-governmental organizations, and the American public on endangered species issues.
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