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ESA CONSULTATION IMPEDIMENTS 

TO ECONOMIC AND INFRASTRUCTURE DEVELOPMENT 

OVERSIGHT HEARING 

BEFORE THE

SUBCOMMITTEE ON OVERSIGHT AND 

INVESTIGATIONS 

OF THE

COMMITTEE ON NATURAL RESOURCES 

U.S. HOUSE OF REPRESENTATIVES 

ONE HUNDRED FIFTEENTH CONGRESS 

FIRST SESSION 

Tuesday, March 28, 2017 

Serial No. 115–4 

Printed for the use of the Committee on Natural Resources 

( 

Available via the World Wide Web: http://www.fdsys.gov 

or 

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

(II) 

COMMITTEE ON NATURAL RESOURCES 

ROB BISHOP, UT, Chairman 

RAU ́ L M. GRIJALVA, AZ, Ranking Democratic Member 

Don Young, AK 

Chairman Emeritus 

Louie Gohmert, TX 

Vice Chairman 

Doug Lamborn, CO 

Robert J. Wittman, VA 

Tom McClintock, CA 

Stevan Pearce, NM 

Glenn Thompson, PA 

Paul A. Gosar, AZ 

Rau ́l R. Labrador, ID 

Scott R. Tipton, CO 

Doug LaMalfa, CA 

Jeff Denham, CA 

Paul Cook, CA 

Bruce Westerman, AR 

Garret Graves, LA 

Jody B. Hice, GA 

Aumua Amata Coleman Radewagen, AS 

Darin LaHood, IL 

Daniel Webster, FL 

David Rouzer, NC 

Jack Bergman, MI 

Liz Cheney, WY 

Mike Johnson, LA 

Jenniffer Gonza ́lez-Colo ́n, PR 

Grace F. Napolitano, CA 

Madeleine Z. Bordallo, GU 

Jim Costa, CA 

Gregorio Kilili Camacho Sablan, CNMI 

Niki Tsongas, MA 

Jared Huffman, CA 

Vice Ranking Member 

Alan S. Lowenthal, CA 

Donald S. Beyer, Jr., VA 

Norma J. Torres, CA 

Ruben Gallego, AZ 

Colleen Hanabusa, HI 

Nanette Diaz Barraga ́n, CA 

Darren Soto, FL 

Jimmy Panetta, CA 

A. Donald McEachin, VA 

Anthony G. Brown, MD 

Wm. Lacy Clay, MO 

Jason Knox, Chief of Staff 

Lisa Pittman, Chief Counsel 

David Watkins, Democratic Staff Director 

SUBCOMMITTEE ON OVERSIGHT AND INVESTIGATIONS 

RAU ́ L R. LABRADOR, ID, Chairman 

A. DONALD MCEACHIN, VA, Ranking Democratic Member 

Louie Gohmert, TX 

Aumua Amata Coleman Radewagen, AS 

Jack Bergman, MI 

Mike Johnson, LA 

Vice Chairman 

Jenniffer Gonza ́lez-Colo ́n, PR 

Rob Bishop, UT, ex officio 

Ruben Gallego, AZ 

Jared Huffman, CA 

Darren Soto, FL 

Wm. Lacy Clay, MO 

Rau ́l M. Grijalva, AZ, ex officio 

(III) 

CONTENTS 

Page 

Hearing held on Tuesday, March 28, 2017 ............................................................ 1 

Statement of Members: 

Johnson, Hon. Mike, a Representative in Congress from the State of 

Louisiana, prepared statement of ................................................................ 57 

Labrador, Hon. Rau ́l R., a Representative in Congress from the State 

of Idaho .......................................................................................................... 1 

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

McEachin, Hon. A. Donald, a Representative in Congress from the State 

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

Statement of Witnesses: 

Calkins, Ronald J., President, American Public Works Association, 

Washington, DC ............................................................................................ 17 

Prepared statement of ............................................................................... 18 

Questions submitted for the record ......................................................... 21 

Li, Ya-Wei (Jake), Vice President, Endangered Species Conservation; 

Director, Center for Conservation Innovation, Defenders of Wildlife, 

Washington, DC ............................................................................................ 25 

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

Questions submitted for the record ......................................................... 31 

Stiles, Doug, General Manager, Hecla Mining Company, Coeur d’Alene, 

Idaho .............................................................................................................. 5 

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

Questions submitted for the record ......................................................... 14 

Wood, Jonathan, Staff Attorney, Pacific Legal Foundation, Arlington, 

Virginia .......................................................................................................... 42 

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

Questions submitted for the record ......................................................... 51 

Additional Materials Submitted for the Record: 

Beyer, Hon. Donald S., March 27, 2017 Memo requesting colleagues 

to sign on to support funding for endangered species conservation ......... 61 

Department of the Army, April 30, 2015 Letter to Save Crystal River ....... 67 

List of documents submitted for the record retained in the Committee’s 

official files .................................................................................................... 88 

Pacific Legal Fund Contributor List ............................................................... 59 

Williamson County Conservation Foundation, March 27, 2017 Letter to 

Chairman Bishop .......................................................................................... 79 

(1) 

OVERSIGHT HEARING ON ESA CONSULTATION IMPEDIMENTS TO ECONOMIC AND 

INFRASTRUCTURE DEVELOPMENT 

Tuesday, March 28, 2017 

U.S. House of Representatives 

Subcommittee on Oversight and Investigations 

Committee on Natural Resources 

Washington, DC 

The Subcommittee met, pursuant to notice, at 10:02 a.m., in 

room 1324, Longworth House Office Building, Hon. Rau ́l Labrador 

[Chairman of the Subcommittee] presiding. 

Present: Representatives Labrador, Radewagen, Bergman, 

Johnson, Gonza ́lez-Colo ́n, Bishop; McEachin, Huffman, Clay, and 

Grijalva. 

Also present: Representatives Beyer and Tsongas. 

Mr. LABRADOR. Good morning. The Subcommittee on Oversight 

and Investigations will come to order. The Subcommittee is meeting today to hear testimony on ESA consultation impediments to 

economic and infrastructure development. Under Committee Rule 

4(f), any oral opening statements at hearings are limited to the 

Chairman, the Ranking Minority Member, the Vice Chair, and the 

Vice Ranking Member. 

Therefore, I ask unanimous consent that all other Members’ 

opening statements be made part of the hearing record if they are 

submitted to the Subcommittee Clerk by 5:00 p.m. 

Hearing no objection, so ordered. 

Also I ask unanimous consent that the gentleman from 

Arkansas, Mr. Westerman; the gentlelady from Massachusetts, Ms. 

Tsongas; the gentleman from California, Mr. Lowenthal; and the 

gentleman from Virginia, Mr. Beyer, be allowed to sit with the 

Subcommittee and participate in the hearing. 

Hearing no objection, so ordered. 

I will now recognize myself for 5 minutes for an opening 

statement. 

STATEMENT OF THE HON. RAU ́ L R. LABRADOR, A 

REPRESENTATIVE IN CONGRESS FROM THE STATE OF IDAHO 

Mr. LABRADOR. Many, including myself, strongly believe that the 

Endangered Species Act, last authorized nearly 30 years ago, is in 

serious need of reform. That is a priority that I expect the full 

Natural Resources Committee, under Chairman Bishop’s leadership, to explore later this Congress. 

Today’s hearing will examine one specific section of the Act, and 

provide more evidence of just how dysfunctional and problematic 

the Endangered Species Act, and its implementation by the Federal 

Government, has become. 

2 

Nearly every imaginable action with a Federal nexus—including 

thousands of activities critical to the development of our Nation’s 

infrastructure, energy, and resources, must undergo a Section 7 

consultation with the Fish and Wildlife Service, the National 

Marine Fisheries Service, or both. This includes activities such as 

building and maintaining roads, bridges, schools, water facilities, 

hydropower dams, electrical transmission lines, grazing, mining, 

forest thinning, and even fire suppression efforts. 

Because so much discretion is left to these Federal agencies to 

determine whether a species is present, how they may be impacted 

by the project, and what must be done to avoid impacts, the regulatory impediments are sweeping. 

Worse, even when project applicants have, in good faith, sought 

to follow the Section 7 process, the threat of litigation always 

looms, and can impact the results of the process. Such unnecessary 

litigation does not help protect species and, instead, serves only to 

enrich private interests, draw resources away from conserving 

species and habitats, and prevent the law from working as 

intended. 

Indeed, the ESA has become a lawyer’s dream. Lawsuits extort 

mitigation requirements that are unrelated to projects as the price 

to complete consultation. Lawsuit after lawsuit can result in blocking a project entirely, and taxpayers foot the bill, paying tens of 

millions of dollars in attorneys’ fees and grants to certain groups 

to file endangered species lawsuits. One of the groups testifying 

here today, the Defenders of Wildlife, has been party to more than 

80 ESA-related lawsuits in just the 5 previous years. 

In theory, project applicants should expect to navigate, or at 

least be given certainty of, the outcome of the consultation process 

within 135 days or less; but that is rarely what happens. Projects 

are stalled, Federal agencies force costly surveys or studies, and 

often require questionable or unattainable mitigation measures, 

sometimes at a cost of millions of taxpayer dollars, all due to 

Section 7. Consultations are frequently handled inconsistently between service regions, and are often delayed by local service 

employees. 

We will hear testimony today about one egregious example of a 

mining project, that would have generated many local jobs and 

benefits to rural Montana, that was held up in the processes for 30 

years due to the Services’ shifting requirements during its Section 

7 consultation. 

A 2015 study found that 20 percent of formal consultations undertaken by the Fish and Wildlife Service between 2008 and 2015 

went well beyond the statutory 135-day time frame. 

The National Marine Fisheries Service has a far worse record, 

with just over 70 percent of their formal consultations exceeding required deadlines. In addition, the Services often unilaterally delay 

the start or the end of consultation, sometimes requiring projects 

to undergo years of studies, lengthy extensions, and negotiations 

before starting the clock on the consultation process. 

Inconsistency, increased process and legal costs, and a lack of 

certainty about the consultation process severely hinders our 

Nation’s ability to provide necessary public services, and discourages investment in critical projects needed to boost our economy. 

3 

Reform is needed to improve consistency between regions, 

adherence to timelines, and to hold the employees of the Services 

accountable for completing consultations in an efficient, timely, and 

effective manner. 

I look forward to hearing from the witnesses today, and I am appreciative of their willingness to share their stories and expertise 

regarding the flaws in the ESA consultation process. 

[The prepared statement of Mr. Labrador follows:] 

PREPARED STATEMENT OF THE HON. RAU ́ L R. LABRADOR, CHAIRMAN, SUBCOMMITTEE

ON OVERSIGHT AND INVESTIGATIONS

Many, including myself, strongly believe that the Endangered Species Act, last 

authorized nearly 30 years ago, is in serious need of reform. That is a priority that 

I expect the full Natural Resources Committee, under Chairman Bishop’s leadership, to explore later this Congress. Today’s hearing will examine one specific 

section of the Act, and provide more evidence of just how dysfunctional and problematic the Endangered Species Act, and its implementation by the Federal 

Government, has become. 

Nearly every imaginable action with a Federal nexus—including thousands of activities critical to the development of our Nation’s infrastructure, energy, and resources, must undergo a ‘‘Section 7’’ consultation with the Fish and Wildlife Service, 

the National Marine Fisheries Service, or both. This includes activities such as 

building and maintaining roads, bridges, schools, water facilities, hydropower dams, 

electrical transmission lines, grazing, mining, forest thinning, and even fire suppression efforts. Because so much discretion is left to these Federal agencies to determine whether a species is present, how they may be impacted by the project, and 

what must be done to avoid impacts, the regulatory impediments are sweeping. 

Worse, even when project applicants have, in good faith, sought to follow the 

Section 7 process, the threat of litigation always looms, and can impact the results 

of the process. Such unnecessary litigation does not help protect species, and instead 

serves only to enrich private interests, draw resources away from conserving species 

and habitats, and prevent the law from working as intended. 

Indeed, the Endangered Species Act has become a lawyer’s dream. Lawsuits 

extort mitigation requirements that are unrelated to projects as the price to complete consultation. Lawsuit after lawsuit can result in blocking a project entirely. 

And, taxpayers foot the bill, paying tens of millions of dollars in attorneys’ fees and 

grants to certain groups to file endangered species lawsuits. One of the groups 

testifying here today, the Defenders of Wildlife, has been party to more than 80 

Endangered Species Act-related lawsuits in just the past 5 years. 

In theory, project applicants should expect to navigate—or at least be given certainty of—the outcome of the consultation process within 135 days or less, but that 

is rarely what happens. Projects are stalled, Federal agencies force costly surveys 

or studies, and often require questionable or unattainable mitigation measures, 

sometimes at a cost of millions of taxpayer dollars, all due to Section 7. Consultations are frequently handled inconsistently between service regions, and are often 

delayed by local service employees. 

We will hear testimony today about one egregious example of a mining project, 

that would have generated many local jobs and benefits to rural Montana, that was 

held up in the processes for 30 years due to the Services’ shifting requirements during its Section 7 consultation. 

A 2015 study found that 20 percent of formal consultations undertaken by the 

Fish and Wildlife Service between 2008 and 2015 went well beyond the statutory 

135-day time frame. The National Marine Fisheries Service has a far worse record, 

with just over 70 percent of their formal consultations exceeding required deadlines. 

In addition, the Services often unilaterally delay the start or the end of consultation—sometimes requiring projects to undergo years of studies, lengthy extensions, 

and negotiations before starting the clock on the consultation process. 

Inconsistency, increased process and legal costs, and a lack of certainty about the 

consultation process severely hinders our Nation’s ability to provide necessary public services and discourages investment in critical projects needed to boost our economy. Reform is needed to improve consistency between regions, adherence to 

timelines, and to hold the employees of the Services accountable for completing consultations in an efficient, timely, and effective manner. 

4 

I look forward to hearing from the witnesses here today, and am appreciative of 

their willingness to share their stories and expertise regarding the flaws in the ESA 

consultation process. 

Mr. LABRADOR. The Chairman now recognizes the Ranking 

Member of the Subcommittee, Mr. McEachin, for 5 minutes for an 

opening statement. 

STATEMENT OF THE HON. A. DONALD MCEACHIN, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF VIRGINIA 

Mr. MCEACHIN. Thank you, Mr. Chairman. Today’s hearing is 

the latest in a series of attempts by the Majority to blame bedrock 

environmental laws for holding up infrastructure projects, despite 

copious amounts of evidence to the contrary. 

As we will hear from the Minority witness today, the vast 

majority of Federal agency consultations under Section 7 of the 

Endangered Species Act are completed in only a few days. If a consultation takes longer, it is because there is a good reason. A proposed action could drive a species of life off the face of this planet. 

When a species disappears, the world becomes a poorer and less interesting place, because we have lost a unique and valuable piece 

of God’s creation. 

Imagine a world without a bald eagle, which is with us today because of the Endangered Species Act protections. Would that be a 

better world? Would anyone here prefer it? 

When a species is lost, there are also concrete harms to human 

beings. What if a plant has medicinal properties? What if an 

animal has genes that could help us cure disease? If a species disappears, we lose the chance forever to study and learn from its 

biology or behavior. 

So, when we fail to adequately protect endangered species, we 

are throwing away something priceless and irreplaceable. We are 

throwing away opportunities to better understand our world, and 

to make life better for ourselves and for our children. 

That is why it is very important that we keep strong, effective 

processes in place. Make no mistake, the Section 7 consultation 

process and the ESA, in general, have been incredibly effective in 

preventing extinction. Ninety-nine percent of all species that have 

received ESA protections are still with us today, and ninety percent 

are on track to meet their scientifically-developed recovery goals. 

We should not be tearing down these processes or writing in 

loopholes. Instead, we should be building on the successes that 

they have produced. Unfortunately, that is not the path that the 

President or the Majority has signaled. Donald Trump has proposed debilitating cuts to the agencies that conduct Section 7 

consultations, instead of giving them additional funding to process 

the requests more quickly. 

In countless ways, we need a healthy, rich, sustainable environment. Policies that degrade the environment may be cheap or easy 

today, but in the long run we all pay the price. 

Economic development, including the construction and the maintenance of infrastructure, should be compatible with the conservation of wildlife, fish, plants, and biological diversity in general. The 

5 

ESA ensures that it is, and Section 7 consultations are a big reason 

why. 

Tired talking points claiming that complying with the Act kills 

jobs and unnecessarily impedes economic growth are simply not 

grounded in reality. The U.S. economy has more than tripled since 

the ESA was passed, from $5 trillion in 1973 to $16 trillion today. 

Keeping continued growth that requires Federal Government permitting or action from harming threatened and endangered species 

is the very least we can do to be good stewards of God’s creation. 

Mr. Chairman, thank you, and I yield back. 

Mr. LABRADOR. I will now introduce today’s witnesses. 

Mr. Doug Stiles is the General Manager for the Hecla Mining 

Company in Idaho, which is located in my district. Hecla is an important presence in our community, and I am really happy to 

welcome Mr. Stiles to this hearing. 

Mr. Ronald Calkins is the President of the American Public 

Works Association. 

Mr. Ya-Wei Li—I hope I pronounced that right—is the Vice 

President for Endangered Species Conservation, and Director of the 

Center for Conservation Innovation at Defenders of Wildlife. 

And Mr. Jonathan Wood is Staff Attorney with the Pacific Legal 

Foundation. 

Let me remind the witnesses that under our Committee Rules, 

oral statements must be limited to 5 minutes, but your entire written statement will appear in the hearing record. 

In regards to testimony and questions, our microphones are not 

automatic, so you will need to press the talk button before speaking 

into the microphone. When you begin, the lights on the witness 

table will turn green. When you have 1 minute remaining, the 

yellow light will come on. Your time will have expired when the red 

light comes on, and I will ask you to please conclude your 

statement. 

I will also allow the entire panel to testify before questioning the 

witnesses. 

The Chair now recognizes Mr. Stiles for his testimony. 

STATEMENT OF DOUG STILES, GENERAL MANAGER, HECLA 

MINING COMPANY, COEUR D’ALENE, IDAHO 

Mr. STILES. Chairman Labrador, Ranking Member McEachin, 

and distinguished members of this Committee, my name is Doug 

Stiles, and I am the General Manager of Hecla Montana, a wholly 

owned subsidiary of Hecla Mining Company. I have worked in environmental compliance, permitting, and operations management for 

over 20 years. Hecla Mining Company is the oldest precious metals 

mining company in North America, and the largest silver producer 

in the United States. We successfully operate the Greens Creek 

Mine, which is located outside Juneau, Alaska, partially within the 

Admiralty Island National Monument. 

Today, I am testifying on behalf of Hecla Mining Company, owners of the Rock Creek and Montanore underground mining projects, 

located in the northwest corner of Montana. These projects have 

been in the Federal NEPA and ESA permitting process for over 30 

years. These projects represent some of the largest undeveloped 

copper and silver mineral resources in the United States. 

6 

Development of these resources has the potential to provide 

hundreds of middle-class wage jobs to an area that has led 

Montana in unemployment for decades. The projects are underground, with very clean ore bodies and small environmental 

footprints. 

Why this long, and what can be done to improve the process? 

Those are the topics of my testimony. 

From 1998 to 2011, the Rock Creek project received three biological opinions, one supplemental biological opinion, and five legal 

challenges. All but the first biological opinion came to the same nojeopardy conclusion. 

The Ninth Circuit, which is widely known to give deference to 

wildlife, unanimously upheld the last biological opinion, stating 

that grizzly bears were better off with the mine than without it, 

given the robustness of the required mitigation plan. 

Today, the Fish and Wildlife Service is again completing a 

biological opinion on the project, even though the project plan has 

not changed substantially in 30 years, and is analogous to a neighboring mine which operated for 30 years without significant environmental impact. 

The Montanore project formal consultation began in 2009, and 

the final biological opinion was released 5 years later in 2014. 

Findings here were the same as Rock Creek: no jeopardy. 

Combined permitting experience at both projects highlight four 

key impediments. One, constant litigation upon completion of any 

agency decision adds direct and indirect time and costs. The Rock 

Creek project litigation and fear of litigation were the prime drivers for completing three decisions that all came to the same no 

jeopardy conclusion, and it is the primary driver for why the 

project is currently in its fifth consultation. 

Two, projects mired in lengthy permitting review timelines get 

saddled with new information that triggers renewed ESA consultation and further delay. The unending permit-litigate-permit loop. 

Three, there are no consequences for failure to adhere to statutory consultation time frames. In none of the five combined 

consultations did the Fish and Wildlife Service meet completion 

deadlines. 

And fourth, a single individual within the agency can have an 

outsized effect on the consultation process. The transfer of one biologist caused a 12-month delay in one biological opinion. And, in another case, the opinion of one agency biologist delayed consultation 

completion by years. 

Affirming ESA protection where it is needed, while encouraging 

responsible, timely project permitting, are not mutually-exclusive 

goals. We present the following policy considerations. 

First, legal reform—and this begins with Equal Access to Justice. 

The current system is abused by non-profit organizations pursuing 

procedural litigation on emotional issues in cases disconnected from 

the Act’s original purpose. The guarantee of litigation following an 

agency decision has added decades to the permitting timeline and 

millions of dollars to permitting costs, with no benefit to the 

species. 

7 

Second, more reliance on the action agency biological assessment 

conclusions. In our cases, the Fish and Wildlife Service has repeatedly came to the same conclusion as the action agency, the U.S. 

Forest Service, only years and millions of dollars later. 

Third, streamline reconsultation initiation. After reaching a decision, any changes that must be addressed should only focus on 

those specific items that changed, not the entire process anew. 

Fourth, inclusion of state experts in the consultation process, as 

they have valuable, firsthand knowledge of local species status and 

what does and does not work to protect them. 

We firmly believe that improved agency coordination in a more 

efficient permitting process can ensure the protection of threatened 

and endangered species and allow for responsible economic growth. 

These are not mutually exclusive goals. As observed by the Ninth 

Circuit, the Rock Creek project would provide more benefit to 

threatened and endangered species than the current status quo. 

Thank you for the opportunity to testify before you today. 

[The prepared statement of Mr. Stiles follows:] 

PREPARED STATEMENT OF DOUGLAS STILES, GENERAL MANAGER, HECLA MINING

COMPANY, COEUR D’ALENE, IDAHO

INTRODUCTORY STATEMENT

Chairman Labrador, Ranking Member McEachin and members of the Committee, 

I would like to sincerely thank you for inviting me to testify before you today on 

this very important issue. My name is Doug Stiles and I am General Manager for 

Hecla Montana, a wholly owned subsidiary of Hecla Mining Company. Hecla Mining 

Company (NYSE: HL) is the oldest precious metals mining company in North 

America and was established in 1891 in northern Idaho’s Silver Valley. We are the 

United States largest primary silver producer, third largest producer of lead and 

zinc, and a leading gold producer. We currently have U.S. operations and projects 

in Alaska, Idaho, Colorado and Nevada and over the past 2 years completed the acquisition of the proposed Rock Creek and Montanore silver-copper mining projects 

in Montana. 

We appreciate this Committee’s attention and willingness to listen to various perspectives on how the ESA consultation process is, or in some cases is not, working 

as intended. Hecla Mining Company, the people who depend upon natural resource 

extraction to support themselves, and the very species that the ESA was enacted 

to protect, are encouraged by possible policy changes to improve the consultation 

process. We firmly believe that improved agency coordination and more efficient permitting processes can ensure the protection of threatened or endangered species and 

allow responsible natural resource development; these are not mutually exclusive 

goals. For example, Hecla Mining Company’s Greens Creek Mine in southeast 

Alaska is located partially within the Admiralty Island National Monument and adjacent to the Kootznoowoo Wilderness Area. The project is home to the largest density of brown bears in North America (ESA threatened grizzly bears in the lower 

48) and five species of Pacific salmon. For 30 years, this mine has operated in harmony with, and had little impact on, the natural environment. We understand what 

it takes to operate in environmentally sensitive areas. It is with this backdrop that 

I will now describe the ESA consultation process has contributed to the tortuous 

permitting process that has befallen the proposed Rock Creek and Montanore 

mining projects in northwest Montana. 

The Rock Creek and Montanore projects have been in the permitting process for 

more than 30 years. Like our Greens Creek mine, these projects are in an environmentally sensitive area, home to ESA listed species grizzly bears and bull trout. The 

surface effects of both projects are adjacent to the Cabinet Mountains Wilderness 

area and partially located on land managed by the U.S. Forest Services (FS), with 

each project requiring consultation with the Fish and Wildlife Service (FWS) on 

threatened and endangered species. The consultation processes have been lengthy, 

topics of litigation and contributed significantly to the long permitting delays experienced with these projects. The case studies on the ESA consultation process from 

these two projects will be illustrative to the Committee and serve to highlight what 

we see as key consultation issues that, if properly addressed, could not only expedite 

8 

the permitting process but also provide greater protection for local communities and 

the species that the ESA is supposed to protect. 

While each project has seen its own unique permitting challenges, the combined 

permitting experience highlights four key consultation deficiencies. 

• There are no consequences for failure to adhere to the statutory 

timeline. The statutory time frames for completion of formal consultation 

and issuance of a biological opinion were not met in either of the cases 

described below. 

• A single individual within the agency with a personal bias or agenda 

can have an outsized effect on the consultation process. As highlighted 

by the Rock Creek experience, the transfer of one biologist resulted in almost 

a 12-month delay in the consultation process. Other issues regarding individual personnel and specific agendas are evident in the Montanore record 

and other projects with which I have been involved. The opinion of one person 

within the agency can drive consultation biases which then require significant 

time and resources to unwind, if that is even possible. 

• Projects mired in long permitting review timelines can get further 

saddled with ‘‘new information’’ that triggers renewed ESA consultation and yet further delay. This issue applies to both ESA consultation and 

the National Environmental Policy Act (NEPA) permitting process. This is 

one of the key reasons why the Rock Creek project has been in permitting 

for over 30 years despite the proposed action not significantly changing and 

the agencies repeatedly confirming a ‘‘not likely to jeopardize’’ threatened or 

endangered species finding. 

• The Rock Creek project highlights the damage our litigious permitting process has inflicted. Near constant litigation combined with the need 

to review anew all resource areas every time any part of a decision is remanded, only lengthens the process and brings fresh litigation fodder to the 

table. 

ROCK CREEK—PROJECT DESCRIPTION AND BACKGROUND

The Rock Creek Project (Rock Creek) is a proposed underground copper/silver 

mine located in Sanders County, Montana. Rock Creek was first proposed by Asarco 

in 1986 with the filing of a Plan of Operations with the U.S. Forest Service. This 

disturbance footprint is less than 500 acres with most (300+ acres) occurring on private property located within an existing disturbance and utility corridor. 

The ore body lies beneath the Cabinet Mountains Wilderness and was discovered 

prior to passage of the Wilderness Act of 1964. The Act provides the right to mine 

valid existing mining claims. The characteristics of the ore body are unique in that 

the host mineralization is quartzite or, after processing, beach sand. Rock Creek 

also is unique in that another mine (the Troy Mine) located approximately 14 air 

miles away within the same ore body, was permitted, constructed, and operated for 

almost 30 years with no significant environmental impacts. In fact, water quality 

from the Troy Mine shows no evidence of acidification and the closure plan that was 

updated and approved by both State and Federal agencies (including the EPA) does 

not require active water treatment. As with almost any natural resource development project in the United States, the Rock Creek project has been opposed by a 

collection of litigants almost since day one. The proposed project also has not 

changed substantially in the 30+ year permitting process. 

Formal ESA consultation on the Rock Creek mine began in 1998—almost 20 years 

ago; however, the project record indicates that interagency communication regarding 

potential project effects to threatened species began as early as 1986. From this perspective, both the FS and FWS have been looking at the potential impacts to threatened and endangered species at Rock Creek for over 30 years. Given the length of 

time this project has been under review you may think that the project impacts 

must be significant. Nothing could be further from the truth. As described above, 

the mine is underground in a benign ore body with less than 500 acres of total surface disturbance, none of which is within the Wilderness and most is some 3 miles 

away from the wilderness boundary. 

In 2011, the Ninth Circuit Court of Appeals reviewed the 2007 biological opinion. 

In their unanimous decision upholding the FWS decision, the Ninth Circuit stated 

that the mitigation plan was so robust that the Fish and Wildlife Service concluded 

that it ‘‘would in fact improve conditions over the long-term over the existing conditions, ultimately promoting the recovery of the [local] grizzly bear population.’’ Getting to this point; however, required decades of Agency review including numerous 

9 

delays and litigation—all for a project which has not significantly changed in 

description since conceptually proposed in 1984 and formally proposed in 1987. A 

chronology of key ESA-related consultation and associated litigation follows. 

• On July 31, 1998, the FS, as action agency, initiated formal consultation with 

the FWS regarding effects on grizzly bears and bull trout. On December 19, 

2000 (2.5 years later) the FWS issued its first biological opinion for the 

project. Only after repeated requests from the company to the Montana congressional delegation, State agencies, and FWS leadership did the FWS 

provide the staff and resources necessary to complete the initial biological 

opinion. Per historical documentation, at least 12 months of this delay can be 

attributed to the transfer of one FWS employee, the biologist leading the effort, and the lack of FWS urgency in replacing that one individual. In the 

case of the Rock Creek project, the statutory ESA requirement for a 90-day 

consultation period was ignored. 

• On May 9, 2003, the FWS issued a new biological opinion resulting from 

threatened litigation which concluded no jeopardy opinions for grizzly bear 

and bull trout. The grizzly bear biological opinion included a mitigation plan 

which required Rock Creek to acquire 2,450 acres of FWS identified 

mitigation land to compensate for project impacts, among other substantial 

mitigation measures. At this point, consultation had been underway for almost 5 years without having seen the inside of a courtroom. 

• On July 10, 2003, the same collection of litigants who threatened to sue in 

2001 again filed suit against the FWS. This time; however, the FWS chose 

to defend their work and the matter proceeded to the U.S. District Court for 

Montana. On March 28, 2005, the court set aside and remanded the 2003 BO 

back to the FWS for reconsideration. 

• On October 11, 2006, the FWS re-issued a biological opinion based on further 

consideration in accordance with the 2005 court remand and considering ‘‘new 

information’’ that became available since the previous 2003 biological opinion 

was issued. In other words, the FWS not only responded to issues raised by 

the court in the 2005 remand, but they also included any ‘‘new information’’ 

that may have been found since the 2003 biological opinion was issued—a 

consistent and chronic cause of permitting delays under both NEPA and the 

ESA. 

• On September 2007, the FWS issued a supplemental biological opinion which 

reiterated the previous ‘‘no jeopardy’’ opinions and concluded that formal 

consultation was not required. 

• On March 26, 2010, the U.S. District Court upheld the FWS biological opinion 

while remanding portions of the EIS back to the FS for reconsideration. 

Plaintiffs subsequently appealed to the Ninth Circuit Court of Appeals. 

• On November 16, 2011, the Ninth Circuit unanimously upheld the District 

Court decision affirming the 2007 opinion. After three biological opinions, one 

supplemental biological opinion, and five legal challenges (including one trip 

to the Ninth Circuit which stated that grizzly bears are better off with the 

proposed mining project), not only did the conclusions not change, but the 

FWS consultation history is not yet complete. 

• On February 15, 2017, the FWS again initiated formal consultation on the 

Rock Creek project because of ‘‘new information’’ and an expansion of bull 

trout critical habitat that happened in 2010. Both the ‘‘new information’’ and 

expansion of critical habitat resulted from the lengthy permitting time frames 

associated with project. Because the last supplemental biological opinion was 

completed in 2007—10 years ago—without a Record of Decision, Rock Creek 

is forced to undergo again another round of formal consultation and new or 

supplemental biological opinion for reasons related mostly to the length of 

time it has taken the Agencies to complete project permitting. 

The latest round of ESA consultation resulted from a supplemental EIS process 

the FS began to address the District Court remand back in 2010. In that 2010 

ruling, the court found only four relatively minor issues that the FS were instructed 

to address. However, because the EIS was last completed in 2001, the FS decided 

it was necessary to update the impact assessment of all key resource areas. As one 

can imagine, technology and rules had changed during the preceding 10 years which 

has resulted in a supplemental EIS taking over 6 years—it began in 2011 and is 

ongoing today—longer than most initial EIS’s in spite of the fact that updated modeling (required only because of technological advances in computer modeling) 

showed less impacts to ground water quantity than the original EIS. This highlights 

10 

one of the key issues with the permitting/litigation/permitting cycle prevalent in almost all natural resource projects today—even when projects have been assessed, 

updating impact assessments for no other reason than the passage of time frequently result in extended permitting time frames and fresh litigation fodder. 

MONTANORE—PROJECT DESCRIPTION AND BACKGROUND

The Montanore Project (Montanore) also is located in northwest Montana approximately 5 air miles from Rock Creek within the same, benign geological formation. 

Also like Rock Creek, Montanore is a proposed underground copper/silver mine with 

limited surface footprint and has been in the permitting process for decades. Project 

permitting has taken many regulatory turns resulting not from changes to the 

project’s Proposed Action, but from changes in the position of the Agencies with respect to how impact analyses should proceed. While I understand the focus of this 

hearing is on the ESA consultation process, I would like to review some of the 

NEPA history and decisions made by the FS—the ESA action agency. 

The permitting process for the Montanore project began in 1989. In that year, 

Noranda (project proponent) obtained an exploration license from the state of 

Montana to conduct surface disturbance activities on 18 acres of private property 

and construct underground exploration facilities. Work commenced soon after obtaining the exploration license and included the construction of limited buildings 

and approximately 14,000 feet of an underground exploration tunnel. Construction 

ceased in 1991; however, project permitting efforts continued. 

In 1993, the FS issued a Record of Decision approving further exploration, construction, operation, and reclamation of the full mining project. To summarize, by 

the end of 1993, Noranda had received all key permits necessary to fully 

develop the Montanore mine, they had completed surface disturbance on 18 

acres of private property and they had developed approximately 14,000 feet of an 

underground exploration tunnel. For reasons not exactly known, Noranda stopped 

project development in 1993 and let many of the acquired permits expire. In 2002, 

Noranda notified the USFS that it was relinquishing its ‘‘authorization to operate’’ 

(1993 Record of Decision) the Montanore Project. 

• In January, 2005—only 3 years after the operating permits were relinquished—new owners of the Montanore Project submitted plans to both the 

FS and Montana DEQ to restart exploration activities that had been halted 

in 1991. In early August 2006, the FS determined that a road use permit, and 

associated NEPA, would be needed to re-initiate exploration activities on private property. The FS determined that an Environmental Assessment (EA) 

would be appropriate for the requested road use permit. The decision to complete an EA on just the exploration activities precipitated initial FWS ESA 

consultation, which is chronicled below. 

• On August 9, 2006, the FS began informal consultation with the FWS on the 

pending Montanore project. Following several meetings between the two 

agencies to discuss the project, the FS submitted a biological assessment (BA) 

to the FWS. 

• On October 16, 2006, the FS requested concurrence from the FWS with their 

findings of ‘‘not likely to adversely affect’’ either grizzly bear. 

• On May 4, 2007, the FWS initiates formal consultation with the FS on the 

Montanore project as the FWS did not agree with the initial findings of the 

BA despite several meetings between the two agencies from August to 

October. In correspondence to the Forest Supervisor, FWS states that a final 

biological opinion is due ‘‘135 days later on September 16, 2007.’’ 

• On September 28, 2007, the FWS submitted a draft biological opinion to the 

FS which found ‘‘not likely to jeopardize the continued existence of grizzly 

bear’’—the same conclusion reached by the FS 1 year earlier. At this point, 

the opinion covered only the first phase of the Montanore Project which evaluated activities occurring on previously disturbed private property. 

• On December 14, 2007, the FWS submitted a second draft biological opinion 

which continued to find ‘‘not likely to jeopardize the continued existence of 

grizzly bear.’’ 

• On May 23, 2008, the FWS submitted a third draft biological opinion which 

continued to find ‘‘not likely to jeopardize the continued existence of grizzly 

bear.’’ 

• Sometime in 2008, the FS determined that the entire Montanore mining 

project was a ‘‘connected action’’, and the best NEPA approach was to complete a new EIS on the entire Montanore project—exploration, mine construcVerDate Mar 15 2010 10:06 Jun 02, 2017 Jkt 000000 PO 00000 Frm 00014 Fmt 6633 Sfmt 6621 J:\115TH CONGRESS\OVERSIGHT & INVESTIGATIONS\03-28-17\24804.TXT DARLEN
11 

tion, operation, and reclamation. Recall that an EIS and associated Record of 

Decision was completed in 1993 on this very same project. This decision by 

the FS led to a stoppage of FWS consultation work following the May, 2008 

biological opinion pending release of a draft EIS. 

• In May 2009, informal consultation was initiated with FWS comments on the 

Draft EIS. 

• Between May 2009 and July 2011, at least eight meetings and associated correspondence transpired between the agencies as the FS consulted with the 

FWS in preparation of its biological assessment (BA) which would kick-off the 

formal consultation process. 

• On July 5, 2011, the FS provided the FWS with a BA and requested formal 

consultation on the Montanore project. 

• On February 17, 2012 (7 months later) the FWS determined that the BA 

supplied by the FS was inadequate, despite over 2 years of coordination with 

the FS in preparation of the BA. 

• On February 25, 2013, after at least seven additional meetings between the 

agencies, the FWS accepted the BA and began formal consultation. 

• On March 31, 2014, the FWS released the final biological opinion for the 

Montanore Project, almost 5 years since the beginning of information consultation AFTER completing a biological opinion on part of the project from 

2006–2008. 

The regulatory processes described above have been complicated, expensive, and 

time consuming. The companies involved with these permitting efforts have spent 

millions of dollars and invested countless hours to permit these two projects as have 

the lead Federal agencies. 

KEY ISSUES FROM ROCK CREEK AND MONTANORE ESA CONSULTATION

At this point, it is worth summarizing the key issues identified above as impediments to the Rock Creek and Montanore ESA consultation processes. 

1. Although the ESA contains statutory time frames for completion of formal 

consultation and issuance of a biological opinion, they were not met in either 

of the cases described above. There are no consequences to the agency for failure to adhere to the statutory timeline. Both the ESA consultation and NEPA 

processes need defined timelines with consequences for not adhering to those 

timelines. The consultation processes endured by our projects have spanned 

decades. 

2. Individual technical staff within the FWS can have an outsized effect on the 

consultation process as highlighted by the Rock Creek experience, where the 

transfer of one biologist resulted in almost a 12-month delay in the consultation process. In both projects, the FWS came to the same conclusions as the 

FS in determining no jeopardy, but it required years of further review to get 

to that point. In none of these processes were state agencies or project proponents, who have strong scientific expertise and are required to implement 

certain stipulations, involved in any meaningful way. States possess broad 

trustee and police powers over fish, wildlife and plans and their habitats. 

Unless pre-empted by Federal authorities, states possess primary authority 

and responsibility for protection and management of fish wildlife and plants 

and their habitats. 

3. The Rock Creek project highlights an issue for not only ESA consultation but 

NEPA permitting as well: the requirement to incorporate ‘‘new information’’ 

identified during an active permitting process. The Rock Creek project has 

been in permitting for over 30 years and in great part this is due to the repeated consultation conducted under the ESA because of ‘‘new information.’’ 

Nevertheless, the conclusion of these assessments has not changed nor has 

the proposed project. Arguably, the only change over the course of the 30-year 

permitting process has been the passage of time. 

12 

1SNL Metals & Mining (2015). Permitting, Economic Value and Mining in the United States. 

Prepared for the National Mining Association. 2 U.S. Gov’t Accounting Office, GAO–11–650 (2011). Environmental Litigation; Cases Against 

EPA and Associated Costs Over Time. Cited in: Baier, Lowell E, (2012). Reforming the Equal 

Access to Justice Act, Journal of Legislation: Vol. 38: Iss. 1, Article 1. Available at http: / / 

scholarship.law.nd.edu/jleg/vol38/iss1/1. 

4. The Rock Creek project highlights the extreme economic damage that our litigious permitting process has inflicted. A study by SNL Metals (2016) 1 shows 

that every 7- to 10-year delay in project permitting decreases the net present 

value of a project by over 30 percent. Near constant litigation with existing 

incentives to litigate combined with the need to review anew all resource 

areas every time any part of a decision is remanded by a court only lengthens 

the process and brings fresh litigation fodder to the table. 

POLICY CONSIDERATIONS

To address the issues highlighted above, we present the following recommended 

policy changes that we believe would significantly reduce impediments to economic 

and infrastructure development for the Committee’s consideration. 

Reform the Equal Access to Justice Act 

The one area that would have the greatest overall impact on improving and 

streamlining the permitting process is legal reform. While we present other recommendations for policy changes, almost every permitting challenge encountered is 

either directly or indirectly the result of litigation. The Rock Creek and Montanore 

case studies demonstrably illustrate how ESA process and litigation has been a detriment to both economic development and the species that the ESA is supposed to 

protect. A key driver to this litigation has been the Equal Access to Justice Act 

(Act). The Act was originally intended to present small business owners and individuals access to the court system, but has been abused by non-profit organizations 

pursuing procedural litigation on emotional issues in return for excessive attorneys’ 

fees in cases totally disconnected from the Act’s original purposes. The Act has been 

fuel for the fire to grind to a halt Federal agency decision making, wear out project 

proponents, and reduce much needed economic development. But the costs to the 

government for such litigation go beyond award of legal fees, and include staff 

resources in preparing and supporting litigation, re-doing environmental impact 

statements or ESA biological opinion, etc. A 2011 study found that for every $1.00 

paid out in fee award, the Department of Justice spend $1.83 in personnel and administrative costs.2 The costs to the action agency were not included in this estimate. 

While reforms to the Act have been proposed over the years, now is time to again 

consider changes to return the Act to its original intent. Congress should consider: 

• Clarify direct and personal monetary interest in the adjudication, 

• Reduced exemptions to the statutory cap on attorneys’ fees, and 

• Revise the net worth cap. 

These measures would put a serious damper on how much EAJA pays outs in 

cases while retaining a reasonable fee for most cases, including most EAJA uses 

such as small business, Social Security and Veteran’s Claims claimants. 

More Reliance on the Action Agency Biological Assessment Conclusions 

In many cases, the Action Agency’s (the Forest Service in our case) initial biological assessments reach the same conclusion as the biological opinion well in advance. 

Like state wildlife agencies, the Action Agencies possess technical expertise with 

local, on-the-ground experience. In the Montanore example, the record indicates that 

significant consultation delay occurred because individuals with the FWS held firm 

beliefs the project should not move forward even though the FS experts had reached 

a different conclusion. More reliance on those Action Agency conclusions and expertise in concert with state inclusion would significantly shorten the consultation process and help to avoid situations where one person’s beliefs impede timely project 

decision making. To remove impediments to economic and infrastructure development, Congress should consider: 

• Requiring the consultation agency to follow the conclusions derived from 

biological assessments. In cases where the consultation agency may not agree 

with biological assessment findings, the consultation agency should be required to defend their position through a peer panel which includes the 

Action Agency and state experts. 

13 

Streamline Re-initiation of Consultation 

In cases where an Agency has completed either a consultation process or NEPA 

assessment, any changes that must be assessed should only focus on those specific 

items that have changed. There should be statutory or regulatory prohibition on 

having to assess anew the entire project. In the cases described above, decades have 

been spent assessing impacts already evaluated and revisiting settled decisions simply because of the passage of time and Agency fear of litigation. 

In the cases described above, continued project permitting delays have negatively 

impacted both the rural communities of northwest Montana, but also the threatened 

species themselves. 

Recall that both the FWS and Ninth Circuit stated that the Rock Creek project 

grizzly bear mitigation plan is, in fact, a recovery plan that improves prospects for 

the species. To streamline the permitting process, Congress should consider: 

• Requiring in statute that once project impacts have been assessed through 

the issuance of a final NEPA document (EIS, EA) and/or biological opinion, 

future assessments due to legal remand or other administrative process need 

only look at those specific items that were remanded or otherwise administratively modified. Changes to the proposed action by the project proponent 

would not be subject to this exclusion. 

• Reviews due only to the ‘‘passage of time’’ or ‘‘fear of litigation’’ should not 

be valid reasons for further Agency analysis. 

Inclusion of States in the ESA Consultation Process 

In most cases, state wildlife agencies are charged with implementing ESA mitigation plans but have no meaningful input into the consultation process. The state 

wildlife agencies also have much more local, on the ground knowledge than their 

sister Federal counterparts; however, current ESA statute minimizes the involvement of state agencies in the consultation process. This not only leaves key consultation expediting resources off the table, but removes a valuable source of local 

species knowledge and mitigation plan implementation expertise. Congress could 

consider: 

• Requiring the consultation agencies expand their policy on state cooperation 

beyond the current scope. Presently, state involvement during consultation is 

limited to providing the consultation agency with an ‘‘information update’’ 

prior to preparation of the final biological opinion. 

Improve the Overall Permitting Process 

Project permitting delays result from more than just the ESA consultation 

process. Meaningful permitting reform requires a holistic review of key permitting 

processes followed by the implementation of policy or legislation designed to strip 

system inefficiencies and incentivize timely completion of agency work. To that end, 

Congress should consider: 

• Swift passage of The National Strategic and Critical Minerals Production Act 

of 2017 which was introduced earlier this year by Representative Mark 

Amodei (R-NV) in partnership with Senator Dean Heller (R-NV).’’ 

• Action Agency line officer annual performance review should include timely 

processing and implementation of (1) mining projects and (2) adherence to 

statutory process completion deadlines. Neither are currently included in annual review of FS line officers or district ranger performance assessments 

when considering promotion or raises. 

CONCLUSION

Removing permitting impediments to economic and infrastructure development 

starts with litigation reform and continues through to streamlining the various 

agency permitting processes. As demonstrated by the Rock Creek and Montanore 

projects, natural resource project permitting in the United States is a broken system 

with devastating economic and species impacts. Hecla Mining Company and many 

other responsible miner operators continue to demonstrate that mining is compatible with the environment—we’ve been doing for 30 years at our Greens Creek Mine 

in Alaska and it was clearly demonstrated by the Troy Mine in northwest Montana. 

Society demands responsible stewardship of our natural resources and those demands are often carried over to project approval requirements—as demonstrated by 

the grizzly bear recovery program requirement for the Rock Creek project. In many 

cases, project approval would improve conditions for a threatened species while also 

14 

bringing much needed economic development to rural America. Instead of providing 

these multifaceted societal benefits, these projects are mired in a 30-year + permitting process. It is long past time to fix the broken natural resource permitting 

process. 

QUESTIONS SUBMITTED FOR THE RECORD BY REP. LABRADOR TO MR. DOUG STILES, GENERAL MANAGER, HECLA MINING COMPANY

Question 1. Please respond to Ranking Member Grijalva’s assertion that the 

Montanore and Rock Creek projects do not have the support of the community. 

Answer. Both projects have strong support of the local communities, members of 

the Montana State legislative delegations, and all Montana State Congressional 

members (attached). Project support is well documented during public project presentations and in the written comments received during the EIS public comment 

periods, with some key example project support letters attached. 

***** 

The following documents were submitted as attachments to Mr. Stile’s response. 

These documents are part of the hearing record and are being retained in the 

Committee’s official files: 

—January 7, 2016 Letter to Steve Bullock, Governor of Montana from Senator 

Daines and Congressman Zinke 

—April 13, 2016 Letter to Michael Huffine, Kootenai National Forest from 

Senator Keenan 

—June 7, 2016 Letter to Chris Savage, Forest Supervisor, Kootenai National 

Forest from Senator Tester, Senator Daines, and Congressman Zinke 

—Letters of Support from City of Libby City Council Members; Montana State 

Senators Curtiss, Bennett, and Vincent; Lincoln County Commissioner 

Anthony Berget; Sanders County Board of Commissioners; Libby School 

District; Lincoln County Board of Commissioners; Mineral County Board of 

Commissioners; and Ms. Carla M. Parks, Thompson Falls, MT 

Question 2. Please explain how these projects will or will not impact wildlife, 

water quality, and recreational opportunities in the region. 

Answer. Potential project impacts to wildlife, water quality, and recreational 

opportunities are well documented in the voluminous Environmental Impact Statements (EIS) developed for each project. First, it is important to keep the relative 

size of each of the projects in context with macro environment and understand the 

nature of the proposed projects. 

Wildlife 

Both projects are underground mines with limited surface disturbance. The 

disturbance areas for the Montanore and Rock Creek projects are 1,565 acres and 

445 acres, respectively. Both projects are in the Kootenai National Forest (KNF) 

which has a total area of 2,200,000 acres. Combined, these projects will disturb 

approximately 0.09 percent the land within the KNF. It should also be noted that 

approximately 400 acres of the Rock Creek disturbance occurs on private property 

which is located adjacent to an existing highway and railroad. 

Each project is also required to develop and implement monitoring and mitigation 

plans, including bull trout and Grizzly bear enhancement programs. This includes 

purchase of private lands for wildlife enhancement and mitigation. Combined, the 

projects are required to obtain 7,878 acres of private land to offset 1,609 acres of 

affected lands that will be designated as primary wildlife habitat. Most of the land 

designated for mitigation is currently productive timberland that will lose future 

timber production value and associated local economic benefit. Because of the substantial wildlife habit mitigation requirements, these projects will provide a net 

benefit to wildlife, including grizzly bears. 

Water Quality 

Both projects are required to implement mitigation projects designed to enhance 

aquatic habitat and improve the existing system including the closure of existing 

roads which contribute significant sedimentation to area streams. Both projects will 

have surface water discharge permits issued pursuant to the Clean Water Act. 

Permit limits are very stringent and advanced water treatment is required. The 

Montanore EIS (Kootenai National Forest, 2016, p. 453) states ‘‘The analysis 

15 

presented in the BA (USDA Forest Service 2013a) concluded that potential impacts 

from peak flow changes, water quality changes, and fish passage were considered 

to be negligible or beneficial to bull trout habitat populations.’’ For Rock Creek the 

currently projected discharge would be approximately 400 gallons per minute of 

treated water into about 8.9 million gallons per minute in the Clark Fork River (or 

a ratio of 1:20,000). 

The geochemistry of both projects is unique in that the host mineralization is 

mostly comprised of quartzite or hardened beach sand. The ore bodies are the same 

as the nearby Troy Mine which operated for the better part of 30 years with no significant environmental impacts. Mine water quality from the Troy Mine is very good 

with no indication of significant mineral oxidation. In 2012 an EIS was completed 

on an updated closure plan for the Troy Mine. The EIS concluded that perpetual, 

active water treatment would not be required (Kootenai National Forest, 2012, p. 

12). 

Recreational Opportunities 

As part of the required grizzly bear mitigation program, the closure of some open 

roads is a requirement of both projects. This could decrease vehicular access to some 

portions of the National Forest thereby reducing motorized recreational opportunities in favor of grizzly bear habitat. Neither project is visible from the Cabinet 

Mountains Wilderness (CMW) area and both are located several miles from the 

CMW boundary. No significant impact to the wilderness experience is predicted 

from either project. 

Question 3. Please explain where these projects currently stand in the state and 

Federal permitting processes. 

Answer. Neither project is currently authorized to commence work although both 

have been approved at some point in the past. At this time, we are working with 

the Agencies to complete the myriad of requirements (outlined in the referenced 

Record of Decisions (below)) necessary to begin the Evaluation Phase. 

Montanore 

The latest round of permitting for the Montanore Project began in 2005. The 

project received a Record of Decision (ROD) from the U.S. Forest Service (FS) and 

a separate ROD from the State of Montana in February 2016. A group of NGO 

plaintiffs filed lawsuits challenging the FS Record of Decision (ROD). And at the 

same time, a similar group of litigants (including Defenders of Wildlife) filed suit 

against the Fish and Wildlife Service (FWS) challenging the legality of their 

biological opinion (BO). Oral arguments in these two cases concluded on March 30 

of this year and we expect a ruling from the Federal District judge by mid-April 

2017. 

Rock Creek 

The Rock Creek Project is currently undergoing a third round of NEPA evaluation 

and a fifth round of FWS-ESA consultation. The FS is completing a Supplemental 

EIS (SEIS) for the Rock Creek Project, a process which began in 2011. As of April, 

2017 the FS is anticipating release of the Final SEIS and draft ROD in early June 

2017. This begins the FS Objection process (36 CFR 218) which is anticipated to 

take at least 6 months to complete. Should this schedule hold, we would expect to 

see a final SEIS and ROD for the Rock Creek Project in early 2018. 

As mentioned in my written testimony, the FWS has recently begun formal consultation for a fifth time. This process officially began on March 24 and, per statute, 

formal consultation should be completed on June 22, 2017 with written opinion completed on August 8, 2017. In recent conversations with the FWS, this schedule is 

not likely to be kept as they will not even start on the consultation work until the 

end of June, 2017 due to a lack of FWS staff resources and higher priority projects. 

Question 4. Please respond to Ranking Member Grijalva’s assertion that 

‘‘significant differences’’ in development of the projects over time have been so substantial as to require litigation. 

Answer. Neither project has changed substantially since they were first proposed 

in the late 1980s and early 1990s. The Rock Creek project 2001 EIS and associated 

ROD authorized the same project that is currently undergoing a supplemental EIS. 

There have been no significant changes to the project disturbance footprint or extraction methodology proposed by either the Agencies or Project Proponents. The 

SEIS was prepared by the FS to address three relatively minor deficiencies found 

by the U.S. District Court in 2010 on a legal challenge to the 2003 FS ROD. 

(Kootenai National Forest, 2015, p. i). The selected alternative in the SEIS is the 

same as was selected in the FS 2001 ROD. 

16 

The Montanore project was originally approved by the FS in 1993. A revised 

project description was presented in 2005. Project changes approved in the ROD 

were largely focused on moving the tailings impoundment to reduce impacts to existing stream channels and elimination of land application of excess water in favor 

of treatment and discharge to surface waters. These changes were required by the 

Agencies and resulted in less project impacts at the expense of increased Project 

cost and longer permitting timeline. As with Rock Creek, there have been no significant changes to the project disturbance footprint or extraction methodologies by the 

project proponents. 

Question 5. You mentioned in your written testimony that your consultation took 

so long that it had to be reinitiated on your project due to the time elapsed. Can 

you explain what happened in greater detail, and any suggestions you may have to 

improve consultation re-initiation requirements? 

Answer. This question seems to be referring to the Rock Creek project; therefore, 

the detailed response presented below will focus only on that project. 

In this case, the time lapse between consultation was the result of litigation and 

precipitating additional NEPA analysis. Prior to the current consultation, the most 

recent Rock Creek supplemental BO was issued in September 2007. The FS began 

the development of the Rock Creek SEIS in May 2011 in response to District Court 

remand of the ROD on NEPA grounds. The SEIS is still in process today. 

Since the 2007 BO, bull trout monitoring, mitigation, and general aquatic 

research has continued, all generating additional data. In addition, more robust 

groundwater modeling conducted to support the SEIS revealed potential impacts in 

drainage areas that were not specifically mentioned in the 2007 BO—although the 

overall potential impact from the updated modeling was significantly less than the 

potential impacts analyzed in both the 2001 EIS and 2007 BO. In early 2015, the 

collection of Rock Creek litigants filed a petition with the FWS to re-initiate consultation based on the ‘‘new information’’ obtained by the ongoing area monitoring 

described above. In response to the litigant’s petition, the WS stated that they would 

not reinitiate consultation at that time, but would wait for release of the draft SEIS 

to make a final re-initiation determination. During the draft SEIS public comment 

period, several groups submitted comments to the FS requesting that they ask the 

FWS to re-initiate consultation because of this ‘‘new information.’’ 

In response to the comments received and after evaluating the ‘‘new information’’ 

the FS informed the FWS that they believed formal consultation was not required. 

The FS reasoned that the new information would not materially change the impact 

assessment and that the updated modeling results, showing significantly less overall 

impact, did not rise to the level necessary to reinitiate formal consultation. 

Ultimately, the FWS disagreed with the FS and chose to re-initiate formal consultation on the project in early 2017. 

Recommendation 

From this experience a general ESA policy recommendation would be to eliminate 

the need for re-initiation of consultation if no material changes to the proposed 

project have been made by the proponent. The concept of ‘‘freezing the design’’ is 

employed in project management and construction. This means that at some point, 

all changes to the proposed plan are made and no further changes will be accepted 

so that final engineering can be completed. A similar concept would work for environmental analysis. Once a project plan has been finalized and accepted by the 

Agencies for analysis, all analysis work is based on both the accepted project AND 

environmental laws, regulations, and data in place at that time. Any ‘‘new information’’ or regulatory change occurring after project acceptance would not be evaluated 

against the project. Implementation of this concept would be only one tool to 

disincentivize litigants from constantly litigating projects simply to drag out the permitting process for seemingly unending analysis, eventually wearing-down project 

proponents. 

Question 6. In your opinion, do the Services make full use of the expertise and 

perspective of the states? Should Congress examine the possibility of involving 

states more in the listing, consultation, and management process? 

Answer. No, I do not believe that the Services currently make full use of state 

expertise or perspectives. Based on our experiences, more state involvement in listing, consultation, and management process would have likely streamlined the process. If nothing else, states have additional technical resources and local knowledge 

that the Services could take advantage of to expedite consultation processes. 

17 

Mr. LABRADOR. Thank you, Mr. Stiles. 

The Chair now recognizes Mr. Calkins for his testimony. 

STATEMENT OF RONALD J. CALKINS, PRESIDENT, AMERICAN 

PUBLIC WORKS ASSOCIATION, WASHINGTON, DC 

Mr. CALKINS. Good morning and thank you, Chairman Labrador 

and Ranking Member McEachin for holding this hearing and inviting me to participate. My name is Ron Calkins. I was the Director 

of Public Works for Ventura, California for 17 years, and I am currently the President of the American Public Works Association. 

This is an organization dedicated to providing public works infrastructure and services to millions of people in small and large 

communities across our country. Our 29,000 members plan, design, 

build, operate, and maintain our Nation’s vast infrastructure 

assets, which are essential to our economy and way of life. We are 

pleased to be here today to share with you some of the challenges 

the public works professionals face when dealing with the balance 

between protecting endangered species and protecting the health, 

safety, and welfare of our communities. 

Ventura has a population of 110,000; it is located on the coast, 

about 60 miles north of Los Angeles, and happens to be bordered 

by two rivers: the Ventura River and the Santa Clara River. In the 

early 2000s, Ventura was sued on one hand to keep water in the 

Ventura River, and about the same time was sued to remove water 

from the Santa Clara River, both in an attempt to protect the same 

endangered species, the steelhead trout. This dichotomy has been 

very confusing and sends many mixed messages. 

On the Santa Clara River, Ventura has discharged highly treated 

wastewater to the mouth of the river for over 50 years. The Santa 

Clara River has been designated as habitat for the steelhead. 

Studies show that our treated wastewater is of higher quality than 

the water that naturally occurs in the estuary. 

In 2008, the state began working on the renewal of our wastewater discharge permit. Due to pressure from a non-governmental 

organization, ‘‘Heal the Bay,’’ the state was considering the discharges into the estuaries cease. However, NMFS and Fish and 

Wildlife were both concerned that an end to the discharge would 

threaten the steelhead trout. With conflicting views, Ventura was 

required to conduct even more studies. Since then, three rounds of 

multi-year scientific studies costing $4 million have lasted 9 years, 

and they are just now wrapping up. We are hoping to define the 

necessary project and start the NEPA process and ESA consultation later this year. 

On our other river, the Ventura River, it has provided drinking 

water to our community since the mission was founded in the late 

1700s. Congress authorized the construction of Casitas Dam on 

Ventura River tributary in 1956 to provide the area with a more 

stable water supply. The lake capacity is 254,000 acre-feet. A 

diversion channel was built to carry Ventura River water to the 

lake, since the lake is located on the tributary. In 1997, NMFS 

listed the steelhead trout as endangered on the Ventura River, 

even though it is on the southern fringe of the population habitat. 

In 1999, the consultation process started after a lawsuit by Cal 

Trout. Four years later, NMFS issued the biological opinion 

18 

requiring construction of a fish ladder, which was completed in 

2006, at a cost of $9 million. 

The biological opinion also requires a bypass of between 30 and 

150 cfs in various circumstances. The bypass requirement has 

resulted in a long-term average annual loss of 1,100 acre-feet of 

drinking water each year. NMFS is expected to reopen the consultation process later this year, and many fear that this will 

require additional flows to be bypassed without any demonstrated 

benefit to the endangered species. 

In spite of a relatively wet winter in California, we are still in 

a severe drought, especially in Ventura and Santa Barbara 

Counties. Many years and millions of dollars have been spent to 

provide scientific data to accommodate what is required by the 

ESA. We fear additional water bypass will be required without any 

proven benefit for the species, particularly at a time when we are 

still in a severe drought. 

In closing, we need a better balance between the protection of endangered species and the ability to implement important public 

works and infrastructure projects, especially when public safety 

and health is threatened by lack of water supply. 

Public works professionals are up to the challenge of satisfying 

community needs with limited resources; and we offer to be a resource as the Committee considers modernizing this legislation to 

ensure scarce taxpayer funds are well spent and our communities 

are protected. Thank you. 

[The prepared statement of Mr. Calkins follows:] 

PREPARED STATEMENT OF RON CALKINS, PRESIDENT, AMERICAN PUBLIC WORKS

ASSOCIATION, WASHINGTON, DC 

The American Public Works Association (APWA) is pleased to provide the 

following statement to the House Natural Resources Oversight and Investigations 

Subcommittee hearing on the Endangered Species Act Consultation Process. 

APWA is an organization dedicated to providing public works infrastructure and 

services to millions of people in rural and urban communities, both small and large. 

Working in the public interest, APWA’s more than 29,500 members plan, design, 

build, operate and maintain our vast water infrastructure network, as well as other 

key infrastructure assets essential to our Nation’s economy and way of life. We wish 

to offer our assistance to the Subcommittee and Full Committee on any matter related to public works and infrastructure. 

Healthy and prosperous communities require the construction and maintenance of 

infrastructure. As the stewards of infrastructure, we are concerned that the consultation process with Federal agencies, during Federal permitting, can prolong 

maintenance and repairs to critical public safety infrastructure. We support Federal 

protections of endangered species which balance the needs of the species with the 

need for public works professionals to build and maintain public safety infrastructure. Further, we support Congress modernizing the ESA so the public is protected 

from natural disasters while ensuring adequate protections for threatened species. 

THE CONSULTATION PROCESS: INCONSISTENT AND WASTEFUL

Good morning, and thank you, Chairman Labrador and Ranking Member 

McEachin for holding this hearing and inviting me to participate. My name is Ron 

Calkins; I am formerly the Public Works Director for Ventura, California, and 

served in that role for 17 years. I am also the current President of the American 

Public Works Association. APWA is an organization dedicated to providing public 

works infrastructure and services to millions of people in small, large, rural, and 

urban communities across our country. Working in the public interest, APWA’s 

more than 29,500 members plan, design, build, operate and maintain our Nation’s 

vast infrastructure assets, which are essential to our Nation’s economy and way of 

life. We are especially pleased to be here today to share with you some of the challenges that public works professionals face when dealing with the balance between 

19 

protecting endangered species and implementing important public works and infrastructure projects to protect the health, safety and welfare of citizens of the United 

States. As I am sure you are aware, the Endangered Species Act, while wellintentioned, has had negative impacts from time to time on caring for our Nation’s 

infrastructure. 

Ventura has a population of 110,000 on the Pacific coast and is located about 60 

miles north of Los Angeles. Two rivers, the Ventura River and the Santa Clara 

River border the city. In 2003, Ventura was sued to keep water in the Ventura 

River, and at the same time was sued to take water out of the Santa Clara River— 

both in an attempt to protect the Steelhead Trout. As you can see this can be very 

confusing and sends many mixed messages. 

Ventura has discharged highly treated water to the mouth of the Santa Clara 

River for over 50 years. This estuary is habitat for both Steelhead Trout and the 

Tidewater Goby—both of which are on the endangered species list. Scientific studies 

have shown that the treated wastewater is of higher quality than the water that 

naturally occurs in this estuary. In 2008, the state of California began working on 

the renewal of the discharge permit. Due to pressure from a non-governmental organization, Heal the Bay, the state was considering requiring that discharges into the 

estuary end. However, National Marine Fisheries Service (NMFS) and the U.S. Fish 

& Wildlife Service (FWS) were both concerned that an end to the discharge would 

threaten the Steelhead Trout. With conflicting views, Ventura was required to conduct a study. Three rounds of multiyear scientific studies costing $4 million lasted 

9 years, and are just now being wrapped up. After 9 years of study, Ventura is just 

now hoping to define this project and start the National Environmental Protection 

Act (NEPA) review and Endangered Species Act (ESA) consultation processes later 

this year. 

Another illustration of how the ESA has caused confusion, delays and increased 

costs to important public works and infrastructure projects deals with drinking 

water. The city of Ventura faces significant challenges with its drinking water 

source from Lake Casitas. Congress authorized the construction of Casitas Dam on 

Coyote Creek in 1956 to provide the area with a stable water source and has a capacity of 254,000 acre-feet. The Los Robles Diversion Channel was built to carry 

Ventura River water to the lake since the lake is located on a tributary of the main 

river. In 1997, NMFS listed the Steelhead Trout as endangered on the Ventura 

River, even though the river is on the southern fringe of the population habitat. In 

1999, the consultation process started after a lawsuit was filed by Cal Trout. The 

process did not end until 2003 when NMFS issued the biological opinion, requiring 

the construction of a fish ladder to allow upstream travel of the steelhead to the 

habit. The passage was completed in 2006 at the cost of $9 million. 

As part of the biological opinion, the district was required to bypass 50 cubic feet 

per second, down from the standard 170 cubic feet per second during the ‘‘initial 

period.’’ This bypass requirement has resulted in a long-term average annual loss 

of 1,100 acre-feet of drinking water each year. NMFS has extended this time beyond 

the initial 5 years because of the drought. NMFS is expected to reopen the consultation process later this year. Many in the community fear that this consultation process will require that additional flows be bypassed without any demonstrated benefit 

to the endangered species. 

In spite of a relatively wet winter in CA, we are still in a severe drought, especially in Ventura and Santa Barbara counties. Many years and millions of dollars 

have been spent to provide scientific data to accommodate what is required by the 

Endangered Species Act. The process is so lengthy that the circumstances influencing the water levels vary considerably, leading to agencies making decisions 

without the most relevant scientific data. We fear additional ‘‘take’’ without any 

proven benefit for the species, particularly in a time when we are still in severe 

drought. 

Further, aside from the increase in costs, are the risks to human life. In 1986, 

Reclamation District 784 (RD 784) in California attempted to repair a levee along 

the Feather River and Federal approval was needed to proceed. In 1990, the Army 

Corps of Engineers agreed, but 6 years passed before approval would be granted for 

construction to start. RD 784 spent more than $10 million on ESA mitigation for 

the elderberry beetle before the bidding process began. On January 2, 1997, the 

levee broke, killing three people and flooding 25 square miles. RD 784 determined 

that the lag in repairs and the mitigation itself contributed to the levee’s failure. 

The mitigation for the beetle stopped maintenance of the levee, such as crack repair 

and clearing brush. 

Last, another example of increased costs in complying with the ESA happened in 

2012 when the Texas Department of Transportation planned to build an underpass 

connecting Loop 1604 and Texas Highway 151 in San Antonio. Unfortunately, 

20 

biologists working at the site found a spider listed as endangered, the Braken Bat 

Cave Meshweaver. FWS listed the spider as endangered in 2000. Texas Department 

of Transportation (DOT) had to halt the project for 2 years as changes were made. 

The final cost for the needed changes totaled $44 million. The original project cost 

was $15.1 million. A nearly $30 million increase in costs is a significant expense 

at a time when the Highway Trust Fund is insolvent. 

MODERNIZATION IS IMPERATIVE

APWA believes that we need to modernize the Endangered Species Act in a way 

that balances species protection with the need to care for essential public works 

services and infrastructure. Such legislation should contain full integration of sound 

scientific and economic principles which ensure that habitats and species can be 

preserved in harmony with critically needed public projects. Reform legislation 

should respect the original intent of the Act, which is the protection and recovery 

of species. APWA strongly supports environmental preservation and protection of 

species determined to be threatened or endangered by balanced, integrated approaches that are applied openly with equity, prudence, and foresight. APWA 

believes it is imperative that varying interests work smarter together, to develop 

and implement open, collaborative strategies for achieving balance among the many 

competing demands of modern life. In the public policy arena relating to endangered 

species, APWA encourages complete consideration of the social and economic, as 

well as the environmental, impacts of habitat designations and preservation 

strategies. 

There is a need to balance endangered species and habitat preservation with the 

infrastructure development, operation, and maintenance needs of local citizens. 

Such a local, balanced approach will provide the best options for preservation, 

growth, and management of our invaluable natural resources, as we continue to 

work together to carry out the mandates required of us all to serve the needs of 

American citizens. The implementation of programs has resulted in a process that 

has caused delays, prohibitions, and added costs for infrastructure development, operations, and maintenance. Local or municipal infrastructure projects sometimes, of 

necessity for safety, health, and the welfare of citizens, affect habitat relating to 

fish, wildlife, and species that may be determined to be threatened or endangered. 

In some cases, municipalities have been prevented from operating, managing, and 

maintaining their infrastructure and other municipal facilities in a timely and efficient manner. Also, in some cases, critically needed infrastructure projects are 

stalled or prohibited entirely because of bureaucratically imposed processes that fail 

to achieve goals mandated by legislation. At issue is the need to reform the 

Endangered Species Act to build stronger partnerships, to reduce delay and uncertainty for states, local governments, private industry, and individuals; and to 

provide greater administrative flexibility that minimizes disruption and harmful 

socio-economic effects while continuing to conserve and preserve America’s priceless 

environmental heritage. 

In detail, APWA specifically recommends the following: 

• That the process for resolving appeals be reformed to encourage timely 

resolution. We support the inclusion of specific administrative time limits in 

the reform legislation. 

• That the law open all aspects of the decision process to verifiable peer review, 

improved data collection and field testing of data—to tap the country’s best 

wisdom in resolving these issues. Endangered species decisions must be based 

on verifiable, sound, and objective scientific data. 

• That national priority is given to aggressive pre-listing incentives for affected 

governments and landowners, to avoid negative impacts of the act and to 

improve conservation. 

• That the post-listing consultation and decision-making process include full 

partnership for affected states, local governments, and private property owners—including habitat designations, conservation, and recovery plans, so that 

decisions can be made with full collaboration and cooperation. 

• That the law allow the existing Federal exemption process to allow interested 

parties consultation with the U.S. Department of the Interior to determine 

whether a proposed action will jeopardize a species. If the species is determined to be in jeopardy, economically feasible and prudent alternatives for its 

preservation should be considered. 

• That preservation programs make effective use of limited public and private 

resources by focusing on groups of species dependent upon the same habitat. 

21 

• That public education programs be required at all levels to provide various 

stakeholders with an understanding of the issues. 

• That species relocation is permissible so that constructions can go forward in 

a prudent fashion. 

• That an exception to waive studies when building, maintaining, or operating 

critical infrastructure is provided to protect public health and safety in dire 

situations. 

IN CONCLUSION

We need a better balance between the protection of endangered species and the 

ability to implement important public works and infrastructure projects—especially 

when public safety and health is threatened by a lack of water supply. These resources belong to the people, and local needs should drive their management. Public 

Works professionals are up to the challenge of satisfying community needs with limited resources. We offer to be a resource as the Committee considers modernizing 

this legislation to ensure scarce taxpayer funds are well-spent and communities are 

protected. Thank you. 

QUESTIONS SUBMITTED FOR THE RECORD BY REP. LABRADOR TO MR. RONALD

CALKINS, PRESIDENT, AMERICAN PUBLIC WORKS ASSOCIATION

Question 1. Please elaborate on the impact that consultation and other 

Endangered Species Act related processes have upon maintenance of our Nation’s 

infrastructure. Can maintenance be deferred because of consultation hurdles, and 

how does such deferred maintenance impact public safety? 

Answer. Extended consultation processes delay much-needed repairs of critical 

infrastructure systems and greatly increase costs, at a time when there isn’t enough 

money available to adequately invest in the economic health and safety of our 

communities. 

The ability to repair and/or replace damaged or aging groundwater wells that extract shallow groundwater from Ventura River have been problematic. We have 

been unable to build replacement wells along the river bank and/or to install new 

conveyance pipelines that cross the Ventura River that are necessary to continue 

our historical water extractions. It is nearly impossible to acquire the necessary permits and to get all the environmental clearances. The potential loss of this supply 

source along with competition over other sources (depleted groundwater basins) is 

forcing us to look to other resources such as Potable Reuse in the near term and 

potentially desalination in the future. These are very expensive capital projects. 

Potable Reuse alone will cost at least $152 million to design and construct. The per 

unit cost to produce this water is also about two to three times more expensive than 

water from river and groundwater extraction. 

Last, I have received the following responses to issues of deferred maintenance 

from the American Public Works Association’s members. I have kept their responses 

as they provided: 

From a member in Florida: Repaving of a roadway (450-feet long) in southern 

Sarasota County has been held up due to a Gopher Tortoise (listed as threatened 

in Florida) burrow in the ROW of a road that has been in place for 50 years. 

Although, the burrow does not appear to be an active one, Florida Fish and Wildlife 

(FFWCC) is requiring that we excavate the burrow and relocate any tortoise found 

prior to paving. The delay (4 weeks) and cost (less than $3k) for this one road is 

relatively minor. However, when this gets multiplied by the hundreds of roads that 

we will be resurfacing in this area (platted home sites, but prime Gopher Tortoise 

habitat) in the near future, the costs and the delays become significant. Our resurfacing contracts generally run in the $2 to $3 million range and last for 3 months. 

It is estimated that the delay may add 6 to 9 months to the contracts. Increased 

costs have not been fully estimated, but are expected to add 40 to 50 percent to the 

overall costs and will include: 

• Staff and consultant time to coordinate with the FFWCC 

• Time and expense for excavation and relocation for individual burrows 

• Costs for additional mobilization and demobilization events for the piecemeal 

work that the repaving contractor will be doing 

• Extended inspection time 

• Higher material costs for smaller irregular volumes 

22 

Another example is replacement of an existing 90-year old bridge within 300-feet 

of a Bald Eagle nest in a highly urbanized area limited to having construction occur 

outside the nesting period (October 1 to May 15). Florida removed the Bald Eagle 

from the state list of threatened species in 2008. However, there are still many regulations that need to be followed. Due to protracted negotiations for access easements with adjacent landowners, we have had to delay the start of the project from 

last year to this year. Since the bridge is structurally deficient and serves an 

isolated area, this puts the residents in danger of having their access to home eliminated if the bridge were to fail prior to replacement. 

From a member in Colorado: ‘‘Having worked as a State environmental regulator 

for 20+ years with the Colorado Department of Public Health and Environment in 

the 1980s and 1990s, and then another 15 years with the Colorado Department of 

Transportation through 2015, I’ve been on both sides of Endangered Species Act 

issues. In my experience, project delays—including maintenance activity delays are 

more related to human impacts, political debates and lack of funding than compliance with the Endangered Species Act. In my opinion, the current overall regulatory 

framework is necessary and reasonable. However, maintaining individual competence and availability has been an issue—on both sides of the fence. When regulatory agencies have responsibilities that overwhelm their ability to respond, or 

involve issues they have no detailed guidance or training on—delays occur. When 

project proponents have little or no understanding of the regulations—or a desire 

or motivation to comply with them—delays occur. To me, the answer is education, 

being provided with adequate resources, and a devotion to guiding principles for all 

involved. As a professional engineer, one of my guiding principles is to protect and 

maintain public health, safety and welfare. For me and many others, that includes 

helping to insure we preserve a healthy and diverse environment for ourselves and 

future generations. Human beings are capable of exterminating species—we have 

witnessed this—and there is no coming back from extinction. We should not allow 

ourselves to feel pressured into going backwards in time—or neglecting or forgetting 

the progress we have made on so many fronts. We can work together to make 

processes more efficient.’’ 

From a member in Texas: ‘‘In 1969–70 while serving as Asst. Director of Public 

Works in Texarkana, Texas I participated in permitting one of the early COE newfangled permits for working in the floodplain. The field work and permit application 

was carried out by me and two guys from the COE. We walked and surveyed the 

Swampoodle and Boggy Creek floodplain identifying flora and fauna that may be 

impacted by improving the floodway so no more people would get killed. 

In about 12 months all the engineering and permitting work was done and we 

began to seek funding for the approved process. With the leadership of the Mayor 

and Council over the years, guided by the COE, improvements were made and no 

more people died in our studied and designed floodplain. That’s the way things 

worked 47 years ago. Instead of 1 year, we now take 10 to 15 years to make that 

same decision in similar circumstances throughout the United States.’’ 

From a member in Illinois: ‘‘In my 25 years of experience working in northeast 

Illinois, most infrastructure maintenance projects are not delayed by endangered 

species act consultation. By definition, maintenance is performed on existing infrastructure assets that will have little to no further impact on endangered species. 

That’s not to say that there won’t be situations where endangered species will delay 

some larger, more elaborate maintenance projects, but as long as the risk to the endangered species is real, we need to ensure that infrastructure projects are performed with as minimal impact as possible. The biggest challenge I have seen comes 

when there are lengthy studies needed to verify the existence or threat to an endangered species. Perhaps in areas where endangered species are thought to exist, and 

lengthy studies are needed to verify it, the Federal or State government could perform these studies in advance to help minimize the time delays when a project 

comes up.’’ 

From a member in California: ‘‘Thank you for reaching out and asking the 

Engineering community to share their experience with the Endangered Species Act. 

Out here in Riverside County (Southern California) we have the Department of Fish 

and Wildlife that acts similarly to the ESA. Fish and Wildlife was created in 

California to protect game and other animals. But now it is used in regulating development and maintenance impacts to existing ephemeral streams (flows only during rain events). Oftentimes, these drainage courses are dry 95 percent of the time. 

Fish and Wildlife informed us that a ‘‘maintenance permit’’ is required in order to 

remove vegetation that is blocking the inlets and outlets of the culvert crossings. 

As a result, the culverts have silted out and have lost up to 90 percent of their caVerDate Mar 15 2010 10:06 Jun 02, 2017 Jkt 000000 PO 00000 Frm 00026 Fmt 6633 Sfmt 6621 J:\115TH CONGRESS\OVERSIGHT & INVESTIGATIONS\03-28-17\24804.TXT DARLEN
23 

pacity. The estimated cost of obtaining and paying annually is hundreds of thousands of dollars per year. Cites across America do not have funds for maintenance 

permits let alone maintenance of their existing infrastructure. Cities in Southern 

California must also obtain regulatory permits for impacts to ephemeral streams 

from Army Corp of Engineering (401 permit) and California Regional Water Quality 

Control Board (Regional Board 404 permit). These three regulatory permits can add 

hundreds of thousands of dollars and delay projects (public and private) 18 months. 

Plus add 5 years of maintenance and monitoring for replacement habitat that must 

be created at 3:1 ratio and higher. Any relief from the current administration would 

be greatly appreciated. It is a huge concern and development impact that must be 

addressed. Government has over-regulated the ESA to the point where we have 

allowed insignificant impacts to be deemed significant.’’ 

From a member in Tennessee: ‘‘I have a current specific issue that is important 

relative to this topic. Our city has a significant amount of sanitary sewer systems, 

primarily our main interceptors that are gravity systems. This means that most 

were constructed to run parallel to streams and other natural storm water conveyances in the 1970s and 1980s long before the wetland designations existed. Given 

the importance and financial significance of this infrastructure and with other recent developments, such as the 96-inch interceptor failure at S. Cypress Creek and 

the subsequent discharge into McKellar Lake, it is then critical that Public Works 

has sufficient, dedicated, and maintainable forms of ingress/egress/accessibility so 

that we can reasonably inspect, survey, maintain, and make repairs to this infrastructure.’’ 

From a member in Kansas: ‘‘We have a current bridge replacement project over 

a river which straddles the state line between Kansas and Missouri. The bridge has 

been closed for about 7 years due to damage caused by a truck. Due to a couple 

of endangered bat species being found in Missouri, tree removal was required during the winter. The project will not be ready to begin construction until late summer, so the City had to hire a tree removal company to do the tree removal outside 

of the construction contract. Interestingly, no tree removal limitation was required 

on the Kansas side of the river, apparently the state line acts as a fence. This is 

an example of how the Endangered Species Act impacts construction/maintenance 

projects either in timing or additional contracting effort.’’ 

From a member in Oregon: ‘‘I work as a consultant with a county in Oregon. They 

were threatened with a lawsuit under ESA requirements for damaging habitat critical to the Fenders Blue Butterfly. I have copied sections of the final report, prepared by the County’s consultant below. The County’s Road Maintenance Habitat 

Conservation Plan (HCP) was developed for the U.S. Fish and Wildlife Service 

(USFWS) by the County to allow the County to receive an incidental take permit 

under the Endangered Species Act Section 10(a)(1)(B) for Fender’s Blue Butterfly 

(Icaricia Icarioides Fenderi) and Kincaid’s Lupine (Lupinus oreganus), a host plant 

for the butterfly. These two species, which are listed under the Endangered Species 

Act, could be affected by the County’s road maintenance activities and would be covered under this HCP. An incidental take permit would allow the County to continue 

to perform its otherwise lawful road maintenance activities, which have the potential to affect the covered species (Fender’s Blue Butterfly and Kincaid’s Lupine). The 

incidental take permit will be in effect for 30 years. 

Fender’s Blue Butterfly is an endangered species of butterfly that only occurs in 

the Willamette Valley, in which the County is situated. Fender’s Blue Butterfly is 

dependent on the presence of the threatened Kincaid’s Lupine, which the butterfly 

uses as a host plant. In this county, Fender’s Blue Butterflies lay eggs only on 

Kincaid’s Lupine, and the young caterpillars remain on the lupine to feed. 

Road maintenance activities are conducted pursuant to the County’s mission to 

provide essential services to the residents, businesses, and visitors of the County 

specifically, to maintain county roadways to protect public safety and to enhance the 

quality of life in the community. The County right-of-way is divided into two distinct 

sections based on the activities performed in these sections of right-of-way: (1) the 

first 1.52 meters (5 feet) from the shoulder of the road to the back of the ditch, referred to as the ‘‘Potential Impact Zone’’ and (2) the remaining 4.57 meters (15 feet) 

from the back of the ditch to the end of the right-of-way, referred to as the ‘‘No 

Impact Zone.’’ The Potential Impact Zone represents the area where normal maintenance activities occur. The No Impact Zone represents the area where normal 

maintenance is not performed. 

The effects analysis identifies activities that may result in both direct and indirect 

effects on the covered species. Fender’s Blue Butterfly and Kincaid’s Lupine could 

be affected by county maintenance activities. Although Fender’s Blue Butterfly could 

24 

be directly affected (e.g., death) by encounters with equipment or trampling, most 

of the effects of the covered activities would likely be indirect effects associated with 

effects on Kincaid’s Lupine and other plant species used as nectar sources. Direct 

effects on the Fender’s Blue Butterfly could result from larger road improvement 

projects. Depending on project timing, adult Fender’s Blue Butterfly, caterpillars, or 

larvae could be affected. Mowing and herbicide application have the greatest opportunity to directly adversely affect listed plants and therefore indirectly adversely 

affect Fender’s Blue Butterfly. 

Mowing and herbicide application activities also have the greatest potential to 

benefit plant species indirectly by removing competition and increasing sunlight on 

the ground. Brushing can also have positive effects since it allows more sunlight to 

reach the plants. Selective vegetation management would benefit listed plants and 

prairie habitat by reducing competition and promoting the expansion of Kincaid’s 

Lupine and prairie habitat. This potential expansion of Kincaid’s Lupine and prairie 

habitat would indirectly benefit the Fender’s Blue Butterfly. 

Other activities, including tree and shrub removal, hand seeding, drainage activities, cleaning or replacing culverts, emergency earth removal, or sign posting operations may affect Kincaid’s Lupine by trampling or disrupting plants in a confined 

area where the disturbance occurs. Road improvement projects, such as widening 

and bike path development, would have effects similar to those described above. 

However, these effects would encompass a larger footprint. Dust abatement and deicing are conducted at specific locations on County roads. Information on 

lignosulfonates, used for dust abatement, indicates that it can be harmful to plants, 

stunting growth and turning leaves brown (EPA 2002). Only small sections of the 

road are treated with lignosulfonates. Sanding would be unlikely to result in effects 

to the listed species due to the very low proportion of salt included in the sand mixture. Deicing and dust abatement may affect listed plants and butterfly habitat near 

the edge of the shoulder or from the ditch to the road; however, this is not an area 

where Kincaid’s Lupine are generally found. As surveys were conducted, some 

plants were found in this area, but it is not expected to support large numbers of 

prairie plants or covered species. 

The County considered a No Action Alternative, which included not pursuing an 

incidental take permit for road maintenance. Under the No Action Alternative, the 

County would not be able to perform road maintenance activities along roadsides 

or complete road improvement projects that could result in potentially adverse 

effects on the covered species. This alternative was not selected because, over time, 

lack of maintenance could lead to dysfunctional, unsafe and/or impassable roads. 

The County is now committed to maintaining special maintenance zones (restricting timing and types of activities), as well as regular re-inspections of the county 

to monitor the spread of Lupine on County roads.’’ 

Question 2. Not only does protracted consultation and litigation draw Federal taxpayer money away from conservation and other government functions, but it also 

negatively impacts taxpayers and communities at the local level. How much did 

your city spend on preparing and undergoing consultation and litigation? Did this 

expenditure cause financial strain on the city? 

Answer. Yes, there has been a tremendous strain on our City both in terms of 

costs and delays. Regarding the treated wastewater discharge to the Santa Clara 

River, the debate between the Feds and the State on whether the discharge should 

continue (to protect the Steelhead) or cease resulted in 9 years of additional scientific studies at a cost of $4 million. We have also spent roughly $600,000 in litigation costs in response to a lawsuit from Heal the Bay and the Wishtoyo Foundation 

that aims to eliminate our discharge to the estuary. 

On the Ventura River, we have spent roughly $1.4 million in litigation costs 

defending our water rights that go back over 100 years. Santa Barbara Channel 

Keepers is trying to curb our water extraction rights in response to the ESA. Litigation is ongoing and the ultimate cost for litigation is expected to increase. 

Yes, these expenses have caused financial strain to the city of Ventura. Water and 

wastewater rates have and will continue to increase significantly—not only to pay 

for these costs but to build and operate new water supply projects as a result. 

Question 3. In your written testimony, you mentioned Santa Barbara and Ventura 

counties spending a significant amount on scientific data to satisfy Endangered 

Species Act requirements. Can you elaborate more on what that has entailed and 

the burden that has placed on those localities? 

Answer. Both Ventura and Santa Barbara counties are struggling with diminished water supplies due to a severe drought. Northern California has seen marked 

improvement in drought conditions this winter, but not this part of the state. 

25 

The need for increasingly comprehensive scientific studies seems to be neverending. A non-governmental agency or permitting agency is always requesting that 

more data be collected and for more analysis to be conducted. The design and construction of infrastructure projects is the quick and easy part. Getting all the environmental approvals and permits is simply taking too long (many years or even 

decades) because it’s very difficult to satisfy or ‘‘convince’’ regulatory agencies that 

impacts to endangered species can and will be mitigated for a project. 

Question 4. The city of Ventura’s consultation issues are representative of issues 

encountered by your membership nationwide. Can you elaborate on challenges 

facing public works projects in America as they relate to the Endangered Species 

Act, and explain any suggestions you may have for improving the process. 

Answer. One thing that comes to mind is that regulatory agencies need to staff 

themselves more appropriately for better turn-around time. Many agencies are 

understaffed and/or they have difficulties in recruiting and retaining qualified and 

experienced employees that can do a better job of assisting agencies in successfully 

acquiring the necessary permits. 

Also, consultation decisions are often delayed by requests for more scientific studies, and then decisions have been made by NMFS that seem to ignore the very data 

that was required. Peer review would make sure that restrictions on agencies really 

do benefit the endangered species rather than halting projects for other motives, 

such as stopping development. 

Mr. LABRADOR. Thank you. The Chair now recognizes Mr. Li for 

his testimony. 

STATEMENT OF YA-WEI (JAKE) LI, VICE PRESIDENT, 

ENDANGERED SPECIES CONSERVATION; DIRECTOR, 

CENTER FOR CONSERVATION INNOVATION, DEFENDERS OF 

WILDLIFE, WASHINGTON, DC 

Mr. LI. Mr. Chairman, Mr. Ranking Member, and other members 

of the Subcommittee, thank you for inviting me to testify today. I 

am Jake Li, the Vice President of Endangered Species 

Conservation at the Defenders of Wildlife. 

I have worked on the ESA for the regulated community and now 

for a conservation organization. In my experience, consultations 

have helped to conserve endangered species by reducing the harmful effects of Federal projects on listed species and their habitats; 

and they have done so without being unduly burdensome, as a 

whole. 

These conclusions are supported by a study that my colleague 

and I completed and published in the Proceedings of the National 

Academy of Sciences in 2015. That study is the most comprehensive 

ever conducted on U.S. Fish and Wildlife Service consultations. We 

analyzed the results of all 88,290 consultations recorded by the 

Fish and Wildlife Service from 2008 through April of 2015, and we 

found that nearly 93 percent of all consultations were informal. In 

other words, they did not require the more extensive formal consultations reserved for projects that are deemed likely to harm 

species. 

We also found that no project was stopped because of the Service 

concluding that a project would jeopardize a species or adversely 

modify critical habitat. In fact, the Service worked with Federal 

agencies to avoid finding jeopardy or adverse modification in all but 

two consultations; and even those projects could proceed. So, an 

astonishing 99.9977 percent of all consultations ended without 

jeopardy or adverse modification. 

26 

What we have is a system that is almost always able to avoid 

irresolvable conflicts. This is a real testament to the ESA’s 

inherent flexibility to find mutual solutions through the administrative process. 

The duration of consultations is another debated issue. Our 

study found that, from the time a Federal agency provides the 

Service with enough information to start a consultation, the 

median duration of informal consultations was 13 days; and for formal consultations, 62 days. Both are much less than the 135 days 

allowed by regulation without a mutual extension. 

This is a remarkable accomplishment, if you consider the insufficient funding for the Service’s consultation program. In fact, on a 

per-species basis, and after accounting for monetary inflation, 

congressional funding for the consultation program was lower in 

2015 than in 2001. 

Of course, not every consultation fell within the 135-day time 

frame. Nearly 1,400 exceeded that time frame, but there are often 

good reasons for this. Some involve very complex projects with hundreds of species. Sometimes a NEPA assessment is intertwined 

with the ESA consultation. 

I also have, right here, examples of consultations that were delayed because of erroneous information provided by applicants, or 

because of the Fish and Wildlife Service needing to wait around for 

comments from an applicant or a Federal agency. 

Let’s also put those 1,400 consultations into context. They represent less than 2 percent of all 80,290 consultations. So, for a law 

that has been chronically under-funded, a departure of only 

2 percent is downright remarkable. Defenders sees no reason that 

Congress needs to amend Section 7 to address the issues that we 

have heard about today. There is no systematic flaw with how 

Section 7 is laid out. In fact, I have heard nothing today, other 

than examples of some of the most complex or controversial 

consultations. 

But, by and large in our study, those consultations do not represent the vast majority of projects that undergo Section 7 

consultations. And for those minority of projects with extensive 

delays or heightened conflicts, Congress can, in fact, help. It can 

properly fund the Service so that the agency can do two really important things: the first is to fully staff the Section 7 program and 

provide better management direction to its staff for highly controversial or highly complex projects; the second is to develop the 

next generation of Section 7 policies, rules, and day-to-day 

practices that work even better for wildlife and people. 

Thank you, and I would be happy to answer questions. 

[The prepared statement of Mr. Li follows:] 

PREPARED STATEMENT OF YA-WEI LI, VICE PRESIDENT, ENDANGERED SPECIES

CONSERVATION AND DIRECTOR, CENTER FOR CONSERVATION INNOVATION, 

DEFENDERS OF WILDLIFE, WASHINGTON, DC 

Chairman and members of the Subcommittee, thank you for the invitation to testify today about Section 7 of the Endangered Species Act (ESA). I am Ya-Wei Li, 

the Vice President of Endangered Species Conservation and the Director of the 

Center for Conservation Innovation at the Defenders of Wildlife, an organization 

dedicated to protecting and restoring imperiled animals and plants in their natural 

communities. For 70 years, Defenders has pursued this goal by working with partners in the field; securing and improving state, national, and international policies 

27 

1Malcom J, Li Y-W (2015) Data contradict common perceptions about a controversial provision 

of the U.S. Endangered Species Act. Proc Natl Acad Sci USA 112(52):15844–15849. 

that conserve wildlife; and upholding legal safeguards for wildlife in the courts. We 

represent more than 1.2 million members and supporters. 

I have worked on Section 7 consultations from several vantage points. Before 

coming to Defenders, I was an attorney in private practice handling Federal and 

State environmental matters, including under Sections 7 and 10 of the ESA. At 

Defenders, I have continued working on Section 7 issues by helping to ensure that 

consultations serve their conservation goal effectively and efficiently. In my experience, consultations have generally worked as they should. They have played a vital 

role in promoting the recovery of ESA-listed species by reducing and even offsetting 

the adverse effects of Federal projects on those species and their habitats. Consultations are thus indispensable to fulfilling the ESA’s mandates of preventing extinction and achieving recovery. Further, there is no compelling evidence that these 

conservation gains have come at the expense of jobs or the economy at the national 

level. With rare exceptions, Federal agencies have completed consultations in a reasonable time frame by adopting conservation measures that are economically and 

technologically feasible to implement. 

These conclusions are supported by a peer-reviewed study my colleague and I published just over a year ago in the Proceedings of the National Academy of Sciences.1

That study is the most comprehensive ever conducted on U.S. Fish and Wildlife 

Service (FWS) consultations. We evaluated the results of all 88,290 consultations recorded by FWS from 2008 through April 2015, and found that no project was 

stopped because of FWS concluding that a project would ‘‘jeopardize’’ a species or 

‘‘destroy or adversely modify’’ critical habitat—the two prohibitions of Section 7. In 

fact, FWS worked with Federal agencies to minimize impacts on species and to 

avoid finding jeopardy or destruction/adverse modification in all but two consultations (and even those projects were ultimately approved). Put differently, an astonishing 99.9977 percent of consultations ended with neither of these findings. 

Further, and as explained in detail later, nearly 93 percent of the projects required 

only ‘‘informal’’ consultation rather than the more extensive ‘‘formal’’ consultation 

reserved for projects that are likely to harm a species or its critical habitat. For 

most consultations, all the coordination, review, evaluation, negotiation, and document preparation was completed in a timely manner. We found that from the time 

a Federal agency provided FWS with enough information to initiate a consultation, 

the median duration of informal consultations was 13 days and formal consultations 

was 62 days—both considerably less than the 135 days allowed by regulation without the agreement of the consulting agency. 

Although there are always opportunities to improve how laws are implemented, 

any refinements to the consultation process can be accomplished solely through administrative reform made possible by fully funding the endangered species programs 

of FWS and the National Marine Fisheries Service (NMFS). There is no need for 

legislative change for Section 7 to achieve its important purpose or avoid major 

economic impacts. 

AN OVERVIEW OF THE CONSULTATION PROCESS

Because of its intricacies, the consultation process is often misunderstood. At the 

heart of the process is the requirement that all Federal agencies ensure that the 

actions they fund, authorize, or carry out are not likely to ‘‘jeopardize’’ a species or 

‘‘destroy or adversely modify’’ critical habitat. Depending on the species involved, 

Federal agencies consult with FWS or NMFS to fulfill this mandate. Consultations 

typically start as discussions between the Service and a Federal agency if the agency has determined that its proposed action ‘‘may affect’’ a listed species or designated critical habitat. This informal consultation ends if the Service determines 

that the activity is ‘‘not likely to adversely affect’’ a species. Otherwise, formal 

consultation is required. 

During formal consultation, the Service evaluates whether the proposed action 

will violate the prohibitions on jeopardy/adverse modification. If neither of these outcomes is likely but incidental ‘‘take’’ is expected, the Service will offer ‘‘reasonable 

and prudent measures’’ to minimize the harmful effects of the action. If jeopardy/ 

adverse modification is likely, the Service must suggest ‘‘reasonable and prudent 

alternatives’’—conservation measures that avoid jeopardy/adverse modification by 

reducing or partly offsetting the harm from the proposed action. In the rare 

instances where these alternatives are unavailable, Section 7(g) allows a project 

proponent to ask a special Endangered Species Committee (also known as the ‘‘God 

Squad’’) to exempt the project from complying with the jeopardy/adverse 

28 

modification prohibitions. Formal consultations end with a Service ‘‘biological 

opinion,’’ which must be finalized within 135 days after formal consultation begins, 

unless an extension is agreed on. 

THE VITAL ROLE OF SECTION 7 CONSULTATIONS FOR SPECIES RECOVERY

The goals of the ESA are to protect species from potential extinction, and to recover those species so that they no longer need the protections of the ESA. For many 

species, these goals are impossible to achieve without managing the human activities that threaten their survival. Section 7 is vital to this regulatory framework 

because it provides the legal backstop against Federal activities that are likely to 

jeopardize species or destroy or adversely modify critical habitat. These protections 

are especially important for the hundreds of species found mostly on Federal lands 

and for plants, which now make up 57 percent of all U.S. listed species and which 

are not protected by the ‘‘take’’ prohibition in Section 9 of the ESA. Without Section 

7, most of these plants would receive very limited protections under the ESA. 

The destruction or adverse modification prohibition deserves special recognition 

because it is the ESA’s only protection for critical habitat. The Services have designated thousands of square miles of critical habitat, and the prohibition transforms 

those polygons on a map into tools for recovery. Because habitat loss and fragmentation affect over 80 percent of U.S. listed animal species and over 70 percent of U.S. 

listed plant species, critical habitat can play a vital role at controlling this primary 

threat. And as climate change becomes a larger impediment to recovery, unoccupied 

habitat will become increasingly important to help species adapt to shifting ranges 

and habitat. The adverse modification prohibition is one of the few tools in the ESA 

that can protect unoccupied habitat. If properly implemented, Section 7 can help 

preserve options for recovery decades from now. 

THE ESA IS FLEXIBLE ENOUGH TO AVOID IRRECONCILABLE CONFLICTS

There is no compelling argument that legislation is needed to resolve a specific 

conflict under Section 7 or to make Section 7 more effective for wildlife and people. 

There are three main reasons for this. First, the ESA is among our most concise 

and flexible environmental laws. The statute provides the Services with ample discretion to devise rules, policies, handbooks, and other tools to help Federal agencies 

fulfill their mandates of preventing extinction and recovering species, while accommodating development consistent with those goals. Safe harbor agreements, candidate conservation agreements, and habitat conservation plans are all examples of 

innovations that arose from the ESA’s flexibility. Section 7 has similarly benefited 

from this flexibility. An example is the use of programmatic consultations, which enhances conservation by allowing the Services to evaluate the cumulative effects of 

all projects nested under a Federal program. Programmatic consultations are also 

more efficient: in our study of FWS consultations, we found that project-level formal 

consultations covered by a programmatic consultation had a median length of 24 

days compared to 62 days for all other formal consultations. Other examples of flexibility include the Services’ ability to define key concepts such as jeopardy, and key 

processes such as the standards for triggering informal consultations. 

Another reason legislation is unnecessary is that the ESA administrative process 

provides ample opportunities to resolve conflicts. Section 7 is called ‘‘interagency cooperation’’ for a reason: Federal agencies are expected to work cooperatively with 

the Services to find mutual outcomes for species and project proponents. During informal consultations, for example, an agency is encouraged to work with FWS to 

develop measures to avoid, minimize, and offset the effects of its proposed project. 

In nearly 93 percent of FWS consultations, this process succeeded at averting the 

need for formal consultation. In the remaining 7 percent of consultations where formal consultation was necessary, FWS was nearly always able to negotiate additional 

conservation measures to avoid jeopardy/adverse modification. 

The administrative process offers the flexibility not only to forestall irreconcilable 

conflicts on individual consultations, but also to constantly improve the entire consultation program. One especially promising approach is to incentivize Federal 

agencies to carry out their duty under Section 7(a)(1) of the ESA to help conserve 

listed species. Some Federal agencies have recently expressed interest in this approach, which would involve the agencies using Section 7(a)(1) to implement conservation measures before they would need to consult with FWS under Section 

7(a)(2). The benefits from these early measures can reduce the need for subsequent 

formal consultation and even avoid jeopardy/adverse modification findings. An excellent example is the Army Corps of Engineer’s 2013 Conservation Plan for the Lower 

Mississippi River. The document describes a host of conservation actions that the 

Corps could implement under Section 7(a)(1) to avoid, minimize, and offset the adVerDate Mar 15 2010 10:06 Jun 02, 2017 Jkt 000000 PO 00000 Frm 00032 Fmt 6633 Sfmt 6621 J:\115TH CONGRESS\OVERSIGHT & INVESTIGATIONS\03-28-17\24804.TXT DARLEN
29 

2 Barry D, Harroun L, Halvorson C (1992) For conserving listed species, talk is cheaper than 

we think: The consultation process under the Endangered Species Act. 3Owen D (2012) Critical habitat and the challenge of regulating small harms. Fla L Rev 64: 

141–199. 

verse impacts of its flood management and ship navigation activities on three listed 

species. On its own, the Conservation Plan does not oblige the Corps to do anything. 

But 5 months after the plan was finalized, the Corps committed to implement the 

conservation measures as part of its Section 7(a)(2) consultation on the same flood 

management and navigation activities. That consultation resulted in an expedited 

biological opinion, in which FWS treated the Section 7(a)(1) conservation measures 

as a component of the Section 7(a)(2) activities. Because of this direct connection between Sections 7(a)(1) and 7(a)(2), FWS concluded no jeopardy/adverse modification. 

If other Federal agencies follow this approach, they too could reduce or avoid conflicts during subsequent consultations while contributing to species recovery. 

The third reason the administrative process is appropriate and adequate is that 

Congress has already created off-ramps within Section 7 to avoid irreconcilable conflicts. As an initial matter, a Federal activity that results in the ‘‘incidental take’’ 

of a species can proceed if it implements the reasonable and prudent measures described in the biological opinion. In those rare circumstances where the amount of 

take would jeopardize a species or adversely modify critical habitat, the Service develops reasonable and prudent alternatives that, if implemented, allow a project to 

proceed without violating the ESA. By regulation, those alternatives must be 

‘‘economically and technically feasible’’ for the project proponent to implement. If alternatives are not available, the God Squad may exempt a project from complying 

with Section 7. This exemption has existed for nearly 40 years, but the God Squad 

has convened only three times and granted an exemption twice. The rarity of exemptions suggests that Federal agencies are almost always able to defuse conflicts 

using the normal consultation process. 

CONSULTATIONS IN PRACTICE

Ever since the Supreme Court in 1978 decided TVA v. Hill, which temporarily 

halted the completion of the Tellico Dam on the Little Tennessee River, Section 7 

has garnered a reputation as a blunt hammer that has halted countless projects and 

upheaved local communities. But does this reputation reflect reality? Have anecdotal accounts, cherry-picked case studies, and outliers driven the public dialogue? 

My colleague and I have provided the most comprehensive answer to this question 

in our peer-reviewed paper analyzing the results of all 88,290 FWS consultations 

from 2008 through April 2015. We found that a staggering 92.3 percent of those 

projects were resolved through informal consultations; only 7.7 percent required the 

detailed analysis of formal consultations. That is, most projects required nothing 

more than a relatively cursory analysis by FWS to comply with Section 7. Of those 

projects that required formal consultation, only two (0.0023 percent) resulted in 

jeopardy, one of which also resulted in destruction/adverse modification of critical 

habitat. That consultation involved a U.S. Forest Service proposal to apply fire 

retardants on national forests. After the project was revised, FWS concluded no 

jeopardy/adverse modification. The second consultation with a jeopardy conclusion 

focused on the effects to the delta smelt from a water management project in 

California’s Central Valley. But even that project could proceed if the permittees 

adopted reasonable and prudent alternatives to minimize and partially offset the adverse effects of the project. Thus, no project was stopped because of FWS finding 

jeopardy/adverse modification during the nearly 7.5-year study period. 

Our findings are similar to those from two earlier studies. The first evaluated all 

73,560 FWS consultations from 1987 to 1991.2 That study found only 2,000 projects 

requiring formal consultation and 350 jeopardy findings, 63 percent of which were 

attributable to two consultations. Of those 350 projects, only 18 were ultimately 

blocked, canceled, or terminated because of Section 7. Most of the remaining 

jeopardy opinions applied to projects that complied with Section 7 by adopting reasonable and prudent alternatives or other conservation measures. The second study 

analyzed 4,048 biological opinions for fish species from both Services between 2005 

and 2009, and likewise found that jeopardy/adverse modification conclusions were 

rare (7.2 percent and 6.7 percent of formal consultations, respectively).3 These results help explain why no agency has invoked the God Squad since 1992. 

Another debated issue is the duration of consultations. Some consultations do 

require years to complete, but they are often for highly complex projects and may 

involve hundreds of species. Time is needed to gather data about the species, negotiate conservation measures, and draft a comprehensive biological opinion that is 

30 

4https://cci-dev.org/analysis/ESA_funding/#funding_trends. 5Gerber, LR. (2016) Conservation triage or injurious neglect in endangered species recovery. 

Proc Natl Acad Sci USA 113(13):3563–3566. 6Governmental Accountability Office (2009) The U.S. Fish and Wildlife Service Has 

Incomplete Information about Effects on Listed Species from Section 7 Consultations. 

scientifically sound and legally defensible. Often, an environmental impact statement under the National Environmental Policy Act is also required for the proposed 

project. The criticisms of consultations often focus on these types of projects because 

they are amenable to soundbites loaded with sweeping generalizations about the entire ESA. But our study found that those consultations are outliers. From the time 

a Federal agency provides FWS with enough information to initiate a consultation, 

the median duration of informal consultations was 13 days and formal consultations 

was 62 days. Only 1,381 formal consultations (20 percent) exceeded the 135-day 

limit prescribed in Services regulations, and many of those had agreed upon extensions. Even programmatic consultations, which are extensive consultations on 

program-level projects or plans, had median durations of 13 days for informal consultations and 82 days for formal consultations. Although some consultations 

(probably appropriately) required far more time than others to complete, most were 

finalized in a reasonable time frame. This is a remarkable accomplishment considering the inadequate funding for FWS’s consultation program. In fact, on a per 

species basis after adjusting for inflation, congressional funding for the program has 

declined since 2011 and was lower in 2015 than in 2001.4

The near absence of jeopardy/adverse modification findings discredits many of the 

claims about the onerous nature of consultations, but also raises some question 

about whether Federal agencies are applying this tool rigorously enough to conserve 

listed species. To some extent, the low number of jeopardy/adverse modification findings is likely the result of Federal agencies learning to plan and propose projects 

that minimize harm to listed species. Some agencies are indeed proposing projects 

with reduced impacts because they are coordinating more closely with FWS to shape 

the projects well before consultations begin, as I noted above. This approach is desirable because it can reduce conflicts without diluting conservation outcomes. But it 

is difficult to believe that this explanation applies to all consultations conducted 

over the 7-year period we studied, considering that some involve highly controversial projects proposed by organizations concerned primarily with achieving their 

project purposes. In those situations, I am concerned that FWS—in the face of persistent budget cuts, increasing workload, and mounting political pressure to minimize the economic impacts of endangered species conservation—may be approving 

projects that should have been further altered to comply with the conservation 

standards of the ESA. There may also be internal pressure within the agency to 

avoid jeopardy/adverse modification findings. But such concerns with agency practice can be addressed through proper management or administrative direction, and 

do not warrant legislative change. 

INVESTING IN ADMINISTRATIVE IMPROVEMENTS TO THE CONSULTATION PROCESS

We know that endangered species recovery has been woefully underfunded and 

that funding is a critical component of ESA success.5 If Congress wants consultations to work better for wildlife and the regulated community, it needs to properly 

fund the Services to implement the ESA and carry out administrative reforms. In 

recent years, the agencies have already completed several key rulemakings. These 

include revisions to the rule on programmatic consultations. Increased funding will 

enable other improvements to expedite consultations and enhance their conservation 

effectiveness. Below are just four examples from dozens I could offer: 

• Implement the two recommendations of the Government Accountability Office 

to improve FWS’s institutional knowledge and understanding of the effects of 

Section 7 projects on species: create databases to track all monitoring reports 

required from consultation and cumulative take for all species affected by 

formal consultations.6 Current technologies allow the agency to implement 

these recommendations at a significantly reduced cost and to make the information publicly available. Besides improving FWS’s knowledge, these databases can simplify planning and reporting by project proponents. 

• Develop better maps of where species are likely to occur so that project 

proponents have enough information to decide whether and how to avoid and 

minimize impacts to species before they begin a consultation. This upfront 

planning will expedite consultations by giving proponents the option to propose projects with reduced impacts on species. 

31 

• Expand the use of programmatic consultations to expedite project-level 

consultations and to improve the Services’ ability to assess the cumulative 

effects of those consultations. In our study of FWS consultations, we found 

that although program-level consultations take slightly longer than standard 

consultations (82 days vs. 62 days), subsequent formal consultations on 

project-level consultations require far less time than standard formal 

consultations (24 days vs. 62 days). 

• Finish developing the FWS Information, Planning, and Consultation (IPaC) 

System, which will expedite informal consultations by automating certain 

aspects of the process. Given that over 90 percent of consultations are informal, a functional IPaC system could save the government vast resources in 

the long term and improve the consistency of informal consultations. 

The Services do not need to carry the weight of these administrative reforms on 

their own. Many conservation organizations and other stakeholders are ready and 

able to help the agencies with this effort. At Defenders of Wildlife, for example, we 

recently created the Center for Conservation Innovation, which focuses on using 

technology, science, and interdisciplinary approaches to pioneer pragmatic, innovation solutions to endangered species conservation. Advances in data storage and 

management, satellite imagery, and other technologies can make most of these four 

recommendations cheaper and easier to implement than ever before. Rather than 

legislation, these and other promising approaches will make consultations more 

effective for wildlife and people. 

A ROLE FOR CONGRESS

Section 7 is often considered the most important component of the ESA because 

it prohibits Federal agencies from threatening a species’ existence while offering the 

built-in flexibility to resolve the overwhelming majority of potential conflicts with 

human activities. This combination has contributed to the increasing number of 

species achieving recovery without the need to stop infrastructure projects or convene the God Squad. Can Congress help improve Section 7 implementation? 

Absolutely, but not by changing the ESA. Instead, Congress can fully fund the ESA, 

including the Section 7 consultation program, so that this visionary law can realize 

its full potential. 

QUESTIONS SUBMITTED FOR THE RECORD TO MR. YA-WEI LI, VICE PRESIDENT OF

ENDANGERED SPECIES CONSERVATION, DEFENDERS OF WILDLIFE

Questions Submitted by Rep. Labrador 

Question 1. Please disclose all Endangered Species Act related cases that 

Defenders of Wildlife has filed, and/or been party to, since 2005. 

Answer. To the best of my knowledge, our ESA-related cases are as follows. For 

some cases, I have included additional information from our internal databases. 

2005/2006 

• Tulare Lake Basin Water Storage District v. United States of America (state 

water rights/ESA) 

• Defenders of Wildlife v. Middle Rio Grande Conservancy District, State of 

New Mexico, U.S. Fish and Wildlife Service, Army Corps of Engineers and 

Bureau of Reclamation (Silvery Minnow/Rio Grande/ESA) 

• Spirit of the Sage Council, et al. v. Norton (No Surprises Assurance/ESA) 

• Center for Biological Diversity v. Norton (California Spotted Owl ESA Listing) 

• Castlewood Products, et al. v. Norton (CITES/ESA-Illegal Logging amici 

curiea—DC) 

• Defenders v. Norton (Lethal Take Permits Issued under ESA Section 10(a)(1)) 

• Defenders v. NMFS (North Atlantic Right Whale) 

32 

2007 

• Defenders v. Hall, Norton (Exclusion of Three Species of African Antelope 

from ESA Prohibitions) 

• Defenders of Wildlife v. Norton (Lynx listing/critical habitat) 

• Home Builders Association of Northern California, et al. v. U.S. Fish and 

Wildlife Service, et al. (Critical habitat for vernal pool species) 

• Defenders v. U.S. Army Corps of Engineers, Environmental Protection Agency 

and U.S. Fish and Wildlife Service (Cactus Ferruginous Pygmy Owl) 

• Defenders, et al. v. National Park Service, et al. (Off-road vehicle use at Cape 

Hatteras National Seashore) 

• Tucson Herpetological Society v. Norton (Flat-Tailed Horned Lizard Listing) 

• Northwest Ecosystem Alliance v. Norton (Cascades Grizzly) 

2008 

• National Association of Home Builders et al., v. Babbitt (Cactus Ferruginous 

Pygmy-Owl/Listing and Critical Habitat Challenge) 

• Defenders of Wildlife v. Hall (Northern Rockies Wolf Delisting) 

• Defenders of Wildlife v. Schafer, Civ. No. 08–2326 (N.D. Cal) 

• Sierra Forest Legacy v. Pendleton, Civ No. 08–4240 (N.D. Cal) 

• Save San Onofre Coalition v. Gutierrez, Civ No. 08–1470 (S.D. Cal.) 

• Defenders of Wildlife v. Martin, Civ No. 05–248 (E.D. Wash.) 

2009 

• Defenders v. NMFS (ESA Violations from Right Whale ship strikes) 

• Center for Biological Diversity, et al. v. Kempthorne (Challenge to Section 7 

ESA Rules) 

2010 

• Save San Onofre Coalition v. Gutierrez (S.D. Cal. 08–1470) 

• In re: Polar Bear ESA Listing and 4(d) Rule Litigation (Multidistrict litigation 

docket No. 1993) 

• TWS et al. v. Dep’t of the Interior 

• Defenders v. Schafer, Civ No. 08–2326 (N.D. Cal) 

• Sierra Forest Legacy v. Pendleton, Civ No. 08–4240–SC (ND Cal) 

• Colorado Envtl Coalition v. Kempthorne, 09–cv–00085–JLK (D. Colo) 

2011 

• Defenders v. Minerals Management Service, No. 10–254–WS–C (S.D. Al) 

• Defenders v. BOEMRE, No. 11–12598–F (11th Cir.) 

2012 

• Defenders v. NPS, FWS 

• In re: Polar Bear ESA Listing (D.C. Cir. No. 11–5353) 

• Sierra Club et al. v. Kenna et al., No. 2:12–cv–00974–JAM–DAD (E.D. Cal.) 

2013 

• Defenders, et al. v. BP P.L.C. et al. (MDL–2179) 

• Defenders, et al. v. Jewell et al. (1:13–cv–00919–RC) 

• In re: Polar Bear ESA Listing and 4(d) Rule Litigation (1:08–mc–00764–EGS) 

• In re: Polar Bear ESA Listing (11–5353) 

• Citizens for Balanced Use, et al. v. Maurier, et al. (Montana Supreme Court, 

DV–2012–1) 

• Defenders of Wildlife, et al. v. BLM, et al. (2:12–cv–02578–CAS–DTB) 

• Friends of the Swainson’s Hawk and Defenders v. County of Fresno (CA 

Superior Court in Fresno County) 

• Cape Hatteras Access Preservation Alliance v. Salazar (2:13–cv–00001–BO) 

33 

• Defenders v. NPS, FWS (2:07–cv–00045–BO) 

• Northwest Coalition for Alternatives to Pesticides, et al. v. EPA (Western 

District of Washington, 10–01919–TSZ) 

• Dow AgroSciences, LLC v. NMFS (4th Circuit, No. 11–2337) 

• Sierra Club, et al. v. Kenna, et al. (9th Circuit, 13–15383) (Golden eagle and 

California condor) 

• Red Wolf Coalition v. N.C. Wildlife Resources Commission (Wake County 

Superior Court, 12–CV–012626) 

• Defenders, et al. v. Jewell, et al. (US District Court for the Middle District 

of TN, 2:13–cv–00039) 

• Defenders v. Salazar (D.C. District Court, 1:12–cv–01833–ABJ) 

• The Aransas Project v. Texas Commission of Environmental Quality (5th 

Circuit Court of Appeals 13–40317) 

2014/2015 

• Defenders, et al. v. Jewell (Eastern District of Tennessee, 3:13–cv–00698) 

• Black Warrior Riverkeeper v. U.S. Army Corps of Engineers, et al. (Northern 

District of Alabama, 2:13–cv–02136) 

• Defenders, v. U.S. Fish and Wildlife Service, et al. (1:14–cv–150–CKK) 

• Defenders, et al. v. Jewell (D.C. District Court, 1:13–cv–00919–RC) 

• Sierra Club, et al. v. Kenna, et al. (9th Circuit, 13–15383) 

• Center for Biological Diversity v. EPA, (DC Circuit, 14–1036) 

• The Aransas Project v. Shaw, et al., (5th Circuit, 2:10–CV–75) 

• Center for Biological Diversity v. Kelly (District of Idaho, 1:13–cv–00427) 

• Oceana v. BOEM (12–0981–RC) 

• Friends of the River, et al. v. U.S. Army Corps of Engineers, et al. (Eastern 

District of California, 2:11–cv–01650–JAM–JFM) 

2015/2016 

• Georgia Aquarium v. Pritzker, et al. (N.D. Georgia, 1:13–cv–03241–AT) 

• Defenders, et al. v. Jewell, et al. (N.D. Oklahoma, 1:14–cv–1025) 

• Defenders, et al. v. U.S. Army Corps of Engineers, et al. (D. Montana, Great 

Falls, 4:15–cv–00014–BMM) 

• Center for Biological Diversity, et al. v. Jewell, et al. (D. Arizona, 4:14–cv– 

02506–RM) 

• Center for Biological Diversity, et al. v. EPA (DC Circuit, 15–1054) 

• U.S. Fish and Wildlife Service, et al. v. People for the Ethical Treatment of 

Property Owners (10th Circuit, 14–4151) 

• Defenders v. Jewell (N.D. California, 3:15–cv–04351–THE) 

• Defenders v. U.S. Fish and Wildlife Service, 5:16–cv–1993 (LHK); Sierra Club 

v. CDFW, BS 161458 

Question 2. Please disclose the amount of attorneys’ fees paid to the Defenders 

of Wildlife under the Equal Access to Justice Act, or the Justice Fund, for each case 

filed, and/or each case for which Defenders of Wildlife has been party to, since 2005. 

Answer. Defenders does not maintain an archive that tracks the amount of reimbursements associated with any particular case. As a result, we can provide only 

the date and amount of reimbursements. Further, we only have records starting 

from 2009 because we did not formally track our reimbursements before then. 

If outside counsel represented us in a case, reimbursement fees typically go to 

them. If our in-house staff attorneys represented us in a case, reimbursement fees 

typically offset their salary. Many of the amounts listed below represent attorneys’ 

fee awards, but some represent reimbursements for expenses paid by Defenders and 

our co-plaintiffs before or during litigation. 

DATE AMOUNT 

2/20/2009 $15,908.00 

2/20/2009 9,231.00 

2/20/2009 71,548.00 

3/23/2009 321.42 

34 

4/29/2009 1,500.00 

4/29/2009 13,214.43 

6/15/2009 37,000.00 

6/19/2009 5,500.00 

7/21/2009 45.68 

10/02/2009 1,643.61 

10/15/2009 16,375.00 

10/15/2009 514.64 

1/20/2010 853.75 

1/20/2010 27,271.00 

1/22/2010 1,748.38 

3/15/2010 669.35 

3/18/2010 939.74 

11/30/2010 15,000.00 

3/08/2011 281.55 

4/04/2011 22,834.35 

4/15/2011 21,000.00 

11/07/2011 39,000.00 

3/14/2012 10,000.00 

8/31/2012 10,500.00 

9/14/2012 61,119.50 

11/28/2012 8,095.00 

11/28/2012 66.61 

11/28/2012 3,238.00 

11/28/2012 26.65 

11/28/2012 4,857.00 

11/28/2012 39.97 

1/17/2013 16,517.67 

1/17/2013 6,607.06 

1/17/2013 9,910.60 

1/25/2013 13,825.50 

1/25/2013 5,530.20 

1/25/2013 8,295.30 

2/06/2013 7,856.82 

2/06/2013 3,142.73 

2/06/2013 4,714.09 

8/06/2013 153.91 

8/06/2013 61.56 

8/06/2013 92.34 

10/23/2013 10,000.00 

12/02/2013 30,000.00 

1/30/2014 5,533.00 

4/11/2014 28,319.82 

5/01/2015 1,060.74 

11/20/2015 5,548.00 

3/31/2016 15,424.21 

5/19/2016 39.33 

8/31/2016 799.67 

9/22/2016 68,171.30 

10/31/2016 75,879.72 

10/31/2016 681.78 

12/16/2016 1,163.80 

Total $719,671.78 

35 

Question 3. Please disclose whether your 2015 study incorporated formal consultations that were terminated or withdrawn prior to the conclusion of consultation. If 

so, how did you address these consultations when calculating duration averages? 

Please disclose the number of terminated or withdrawn formal consultations were 

there? 

Answer. There were 33 formal consultations (0.5 percent of formal consultations) 

recorded as withdrawn in the FWS Section 7 database that we obtained. Of those, 

25 were recorded as concluded on time, 4 were recorded as not on time, and 4 were 

unknown. The duration calculations included these consultations, which, because 

there were so few, had no effect on the estimates. 

Question 4. In the methodology for your paper you state that: ‘‘[t]o evaluate the 

factors most likely to influence consultation duration, we removed 2,468 consultations (2.8 percent) with duration above the 98th percentile of all durations; these 

extreme values are strongly influenced by factors other than those recorded in [the] 

TAILS [database], and their removal dramatically improved the fit of the models.’’ 

Regarding these removed consultations: 

4a. Is it correct that these consultations were not included in your calculations 

of the median duration of informal and formal consultations? [Specifically, the 

calculations described in your methodology as follows: ‘‘We calculated median consultation durations and approximate 95 percent CIs of the median after removing 

missing data. Standard analysis of variance was used to test for differences in 

means among categories.’’] 

Answer. No, that is not correct: all consultations were used in the median duration calculations. The 98th percentile consultations were excluded only from the 

linear model that associated predictor variables with consultation duration. 

4b. Were the removed consultations taken from the universe of formal consultations, the universe of informal consultations, or the universe of informal and formal 

consultations combined? 

Answer. The universe of all consultations. 

4c. What were the ‘‘other factors’’ that contributed to these consultations with an 

‘‘extreme’’ duration value? 

Answer. The primary factor was whether a consultation was a reinitiation, but 

a small number may have been long-running consultations. 

Question 4d. How were you able to determine the ‘‘other factors? ’’ 

Answer. By FOIA requests and by asking FWS biologists. 

4e. How removed consultations with ‘‘extreme’’ values account for each of the 

‘‘other factors’’ you identified? 

Answer. The question is unclear. A basic tenet of any analysis is that the process 

generating the data is stable. 

4f. Do the removed consultations, relative to those consultations retained, tend to 

be larger in scope and/or scale? If so, how many would fit this description? 

Answer. We do not know the relative sizes of the consultations and cannot answer 

this question. To the best of our knowledge, these consultations are mostly reinitiations of prior consultations. 

Question 5. In the dataset linked to your paper there were over 11,000 informal 

consultations with the elapsed time of 0 (zero) days. There were over 6,000 other 

informal consultations for which the elapsed time was 1 (one) day. 

5a. Do these consultations reflect automated responses to IPAC queries, NLAA 

concurrences or some other factors? Can you provide a breakdown regarding the 

major factors that account for these 0–1 day informal consultations? 

Answer. The number of automatic IPAC responses is likely very small: FWS has 

only recently started small pilots of the system in the southwest. The most likely 

cause is that there are no listed species present in the action area. A second cause 

may be actions that are clearly not likely to adversely affect listed species or their 

critical habitat, and thus can complete consultation immediately. 

5b. How was it determined that they concluded in 1 day or less? 

Answer. By looking at the data provided in TAILS. 

36 

1Marbury v. Madison, 5 U.S. 137,163 (Marshall, C.J.) (‘‘The very essence of civil liberty 

certainly consists in the right of every individual to claim protection under the laws, whenever 

he receives an injury. One of the first duties of Government is to afford that protection . . .. 

The government of the United States has been emphatically termed a government of laws, and 

not of men. It will certainly cease to deserve this high appellation, if the laws furnish no remedy 

for the violation of a vested legal right.’’) 2 28 U.S.C. § 2412(a)(1). 

3Sierra Club v. Secretary of the Army, 820 F.2d 513, 517 (1st Cir. 1987) (quoting 28 U.S.C. 

§ 2412(d)(2)(A)). 4Pierce v. Underwood, 487 U.S. 552, 572 (1988). 5 Id. 6See Nat’l Wildlife Fed’n, 870 F.2d at 547. 7 28 U.S.C. § 2412(d)(1)(C). 

Question 6. In the dataset linked to your paper there were over 827 formal consultations with ‘‘NA’’ recorded for the duration or ‘‘elapsed’’ time. (Excluded from the 

827 are about 21 formal consultations that had a ‘‘NA’’ value and that were also 

were recorded as ‘‘emergency consultations.’’) 

6a. Why do these formal consultations have no elapsed time? 

Answer. Because the start of formal consultation or the conclusion date were not 

recorded. In some cases, these were missing because the consultation had not yet 

concluded (and some missing dates were included with a later data update from 

FWS). 

6b. If these were formal consultations, how were they accounted for in your 

determination of duration? 

Answer. They were excluded from summary calculations using the parameter 

‘na.rm = TRUE’ in R’s ‘median’ function. 

6c. If these 827 records were determined not to be formal consultations, why and 

how so? 

Answer. We did not conclude that the consultations were not formal, so the latter 

clause of the question does not apply. 

Questions Submitted by Rep. Grijalva 

Question 1. It was stated that the EAJA cap on attorneys’ fees of $125 does not 

apply to environmental groups. Please explain under what circumstances the cap for 

attorneys’ fees can be lifted. Does it apply only to environmental litigants? Does the 

court have the authority to reduce an attorney’s fee award? 

Answer. The Equal Access to Justice Act (EAJA) embodies our Nation’s values of 

protecting legal rights, access to courts, and the rule of law, and is not limited to 

environmental litigants. In enacting EAJA, Congress recognized that individuals 

and organizations should ‘‘ ‘not be deterred from seeking review of, or defending 

against, unjustified governmental action because of the expense involved.’ ’’ 1 Parties 

may seek attorneys’ fees under EAJA only when bringing cases not covered by a 

fee-shifting provision in another Federal law.2

The $125 hourly cap on attorneys’ fees does apply to environmental groups. EAJA 

allows courts to lift the fee cap only in limited circumstances. Courts have discretion 

to consider whether ‘‘ ‘a special factor, such as the limited availability of qualified 

attorneys for the proceedings involved, justifies a higher fee.’ ’’ 3 General legal competence or even extraordinary but generalized litigation experience does not alone 

justify a higher fee.4 Special factors require a strong showing, such as an identifiable practice specialty like patent law or foreign language skills necessary for the 

litigation.5 In these situations, the EAJA fee was based on the reasonable market 

rate for the lawyers in that specialty.6 Any EAJA fee can be reduced if the prevailing party’s conduct was unduly and has unreasonably protracted the final resolution of the matter in controversy.7

Question 2. Who sets the reimbursement rates for attorneys’ fees under the ESA 

citizen suit provision? Is Defenders of Wildlife allowed to ‘‘charge’’ whatever rate it 

wants, or have the courts set limits? 

Answer. Congress long ago recognized that the government needs the public to 

help enforce America’s laws, including those protecting civil rights, voting rights, 

and the environmental. Citizen suit provisions, including those in the ESA, serve 

this purpose. Private citizen, nonprofit organizations, and businesses from across 

the political spectrum can seek reimbursements under the ESA citizen suit 

provision. 

37 

8See, e.g., 5 U.S.C. § 552(a)(4)(E)(i) (freedom of information); 15 U.S.C. § 2060(c) (consumerproduct safety); 29 U.S.C. § 794a(b) (disability rights); 29 U.S.C. § 2617(a)(3) (workers’ rights); 

42 U.S.C. § 1988(b)(civil rights); 42 U.S.C. § 5207(c)(3) (gun rights); 42 U.S.C. § 7604(d) (clean 

air). 9 City of Riverside v. Rivera, 477 U. S. 561, 575 (1986). 10See Pub. L. No. 104–66, 109 Stat. 707 (1995). 11 5 U.S.C. § 504(e) (reporting requirements for the ACUS); 28 U.S.C. § 2412(d)(5) (1994) 

(reporting requirements for DOJ). 12Laura Peterson, Lawsuits Not Hurting Endangered Species Act—FWS Director, 

GREENWIRE (July 5, 2012). 13 Id. 

Recognizing that such specialized cases can only be brought with the expertise of 

competent counsel, Congress has provided for ‘‘reasonable’’ market-based reimbursements of attorneys’ fees for prevailing parties. These fees are thus limited by law, 

generally vetted by the courts, and based on prevailing market rates.8 Thus, 

Defenders of Wildlife cannot seek reimbursements of whatever rate it wants. 

The importance of the fee-recovery provisions lies beyond dispute. As the U.S. 

Supreme Court has recognized, if a citizen ‘‘does not have the resources’’ to pursue 

an enforcement action, ‘‘his day in court is denied him; the congressional policy 

which he seeks to assert and vindicate goes unvindicated; and the entire Nation, 

not just the individual citizen, suffers.’’ 9

Question 3. A Republican Member stated that the ‘‘DOI doesn’t have a mechanism 

to track awards of attorneys’ fees.’’ Can you please explain why and when that 

reporting mechanism was abolished? 

Answer. Before 1995, EAJA required both the Administrative Conference of the 

United States (ACUS) and the Department of Justice (DOJ) to report data on EAJA 

awards from administrative and court proceedings, respectively. These reporting requirements were broadly supported but, as applied to the DOJ, eliminated by the 

Republican-controlled Congress in 1995.10 EAJA had required the DOJ to report 

‘‘the amount of fees and other expenses awarded during the preceding fiscal year’’ 

and to disclose ‘‘the number, nature, and amount of the awards, the claims involved 

in the controversy, and any other relevant information.’’ 11

Question 4. Will you please explain the value of the citizen suit provision for ESA? 

Does litigation benefit species conservation, contrary to assertions by Republican 

Members and witnesses? Does Defenders of Wildlife ‘‘profit’’ from environmental 

litigation? 

Answer. As explained in my response to Question 3, Congress long ago recognized 

the importance of enabling the public to help enforce certain Federal laws. ESA 

citizen suits help ensure that FWS listing, recovery, consultation, and incidental 

take permitting decisions further the ESA’s goals of preventing extinction and recovering species. For example, when a conservation organization successfully challenges a Section 7 decision, the proposed project is sometimes modified to adopt 

stronger conservation measures. Those measures can directly reduce threats to affected species and expedite their recovery. 

Some observers have claimed that citizen enforcement cases have derailed the 

ESA, but the most recent former director of the U.S. Fish and Wildlife Service, Dan 

Ashe, has rejected such claims.12 ‘‘On the scale of the challenges that we face implementing the Endangered Species Act, litigation doesn’t even show up on the radar 

screen,’’ according to Ashe.13

Fee reimbursements make up only a small fraction of Defenders’ overall budget. 

Our organization is in no way motivated by ‘‘profit’’ when deciding whether to pursue ESA litigation. Nothing in our litigation approval process even hints at profit, 

nor have I ever heard anyone mention this factor in our internal discussions about 

proposed litigation. 

Question 5. Mr. Wood’s written testimony states that the Ninth Circuit 

Cottonwood decision requires the ‘‘Forest Service to redo all of its comprehensive 

programmatic consultation complicating all timber projects related to it.’’ Could you 

please elaborate? Is it as ‘‘complicating’’ as the witness would lead us to believe? 

How many industry projects have been halted as a result of programmatic consultation? What impact will Cottonwood have on future land management planning and 

endangered species conservation? 

Answer. The Cottonwood decision requires the U.S. Forest Service to reinitiate 

Section 7 consultation on forest plans implicated in the revision of critical habitat 

for the Canada lynx. It is inaccurate to portray the consultation as a ‘‘redo’’ of the 

previous programmatic consultation because that consultation did not evaluate 

38 

14See MFWP, Rock Creek Project Draft SEIS Comments (Apr. 18, 2016). 

whether the relevant forest plans would violate the Section 7 prohibition on 

‘‘destruction or adverse modification’’ of critical habitat on National Forest lands. 

Further, the reinitiation would not literally ‘‘redo’’ the entire programmatic consultation because many parts of that consultation can remain the same. 

The reinitiation would not be as complicated as Mr. Wood claims. My understanding is that the Forest Service and FWS should be able to complete the 

reinitiation without significant resource commitments. Limiting consultation to 

project-level actions, as some have suggested in response to the Cottonwood case, 

fails to capture the risks that may accrue to listed species and their habitat at 

broader spatial and temporal scales. It is thus a less effective and riskier way to 

implement the ESA. 

We are not aware of any projects being halted because of a programmatic consultation. In fact, between 2008 and April 2015, FWS had found jeopardy on only 

two projects and adverse modification on only one project. Each of those projects, 

however, could proceed without violating the ESA if it adopted ‘‘reasonable and 

prudent alternatives.’’ 

FWS can manage the reinitiation of a programmatic consultation so that it results 

in little to no delay of individual projects. In addition, programmatic consultations 

often lead to more efficient project-level consultations. In our study of FWS consultations, my colleague and I found that the median duration of project-level formal 

consultation covered by a programmatic consultation was 24 days, compared to 62 

days for all other formal consultations. This efficiency indicates that although a programmatic consultation may require more time to complete than a standard consultation, subsequent project-level consultations are often considerably faster than 

standard consultations. 

The Cottonwood decision reinforces the value of smart planning under the ESA 

and is consistent with how FWS has interpreted for years the reinitiation provision 

of its Section 7 regulations. For these reasons, the decision is unlikely to dramatically change how the ESA applies to future land planning decisions. The current 

process for reinitiating programmatic consultations is designed to help create more 

effective and durable conservation outcomes for listed species and expedite projectlevel consultations. 

Question 6. Mr. Stiles claimed in his testimony that state wildlife agencies have 

much more local, on the ground knowledge than Federal agencies, and recommends 

expanding the involvement of state agencies in the consultation process. Would this 

help Mr. Stiles get the Rock Creek Mine approved? Is it true that the Montana 

Department of Fish Wildlife and Parks believes that the Rock Creek Mine may jeopardize Bull trout in the Lower Clark Fork River? 

Answer. Expanding the involvement of the Montana Fish, Wildlife, and Parks 

(MFWP) might actually impede the approval of the Rock Creek Mine project. MFWP 

has identified major defects in the environmental analysis for the project, particularly the omission of important information about the impacts of the project on bull 

trout. MFWP provided comments on the project’s Draft Supplemental EIS (SEIS) 

pertaining to fisheries and wildlife resources.14 Those comments critiqued the FWS’s 

2007 Biological Opinion for the Rock Creek Mine that covered the bull trout and 

the Forest Service’s reliance on this document in its SEIS, highlighting the Federal 

agencies’ failure to analyze more recent scientific information and their omission of 

several key issues related to bull trout impacts. For instance, MFWP questioned the 

Forest Service’s suggestion in the SEIS that longer and more severe stream 

dewatering in Rock Creek (leading to more intermittent flows) would benefit the 

bull trout. MFWP also questioned the biological opinion’s conclusion that the preferred alternative would not jeopardize the Lower Clark Fork core area bull trout 

population, as the project would harm critical habitat in the only two bull trout populations in the Cabinet Gorge Reservoir reach of the Lower Clark Fork core area. 

MFWP stated that ‘‘the Rock Creek project has potential to negatively impact Bull 

Trout in the [Lower Clark Fork River]. Negative impacts are predicted for critical 

habitat in the only two remaining Cabinet Gorge Reservoir Bull Trout populations.’’ 

Because of these concerns, MFWP concluded that neither the biological opinion nor 

the SEIS has ‘‘adequately addressed potential Bull Trout impacts by not including 

recent research results, accepting uncertainties associated with limited modeling results, and approving likely ineffective mitigation measures,’’ and recommended that 

the Federal agencies ‘‘re-evaluate these impacts.’’ In short, while MFWP provided 

insightful comments based on its ‘‘local, on the ground knowledge’’ of bull trout, its 

39 

15 Id. 16 Id. 17FWS, Final Biological Opinion on the Effects to Grizzly Bears from the Montanore Mine, 

39 (March 31, 2014) (‘‘Montanore Grizzly Bear BiOp’’). 

expanded involvement would not necessarily increase the chances of Federal 

approval of the Rock Creek Mine. 

Question 7. Mr. Stiles also claimed that the Endangered Species Act is unnecessarily delaying the Montanore Mine. Yet, the FWS consultation process resulted in 

a ‘‘no jeopardy’’ finding. Further, the state of Montana has determined that it can’t 

approve the full Montanore mine because it would violate state non-degradation 

laws that preclude the degradation of wilderness rivers and streams. Nevertheless, 

he recommends that the ESA be changed to ‘‘reduce impediments to economic and 

infrastructure development.’’ Given that the ‘‘no jeopardy’’ finding essentially gives 

the mining project the green light with respect to ESA, and it is in fact state permitting that is preventing the project from moving forward, are changes to the ESA 

necessary to address Mr. Stiles’ problem? 

Answer. Mr. Stiles’s testimony appears to present a contradiction. The ESA did 

not delay the Montanore Mine approval, as FWS issued two biological opinions in 

March 2014 that concluded the project would not jeopardize the bull trout or grizzly 

bear. A coalition of concerned citizens and organizations have challenged the nojeopardy findings, but neither that challenge nor the consultation has delayed the 

project. Instead, as Rep. Grijalva notes, the state of Montana’s non-ESA related concerns about water quality in the Cabinet Mountain Wilderness area are preventing 

project approval. In fact, the Montana Department of Environmental Quality refused to permit the project because the agency lacked enough data to determine 

whether the project would violate state water quality and non-degradation standards. Further, even if the pending challenge to FWS’s no-jeopardy decisions under 

the ESA were to succeed, the state’s concerns over water quality violations would 

still stand as an independent obstacle to permitting the project. 

Question 8. The state of Montana calls comparison of the Rock Creek Mine proposal with the Greens Creek Mine ‘‘inaccurate and misleading.’’ Mr. Stiles’ testimony seems to contradict the state, a Federal court decision that I submitted for 

the record, and a Fish and Wildlife Service memo that I also submitted for the 

record. Do you agree with Mr. Stiles that the environmental impacts of the projects 

are comparable given the evidence to the contrary? 

Answer. Defenders agrees with the state of Montana that comparisons between 

the two mines are ‘‘inaccurate and misleading.’’ Greens Creek Mine is an underground silver mine on Admiralty Island in southeast Alaska. It is surrounded by 

the Kootznoowoo National Monument and Wilderness Area. The similarities end 

there. As MFWP has noted, the wilderness on Admiralty Island ‘‘is over 10 times 

the size of the Cabinet Mountains [sic] Wilderness and contains hundreds of spawning salmon populations’’ of which only a small number are impacted by the mine.15

In contrast, the smaller Cabinet Mountain Wilderness contains only two viable bull 

trout populations, both of which are directly impacted by the Rock Creek Mine’s proposed operations.16

Another difference is the mitigation requirements. The Greens Creek Mine was 

required to build and maintain a fish passage allowing anadromous fish (coho 

salmon) to access upper Greens Creek, as mitigation for the mine’s destruction of 

important habitat in the headwaters reach of Tributary Creek. In contrast, the Rock 

Creek Mine Biological Opinion and SEIS contain limited mitigation measures (e.g., 

reducing non-native fish populations, improving stream habitat, and removing 

culverts). MFWP reviewed the proposed actions and concluded that, because of practical constraints and local conditions, ‘‘[t]he mitigation activities discussed . . . are 

outdated, likely ineffective, and unsupported by recent research results.’’ MFWP 

thus recommended that the Forest Service reconsider the proposed mitigation measures for impacts to the only two remaining bull trout populations in the Cabinet 

Mountain Wilderness. 

Similarly, the bear population on Admiralty Island far outstrips that in the 

Cabinet Mountain Wilderness. The Tlingit name for Admiralty Island, Kootznoowoo, 

means ‘‘Fortress of the Bear’’—the island has one of the densest populations of 

brown bears in the world, at one bear per square mile (with 1,600 total bears). In 

contrast, the Cabinet-Yaak Ecosystem, which encompasses the Cabinet Mountain 

Wilderness, contains as few as 42 individual grizzly bears.17 The Montanore Grizzly 

Bear biological opinion cautioned that this population of grizzly bears ‘‘remains 

vulnerable to extirpation because of small population size.’’ 

40 

Finally, the Greens Creek Mine is the only mine with environmental impacts in 

its action area. The Rock Creek Mine and Montanore Mine, on the other hand, 

would represent twin mines on opposite edges of the Cabinet Mountain Wilderness 

boundary, effectively bookending the wilderness area. HECLA owns and would operate both mines, and its characterization of the Rock Creek Mine as a standalone 

project comparable to Greens Creek Mine is misleading. Based on the information 

about Greens Creek Mine, Rock Creek Mine would have very different effects on the 

wilderness character of the Cabinet Mountain Wilderness and the ESA-listed 

species there. 

Question 9. Majority witnesses and Members claimed that individual employees 

at FWS with personal agendas were single-handedly holding up the consultation 

process and development and infrastructure projects? Is there any real evidence of 

this? How can personnel issues, to the extent that they exist, be addressed? 

Answer. Although it is possible for certain FWS employees to hold up consultations, the Majority Members grossly mischaracterized our Section 7 study when they 

claimed that the study revealed a widespread problem with individual employees 

delaying consultations. This error is attributable to a misunderstanding of statistics. 

Our study shows that the identity of a consultation biologist accounts for, on average, only 0.25 percent of the variation in consultation duration. This is calculated 

using the mean-square column (MS) of Table 1 in our study. The Majority Members 

mistakenly used the sum-of-squares (SS) column for their conclusion. Let me illustrate this error through a more familiar example. Imagine you must decide which 

of two batters to use in a baseball game. One has had 20 hits in 20 at-bats, while 

the other has had 50 hits in 100 at-bats. You would want to choose the batter with 

fewer hits but a batting average of 1.00, not the batter with more hits but an 

average of 0.5. Using the average allows you to account for the total number of 

times a batter was at-bat. The same logic applies to interpreting the Section 7 data. 

You want to use MS because it accounts for the total number of FWS employees 

(over 1,200) who completed consultations. Using this method, we found that approximately 97 percent of the variation in consultation duration is attributable to 

whether a consultation was formal. 

Any personnel issues can be handled by management direction, as is currently 

done. That only 0.25 percent of the variation in consultation duration is attributable 

to employee identity strongly suggests that the current practices work well. 

Question 10. Majority witnesses and members claimed that ESA litigation has no 

benefit for species. Is that accurate? Can you give us examples of species that have 

been protected and are recovering because of litigation? 

Answer. That claim is inaccurate. Successful citizen suits to enforce the ESA have 

delivered tremendous benefits to not only imperiled species but also local communities by maintaining a healthy environment. Examples include the following: 

• ESA litigation targeting extensive road building and clearcutting on the 

Flathead, Targhee, and Gallatin National Forests in the 1990s established the 

key principle that road construction in grizzly habitat harms bears. This principle has been integral to managing habitat for the species in the Northern 

Rockies and has allowed its population to increase toward recovery. 

• Recovery of the reintroduced wild population of Mexican wolves was derailed 

by Federal agency removal of wolves that predated on livestock. The removals 

were mandatory under what the U.S. Fish and Wildlife Service called 

‘‘Standard Operating Procedure (SOP) 13.’’ An ESA lawsuit resulted in a settlement that eliminated SOP 13 and allowed for more flexible management 

of wolves and for populations to grow again. 

• ESA litigation has also brought tremendous benefits to West Coast salmon 

populations and the thousands of fishing jobs and Native American tribes 

that depend on healthy salmon runs. In fact, commercial fishermen and tribes 

are often plaintiffs in cases to enforce ESA protections for salmon because 

they understand that these protections are needed for their livelihoods. ESA 

litigation was key to successfully listing Columbia/Snake River salmon and 

Central Valley salmon (winter-run and spring-run Chinook) and then litigation to compel vital changes in dam and water export operations. Without this 

litigation, many of the salmon runs would likely have disappeared. 

• In Hawaii, ESA litigation has helped catalyze vital ESA protections for 

hundreds of Hawaiian plants and dozens of Hawaiian and Mariana Islands 

animals. Litigation has also protected ESA-listed species in Hawaii from unauthorized ‘‘take’’ under Section 9 of the statute. 

41 

• In the Pacific Northwest, southern resident killer whales have benefited 

greatly from ESA litigation—first from litigation to catalyze much-needed 

ESA protections and more recently for protections to protect the whales from 

harmful human interactions and excessive sound. 

Question 11. In his testimony, Mr. Calkins made light of the fact that conservation of two separate ESA listed species in the same river system necessitated 

different and sometimes conflicting strategies. Steelhead is a species managed by 

NMFS. Tidewater goby is a species managed by FWS. The perceived conflict between the Services is the result of potential habitat area for tidewater goby versus 

steelhead relative to discharge amounts. The life history of these two species are different in that tidewater goby thrive in shallower environments (less discharge), 

while steelhead require, among other things, a minimum depth of water (relatively 

more discharge volume). In a complicated situation like this, does the ESA Section 

7 consultation process lead to better outcomes? Why? Is it true as Mr. Calkins testified that consultation has provided no demonstrable benefit for these species? 

Answer. Contrary to the suggestion in this question, the habitat requirements of 

tidewater goby and steelhead are compatible. In many areas in California, both 

species evolved side-by-side in coastal lagoons, and both continue to thrive in those 

environments. Although the species have slightly different water-depth requirements, the amount of habitat for both species tends to increase with increased water 

discharge. Further, habitat depth in coastal lagoons is not always closely related to 

discharge levels. Narrow lagoons can be deep with low discharge and broad lagoons 

can be shallow despite much larger discharge. Tidewater goby and steelhead can 

continue to exist in the same environments, and managing to meet the needs of both 

species does not create an irreconcilable conflict. 

While there is no conflict between the habitat needs of tidewater goby and 

steelhead, the species do have complex and interacting requirements. Section 7 

consultations can be most valuable in a complicated situation like this. Consultation 

enables informed decision making based on the best available science, allowing 

agencies to understand and meet the needs of multiple species. And because Section 

7 applies to all Federal agencies, it often brings stakeholders to the table in contentious situations where compromise or collaboration would otherwise be absent. 

Where necessary, NMFS and FWS will each consult on the same proposed action, 

and the two agencies are generally adept at coordinating their efforts. For example, 

the consultations for the water operations in the Bay Delta show reasonably good 

coordination despite the extremely complicated and controversial nature of the operations. In most other consultations that involve both agencies, we never hear of 

problems because the agencies are coordinating effectively with each other. 

I am not intimately familiar with the consultations that Mr. Calkins discussed, 

so it is difficult for me to assess how the species responded in that instance. In general, however, consultations are effective at preventing Federal agencies from 

threatening the survival of ESA-listed species. Consultations accomplish this goal 

in several ways. Before a consultation ever begins, many Federal agencies and their 

applicants plan projects with built-in measures that minimize and even offset the 

harmful effects of the projects. During informal consultations, the impacts of 

projects are often further minimized. Projects that require formal consultation are 

even further refined to ensure that they do not violate the jeopardy and adverse 

modification prohibitions. These refinements come in the form of ‘‘reasonable and 

prudent measures’’ and, for projects that trigger the jeopardy/adverse modification 

prohibitions, ‘‘reasonable and prudent alternatives.’’ Partly because of the benefits 

of consultations, FWS recommended downlisting the tidewater goby in its 2007 5- 

year status review for the species. 

Question 12. In his testimony, Mr. Calkins blamed consultation between FWS and 

the Texas Department of Transportation for significantly increasing the cost of a 

highway project. However, two letters from FWS to TXDOT show that TXDOT 

agreed to take voluntary conservation measures to avoid damaging the only known 

habitat of the endangered Braken Bat Cave Meshweaver, and that these measures 

made the project unlikely to affect the species. Further, it is clear from TXDOT documents that additional features unrelated to the consultation were added to the 

project, which accounted for a large part of the cost increases. Is this a case of the 

ESA being blamed for a problem it did not cause? Even if the ESA did result in 

some cost increases, should TXDOT be responsible for covering those instead of 

passing them along to society by driving a species into extinction? Why? 

Answer. This is an example of project proponents not heeding warnings about the 

presence of an endangered species on a project site. Two years before the 

meshweaver (Circurina venii) was discovered in the Clandestine Cupola Cave 

42 

18http: / / www.valleymorningstar.com /news /local_news /article_9ebfe67c-d313-11e2-b44e-001a4 

bcf6878.html. 19 Id. 

complex during highway construction, the Alamo Regional Mobility Authority 

mentioned the following in a public slideshow presentation: 

Of the species found [in the cave complex], one specimen is believed to be 

an unlisted blind cave spider . . .. However, because genetic data do not 

exist for the federally listed and protected species, it is possible that the 

spider found could be Circuina (sic) venii, a federally listed species. Therefore, based on this data, it is possible the project may affect, but is not 

likely to adversely affect, Circuina venii.18

In a December 2011 environmental document for the highway project, the project 

was again mentioned as ‘‘may affect, not likely to adversely affect’’ the species.19

Despite these acknowledgments of the meshweaver’s possible presence, road construction continued without adequate measures to avoid impacting the species. Had 

the project proponents planned more carefully for the species, the cost and duration 

of the project would have deviated less from original estimates. In discussing the 

consultation process with Federal agencies, I have found that incorporating conservation measures into the early phases of a project can often reduce the duration 

of consultations, avoid the need for formal consultation, and reduce the complexity 

of consultations. 

As for who should bear the costs of conserving the meshweaver, Section 7(a)(2) 

places the responsibility on Federal agencies to ensure against jeopardy and adversely modification. Thus, the ESA reflects the normative judgment that Federal 

agencies or project applicants should absorb the costs of conservation measures that 

safeguard the survival of ESA-listed species. I agree with this judgment because it 

avoids creating an environmental ‘‘externality’’ by shifting the cost of extinction to 

society. In fact, economists often advise governments to adopt policies that ‘‘internalize’’ an externality, so that the cost of an activity falls on the person who chooses 

to carry out the activity. 

Congress should also remember that the costs of complying with Section 7 are 

generally feasible for project proponents. ‘‘Reasonable and prudent measures’’ to 

minimize the extent of incidental take ‘‘can include only actions that occur within 

the action area’’ and ‘‘involve only minor changes to the project.’’ In the rare event 

that FWS finds jeopardy or adverse modification, any ‘‘reasonable and prudent alternatives’’ must be ‘‘economically and technologically feasible’’ to implement. 

Mr. LABRADOR. Thank you very much. 

I will now recognize Mr. Wood. 

STATEMENT OF JONATHAN WOOD, STAFF ATTORNEY, PACIFIC 

LEGAL FOUNDATION, ARLINGTON, VIRGINIA 

Mr. WOOD. Thank you, Chairman Labrador, Ranking Member 

McEachin, and Full Committee Chairman Bishop, for the opportunity to testify on behalf of Pacific Legal Foundation on the 

impacts of ESA consultation on economic and infrastructure development. I submitted a longer written statement for the record, but 

I want to stress three points in my remarks today. 

First, because consultation applies to every project that requires 

any sort of Federal permit or funding assistance, the impacts of 

consultation inevitably increase as the Federal Government grows. 

Second, much of the delay and expense of the consultation process happens in so-called pre-consultation, which does not get counted by the agencies toward meeting those deadlines that were 

mentioned by the previous witness. 

And third, the intuition that stopping or delaying activity 

inevitably helps endangered species is wrong. Often, consultation 

43 

delays or discourages activities that would actually benefit species, 

including necessary maintenance to infrastructure. 

On the first point, the extensive delays caused by consultation 

are a clear result of the increase in the number of state and private 

activities that the Federal Government regulates, permits, and 

funds. As the Federal Government grows, more and more projects 

must go through consultation, placing even greater strains on the 

limited budgets that Federal agencies have available. 

Unfortunately, the problem is going to get worse, not better, as 

recent regulations further increase the number of projects that 

must go through consultation. And many of those projects are the 

kinds that you were just hearing about, where they have a relatively narrow or limited Federal nexus and minor environmental 

impacts. But by putting so many of them through consultation, you 

sap agency resources and put even more traffic in the system, distracting the agency from being able to focus and timely process 

those major projects that really deserve further scrutiny. Adding 

more cars to already gridlocked traffic is no way to speed things 

up. The same is true with consultation. 

For my second point, much of the delay in consultation occurs 

during pre-consultation. Although the statute sets firm deadlines 

by which the process must be completed, agencies do not count 

most of the time spent toward the deadline. A recent report from 

the University of Texas’ Kay Bailey Hutchison Center for Energy, 

Law, & Business found that pre-consultation lasts 18 months or 

more, far in excess of the statute’s 135-day deadline. 

As an example, the Tule wind project in Southern California, 

which was designed to provide renewable energy to 60,000 homes, 

was held up for 10 months in pre-consultation and 11 months in 

formal consultation. Combined, that delay is almost five times the 

limit that Congress imposed. 

The final point I wish to make is that delaying or preventing 

projects can actually harm species. PLF client, Save Crystal River, 

has a project to restore habitat for manatee in Florida. That project 

had to go through consultation, which delayed it for several 

months, and the result was to put limits on the work that could 

be done that made it more expensive. Delays and burdens like this 

sap resources that could be better put to species recovery, and discourage the types of voluntary activity we desperately need to 

actively recover and manage endangered species. 

Delaying infrastructure maintenance can also harm species. Last 

month, we all watched nervously as the Oroville Dam in Northern 

California nearly burst during a period of heavy flooding, threatening the lives and property of 200,000 people living below. Thankfully, that crisis was averted, but that situation should remind all 

of us that infrastructure maintenance and upgrades are necessary 

for public safety. 

They are also necessary to protect the environment. As the flood 

waters receded, we learned of the full environmental impacts of 

that situation, including substantial erosion downstream and the 

stranding of endangered salmon. If the dam had failed, those impacts would have been worse. Yet, when the state began planning 

to repair and upgrade the dam, which would prevent similar environmental impacts in the future, Federal agencies immediately 

44 

1See Timothy Egan, Strongest U.S. Environment Law May Become Endangered Species, N.Y. 

Times (May 26, 1992), http://www.nytimes.com/1992/05/26/us/strongest-us-environment-lawmay-become-endangered-species.html?pagewanted=all (quoting Donald Barry of the World 

Wildlife Fund describing the ESA as ‘‘the pit bull of environmental laws’’ because ‘‘[i]t’s short, 

compact and has a hell of a set of teeth’’). 2 16 U.S.C. 1536(a)(2). 

3 16 U.S.C. § 1536(d); 50 C.F.R. § 402.09. 

4See Samantha Schmidt, Derek Hawkins, & Kristine Phillips, 188,000 evacuated as 

California’s massive Oroville Dam threatens catastrophic floods, Wash. Post. (Feb. 13, 2017), 

available at https://www.washingtonpost.com/news/morning-mix/wp/2017/02/13/not-a-drillthousands-evacuated-in-calif-as-oroville-dam-threatens-to-flood/. 5Letter from Rep. LaMalfa to President Trump re: Oroville Dam (Mar. 15, 2017), reproduced 

at http://www.gridleyherald.com/article/20170315/NEWS/170319778 (criticizing the demand for 

consultation and work restrictions because they ‘‘would delay repairs immeasurably and place 

workers at risk’’). 

raised consultation as an obstacle, threatening to delay or perhaps 

entirely discourage that necessary work. 

Across the country, we have many dams, bridges, roads, and 

other infrastructure that are approaching the end of their engineered lives, and will soon need to be repaired or upgraded and go 

through consultation. So, now really is the time for this Committee 

and for the agencies to look at all of the tens of thousands of 

projects that go through consultation, despite the fact that they 

have a very minor Federal nexus and limited environmental impacts, so that the agency’s limited resources really can be focused 

on those major Federal projects that are vital to our public safety 

and pose some threat to the environment. 

Otherwise, if we allow these infrastructure projects not to be 

done, it is a threat both to public safety and the environment, 

because you will see some of this infrastructure fail. 

Thank you again for the opportunity to present my views on this 

important subject, and I look forward to any questions from the 

Committee. 

[The prepared statement from Mr. Wood follows:] 

PREPARED STATEMENT OF JONATHAN WOOD, ATTORNEY, PACIFIC LEGAL FOUNDATION, ARLINGTON, VIRGINIA

The Endangered Species Act is known as the ‘‘pit bull’’ of environmental law.1 For 

good reason. As many economic-development and infrastructure project proponents 

have learned the hard way, once the Endangered Species Act sinks its teeth into 

you, it does not let go easily. 

The ESA consultation process, which applies to any project requiring Federal 

agency approval or funding and that ‘‘may affect’’ a listed species, is no exception.2

The burdens of this process rise in lockstep with the growth of the Federal Government. As the number of activities the Federal Government regulates, permits, and 

funds increases, more projects must undergo consultation, straining agency resources, and slowing everything down. The statute and regulations forbid the 

commitment of resources until consultation concludes, meaning delays in the consultation process are delays for the project.3

Consequently, consultation is a significant obstacle to economic development and 

much-needed public-safety projects, imposing both delays and additional costs. By 

putting off projects, consultation can undermine public safety and ultimately harm 

species dependent on proactive conservation efforts or threatened by crumbling 

infrastructure. 

Last month, for example, we all watched as Oroville Dam’s main spillway failed 

during a period of extreme flooding in Northern California. It looked like the emergency spillway would fail too, threatening the lives and property of nearly 200,000 

people living below the dam.4 Thankfully, the emergency spillway held and that 

crisis was averted. But the experience should have brought home the importance of 

infrastructure maintenance and upgrades. 

After the flood receded, California announced plans to repair and improve the 

aging dam. Immediately, Federal bureaucrats raised the specter of consultation, 

threatening to slow the repairs down, increase their costs, or block them entirely.5

45 

6See Peter Fimrite, Measures save young salmon after failure of Oroville Dam spillway, SF 

Gate (Mar. 21, 2017), available at http://www.sfgate.com/science/article/Measures-save-youngsalmon-after-failure-of-11015659.php (the Oroville Dam spillway catastrophe threatened nearly 

a billion endangered salmon); Kurtis Alexander & Tara Duggan, Riverbanks collapse after 

Oroville Dam spillway shut off, San Fran. Chron. (Mar. 4, 2017), available at http:// 

www.sfchronicle.com/bayarea/ article/ Riverbanks-collapse-after-Oroville-Dam-spillway-10976144. 

php (describing the environmental damage in the wake of the near-collapse of the Oroville 

Dam). 7 16 U.S.C. 1536(a)(2). 

8See Presentation by Kay Davy, NMFS, Endangered Species Act Section 7 Consultation 

Process (2017), available at http://asbpa.org/wpv2/wp-content/uploads/2017/01/Kay-Davy-NMFSProtected-Resource-Division.pdf (explaining that backlog of informal consultations prevents 

NMFS from timely reviewing significant, formal consultation requests). 9See Wildlife Society, Practical Solutions to Improve the Effectiveness of the Endangered 

Species Act for Wildlife Conservation, Technical Review 05-1, 7-8 (2005), available at http:// 

wildlife.org/wp-content/uploads/2014/05/ESA05-11.pdf (explaining that delays are largely due to 

the increase in the number of projects that must undergo consultation, despite very minor 

impacts). 10See 81 Fed. Reg. 7,214 (Feb. 11, 2016). A coalition of 18 states have challenged this regulation under the ESA. See Dennis Pillion, Alabama, other states challenge Endangered Species Act 

critical habitat rules, AL.com (Nov. 30, 2016), available at http://www.al.com/news/index.ssf/ 

2016/11/alabama_challenges_endangered.html. 11Six judges from the Fifth Circuit recently criticized the practice of designating unoccupied, 

unsuitable lands as ‘‘critical habitat,’’ observing that these lands could not properly even be 

considered habitat. See Markle Interests, LLC v. U.S. Fish & Wildlife Serv., No. 14–31008 (Feb. 

13, 2017) (Jones, J., dissenting). 

However, the environmental damage caused by the spillway failure shows that 

delaying infrastructure projects does not necessarily protect species. Delaying maintenance and upgrades can also threaten species and the environment by increasing 

the risk of serious infrastructure failure.6

As the Oroville Dam situation demonstrates, the intuition that species always 

benefit from stopping or shrinking human activity is wrong. When small towns put 

off maintenance of a dam, bridge, or road because the ESA would substantially increase costs and delay completion by several years, the environment can suffer more 

damage when that infrastructure fails than from the work it would have taken to 

fix it. 

THE BURDENS OF THE CONSULTATION PROCESS GROW ALONG WITH THE SIZE OF THE

FEDERAL GOVERNMENT

As demonstrated below, consultation delays much-needed projects and increases 

their costs, often in cases where potential impacts on a listed species are minimal. 

But, before getting to that issue, it is helpful to identify the most significant cause 

of the problem: the ever-growing size of the Federal Government. 

Section 7(a)(2) of the ESA requires consultation for every ‘‘action authorized, funded, or carried out by’’ a Federal agency that may affect a listed species.7 Therefore, 

the impact of the consultation process inevitably increases along with the number 

of state and private projects that require some type of Federal permit or funding 

assistance. The agencies that administer the ESA cite their limited resources as a 

cause of consultation delays.8 However, delays are not simply a question of agency 

resources but also what demands are placed on those resources. Those demands increase as ever more projects are subject to consultation based on minor Federal 

involvement. 

Today, a wide variety of private and state projects undergo consultation for precisely this reason. Even environmental groups acknowledge that the number of 

relatively harmless projects undergoing consultation delays the process for more significant projects.9 The only long-term solution to this problem is to reduce the size 

of government or the types of activities subject to consultation, so that the agencies 

can focus on and quickly review those major Federal projects that most significantly 

affect species. 

Unfortunately, the trend is going in the opposite direction. Both the agencies that 

administer the ESA and other Federal agencies have expanded their regulatory 

reach, increasing the number of projects subject to consultation. For instance, the 

U.S. Fish and Wildlife Service recently adopted a regulation that significantly increases the number of areas designated as critical habitat.10 That regulation makes 

it even easier to designate lands that are unoccupied by a species and unsuitable 

to it as ‘‘critical habitat.’’ 11 Since any project that may affect habitat undergoes consultation, this regulation threatens to increase further the number of projects that 

subject to consultation. 

46 

12See Holly Doremus, Polar Bears in Limbo, Slate.com (May 20, 2008), available at http:// 

www.slate.com/articles/health_and_science/green_room/2008/05/polar_bears_in_limbo.html. 13See id. 14The President recently issued an executive order calling for the reconsideration of this rule, 

so these impacts are presently only theoretical. See President Trump, Executive Order on 

Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the ‘‘Waters of the 

United States’’ Rule (Feb. 28, 2017), available at https://www.whitehouse.gov/the-press-office/ 

2017/02/28/Presidential-executive-order-restoring-rule-law-federalism-and-economic. 15 Builders caught in crossfire of gnatcatcher habitat listing—Needless plan could delay or kill 

new housing and imperil species protection, Nossaman.com (June 1, 2000), available at http:// 

www.nossaman.com/builders-caught-crossfire-gnatcatcher-habitat-listing-needless. 16See Jonathan Wood, How to promote federalism and reduce Clean Water Act abuse, LibertarianEnvironmentalism.com (Mar. 13, 2017), available at https://libertarian 

environmentalism.com/2017/03/13/404-federalism/. 17See VA Department of Envtl. Quality Report, Study of the Costs and Benefits of State 

Assumption of the Federal § 404 Clean Water Act Permitting Program (Dec. 2012), available at 

http: / / www.deq.virginia.gov/Portals/0/DEQ/LawsAndRegulations/GeneralAssemblyReports/404_ Feasibility_Study_2012.pdf (citing uncertainty over whether Federal agencies would approve 

state assumption as an obstacle). 18 But see Nat’l Fed. Of Indep. Bus. v. Sebelius, 132 S. Ct. 2566, 2601–08 (2012) (striking down 

provisions of Obamacare as too coercive) 19See 16 U.S.C. 1536(b), (c). 20See Suggestions on How to Improve the Endangered Species Act, INGAA Foundation 15 

(2007), available at http://www.ingaa.org/File.aspx?id=5691. 

Other recent innovations (some would say power-grabs) by the Service threaten 

to expand the burdens of consultation even more. For instance, the recent spate of 

listings of healthy species based on potential impacts of climate change has led environmentalists to call for consultation for any project that affects emissions.12 The 

ESA is poorly suited to address climate change risk. Nevertheless, they want 

projects to undergo the ‘‘apparently pointless and paralyzing duty to consult on 

emissions with a Federal nexus’’ because it would be so burdensome that it might 

further other political ends.13 Something has gone terribly awry when consultation 

has become a political chip to be played precisely because it burdens projects without benefiting species. 

The Fish and Wildlife Service is not alone in extending its reach and thereby increasing the burdens of consultation. Anytime any other agency expands its power 

over private activity, it spills over into more projects undergoing consultation. For 

instance, the Waters of the United States (WOTUS) rule interpreting the reach of 

the Clean Water Act would increase the number of activities subject to permitting 

under Section 404 of that statute, which applies to any activity in areas deemed 

wetlands.14 Already, many private development projects are substantially delayed 

because they require a Federal 404 permit, which triggers consultation.15 This problem could be avoided if it were easier for states to take over this permitting authority, eliminating the need for Federal involvement any time a property owner builds 

a home, a farmer plows his field or builds a pond.16 But in the 45 years since the 

Clean Water Act was enacted, only two states have successfully navigated the 

process to take over this authority.17

Similarly, the increased Federal role in funding local projects expands the burdens of consultation. Although federalizing the funding of local roads, local bridges, 

and other local public-safety projects raises substantial federalism concerns, the 

Supreme Court has generally upheld it from constitutional attack.18 However, 

Congress should consider carefully whether it wants to subject every local infrastructure project to consultation based on this funding arrangement. 

CONSULTATION IMPOSES DELAYS AND HIGHER COSTS ON ECONOMIC DEVELOPMENT AND

PUBLIC-SAFETY PROJECTS

The ESA requires consultation to be completed within 135 days.19 Even if that 

deadline were always met, consultation would still be a significant barrier for 

economic development and infrastructure projects. In a world where time is money, 

5-month delays in construction are no small cost. 

But consultation often takes more time than Congress intended, affecting a wide 

range of economic activity and public-safety projects. In a survey of Interstate 

Natural Gas Association of America members, nearly 70 percent cited the ‘‘timing 

or length of consultation process’’ as the biggest area of concern for ESA application 

and administration.20 A few examples highlight the scope of the problem. 

In Oklahoma, the consultation process held up a project between Muskogee 

County and the Cherokee Nation to straighten and improve a windy, dangerous 

road. The reason for the hold up: a single American burying beetle was found in 

47 

21See Endangered American Burying Beetle delays $6.5 million road project in Muskogee 

County, Oklahoma, KJRH.com (Aug. 24, 2016), available at http: / / www.kjrh.com / news / 

state / endangered-american-burying-beetle-delays-65-million-road-project-in-muskogee-countyoklahoma; D.E. Smoot, Road project delayed after endangered beetle found, Muskogee Phoenix 

(Aug. 7, 2016), available at http://www.muskogeephoenix.com/news/road-project-delayed-afterendangered-beetle-found/article_22ec52ca-aebb-50d0-bdf5-192cb4874d78.html. 22See Darren DeLaune, After beetles are accommodated, road to hospital begins, 

MvskokeMedia.com (Mar. 3, 2017), available at http://mvskokemedia.com/after-beetles-areaccommodated-road-to-hospital-begins/. 23See http://www.regulations.gov/#!documentDetail;D=FWS-R8-ES-2011-0063-0037. 24See http://ecos.fws.gov/docs/five_year_review/doc779.pdf. 25The Valley elderberry longhorn beetle is not unique in this regard. The Service routinely 

ignores its scientists’ determinations that species no longer merit listing. Forcing affected businesses and property owners to sue the agency as many as 3 or 4 times over many years to get 

the agency to finally act. See Jonathan Wood, PLF files suit over caribou petition, the sequel, PLF Liberty Blog (Mar. 14, 2014), available at http://blog.pacificlegal.org/plf-files-suit-cariboupetition-sequel/. 26See Keith Seinfeld, Endangered orcas cause delays for major earthquake research, KNKX.org 

(June 15, 2012), available at http://knkx.org/post/endangered-orcas-cause-delays-majorearthquake-research. 27 Aloisi v. United States, 85 Fed. Cl. 84 (2008). 28Kristina Alexander & M. Lynne Corn, Proposed Changes to Regulations Governing 

Consultation Under the Endangered Species Act (ESA), Congressional Research Service Report 

RL34641 (Sept. 23, 2008), available at http://nationalaglawcenter.org/wp-content/uploads/assets/ 

crs/RL34641.pdf. 

the 50-acre project area.21 The consultation is expected to add $1,000,000 to the 

project’s price tag and delay construction for a year, during which time the county’s 

residents and the tribe’s members will be stuck with the road’s current, dangerous 

layout. The beetle is threatening human health in other ways too, since it has obstructed another Oklahoma project to build a road to a hospital.22

In California, the Valley elderberry longhorn beetle obstructed the Sutter Butte 

Flood Control Agency’s efforts to upgrade 41 miles of levees along the Feather River. 

Because elderberry bushes grew along the river’s edge, consultation had to be completed before the repairs could be made. Through consultation, the agency was required to undertake mitigation that cost $4,250,000—enough to fund an entire mile 

of levee improvements.23 These costs were imposed even though the U.S. Fish and 

Wildlife Service determined in 2006 that the beetle had recovered and should no 

longer be listed.24 Yet, 10 years and several lawsuits later, the Valley elderberry 

longhorn beetle remains on the list and continues to obstruct flood control projects 

and increase their costs.25

Consultation has also interfered with scientific research aimed at increasing public safety. In 2012, an expedition to map a major earthquake fault line off the Pacific 

Coast was delayed and had to be scaled back because of consultation.26 The goal 

of that project was to increase our knowledge of the fault line and thereby better 

predict tsunami risks. Although NOAA initially approved the project, the agency 

withdrew its permission at the last minute to require consultation based on potential impacts to whales. 

Consultation for projects in which the action agency has no direct interest can 

raise unique problems. Take, for instance, the experience of Liberty Mining.27 In 

1989, the company submitted a mining development plan to the Forest Service, 

which required consultation. In 1990, the Fish and Wildlife Service completed that 

consultation and informed the Forest Service that the project would not jeopardize 

the northern spotted owl. However, the Forest Service (which had no stake in the 

project) did not inform the company of this for 2 years, at which point consultation 

had to be reinitiated because of changes to the owl’s habitat. The second consultation took another 2 years, again concluding that the mining project would not jeopardize the owl. The 4-year delay cost the company $22.5 million, which it was 

unable to recover from the agencies. 

Although the ESA imposes deadlines for consultation, the Congressional Research 

Service has identified one of the ways that Federal agencies skirt this requirement.28 According to U.S. Fish and Wildlife Service practice, the deadline only begins to run when the agency determines a submission is complete. If the Service 

wants more information, it can demand it and thereby put off the statutory deadlines indefinitely. As the CRS Report found, ‘‘Repeated requests for additional data 

have led to great frustration among Action Agencies and the non-Federal parties 

relying on them for permits, loans, sales, licenses, etc.’’ 

A recent report from the University of Texas at Austin’s Kay Bailey Hutchison 

Center for Energy, Law, & Business found that this ‘‘pre-consultation’’ process 

48 

29See Taylor, et al., Protecting Species or Endangering Development? How Consultation Under 

the Endangered Species Act Affects Energy Products on Public Lands, Kay Bailey Hutchison 

Center for Energy, Law & Business Paper NO. 2016–03 (Aug. 2016), available at https:// 

repositories.lib.utexas.edu / bitstream / handle / 2152 / 40956 / 2016_08_03_Protecting_Species_ 

Endagering.pdf?sequence=2&isAllowed=y. 30See id. at 8. 31See id. at 36 (conceding that the Service’s calculations ‘‘underestimate the total length of 

the consultation process’’). 32See id. at 65. 33See id. at 71. 34GAO, Endangered Species Act: Many GAO Recommendations Have Been Implemented, but 

Some Issues Remain Unresolved 3 (2008), available at http://www.gao.gov/new.items/d09225r.pdf 

(reporting that FWS & NMFS have not tracked the delays caused by ‘‘preconsultation’’ despite 

GAO recommendation). 35See 81 Fed. Reg. 59,962 (Aug. 31, 2016) (declining to delist the California gnatcatcher 

despite two scientific studies supporting delisting, which were prepared at the Service’s suggestion, because of lingering uncertainty). 36See Jacob W. Malcom & Ya-Wei Li, Data contradict common perceptions about a controversial provision of the U.S. Endangered Species Act, 112 Proceedings of the National Academy of 

Sciences 15844 (Dec. 29, 2015), available at www.pnas.org/content/112/52/15844.full. 37This finding is similar to previous studies, which have consistently found that the vast 

majority of projects delayed by consultation are ultimately found not to be a threat to the 

species. See James Salzman, Evolution and application of critical habitat under the Endangered 

Species Act, 14 Harv. Envtl. L. Rev. 311 (1990) (reporting that ESA consultations only find that 

a project could jeopardize a species in 0.7% of the time). 38See Malcolm & Li, supra note 36. 39See Douglas Main, Study erases misconceptions about Endangered Species Act, raises 

questions about enforcement, Newsweek (Dec. 17, 2015), available at http://www.newsweek.com/ 

study-erases-misconceptions-about-endangered-species-act-raises-questions-406553 (criticizing 

the Defenders of Wildlife study for failing to take account of the delays caused by consultation 

and the costs tied to changes that are made in response to consultation). 

entails significant delays.29 In interviews for that study, Fish and Wildlife Service 

staff self-reported that pre-consultation lasts 18 months or more, depending on the 

project (well in excess of the statute’s outer limit of 180 days).30 Despite this lengthy 

process, the Service chooses not to count this time toward the consultation deadline.31 The report identifies several projects that were tied-up in pre-consultation for 

extended periods. 

Take, for instance, the Tule Wind Project in Southern California, a renewable 

energy project intended to power 60,000 homes. The pre-consultation period lasted 

10 months, during which the Fish and Wildlife Service requested a survey of the 

area for Quino checkerspot butterflies. But that was only the beginning of the 

project’s delays. Once the Service deemed the submission complete, formal consultation took another 335 days. At the end of that protracted process, the Service determined the project was not likely to jeopardize the species.32

Or consider the Black Hills Western Properties Master Development Plan, an oil 

and gas development project. Although the Service reports that consultation 

officially took only 106 days, including the pre-consultation period shows that the 

actual delay was more than 250 days.33

The full extent of pre-consultation delays is unknown. This is because the Service 

declined a Government Accountability Office recommendation to develop data on 

pre-consultation.34 But the problem is widely acknowledged. 

In practice, the demands for evermore information during pre-consultation reflects 

how the agency uses the ‘‘best scientific and commercial information available’’ 

standard inconsistently. This is the same standard used to make decisions whether 

to list a species under the ESA. Yet, at that step, the Service does not consider lingering uncertainty an obstacle to asserting regulatory authority over a species. But 

when the same standard is used for consultation or delisting a species, the Service 

relies on uncertainty to delay its response or avoid giving up regulatory control.35

The evidence that consultation results in substantial delays and expense is clear. 

However, in 2015, two Defenders of Wildlife employees released a paper claiming 

to debunk the argument that consultation burdens economic development and infrastructure projects.36 The headline from that report was that zero of the 88,290 

consultations over the previous 7 years resulted in a project being denied, which the 

authors interpreted as evidence that consultation is no big deal.37 The paper also 

acknowledged that one out of every five formal consultations exceed the deadlines 

set by Congress.38

Although the press touted the paper as proving consultation is not burdensome, 

the study is omits a great deal, giving an incomplete picture of the issue.39 First, 

it omits delays during pre-consultation, a point which the authors implicitly conVerDate Mar 15 2010 10:06 Jun 02, 2017 Jkt 000000 PO 00000 Frm 00052 Fmt 6633 Sfmt 6621 J:\115TH CONGRESS\OVERSIGHT & INVESTIGATIONS\03-28-17\24804.TXT DARLEN
49 

40See Weiland, et al., Analysis of data on endangered species consultation reveals nothing 

regarding their economic impacts, 113 Proceedings of the National Academy of Sciences E1593 

(Mar. 22, 2016), available at http://www.pnas.org/content/113/12/E1593.full.pdf (pointing out this 

problem with the paper); Malcolm & Li, Reply to Weiland et al.: The point is to bring data to 

inform policy, not to rely solely on anecdotes, 113 Proceedings of the National Academy of 

Sciences E1594 (Mar. 22, 2016), available at http://www.pnas.org/content/113/12/E1594.extract 

(failing to respond to the point). 41Weiland, et al., supra note 36. 42See Taylor, et al., supra note 2529 at 36 (explaining that most project modifications are 

imposed during ‘‘pre-consultation’’). 43See Jeremy Brian Root, Limiting the Scope of Reinitiation: Reforming Section 7 of the 

Endangered Species Act, 10 Geo. Mason. L. Rev. 1035 (2002). 44See Lone Rock Timber Co. v. U.S. Dep’t of Interior, 842 F. Supp. 433 (D. Or. 1994). 45See Precision Pine & Timber, Inc. v. United States, 596 F.3d 817 (Fed. Cir. 2010). 46 789 F.3d 1075 (9th Cir. 2015). 47 Jesse Greenspan, FWS, NMFS Sued for ESA Consultation Delays, Law360.com (Aug. 3, 

2010), available at https://www.law360.com/articles/184967/fws-nmfs-sued-for-esa-consultationdelays (environmentalists challenging consultation delays in approving water quality standards). 

ceded.40 This is a significant defect because, as a published criticism explains, ‘‘the 

Service has unilateral authority to determine when a consultation package is complete, and therefore when formal consultation commences.’’ The authors of that criticism, who are experienced ESA lawyers, explained ‘‘in our experience, substantial 

time and resources frequently are expended before the Service agrees to initiate 

formal consultation.’’ 41 Second, the Defenders of Wildlife paper looks only at 

projects rejected at the end of consultation and additional costs imposed at that late 

stage. However, this myopic focus ignores the projects that are pre-emptively abandoned or made more expensive by conditions imposed earlier, including in preconsultation.42

The Defenders of Wildlife paper’s limitations aside, the conclusion its authors 

draw is largely a matter of perspective rather than evidence. Another way to interpret the results is that, during the first 7 years of the Obama administration, nearly 

100,000 projects had to undergo time-consuming and expensive consultation even 

though none of them would likely jeopardize a listed species or its habitat. Making 

matters worse, nearly 1,300 major projects were delayed for more time than the law 

permits, even though they too would not likely jeopardize a species or its habitat. 

Looking at it from this perspective, the results reported in the paper hardly seem 

worth celebrating. 

THE IMPACTS OF DELAYS ARE COMPOUNDED BECAUSE CONSULTATION MUST BE

REINITIATED IF ANYTHING CHANGES

Delays resulting from consultation are doubly harmful to project proponents because they increase the risk that consultation must be reinitiated. Anytime there 

is a change in the project area, because a new species has been listed, habitat designated, or information about a species discovered, consultation must be redone. As 

the example above of Liberty Mining demonstrates, reinitiated consultation can be 

just as burdensome and time-consuming as the original consultation. 

Many projects, particularly timber harvesting, are repeatedly held up by reinitiated consultation.43 For example, Lone Rock Timber Company was unable to exercise a timber contract for 3 years because consultation had to be reinitiated three 

separate times.44 Another timber project was delayed nearly a year and a half 

because of reinitiated consultation based on a new listing.45

The prospect of delaying projects by forcing consultation to be reinitiated creates 

bad incentives that encourage frequent change to the ESA species lists and critical 

habitats, as well as litigation from groups who oppose development projects. 

Unfortunately, the courts have largely sided with those bringing these lawsuits. In 

2015, the Ninth Circuit ruled against the Obama administration in Cottonwood 

Environmental Law Center v. USFS,46 and ordered reinitiation of consultation based 

on new developments where an agency action was already complete. The result: the 

Forest Service had to redo its comprehensive programmatic consultation, complicating all timber projects related to it. The group that brought the lawsuit, on the 

other hand, will likely turn a tidy profit, as it will be entitled to seek its attorneys’ 

fees. 

CONSULTATION ALSO HOLDS UP PROJECTS THAT BENEFIT THE ENVIRONMENT

As costly as delays from consultation are, many people intuitively assume that 

those delays benefit listed species. However, the intuition that preventing activity 

always helps species is wrong. Consultation also delays environmental regulation 47

50 

48See Jacques Leslie, The Sushi Project: Farming Fish and Rice in California’s Fields, E360.com (Oct. 29, 2015), available at http://e360.yale.edu/features/the_sushi_project_farming_ fish_and_rice_in_californias_fields. 49See John Siciliano, House tees up fight to limit endangered species rules, Wash. Examiner 

(Mar. 1, 2017), available at http://www.washingtonexaminer.com/house-tees-up-fight-to-limitendangered-species-rules/article/2616049; Jamie Johansson, Oroville shows need for flood-control 

projects, Monterey Herald (Mar. 4, 2017), available at http://www.montereyherald.com/article/ 

NF/20170304/LOCAL1/170309920. 50See Peter Fimrite, Measures save young salmon after failure of Oroville Dam spillway, SF 

Gate (Mar. 21, 2017), available at http://www.sfgate.com/science/article/Measures-save-youngsalmon-after-failure-of-11015659.php (the Oroville Dam spillway catastrophe threatened nearly 

a billion endangered salmon); Kurtis Alexander & Tara Duggan, Riverbanks collapse after 

Oroville Dam spillway shut off, San Fran. Chron. (Mar. 4, 2017), available at http:// 

www.sfchronicle.com/ bayarea/article/ Riverbanks-collapse-after-Oroville-Dam-spillway-10976144. 

php (describing the environmental damage in the wake of the near-collapse of the Oroville 

Dam). 51See Nicola Ulibarri, Oroville Dam’s close call shows regulatory need to account for climate 

change, Sac. Bee (Mar. 5, 2017), available at http://www.sacbee.com/opinion/op-ed/soapbox/ 

article136339743.html (acknowledging that the 10-year delay in reauthorizing and repairing 

Oroville Dam is due in part to the consultation process). 

and projects that would benefit species, depletes agency resources that could be better put to proactive recovery efforts, and saps economic growth that could unleash 

even more resources for conservation. 

For instance, consultation has frustrated PLF client Save Crystal River’s efforts to restore manatee habitat in Florida. Save Crystal River is spending $50 million 

dollars to restore 80 acres of habitat that have been harmed by invasive algae 

growth, which crowds out the sea grass on which the manatee feeds. Consultation 

delayed this environmentally friendly project by months and imposed conditions 

that forbid Save Crystal River from working during much of the year, which unduly 

raises the project’s costs. 

Save Crystal River’s experience is no anomaly. Several years ago, I attended a 

presentation by a U.C. Davis Ph.D. student who was pursuing an experiment to recover California’s endangered salmon. That project encourages rice farmers to permit salmon to occupy their flooded fields for crucial months during the species’ 

migration to the ocean.48 By giving young salmon access to more food at a crucial 

time in their development, the project led to much healthier salmon populations. 

When asked whether it was difficult to get farmers to cooperate, for fear that it 

might subject them to ESA regulation, the student responded ‘‘no.’’ Instead, the biggest hurdle for the project was navigating the ESA regulatory process, including 

consultation. 

Even infrastructure projects can be environmentally friendly if you compare them 

to what would happen if infrastructure were not properly maintained.49 I began my 

remarks with the near-collapse of the Oroville Dam. In the weeks following the 

flood, the environmental impacts continued to mount. These impacts include substantial bank erosion downstream and stranded endangered salmon.50 If the dam 

had burst, these impacts would have been even more significant. 

Across the country, we have many dams, bridges, and roads that are approaching 

the end of their engineered life. If the slow, burdensome consultation process causes 

communities to delay necessary upgrades and improvements, then the environment 

and endangered species could ultimately pay the price when that infrastructure 

fails.51

CONCLUSION

We all want to see endangered species recover. The question, really, is how effective and efficient is consultation at contributing to that recovery. The evidence 

shows that consultation is a significant strain on economic development and publicsafety projects, even though all or nearly all the projects do not jeopardize species. 

That suggests too many projects, particularly state and private projects with a de 

minimis Federal nexus, undergo consultation, sapping the resources of the agencies 

that administer the ESA. Because those resources cannot keep up with demand, 

consultation for major Federal infrastructure projects takes more time than 

Congress intended, much of that time hidden in so-called ‘‘pre-consultation.’’ 

When necessary infrastructure maintenance and upgrades are put-off because of 

these delays and costs, that can significantly harm species and the environment. 

The damage from infrastructure crumbling and failing can be far higher than the 

modest impacts of repairs and upgrades. 

Ultimately, we need to rethink some of our assumptions about protecting species. 

The intuition that stopping human activity always benefits species is wrong. On the 

contrary, economic growth unleashes more resources for proactive conservation and 

51 

1See Fish & Wildlife Serv., Final ESA Section 7 Consultation Handbook, Ch. 8 (Mar. 1998), 

available at https://www.fws.gov/endangered/esa-library/pdf/chapter8.pdf. 2 16 U.S.C. § 1536(a)(2). 

3See Jacob W. Malcom & Ya-Wei Li, Data contradict common perceptions about a controversial provision of the U.S. Endangered Species Act, 112 Proceedings of the National Academy of 

Sciences 15844 (Dec. 29, 2015), available at www.pnas.org/content/112/52/15844.full (acknowledging that hundreds of thousands of projects must go through consultation even though they 

do not jeopardize species). 4See Richard L. Revesz & Allison L Westfahl Kong, Regulatory Change and Optimal 

Transition Relief, 105 Northwestern U. L. Rev. 1581 (2011). 

recovery efforts. Regulations and consultations that restrict that growth without 

benefiting species are therefore doubly harmful. 

QUESTIONS SUBMITTED FOR THE RECORD TO MR. JONATHON WOOD, STAFF ATTORNEY, 

PACIFIC LEGAL FOUNDATION

Questions Submitted by Rep. Labrador 

Question 1. Please explain how the Endangered Species Act consultation process 

impacts the ability to maintain infrastructure, and to respond to emergencies involving infrastructure. 

Answer. The ESA consultation handbook 1 generally forbids FWS from obstructing 

any effort to respond to an emergency, especially where human lives are at stake. 

FWS can make recommendations so that adverse impacts to species can be avoided. 

But, unlike for most other projects, the emergency response proceeds without delay. 

Thus, rather than preventing emergency responses, the ESA consultation process 

likely affects emergencies by making them more likely. As I explained in my earlier 

written testimony, we have aging infrastructure around the country nearing the end 

of its engineered life. To avoid that infrastructure failing—and the emergency that 

failure would create—it is imperative that timely repairs and upgrades are done. 

However, the slow, bureaucratic consultation process discourages pre-emptive 

maintenance and upgrades, by making them more expensive and take longer to 

complete. 

To ensure that this much-needed work can be done in a timely and cost-effective 

manner, ESA consultation should focus on those major Federal projects that require 

additional scrutiny. Every Federal agency has an independent obligation to ensure 

their actions do not jeopardize listed species or adversely modify habitat.2 For small 

projects with a trivial Federal nexus and minor environmental impacts, this first 

layer of scrutiny is enough.3 ESA consultation should be an additional look by FWS 

at major Federal projects with commensurately greater environmental impacts. It 

should not be a redundant layer of red tape applied to every project. 

The burdens of consulting on every project that requires a Federal permit or funding add up. Consider, for instance, how difficult it is to timely complete a significant 

project while also monitoring an endless stream of e-mails. Although no individual 

e-mail eats up much of your time, the large number of minor distractions add up 

to make completing the significant project impossible. So to with consultation. FWS 

cannot quickly complete consultation for major projects because they are also doing 

consultations for an endless stream of minor projects with only a trivial Federal 

nexus and few environmental impacts. Individually, those consultations may not 

seem like much. But, like the e-mails, they are a significant drain on the Service’s 

ability to focus on those relatively few projects that really require the additional 

layer of scrutiny. 

Question 2. In your experience, what kind of challenge is presented when new listings require changes, such as the construction of a fish ladder, to infrastructure that 

was designed and built decades ago? 

Answer. Modifying an existing structure is generally more expensive and difficult 

than changing the design of a new structure. Environmental law has long struggled 

with this difficulty, across many contexts. The Clean Air Act, for instance, treats 

existing pollution sources differently than new sources, precisely because it is more 

difficult and expensive to modify an existing plant than to incorporate fresh technologies in the design of a new plant.4

The same is true of modifications required after consultation. Ordinarily, this 

issue would not arise since the ESA forbids committing resources to a project that 

52 

5See 16 U.S.C. § 1536(d). 6 789 F.3d 1075 (9th Cir. 2015). 

7 531 F.3d 792 (9th Cir. 2008). 

would make accommodating species concerns difficult until consultation concludes.5

However, the recent expansion in the need for reinitiated consultation makes it 

more likely that consultation will require expensive and time-consuming after-thefact modifications. 

Question 3. In your written testimony, you mentioned Cottonwood Environmental 

Law Center v. U.S. Forest Service, in which the court determined that the Forest 

Service broke the law by not reinitiating consultation on an already-completed 

agency action. Given this interpretation of the ESA, can an agency ever really 

consider the consultation process over? What kind of effect might this potentially 

never-ending requirement to reinitiate consultation have upon agency planning capabilities and private investment in infrastructure projects? 

Answer. The Cottonwood Environmental Law Center v. U.S. Forest Service 

decision will make consultation more burdensome and time-consuming by requiring 

more projects to go through additional consultations.6 Tellingly, even the Obama 

administration opposed that decision, likely because it recognized the consequences 

a broad duty to reinitiate consultation would have for projects and Federal agencies. 

In my written testimony, I analogized the problems ESA consultation faces as a 

gridlock highway trying to add even more cars. More reinitiated consultations will 

further increase traffic and make consultation slower and more burdensome. 

Question 4. In your written testimony you mentioned several instances in which 

consultation had to be reinitiated and the well-being of species or people were jeopardized as a result. Can you elaborate a bit more about situations in which reinitiated consultation was more harmful than helpful and do you have suggestions about 

how to improve reinitiated consultation processes? Do you believe lapse of time is 

an adequate basis for reinitiated consultation? 

Answer. It makes sense to consider newly listed species or changes to critical 

habitat when those changes occur at a time when a project can reasonably be 

modified to accommodate them. But the economic impact of late modification— 

which, as explained above, will be greater for projects that have already been constructed—must also be considered. Ultimately, the most effective way to streamline 

consultation is to consider carefully how many of the hundreds of thousands of 

projects that currently go through it really need to. If consultation was limited to 

major projects, and thus only those projects were subject to reinitiated consultation, 

FWS could focus its limited time and resources where they could do the most good. 

Questions Submitted by Rep. Grijalva 

Question 1. For the last 5 years, how much of Pacific Legal Foundation’s annual 

operating revenue was comprised of attorneys’ fee awards or awards of costs? Please 

explain the hourly attorney rate that PLF requested from the court in each case 

and, if applicable, please note the hourly rate the court award or approved through 

settlement and why. 

Answer. As the cover page notes, PLF’s funding comes from its nearly 10,000 supporters, the vast majority of which are individual donors contributing in small 

amounts. PLF does not receive a substantial amount of attorneys’ fees for its ESA 

litigation, largely because attorneys’ fees are rarely available to individuals challenging illegal or excessive regulation. However, they are routinely given to groups 

seeking to expand ESA regulation. 

Typically, PLF only receives attorneys’ fees under the ESA when it sues Federal 

agencies to force them to act on their own scientists’ recommendations that a species 

be downlisted or delisted. The U.S. Fish and Wildlife Service routinely ignores its 

own biologists’ determinations that a species’ status should be changed. In Coos 

County Board of County Commissioners v. Kempthorne, PLF challenged this practice, arguing that the Service must act on those determinations without requiring 

someone to go through the unnecessary exercise of filing a petition and follow-up 

lawsuits.7 If the Ninth Circuit had agreed with PLF, this litigation would be unnecessary and PLF would not receive even these minimal fees. But, alas, it didn’t. 

Question 2. I have submitted for the record a stipulated settlement agreement 

filed on August 25, 2014 in the U.S. District Court for the Middle District of Florida 

that awards the Pacific Legal Foundation attorneys’ fees and costs in connection 

with its lawsuit against the U.S. Fish and Wildlife Service under the Endangered 

Species Act. There are also many examples of PLF being awarded attorneys’ fees 

53 

8See Press Release, Pacific Legal Foundation, PLF suit prods feds to recognize black capped 

vireo’s recovery (Dec. 16, 2016), available at https://www.pacificlegal.org/releases/release-12-16- 

16-new-mexico-cattle-growers-association-v-jewell-12-622. 9These fees were negotiated as part of the settlement for each case. The settlements only 

include a total amount; they do not separate attorneys’ fees from costs or set an hourly rate. 10See Press Release, Pacific Legal Foundation, Prodded by PLF suit, feds agree to reconsider 

the manatee’s ‘‘endangered’’ status (July 2, 2014), available at https://www.pacificlegal.org/ 

releases/7-2-14-Prodded-by-PLF-suit-feds-agree-to-reconsider-the-manatees-endangered-status; 

Jonathan Wood, FWS finally acknowledges its illegal caribou listing, PLF Liberty Blog (May 7, 

2014), available at http://blog.pacificlegal.org/fws-finally-acknowledges-illegal-caribou-listing/. 

under the Equal Access to Justice Act. How much in attorneys’ fees has PLF collected under either the Endangered Species Act, the Equal Access to Justice Act, 

Federal Rule of Civil Procedure 54(d) or any other applicable fee award relief applicable in environmental lawsuits? 

Answer. Over the last 5 years, PLF has filed four such lawsuits, which the government did not defend (since it couldn’t) and PLF received nominal fees. In 2016, 

for instance, PLF sued the Service for its failure to delist the black-capped vireo, 

a full 10 years after the Service’s own biologists determined that it should.8 As I 

explained in my written testimony, the Service’s practice of ignoring its scientists 

unnecessarily subjects projects to consultation for species that no longer require the 

ESA’s protections and, in some cases, haven’t for years. 

PLF has not received a substantial amount of attorneys’ fees 9 for ESA litigation 

in any of the past 5 years: 

• In 2016, PLF received a paltry $4,457.69 in attorneys’ fees under the ESA, 

which was a mere 0.05 percent of PLF’s funding. 

• In 2015, PLF received no attorneys’ fees for ESA litigation. 

• In 2014, PLF received $8,700 combined for two ESA lawsuits, including the 

manatee case mentioned in the question. This was less than 0.07 percent of 

PLF’s revenue that year.10

• In 2013, PLF received no attorneys’ fees for ESA litigation. 

• In 2012, PLF received $6,100 in ESA attorneys’ fees, which was less than 

0.07 percent of its revenue in 2012. 

The meager amount of attorneys’ fees that PLF has received from ESA litigation 

during each of the last 5 years accurately reflects how little PLF has historically 

received under this statute. Over the last 10 years, less than 0.2 percent of PLF’s 

funding has come from ESA attorneys’ fees. Simply put, PLF owes its ability to pursue its work to the generosity of its thousands of individual donors, not profit from 

excessive ESA attorneys’ fee awards. 

Mr. LABRADOR. I thank the witnesses for their testimony. I would 

like to remind the Members that Committee Rule 3(d) imposes a 

5-minute limit on questions. 

To begin questioning, I recognize myself for 5 minutes. 

Mr. Stiles, thank you for traveling out here from Idaho to testify. 

It is always good to see you. Even though Hecla is based in Idaho, 

you have operations throughout the United States. I understand 

you are currently working on projects in Montana. How many jobs 

would your projects bring to rural Montana? 

Mr. STILES. Thank you for the question, Chairman. Our projects 

combined we estimate would bring about 600 to 1,000 full-time jobs 

to northwest Montana, once in operation. Probably, to begin with, 

50 to 60 each—a significant number of jobs in an area that leads 

the state of Montana in—— 

Mr. LABRADOR. You also testified that your project would 

actually help grizzly populations in that area. Is that correct? 

Mr. STILES. Correct. The mitigation plans for these projects require us to purchase thousands of acres of mitigation land for 

grizzly bear. And, like I mentioned, the Ninth Circuit actually 

54 

ruled on the Rock Creek project and stated—concurred, actually, 

with the Fish and Wildlife Service—that the mitigation plans 

required by the projects are actually recovery plans. And if the 

company didn’t provide the funds for those, then there essentially 

was no other funding available for it. 

Mr. LABRADOR. Would the production from your projects also 

help Montana boost our domestic metal production and our 

economy? 

Mr. STILES. Absolutely, yes. 

Mr. LABRADOR. Is it correct to say that Montana residents, 

grizzlies, and indeed, our Nation have missed out on 30 years of 

benefits that these projects would have generated, due to consultation delays and incessant litigation? 

Mr. STILES. I think that is a fair statement, yes. 

Mr. LABRADOR. Mr. Stiles, have mining companies been deterred 

from developing projects in that region, due to the regulatory burdens imposed by the ESA? And are they instead choosing to invest 

in projects overseas? 

Mr. STILES. Yes, the regulatory uncertainty in certain areas of 

the United States is simply too much for large-scale projects. 

Mr. LABRADOR. Delays and consultation can jeopardize public 

safety, as well. In fact, Committee staff met with individuals from 

Williamson County in Texas to discuss how their booming population has been impacted by ongoing delays in consultation for 

roads due to endangered spider. 

Mr. Wood, you also referred to this situation in your written testimony. Can you elaborate on how delays have impacted this and 

other public health and safety projects? 

Mr. WOOD. Sure, absolutely. Any time you have a significant 

public safety project, it will have to go through consultation if the 

Federal Government is involved. And one of the points I stress in 

my written testimony is that that process cannot move quickly, and 

routinely exceeds the statutory deadline because the agencies have 

to process so many of these minor projects. 

So, if you have a major highway project, a dam, a bridge, that 

is going to take far longer than it has to because of the excessive 

demands put on agency resources. 

Mr. LABRADOR. Thank you. Mr. Calkins, you mentioned that the 

late consultation on a levee resulted in the death of three people 

and massive amounts of property damage. Is that correct? 

Mr. CALKINS. That was not part of my testimony. No, sir. 

Mr. LABRADOR. OK, that was in the written testimony. 

Mr. CALKINS. Oh, I am sorry. Yes. 

Mr. LABRADOR. How has protracted consultation impacted your 

members across the Nation? Do you have specific examples of other 

cases in which drawn-out consultation impacted your members’ 

ability to serve the public? 

Mr. CALKINS. Yes, sir. We have 29,000 members across the 

United States, and a lot of public works professionals all over the 

states have had difficulty with the time and the cost delays. 

The examples I am mostly familiar with, of course, are from the 

Ventura County area. But we would be happy to provide more 

specifics for the Committee. 

55 

Mr. LABRADOR. OK. Last year, a Federal judge mandated that 

the entire system undergo a 5-year NEPA analysis, costing taxpayers and Pacific Northwest ratepayers some $40 million, and 

suggesting that removal of some of the dams is a potential outcome. And yesterday, a Federal judge granted some relief in yet 

another chapter of this litigation. 

Mr. Wood, is this an example of ESA Section 7 consultation 

success? 

Mr. WOOD. Absolutely. Litigation is a big part of all of the problems we see in the Endangered Species Act. It really has become 

a make-work for lawyers. 

Mr. LABRADOR. OK. Mr. Li, do you agree with Mr. Calkins? At 

the end of his testimony he said that we need a better balance 

between the protection of endangered species and the ability to implement important public works and infrastructure projects. Do you 

agree with him? 

Mr. LI. I disagree that we need a better balance. I think the 

Endangered Species Act provides an adequate process to balance 

those two objectives. 

Mr. LABRADOR. That is what I thought. I just wanted to get that 

on the record. Thank you. I now recognize Mr. Grijalva. 

Mr. GRIJALVA. Mr. Calkins, in your testimony you repeat the 

fable that the endangered species protections for the Valley longhorn elderberry beetle caused the failure of the levee on the 

Feather River in 1997. The creator of that story, a former 

Chairman of this Committee, began those misleading and unpopular attacks on the ESA back then. 

The Department of the Interior, the Army Corps of Engineers, 

the Center Delta Water Agency, and the California Department of 

Fish and Game all rejected the idea that the levee failure had anything to do with the Endangered Species Act. Despite this overwhelming evidence to the contrary, do you still stand by the claim 

that ESA was responsible for the levee’s failure? A yes or no 

answer, if you don’t mind, sir. 

Mr. CALKINS. A contributing factor. 

Mr. GRIJALVA. So, that is a yes or a no? 

Mr. CALKINS. Yes. 

Mr. GRIJALVA. Thank you. Mr. Li, will you please briefly discuss 

why misleading assertions in this case and similar cases, the ones 

around the most recent incident at the Oroville Dam, get the whole 

picture of ESA consultation all wrong? 

Mr. Stiles referred to litigants opposing and holding up Hecla’s 

Rock Creek and Montanore mines in Montana. I believe Mr. Stiles 

is referring to the Clark Fork Coalition, the Save Our Cabinets 

group, Rock Creek Alliance, the Montana Environmental Information Center, community and regional groups opposed to actions 

that would irreparably harm local drinking water, fishing streams, 

wildlife, and recreation opportunity near these proposed mines. 

For three decades, companies have been attempting to develop 

silver and copper deposits under the Cabinet Mountains in northwest Montana. And for three decades, company after company has 

failed to secure the support of the local communities and the necessary permits to operate Rock Creek and Montanore mines. 

56 

At the current time, the Rock Creek mine is held up because a 

judge ruled that the Forest Service approval did not comply with 

the agency’s mining regulations. The Montanore mine, the state of 

Montana says the mine cannot be developed without violating state 

water quality requirements. While the Endangered Species played 

a role in the permitting process, and it rightfully should, it is clear 

that there are numerous other issues regarding mining impacts to 

water quality, wilderness, and local recreation that prevented the 

construction and the operation of these mines. 

Why do you think it is easier for some to blame the ESA and the 

consultation process, instead of acknowledging that many of the 

concerns and reasons for the delay is the potentially destructive 

mining operation? 

Mr. LI. That is a great question. In my experience, the 

Endangered Species Act is often a convenient scapegoat for other 

environmental problems. It is the law of last resort, and there is 

all this pressure to prevent extinction that falls on the Endangered 

Species Act because upstream laws and programs at the state and 

sometimes at the Federal level are not working adequately to prevent species from falling into risk of extinction. That is why I think 

we see a lot of that pressure on the ESA. 

The other thing we also see is that it is not just endangered 

species issues, as you said. There are other environmental problems that sometimes are at play: clean water, clean air, and land 

for recreation. Oftentimes, the blame is on the Endangered Species 

Act, but there are these other factors that are also a problem. 

Mr. GRIJALVA. And, while it is easy to categorize the group that 

is opposing them as merely litigants, this is a broad-based community opposition of magnitude and duration. And like you said, it 

suggests reasons beyond the ESA consultation that have, thus far, 

for three decades prevented the operation of these mines. 

Mr. Chairman, if I may, I have three unanimous consent 

requests. 

I ask unanimous consent to enter into the record a comment 

letter from the state’s draft water pollution permit and the Fish 

and Wildlife Service memo to the Montana ore mine which shows, 

contrary to what we heard today, the current project proposal is 

significantly different from previous proposals with distinct applications for the Endangered Species Act and other water resources. 

Also, an excerpt from the State Record of Decision in Montana 

in a court case which shows no project delays have occurred as a 

result of ESA. And, in fact, the state has determined that the 

project could not proceed past evaluation—— 

Mr. LABRADOR. Without objection, so ordered. I don’t think we 

need to make an editorial—— 

Mr. GRIJALVA. It wasn’t an editorial, it was an explanation. 

Mr. LABRADOR. Thank you. 

Mr. GRIJALVA. You are welcome. I yield back. 

Mr. LABRADOR. I now recognize Mr. Johnson for 5 minutes. 

Mr. JOHNSON. Thank you, Mr. Chairman. I apologize for being a 

little late this morning. I had another meeting. I would ask unanimous consent that the text of my opening statement be entered 

into the hearing record. 

Mr. LABRADOR. Without objection, so ordered. 

57 

[The prepared statement of Mr. Johnson follows:] 

PREPARED STATEMENT OF THE HON. MIKE JOHNSON, A REPRESENTATIVE IN

CONGRESS FROM THE STATE OF LOUISIANA

Thank you, Mr. Chairman and thank you to our witnesses for being here today. 

On its face, Section 7 of the Endangered Species Act seems pretty straightforward— 

it provides clearly defined timelines the Federal agencies tasked with implementing 

the ESA must follow in order to advance projects that have a Federal nexus, which 

includes funding and permitting. 

However, as you will hear today, Section 7’s real-world operation is anything but 

straightforward. Through Section 7, the Fish and Wildlife Service or the National 

Marine Fisheries Service can delay projects indefinitely, years in many cases, 

simply by continually requesting additional information before allowing the formal 

consultation process to proceed. In addition, outside interest groups, often 

fundamentally opposed to development, use the courts as an offensive weapon, routinely suing the implementing agencies in order to further frustrate project development and drain taxpayer money away from conservation efforts. 

The Section 7 consultation process has cost companies millions of dollars, deprived 

local economies of countless jobs, held up projects that were undertaken to protect 

public safety or to further species conservation goals, and in some cases dissuaded 

companies from even proposing a project in the United States—sending jobs and 

production efforts overseas. 

This is not how the Endangered Species Act was intended to function. The Act 

can and should be modernized, and it should be implemented with transparency. I 

am confident that these goals can be accomplished through the work of this 

Committee. 

I am looking forward to hearing from our witnesses today and to hear their suggestions for improving the Section 7 consultation process. Thank you once again for 

holding this very important hearing, Mr. Chairman, and I yield back the balance 

of my time. 

Mr. JOHNSON. Thank you, and thank all you gentlemen for being 

here this morning. Mr. Wood, the Defenders 2015 article that we 

have in the record says this, ‘‘Consultations often require months 

or years to complete because of inadequate data on species which 

may suspend FWS’s analysis until better data are collected and 

provided.’’ 

The question I have is, who decides whether an adequate level 

of data exists so that a consultation can proceed? 

Mr. WOOD. The Fish and Wildlife Service. 

Mr. JOHNSON. And the Defenders 2015 article also concluded 

that duration of consultation varied by region, and that the identity 

of the lead biologist on a consultation is the best predictor of variation in duration of consultation. 

The question is, in your experience, is that a correct statement? 

Mr. WOOD. I think that is right. Which bureaucrat you have 

reviewing your project makes a huge difference. 

Mr. JOHNSON. OK. Well said. All right. 

Mr. Stiles, you stated in your written testimony that a change 

in the local Fish and Wildlife Service employee resulted in a delay 

of more than a year. I am just wondering if you can elaborate on 

how the local office and its personnel impacted your project’s 

consultation. 

Mr. STILES. Yes. On that particular project—and this was going 

back several, several years, on one of the first consultations—the 

biologist who was working on that particular consultation was 

transferred to a different region or district. And it took the Service 

58 

over 12 months, with repeated requests from the company to 

congressional delegation folks, to the Fish and Wildlife Service 

themselves, to replace that individual. And it just didn’t happen. 

So, in that case, the consultation just sat there. 

Mr. JOHNSON. Thank you. 

Mr. Wood, another one for you. In your experience, did local personnel, such as a lead biologist, have too great of an impact on the 

duration of a consultation? I am curious if you feel like one person 

can jeopardize a project based on their personal dislike of a project. 

Mr. WOOD. They certainly have the ability to delay, because of 

the way they flexibly interpret the evidentiary standard, which I 

will note is the same one used for listing decisions. I think everyone would be outraged if the Service used this same sort of 

argument to refuse to make a determination whether to list an endangered species, citing the need for even more evidence. The same 

standard applies to both, yet the Service is interpreting it differently, depending on what is going to happen. 

Mr. JOHNSON. Let me ask you. What consequences do either 

FWS or the National Marine Fisheries face if they fail to meet any 

of the ESA’s statutory consultation deadlines? 

Mr. WOOD. There is the possibility to sue if they take an exceedingly long period of time, but a project proponent would be illadvised to do that, as it might anger the agency and perhaps 

impose more restrictions or preclude the project. 

Mr. JOHNSON. Mr. Calkins, this one is for you. How was your relationship with local Service personnel? In your view, did they 

impact the duration of the project’s consultation? 

Mr. CALKINS. Yes, absolutely. And the passion to protect the 

species, I think they were either unwilling or unable to really look 

at the scientific data carefully and to balance the needs of the 

community. 

Mr. JOHNSON. Thank you. 

Mr. Li, I have one for you. You said this morning in your testimony that there is a chronic under-funding problem. I think those 

were your words. The question I have for you is kind of a criticism. 

I am sure you have heard it before. But from some things I read 

yesterday, your organization and its allies have filed more than 300 

lawsuits since the Endangered Species Act was last reauthorized, 

and you have collected an estimated $21 million in legal fees, 

which are taxpayer dollars, of course. Sometimes it amounts to 

about $850 an hour for each of those attorneys. 

Of course, that drains money away from conservation, as we all 

would recognize. The question is—by the way, you all have been accepting Federal grants at the same time—so I am just wondering 

how you respond to that criticism when you hear it. 

Mr. LI. Sure. Our lawsuits are all designed to further conservation objectives. And we only get paid when we win. We do not file 

frivolous lawsuits, because it is not a good use of our resources. 

As far as our grants from the Federal Government, in particular 

Fish and Wildlife Service, that actually goes to on-the-ground 

collaborative conservation, working with ranchers and others to 

find ways for human activities to co-exist with endangered species 

conservation. 

59 

Mr. JOHNSON. I am very familiar with prevailing party attorneys’ 

fees, because I was a religious liberty litigator for almost 20 years. 

But I never charged, ever, in any case, more than probably $300 

an hour, because I knew, ultimately, that was taxpayer dollars. 

You think $850 an hour for one of your attorneys is fair, when you 

are so concerned about conservation funding? 

Mr. LI. I don’t know the exact amount that we charge, and we 

would have to look into whether that is $850. I certainly don’t get 

that much money at Defenders. So, we would have to get back to 

you on that amount, but that does not sound right. 

Mr. JOHNSON. I would encourage you to talk to your attorneys, 

because I think that is not quite fair. I will yield. 

Mr. LABRADOR. Thank you. I recognize Mr. McEachin for 

5 minutes. 

Mr. MCEACHIN. Thank you, Mr. Chairman. 

Mr. Wood, although I have the privilege of being the Ranking 

Member, I am a rookie here. I am a freshman Member. I am not 

that familiar with your organization, so I would like to ask you a 

few questions about it, starting off with is it true that the Pacific 

Legal Foundation sues the Federal Government over its implementation of the Endangered Species Act? 

Mr. WOOD. Yes. 

Mr. MCEACHIN. Is it also true that your organization has 

received funding from the Koch Brothers? 

Mr. WOOD. I am not aware of that. I know that less than 

1 percent of our funding comes from big businesses. 

Mr. MCEACHIN. Is it true that you have received funding from 

ExxonMobil? 

Mr. WOOD. I believe we have received some donations in the 

past, but I don’t know whether they give today. 

Mr. MCEACHIN. How about this group—the American Enterprise 

Institute? 

Mr. WOOD. I don’t know whether they give any money to PLF. 

Mr. MCEACHIN. OK. Mr. Chairman, I would like to submit for 

the record documentation supporting affirmative answers to these 

questions. 

Mr. LABRADOR. Without objection, so ordered. 

[The information follows:] 

PACIFIC LEGAL FUND CONTRIBUTOR LIST

While most of the Pacific Legal Fund’s (PLF) contributors are unknown, several 

major conservative funders have reported contributions to them, including the Koch 

Network, the Exxon/Mobil Foundation, the Adolf Coors Foundation, Dunn’s 

Foundation for the Advancement of Right Thinking, and the Sarah Scaife 

Foundation. 

60 

1http: / / www.ucsusa.org / global_warming / solutions / fight-misinformation / global-warmingskeptic.html#.WMgd_W8rJFE. 2 Calculated using all IRS 990 nonprofit tax forms available for the organizations identified 

as global warming skeptics by the Union of Concerned Scientists. 990 IRS data includes 

contributions from 1985 to 2014 and was tabulated by conservativetransparency.org/. 

Just a Few of the Pacific Legal Fund’s Ultra Conservative and Corporate 

Donors . . . 

The organizations that give PLF money have a history of donating to groups that 

advocate for extreme pro-business and conservative views. For example, the Union 

of Concerned Scientists has highlighted ten organizations as ‘‘Global Warming 

Skeptics.’’ 1 The conservative foundations that support PLF’s work were also the key 

funders for each of the groups that the Union of Concerned Scientists identified as 

having a history of denying the existence of—or undermining demonstrable evidence 

for—climate change. 

The same foundations that contributed money to the Pacific Legal Fund donated a whopping $193 million dollars to nonprofit organizations who advocate against 

global warming.2 PLF’s funders clearly wish to pollute the public debate with misinformation about environmental issues. The PLF and its ultra conservative and corporate donors want the same thing—to amplify a message that puts the interests 

of big business first and gives little thought to what will happen to America’s 

treasured natural places. 

Mr. MCEACHIN. Sir, do you believe it is hypocritical for you to 

criticize other organizations for suing the government to keep ESA 

protections in place, while your organization is busy trying to tear 

them down? 

Mr. WOOD. I don’t believe that is what we are trying to do. But 

the answer to your question is no, because we rarely get attorneys’ 

fees when we successfully sue the government. The way it works 

is, essentially, only environmental groups get that. If you are representing a property owner or someone unfairly burdened, 

attorneys’ fees are not available. 

Mr. MCEACHIN. Mr. Li, the Majority likes to complain that 

Federal agencies are not completing consultations fast enough, but 

at the same time denies those agencies the resources they need to 

get the job done. 

The latest example is this sign-on letter to House Appropriations 

requesting that they ignore Donald Trump’s proposal to slash the 

budgets of the Interior and Commerce Departments, and instead 

fully fund the ESA-related work that these Departments do. The 

letter has been circulated widely to Members on both sides of the 

61 

aisle for several weeks, and now has 66 co-signers. Sadly, not a 

single one is a Republican. 

I would like to submit this letter for the record. 

Mr. LABRADOR. Without objection, so ordered. 

Mr. MCEACHIN. Thank you, Mr. Chairman. 

[The information follows:] 

MEMORANDUM 

From: The Honorable Donald S. Beyer, Jr. 

Date: March 27, 2017 

Support Funding for Endangered Species Conservation 

CLOSING COB TODAY

Current Signers (66): Grijalva, DeFazio, Tsongas, Pingree, Polis, Huffman, Eshoo, 

Connolly, Eleanor Holmes Norton, McNerney, Foster, Wm. Lacy Clay, Norcross, 

Pascrell, Keating, Moulton, Garamendi, Cleaver, Yarmuth, Quigley, Heck, 

Brownley, Soto, Conyers, Napolitano, Schiff, DeGette, Kind, Speier, Matsui, Danny 

K. Davis, Sires, Welch, Wasserman Schultz, Vela ́zquez, Lieu, Lewis, Barbara Lee, 

Cohen, Schneider, Lawrence, Beatty, Cicilline, Shea-Porter, Schakowsky, Ca ́ rdenas, 

Langevin, Doggett, Adam Smith, Payne, Lowenthal, Capuano, Cummings, Levin, 

Lofgren, Pocan, Nadler, Plaskett, Sa ́nchez, Carolyn B. Maloney, Butterfield, Boyle, 

Costa, Hank Johnson 

Dear Colleague: 

Please join us in requesting that the House Appropriations Committee fully fund 

the endangered species functions of the U.S. Fish and Wildlife Service (FWS) and 

the National Marine Fisheries Service (NMFS), the agencies responsible for implementing the Endangered Species Act (ESA). 

We are deeply concerned by the trend of underfunding ESA implementation, hampering the ability of FWS and NMFS to perform the critical task of preventing the 

permanent loss of species and of ensuring depleted species’ recovery. Inadequate 

funding jeopardizes the nation’s ability to conserve the ecosystems upon which endangered and threatened species depend. It also fails to provide the infrastructure 

sufficient to both effectively recover federally-listed species and prevent the need to 

list newly-depleted species. Quite simply, continued underfunding will delay species 

protection, make recovery harder and more expensive, and result in more litigation. 

Adequate funding and staffing are crucial to support timely decision-making based 

on the best scientific information and with effective public involvement They are 

also crucial to minimizing the risk of litigation regarding missed deadlines. 

Ultimately, full funding is necessary to protect the spectacular biological diversity 

we currently enjoy for many generations to come. 

For additional information or to sign on, please contact Greg 

(greg.sunstrum@mail.house.gov) in Rep. Debbie Dingell’s office or Kate 

(kate.schisler@mail.house.gov) in Rep. Don Beyer’s office. 

Sincerely, 

Debbie Dingell, Don Beyer, 

Member of Congress. Member of Congress. 

Attachment: Letter 

62 

***** 

March XX, 2017 

Hon. KEN CALVERT, Chairman, 

Hon. BETTY MCCOLLUM, Ranking Member, 

House Subcommittee on Interior, Environment, and Related Agencies, 

House Committee on Appropriations, 

Washington, DC 20515. 

Hon. JOHN CULBERSON, Chairman, 

Hon. JOSE ́ SERRANO, Ranking Member, 

House Subcommittee on Commerce, Justice, Science and Related Agencies, 

House Committee on Appropriations, 

Washington, DC 20515. 

Dear Chairman Calvert, Chairman Culberson, Ranking Member McCollum, and 

Ranking Member Serrano: 

As you begin to consider fiscal year 2018 Interior and Commerce, Justice, Science 

Appropriations, we urge you to support robust funding for Endangered Species Act 

(ESA) listing, planning and consultation, species conservation and restoration, and 

recovery process. 

In enacting the Endangered Species Act of 1973, Congress recognized that imperiled species of wildlife, fish, and plants ‘‘are of esthetic, ecological, educational, 

historical, recreational, and scientific value to the Nation and its people.’’ The U.S. 

Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS) 

employ, to great effect, a suite of mechanisms to carry out the law’s aim of conserving endangered and threatened species and the habitat upon which they depend. Their efforts have successfully prevented the extinction of 99 percent of all 

species listed as threatened or endangered under the Act. 

However, developing, coordinating, implementing, and managing all the recovery 

tools and partner activities in a cohesive and effective manner for species’ recovery 

requires significant commitment and resources. Strong funding for Ecological 

Services supports FWS’s work with partners at the state and local level both to recover listed species and to conserve candidate species and their habitats so that the 

need for listing is reduced or even eliminated. Similarly, funding for NMFS 

Protected Resources Science and Management program is crucial for the protection 

and recovery of imperiled marine species. 

The need for increased recovery funding is evident from the over 400 U.S. listed 

species that lack recovery plans. Congressional appropriations for both recovery and 

consultation, already insufficient, have not kept pace with the number of listed 

species. Inadequate funding not only puts at risk the recovery of threatened and endangered species and conservation of their habitats; it also impedes FWS and 

NMFS’s ability to apply the best scientific knowledge available in a timely review 

of listing decisions for species in need of protection. If Congress does not provide 

the funding increases necessary for FWS and NMFS to carry out their statutory obligations, the agencies may face greater exposure to litigation. More importantly, 

our Nation could lose even more of our precious wildlife heritage. 

We request robust funding for ESA listing, planning and consultation, species conservation and restoration, and recovery in FY 2018. This is critical to recover and 

conserve our Nation’s imperiled species and ultimately protect America’s natural 

heritage. 

Sincerely, 

Mr. MCEACHIN. Mr. Li, while we know that Section 7 consultations save endangered species and rarely slow up development or 

infrastructure projects in any meaningful way, does the fact that 

the Congress keeps cutting agency budgets influence the time it 

takes Federal agencies to complete these and other crucial tasks? 

Mr. LI. Emphatically, yes. As I said earlier, on the per-species 

basis, the Fish and Wildlife Service has received less and less 

funding to carry out consultations. That means less staff and less 

63 

resources to complete the consultations within the desired time 

frame. 

Mr. MCEACHIN. And, Mr. Li, do you support additional funding 

for the Fish and Wildlife Service and the National Marine 

Fisheries Service to increase the agency’s capacity to process consultation requests? 

Mr. LI. We not only support it, we think it is absolutely vital to 

ensure that the ESA is functioning as it should to protect endangered species and to work for regulated entities. 

Mr. MCEACHIN. Mr. Li, we have heard about the pre-consultation 

process from some other witnesses. Can you explain your 

understanding of this process and how it relates to informal 

consultations? 

Is it reasonable to expect the Services to do this work in the absence of a complete consultation package from the action agency 

within the statutory timelines for formal consultation? 

Mr. LI. No, it is not reasonable to expect the Service to do many 

informal and formal consultations without some level of preconsultation discussion. Pre-consultations are the back-and-forth 

discussion prior to consultations to ensure that the paperwork and 

the necessary surveys are available, so that the consultation can be 

expedited and streamlined. 

So, pre-consultations are not recorded as part of that official consultation duration, because it is more of a matter of an extension 

of the tactical assistance that occurs under Section 7. 

Mr. MCEACHIN. And then very quickly, because our time is running out, Mr. Li, in your research have you found situations where 

consultations are delayed for reasons unrelated to the ESA? 

Mr. LI. Absolutely. And there are many examples. Sometimes, 

other Federal laws are involved, NEPA—they are intertwined with 

the Section 7 process. In other instances, we have errors or delays 

on the part of applicants. They provide the wrong information to 

the Fish and Wildlife Service, so the Service has to start over. 

There are many reasons beyond the ESA for delays. 

Mr. MCEACHIN. Thank you, Mr. Li. 

Mr. Chairman, I yield back. 

Mr. LABRADOR. Thank you. I recognize Mrs. Radewagen for 5 

minutes. 

Mrs. RADEWAGEN. I want to thank you all for testifying today before this Subcommittee. Thank you, Chairman Labrador and 

Ranking Member McEachin, for holding this hearing, and our Full 

Committee Chairman Bishop. 

I represent American Samoa, a jewel of the Pacific some 2,500 

miles south of Hawaii. We have many rare species of animals only 

found in our archipelago. These animals are important to the identity of American Samoa. 

I have also seen firsthand what happens when bureaucrats from 

Washington, DC, seek to impose their rules on American Samoa, 

the other territories, and on Native American tribes without consulting the local Native population. A recent example of this, the 

Sauk-Suiattle Tribe near Darrington, Washington is very concerned 

with the impacts of grizzly bear reintroduction on their treaty 

fishing resources. 

64 

So, Mr. Li, your organization supports this reintroduction, in 

spite of the tribe’s concerns. Is that correct? 

Mr. LI. I would have to get back to you on our exact position. But 

for the purposes of the question, I can proceed assuming that it is 

yes. 

Mrs. RADEWAGEN. And, Mr. Wood, given the impact the reintroduction may have on subsistence and other cultural needs of entities, such as the populations of the territories, do you think that 

the Endangered Species Act is at odds in some cases with our 

Nation’s trust responsibility toward the territories and the people 

that live there? 

Mr. WOOD. I think that is true for both the territories and the 

states. The ESA does federalize a lot of policy that was previously 

done at that lower level. 

Mrs. RADEWAGEN. Thank you, Mr. Chairman. I yield back. 

Mr. LABRADOR. Thank you. I now recognize Mr. Huffman for 5 

minutes. 

Mr. HUFFMAN. Thank you, Mr. Chairman. Mr. Calkins, I just 

wanted to ask you a quick question about the Ventura River. 

As you know, the reason the Ventura River lost its steelhead 

run, which used to be an iconic steelhead run in Southern 

California, was the construction of Matilija Dam in 1947, which 

provided no fish passage. I know that as Public Works Director for 

the city, you at one point supported removal of the dam. I just 

wanted to inquire as to whether you still support removing that 

dam. 

Mr. CALKINS. Absolutely. 

Mr. HUFFMAN. Thank you. Do you believe, if the ESA had existed 

in 1947, that project would have proceeded a little more thoughtfully, and incorporated fish passage? 

Mr. CALKINS. Yes, I do, and I wish it had. 

Mr. HUFFMAN. Yes. Mr. Li, would you agree that if the ESA and 

its consultation processes were in effect in 1947, we would have a 

more functioning water system and natural environment on the 

Ventura River today? 

Mr. LI. Absolutely. I think the ESA would have acted as a lookbefore-you-leap type of law, and would have allowed for fish 

passages and fish ladders. 

Mr. HUFFMAN. Thank you. 

Mr. Li, I want to stay with you for a moment. Some long-time 

advocates of repealing the ESA have recently resorted to something 

we see a lot: falsely scapegoating the ESA in emergency situations. 

We have seen this in the past with wildfires. We sometimes hear 

claims that the ESA is somehow preventing emergency responders 

from savings lives and property. After the fact, when we fact-check 

these things, they are always bunk. But it comes up time and 

again. 

And recently, it has come up in connection with the Oroville Dam 

spillway problem in California. Some folks have argued that the 

National Marine Fisheries Service and the ESA have hampered the 

emergency repair, the emergency response. There is a letter going 

around that says this is a prime example of how the Endangered 

Species Act elevates fish and wildlife above human life and public 

safety, the usual stuff we hear. 

65 

However, this is completely false. The Department of Water 

Resources in California recently sent a letter confirming that ESA 

consultations have not in any way delayed emergency repairs. So, 

I just want to ask you, is it true, this claim that the ESA has somehow stood in the way of emergency repairs at Oroville Dam? 

Mr. LI. It is emphatically not true. I have right here the letter 

from the California Department of Water Resources saying that, 

‘‘The correspondence between NMFS and FERC did not affect the 

Department of Water Resources’ ability to focus on health and 

safety.’’ 

If you read the NMFS letter, it provides mere recommendations 

that the Department of Water Resources was already planning to 

adopt. 

Mr. HUFFMAN. In fact, during an emergency like this, the 

Endangered Species Act actually provides for consultation. But are 

the recommendations from that consultation even binding on the 

action agency? 

Mr. LI. No, they are not. In fact, the Fish and Wildlife Service 

regulations specifically say, as does the handbook, that addressing 

the emergency response takes priority over addressing endangered 

species issues. After the emergency is handled, that is when the 

formal consultation or any other consultation would be resumed. 

Mr. HUFFMAN. Yet, we continue to see these myths swirling 

about almost every time there is an emergency. So, instead of asking a question of the witnesses, I want to actually make a suggestion, a friendly suggestion, and maybe ask a question of the Chair. 

As we go forward with this Endangered Species Act debate, it 

seems to me that we should try our best to do it on the basis of 

real facts, and not let this Subcommittee, or the main Committee, 

become an echo chamber of these myths, and these false 

scapegoating exercises. There is a way to do that. 

When folks come in here with stories blaming the ESA for this 

or that, whether it is a levee failure or Oroville Dam repair delays 

that are not true, or any number of things, let’s engage the 

Congressional Research Service. It is an independent, non-partisan 

entity that works for us to answer questions. Let’s ask them to just 

fact-check stuff. Let’s make sure that, as we go forward, let’s have 

a great debate, but let’s have it on the basis of facts, and not 

become an echo chamber for these myths and false scapegoating 

exercises. Would you agree to that? 

Mr. LABRADOR. Why don’t you ask the witnesses? You have a 

couple of witnesses that could actually disagree with Mr. Li. 

Mr. HUFFMAN. I am more interested in the integrity of this 

Committee not dignifying a bunch of myths and falsehoods. We can 

do better than that. 

Mr. LABRADOR. We have—— 

Mr. HUFFMAN. There is an easy way to do that. 

Mr. LABRADOR. I think you have some witnesses who might be 

able to answer your question—— 

Mr. HUFFMAN. Could I ask Chairman Bishop, maybe, since I am 

not getting a response from the Subcommittee Chair—could we 

institute this simple fact-checking protocol, so that we can make 

policy on the basis of reality and facts? 

Mr. LABRADOR. Your time has expired. Thank you very much. 

66 

Mr. Bergman. 

Mr. BERGMAN. Thank you, Mr. Chairman, for holding this hearing; and thanks to the witnesses for taking time to be here today 

to talk about this relevant issue. 

My first question is for Mr. Wood. Mr. Wood, the Endangered 

Species Act is intended to facilitate population recovery for listed, 

threatened, or endangered species. Is that correct? 

Mr. WOOD. That is correct. 

Mr. BERGMAN. When species recover, such occasions are considered a success of the Endangered Species Act. Recoveries are 

examples of the law actually working. Is that correct? 

Mr. WOOD. Yes, among other things. 

Mr. BERGMAN. States are responsible for managing non-listed 

wildlife within their borders. Is that correct? 

Mr. WOOD. Yes. 

Mr. BERGMAN. The Rocky Mountain Gray Wolf is an Endangered 

Species Act success story, at least in part. The wolf quickly exceeded population recovery goals, and the wolves were delisted by the 

Fish and Wildlife Services. The wolves, once delisted, were to be 

managed by the states under federally approved management 

plans that would allow populations to continue to thrive. Again, 

this is an example of the law working. 

Yet, the Defenders of Wildlife launched a lawsuit that stopped 

management of the recovered wolves from being transitioned to the 

states. In fact, Congress had to pass a law in order to allow 

Montana and Idaho to manage their fully recovered wolf populations; and litigation still presents state management in Wyoming 

and the Western Great Lakes. 

And this is only one such example of ongoing attempts by organizations, such as Defenders of Wildlife, to stop the law from being 

a success, to drain taxpayers’ funds away from conservation and 

stewardship of our wildlife, and to line the pockets of their staff 

attorneys. 

Mr. Wood, in your opinion, do these litigious organizations believe the Endangered Species Act is only a success if species are 

never delisted? 

Mr. WOOD. Obviously, you would have to ask them that, but I 

think it does seem to fit with the model. The ESA litigation has 

become a profit process for many of these groups. 

Mr. BERGMAN. Mr. Wood, what do you believe motivates constant 

litigation on the part of these groups, particularly when the law 

has worked as intended? 

Mr. WOOD. Part of it, I am sure, is a concern for the environment. Also it is to increase or maintain Federal control. 

One other point might be that profit incentive. As Mr. Li said 

earlier, he does not get paid as a member of the organization, what 

they charge the Federal Government in attorneys’ fees. They are 

recovering more than the litigation costs groups like this. 

Mr. BERGMAN. What suggestions do you have to improve the 

delisting process? 

Mr. WOOD. I think the cleanest one is to demand that the Service 

begin actively acting on its own determinations from its scientists 

that species should be delisted. Under the current system, the 

67 

Service ignores its own scientists when they call for removing 

Federal restrictions. 

Mr. BERGMAN. OK. And this is for any panelist. In your testimony, all of you discuss the problems with the formal consultation 

process, and how the 135-day limit can be somewhat ambiguous. 

Do you think, if there were clearly defined start times for the consultation process, meaning that the clock starts at a specific time, 

regardless of how many additional documents are needed, that that 

change would significantly affect the overall consultation process? 

If yes, how so? 

Mr. STILES. I am not sure, Congressman. Based on my experience, I think the real issue has been the length of time in consultation, and just the ignoring of the statutory requirements with no 

consequence. I think you need some consequence for not adhering 

to some of those statutory completion times. I think what you are 

suggesting would absolutely help, but I don’t think it would cure 

the problem. 

Mr. LI. I will offer a quick perspective. I think, through administrative and policy improvements, if there is ambiguity about the 

start time of consultations, that can certainly be clarified very 

easily through public notice and comment rulemaking. 

Mr. WOOD. I think it could clarify to fix a start time. And I think 

consultation—the evidentiary standards should work the same way 

for consultation as it does for listing decisions. As I said earlier, it 

would be an outrage if the Service did in listing decisions what it 

does in consultation and say, ‘‘We need more and more and more 

data in order to avoid making a determination.’’ 

Mr. BERGMAN. Thank you. 

Mr. Chairman, I yield back. 

Mr. LABRADOR. Thank you. I now recognize Mr. Beyer. 

Mr. BEYER. Thank you, Mr. Chairman. 

Mr. Li, in Mr. Wood’s written testimony, he blames the 

Endangered Species Act for delaying work to restore the habitat for 

the Florida manatee. However, there are documents from the U.S. 

Army Corps of Engineers, one I would like to submit for the record, 

without objection. 

Mr. LABRADOR. Without objection, so ordered. 

[The information follows:] 

DEPARTMENT OF THE ARMY,

JACKSONVILLE DISTRICT CORPS OF ENGINEERS, 

GAINESVILLE, FLORIDA

April 30, 2015 

Save Crystal River 

209 Southeast Paradise Point 

Crystal River, FL 34429 

Attn: Robert Mercer 

CEASE AND DESIST NOTIFICATION AND WARNING 

Dear Mr. Mercer: 

The Corps of Engineers (Corps) has obtained information from a complaint 

received on March 10, 2015 and subsequent investigation indicating unauthorized 

excavation activities are being conducted within Kings Bay and the Kings Bay canal 

systems. The activity is ongoing within Kings Bay and the canal systems connected 

to Kings Bay, in Crystal River, Citrus County, Florida. 

68 

As District Engineer it is my responsibility to protect the integrity of waters of 

the United States, including wetlands. The purpose of this letter is to notify you 

that the Corps has information indicating that you are responsible for the excavation of ‘‘muck’’ resulting in an increase in the navigable capacity of Waters of the 

United States conducted without the required Department of the Army authorization, and to warn you to cease and desist conducting such activity pending a resolution. It is also the purpose of this letter to inform you of the consequences for 

engaging in unauthorized activity and the potential options for resolving this 

matter. 

Section 404 of the Clean Water Act, 33 U.S.C. § 1344, prohibits discharges of 

dredged or fill material into waters of the United States unless the work has been 

authorized by Department of the Army permit. Use of an aquatic harvester does not 

always result in a clean removal of material; some discharges take place with this 

method of work. The use of an aquatic harvester may result in more than incidental 

fallback that could result in a Section 404 violation. Section 10 of the Rivers and 

Harbors Act of 1899, 33 U.S.C. § 403, prohibits the placing of any structure in, 

under, or over navigable waters of the United States and excavating from or depositing material into such waters unless the work has been authorized by a Department of the Army permit. Kings Bay and the connected canal systems are subject 

to the ebb and flow of the tides and are therefore Section 10 waters of the United 

States. The dredging of ‘‘muck’’ from Kings Bay and the connected canals constitutes 

work within a water of the United States. 

In accordance with 33 CFR 326.3(c)(3), I am notifying you of potential consequences for violating these laws. Under the Clean Water Act you may incur civil 

penalties up to $37,500 per day of violation. Criminal penalties under the Clean 

Water Act include fines up to $50,000 per day of violation and imprisonment. 

Violation of the Rivers and Harbors Act of 1899 could result in criminal penalties 

(up to $100,000 for individuals and up to $200,000 in fines for corporations) and up 

to 1 year imprisonment, or both. Injunctive relief, such as restoration of the area 

affected by your activity, may also be granted for violations of either the Clean 

Water Act or the Rivers and Harbors Act. 

On April 24, 2014 representatives of the Corps met with you and other representatives from Save Crystal River and witnessed very specific techniques to harvest 

living lyngbia algae from the bottom of a canal. Those specific techniques resulted 

in very low turbidity and little to no change in the navigable capacity of the canals. 

Furthermore, the type of material removed was living lyngbia algae and not ‘‘muck.’’ 

Based on the specific harvesting techniques witnessed on April 24, 2014, the Corps 

sent Save Crystal River a policy letter, dated May 1, 2014, stating the lyngbia harvesting techniques shown during the April 2014 visit would not require a permit. 

The May 1, 2014 letter also stated that ‘‘in the event that Save Crystal River is 

unable to utilize these specific techniques, or conditions arise that would cause these 

techniques to result in dredging/excavation or greater than de minimus discharge, 

a Department of the Army Permit may be required to continue working.’’ Based on 

photographs and other information received by the Corps your ongoing work exceeds 

the scope of the activity described in the above referenced letter. Thus, if you wish 

to continue work that involves dredging or excavating those activities will require 

a Department of the Army permit. 

It is in your best interest to halt the unauthorized activity immediately upon receipt of this notification and warning. If further activity is performed after receipt 

of this cease and desist notification and warning, I will seek the assistance of the 

Department of Justice to take immediate legal action to halt such activity. Although 

compliance with this notification and warning will result in a more favorable resolution of this matter than otherwise, compliance will not foreclose the Government’s 

options to initiate appropriate legal action or to later require the submission of a 

permit application. 

In order to help expedite resolution of this matter, please provide within 15 days 

of receipt of this notification and warning information concerning your activity in 

light of the requirements of the Clean Water Act and the Rivers and Harbors Act. 

Please provide any permits, exemptions, or other information or correspondence 

from other local, State and Federal agencies you may have obtained relevant to the 

activities referenced above. The Corps will request comments from appropriate 

Federal and State agencies in order to better evaluate your activity. In accordance 

with a Memorandum of Agreement between the Department of the Army and the 

U.S. Environmental Protection Agency (EPA) concerning federal enforcement of 

Section 404 of the Clean Water Act, a copy of this notification is being sent to the 

69 

EPA for review and coordination. Further information may be requested from you, 

as needed, in the future. 

The information obtained from you and other agencies will be used to evaluate 

the activities for compliance with the above mentioned statutes and to determine 

the appropriate course of action to resolve any violations, including legal action, restoration of the affected area, and/or issuance of an after-the-fact permit in accordance with 33 CFR 326.3(e). If an after-the-fact permit is issued, you may appeal the 

permit and the jurisdictional determination in accordance with 33 CFR 331. 

If you have any questions, please contact Shaun Gallagher in writing, via 

electronic mail at shaun.e.gallagher@usace.army.mil, regular mail at the letterhead 

address, or by telephone 352-372-9625. 

Sincerely, 

ALAN M. DODD, 

Colonel, U.S. Army,

District Commander 

Enclosure 

***** 

MEMORANDUM FOR RECORD 

CESAJ-RD-PE (1200A) 

31 July 2015 

SUBJECT: SAJ-2015-00706 Save Crystal River 

Project Location: Canals connected with Kings Bay, Crystal River, Citrus County, 

Florida 

1. Background: 

The Corps received a request by Save Crystal River, Inc. (SCR) on March 13, 2014 

regarding activities in man-made residential canals in Kings Bay/Crystal River. The 

request was for the Corps to provide a written determination regarding whether 

SCR’s Lyngbya algae harvesting activities would require a Department of the Army 

Permit pursuant to Section 10 of the Rivers and Harbors Act of 1899 (33 U.S.C. 403) 

and/or Section 404 of the Clean Waters Act (33 U.S.C. 1344). 

On April 24, 2014 the Corps staff accompanied SCR’s representatives to a proposed worksite to observe the Lyngbya harvesting operations. Corps staff observed 

the operation of a modified mechanical vegetation harvester utilizing a device 

known as a bubbler bar to harvest the Lyngbya algae from the canal bottom. Corps 

staff noted that the bubbler bar, which emits compressed air, is attached to the 

front of the harvester conveyor belt where the harvester’s cutting blade is typically 

located. The harvester operator then lowered the bubbler bar below the surface of 

the water where the compressed air emitted from the bubbler bar loosened and resuspended the algal material. The conveyor belt on the harvester then removed the 

algae from the water column to the harvester’s hopper. The harvester operator 

emptied the harvester hopper loads onto a waiting dump truck which would then 

haul the harvested algae to an upland location. Corps staff further noted that the 

turbidity associated with the harvesting activity was limited to a small plume in the 

vicinity of the bubbler bar, and that any disturbance and/or redeposit of bottom 

sediment associated with the harvesting activity was not visible. 

Based on the April 24, 2014 site visit the Corps determined that no permit under 

Section 404 of the Clean Waters Act would be required as long as the material removed was not discharged into a Water of the United States. The Corps also decided 

that the Lyngbya harvesting techniques would not require a Department of the 

Army Permit pursuant to Section 10 of the Rivers and Harbors Act, as long as, the 

specific harvesting techniques and canal conditions viewed on April 24, 2014 were 

consistent though out the project scope. The Crystal River, Kings Bay and the connected canal systems are subject to the ebb and flow if the tides and are jurisdictional under Section 10 of the Rivers and Harbors Act. On May 1, 2014 the Corps 

sent a letter to SCR outlining these decisions. 

70 

2. Unauthorized activity: 

On March 10, 2015 the Corps received a complaint from Mr. Pat Rose of Save 

the Manatee that Save Crystal River (SCR) was performing dredge operations within the canal systems connected to Kings Bay. Corps staff contacted Mr. Rose to obtain further information about the complaint and received several pictures of waste 

bins containing material removed by SCR’s contractor. Corps staff contacted Citrus 

County and performed a public records search on March 12, 2015 to gather information on the project and received pictures of material placed in bins that were submitted to Citrus County for payment under a contract between SCR and Citrus 

County. 

On March 31, 2015 the Corps contacted Mr. Bob Mercer with SCR by phone to 

discuss the project and that a complaint was received. An email was sent to Mr. 

Mercer on April 1, 2015 requesting information that demonstrated the ongoing work 

was in accordance with the Corps’ May 1, 2014 letter. The email warned SCR that 

any work not specifically allowed by the May 1, 2014 letter may need a Department 

of the Army permit, but work being performed under the May 1, 2015 letter could 

continue. SCR responded to the request by letter dated April 16, 2015, stating that 

the work being performed the material being removed were the same as seen during 

the April 24, 2014 site visit. Mr. Mercer also included a copy of a turbidity monitoring report sent to the Florida Department of Environmental Protection. 

Corps staff reviewed the information provided by Save the Manatee and Citrus 

County and decided that work requiring a Section 10 permit was performed by SCR. 

A Cease and Desist Notification letter was sent to SCR on April 30, 2015. The 

Warning letter informed SCR the ongoing work exceeded the scope of the activity 

described in the May 1, 2014 letter and if SCR wished to continue dredging or excavating activities a Department of the Army permit would be required. The Warning 

letter requested SCR to provide, within 15 days of receipt, notification of the 

Warning letter and any permits received for the project. SCR responded by letter, 

received on May 13, 2015, requesting: 1) The Corps definition of ‘‘muck,’’ 2) The 

names of individuals and entities that files the complaint, 3) The dates, times, and 

locations in which this activity was reported, 4) A copy of any other information that 

is being judged to be in support of these claims, 5) copy of any scientific verification 

of the nature of the samples provided, 6) The evidence that was provided to the 

Corps and 7) Any information regarding any actions the claimant may have taken 

to address the issue with SCR prior to contacting the Corps. 

Corps representatives meet with representative of SCR on June 9, 2015 to discuss 

the Warning letter, SCR’s request, educate SCR on the Corps’ jurisdiction in regards 

to Section 10 of the Rivers and Harbors Act and Section 404 of the Clean Waters 

Act (CWA) and to visit SCR’s dewatering site. During the June 9th meeting the 

Corps also provided SCR with pictures of the bins and material. The Corps informed 

SCR during the meeting that no evidence was found showing a violation of Section 

404 of the CWA occurred. However, the Corps did inform SCR that a Section 10 

violation did occur since the level of work that was performed was inconsistent with 

what Corps representatives witnessed during the April 24, 2014 site visit. SCR felt 

that, per the Florida Fish and Wildlife Commission aquatic plant removal permit, 

they could remove up to three feet of material from the canals. Corps representatives noted conditions in the canal showed during the April 24, 2014 meeting did 

not show up to three feet of material. The decision not to require a Section 10 

permit for the Lyngbya removal was based on a representative canal with sparse 

mats of Lyngbya. SCR staff agreed that any work not specifically covered by the 

May 1, 2014 letter had ceased and would not be performed again unless a Department of the Army permit was issued. 

Corps staff and representatives from SCR visited the dewatering site after the 

meeting and a sample of the material SCR removed was taken by the Corps. The 

material witnessed at the dewatering site was comprised of Lyngbya and mineral 

deposits. 

71 

3. Pictures obtained from Citrus County and Save the Manatee: 

REPRESENTATIVE MATERIAL REMOVED BY COUNTY CONTRACTORS

REPRESENTATIVE MATERIAL REMOVED BY SCR CONTRACTOR

72 

4. Resolution: 

The Corps concluded its investigation and resolved the Section 10 violation by 

letter dated June 16, 2015. The letter outlined the Corps’ decision and informed 

SCR that any future proposed work in a Section 10 body of water would require 

a Department of the Army permit. 

SHAUN E. GALLAGHER

Project Manager, Enforcement Section 

Mr. BEYER. Thank you, Mr. Chairman. That includes a ceaseand-desist order issued to the organization that was conducting the 

habitat work that clearly showed it was the organization’s failure 

to seek a permit from the Army Corps of Engineers, rather than 

the ESA, that delayed the project. 

Can you give us your perspective on this incident? 

Mr. LI. Yes. Thank you for the question. Our Florida office actually worked specifically on this issue. And Save the Crystal Rivers 

did not have a Clean Water Act permit for the dredging. The original method of dredging also used this aquatic plant harvester, and 

that was very problematic, because it actually caused a lot of muck 

to be stirred up in the water column and increased the turbidity, 

which is not good for the aquatic life. 

There are certainly better methods to carry out the restoration, 

including the use of filtration that reduces the sedimentation. 

Mr. BEYER. Mr. Li, I have a long question for you based on Mr. 

Calkins’ very thoughtful testimony. He offered a number of specific 

policy suggestions that I read as an attempt to balance these 

concerns about delays in projects with the overall intent of the 

Endangered Species Act. Let me just throw three of them at you, 

Mr. Li, for your response. 

The first is that there are no consequences to the agency for failure to adhere to the statutory timeline, with a suggestion that 

there should be consequences. And to my friends on the panel, I 

suggest there might be consequences for failing to pass a budget 

on time, or appropriations bills, or other things. 

The second piece is that it would require the consultation agency 

to follow the conclusions derived from the biological assessments. 

For example, there is a difference between what the Forest Service 

said and what the Fish and Wildlife Service said. And in cases 

where the consultation agency may not agree with the biological 

assessment findings, the consultation agency should be required to 

defend it through a peer panel. 

And then third, that once a project’s impacts have been assessed 

through the issuance of a NEPA document, an EIS, or an EA, or 

a biological opinion, that future assessments should only look at 

those specific items that were remanded or otherwise administratively modified, rather than opening up the entire thing again and 

starting the process all over. 

How would you, from Defenders of Wildlife, answer those objections or those specific policy proposals? I mean what is wrong with 

them? 

Mr. LI. Let me start with the second one on peer review. If folks 

are concerned about the length of consultations right now, you can 

73 

only imagine what a peer review process would do to increase that 

length. So, I am not sure that is going to actually further the objectives of the other witnesses here. 

As far as future assessments and opening up those assessments, 

the bottom line is that, if you look at most reinitiations, it is not 

true that the entire consultation is opened up. The Fish and 

Wildlife Service certainly has better things to do than spend its 

time doing unnecessary analysis. What is actually re-evaluated is 

the newly-listed species or new critical habitat, as it is affected by 

whatever portion of the project, which may not be an entire project. 

And it is only those impacts that are typically evaluated. 

As far as the first recommendation on the dates, there are, to 

some degree, consequences for exceeding the 135-day time frame. 

According to regulations there needs to be a mutual extension, and 

the Fish and Wildlife Service does not have in its self-interest 

dragging on consultations forever. It needs to move on to other 

things. 

Mr. BEYER. OK. Well, thank you. Mr. Calkins, one of the other 

suggestions you had was reform of the Equal Access to Justice Act. 

On page 7, you talk specifically about excessive attorneys’ fees and 

totally disconnected from the Act’s original purposes. 

I basically understand the work of most of the environmental 

agencies, like Defenders of Wildlife—the purpose of the lawsuits is 

very much connected to their agency’s original purpose, which is to 

respect, defend, and protect those endangered species. How do you 

make the argument that their work is disconnected from the Act’s 

original purposes? 

Mr. CALKINS. I think it is the extreme. I mean we have had an 

example where, in order to settle a lawsuit, Ventura had to agree 

to $55 million to settle a lawsuit that was just dragging the decision on and on and on. 

So, I think, even though you have heard that these are very rare 

examples, they happen over and over again. And the cost is prohibitive, and it really marginally goes to protecting the species, as far 

as I am concerned. 

Mr. BEYER. Thank you. I yield back, Mr. Chair. 

Mr. LABRADOR. Thank you. And now the Chair recognizes Miss 

Gonza ́lez-Colo ́n. 

Miss GONZA ́LEZ-COLO ́ N. Thank you, Mr. Chairman. 

Mr. Li, in your testimony, you state, ‘‘From the time a Federal 

agency provided Fish and Wildlife Services with enough information to initiate a consultation, the medium duration of informal 

consultations was 13 days and formal consultations was 62 days.’’ 

Does the relevant Service have the discretion to determine what 

constitutes as a satisfactory amount of information? 

Mr. LI. I am sorry, I didn’t hear the last part of your question 

because the door was opening and closing. 

Miss GONZA ́LEZ-COLO ́ N. Does the relevant Service have the discretion to determine what constitutes as a satisfactory amount of 

information? 

Mr. LI. Yes. The Service has in its discretion the ability to determine how much information is presented in order to start a consultation. And that should be the right way things work. Because 

74 

every species is different, every project is a little bit different, and 

it is a case-by-case analysis. 

Miss GONZA ́LEZ-COLO ́ N. So, therefore, is it possible also that the 

Service can delay the triggering of the formal consultation timeline 

by continually asking for more information related to a project? 

Mr. LI. If the initial information is not adequate to start a consultation, that can happen. But, by and large, those are outliers. 

Those are not representative of most consultations. 

Miss GONZA ́LEZ-COLO ́ N. That will be just discretional? 

Mr. LI. I am sorry? 

Miss GONZA ́LEZ-COLO ́ N. That will be just discretional? 

Mr. LI. Discretional to start the formal consultation? There is 

quite a bit of discretion there, correct. 

Miss GONZA ́LEZ-COLO ́ N. I yield back. 

Mr. LABRADOR. Thank you. And now the Chair recognizes Ms. 

Tsongas. 

Ms. TSONGAS. Thank you, Mr. Chairman, and thank you for allowing me to join this Subcommittee for this hearing. I appreciate 

it. 

I believe the Endangered Species Act—and this is why I asked 

to be here today—has served as one of our Nation’s bedrock environmental statutes for over 40 years. The bald eagle, the brown 

pelican, and the grizzly bear are just a few examples of iconic 

species that have survived, thanks to protections provided by this 

law, and whose survival is greatly appreciated and deeply valued 

by Americans across this country. 

Instead of working to erode this law, I believe Congress should 

be doing more to give the Fish and Wildlife Service and the 

National Marine Fisheries Service more tools in the toolbox to not 

only complete Section 7 consultations as efficiently as possible, but 

enable them to work proactively with states and local stakeholders 

to prevent species from needing to be listed in the first place. 

This brings me to my first question for you, Mr. Li. Who is first 

and foremost in charge of wildlife management, the Federal 

Government or the states? 

Mr. LI. It would be the states. 

Ms. TSONGAS. So, the states have the flexibility to manage wildlife populations as they see fit, according to their own goals and 

priorities. What species are typically given top priority by state 

wildlife agencies? 

Mr. LI. Typically, what we see across the board are game species. 

Ms. TSONGAS. Why would that be? 

Mr. LI. It is oftentimes because funding for those state agencies 

comes from revenues for fishing and hunting. 

Ms. TSONGAS. So, they encourage the revenue, the hunting for 

revenue. 

So, as states are taking a lead role on wildlife management and 

choosing where to allocate their resources, what circumstances 

would trigger protections provided by the Endangered Species 

Act—in other words, invoking Federal legislation? 

Mr. LI. The ESA only needs to step in when control of a species 

under state management is to the point where the species is at risk 

of going extinct, right? When the species meets the definition of a 

threatened or endangered species. 

75 

Ms. TSONGAS. And what are the factors you would consider? 

Mr. LI. Factors include pollution, habitat loss and fragmentation, 

invasive species, a whole series of human and natural activities. 

Ms. TSONGAS. So, would you categorize the Endangered Species 

Act as a law that is only used in emergency situations, as you describe? A last resort to protect species from going extinct, as 

opposed to one that is routinely invoked to just create problems? 

Mr. LI. Absolutely. It is the last safety net for species that are 

going to blink out. 

And there is also quite a bit of effort under the Endangered 

Species Act to incentivize states to do more to conserve at-risk 

species, so that those species do not need to be listed under the 

ESA. Defenders of Wildlife emphatically supports that approach. 

Ms. TSONGAS. Well, I thank you for those responses, because it 

seems clear to me that, instead of eroding the Endangered Species 

Act and increasing the likelihood of species going extinct—and we 

all know, once gone, we don’t know what we have lost if we can’t 

see them—we should be doing all we can to prevent species from 

needing emergency protections in the first place. 

And we have examples of this approach successfully working. 

The most well-known example is a collaboration between 11 

western states and local stakeholders to protect the greater sagegrouse. And in New England, where I come from, we saw a similar 

successful conservation effort for another iconic species, the New 

England Cottontail, especially relevant as we come close to Easter. 

The Fish and Wildlife Service worked together with the states, 

local communities, foresters, conservationists, private landowners, 

and other key stakeholders to prevent the New England cottontail 

from being listed under the ESA. Those on-the-ground partnerships 

created a strategy that responsibly balances conservation of the 

species and its habitat with the needs of people whose economic 

livelihoods depend on healthy New England forests. So, we know 

we have models that have really been win-wins, all around. 

Then, Mr. Li, I would like to ask another question. As we know, 

Section 7 reviews ensure that the Federal Government fully understands the impacts of a specific project on a threatened or endangered species, a ‘‘look-before-you-leap requirement.’’ How could 

landscape-level conservation planning and early stakeholder engagement improve the Section 7 review process in the event that 

a species is put on the endangered species list? 

Mr. LI. Well, landscape-scale conservation allows conservation to 

be carried out more efficiently, which is something I think is of 

great interest to everyone in this room today, by looking at the impacts across the entire landscape, and strategically placing mitigation in areas that further recovery. 

As far as additional collaboration with stakeholders, stakeholders 

could actually adopt better conservation measures at the start of a 

consultation, so that the consultation is easier and more 

streamlined. 

Ms. TSONGAS. Thank you and I appreciate your testimony. I yield 

back. 

Mr. LABRADOR. Thank you, and I recognize Mr. Clay for 

5 minutes. 

76 

Mr. CLAY. Thank you, Mr. Chair. Let me start with a statement 

and say to the general public and those viewers who are watching 

us on CSPAN, we are headed down a slippery slope here. If the intent is to tinker around the edges of the Endangered Species Act 

or to try to attempt to destroy it, to attempt to destroy a law that 

has worked for years is dangerous, and you need to be exposed for 

what you are trying to do to our country and the environment, and 

should be ashamed of yourself. 

Let me share. In some of the testimony I have heard, you at the 

table should be ashamed of yourselves, too. Let me share with you 

what the Ranking Member has written about the Endangered 

Species Act. By any reasonable measure, the ESA has been a remarkable success. The law has prevented the extinction of more 

than 99 percent of the plants and animals that have received this 

protection. Few laws in American history have so thoroughly 

achieved their goals. 

Nor has the law stifled economic growth, as its detractors claim. 

Since it was enacted in 1973, the U.S. economy has more than 

tripled in size, from just over $5 trillion to more than $16 trillion 

in GDP. 

He also goes on to say—and this kind of blows your theories out 

of the water—that, rather than drawing obvious conclusions, that 

species recovery takes time, especially when unsustainable development has wiped out wildlife habitats like old-growth forests, 

wetlands, and native prairie. 

And he said weakening the ESA would allow for sensitive wildlife habitats to be open to mining, oil, and gas drilling, and commercial logging, activities that Republican orthodoxy supports, 

regardless of the cost to the environment and the millions of 

Americans who enjoy wildlife-watching and outdoor activities in 

our public lands. 

Mr. Li, in reading through today’s testimony I am having trouble 

identifying whether opponents of the ESA want new information 

that comes to light during a consultation to be included or excluded 

from an active consultation and permitting process. In your opinion, is there value in incorporating new information regarding a 

species’ critical habitat or anything else into an active consultation 

process? 

Mr. LI. Absolutely. First off, the Endangered Species Act requires 

the best available science be used. And if best available science is 

new science, then that should be used. 

More importantly, species—threats change over time. Species’ 

biology change over time. Their status changes over time. And why 

would we not want to use the best science available to conserve 

species in the most efficient manner possible? 

Mr. CLAY. So, those who want to erode the effectiveness of the 

ESA are really—I guess we would call them science deniers? 

Mr. LI. That is one way to put it. 

Mr. CLAY. OK. And dealing with an alternative reality or 

alternative fact. Is that it? 

Mr. LI. That is right. 

Mr. CLAY. OK. Do the impacts of climate change increase or 

decrease the value of examining new information during the consultation process? 

77 

Mr. LI. They increase it overall. That is because more and more 

species are being imperiled by climate change. Climate change is 

a bigger impediment to species recovery, so it absolutely is a vital 

consideration in permitting. 

Mr. CLAY. Thank you. And Mr. Wood’s written testimony states 

that the Cottonwood decision requires the Forest Service to redo all 

of its comprehensive programmatic consultation, complicating all 

timber projects related to it. Could you please elaborate? Is it as 

complicating as the witness would lead us to believe? 

[No response.] 

Mr. CLAY. It is to Mr. Li. 

Mr. LABRADOR. Your time has expired. 

Mr. CLAY. Oh. 

Mr. LABRADOR. Yes. Thank you very much. I turn the time over 

to Mr. Bishop now. 

The CHAIRMAN. But it was fun while it lasted. I want to thank 

you all for having the courage to be here and to say that there is 

a problem that we need to address in some way. 

Let me try and go through these questions as quickly as I 

possibly can. 

Mr. Stiles, let me do this very quickly. In your opinion, do organizations that are philosophically opposed to energy development 

use litigation as an offensive weapon sometimes to prolong the 

process for projects? 

Mr. STILES. Absolutely. 

The CHAIRMAN. So, do you think, in your situation, has the 

agency reinitiated consultation due to either litigation or fear of 

litigation? 

Mr. STILES. Absolutely. 

The CHAIRMAN. All right. Let me hit on something Mr. Johnson 

came up with very quickly. Defenders of Wildlife have done 300 

lawsuits since ESA was reauthorized. You did 18 in 2015. 

So, Mr. Wood, in the Equal Access to Justice Act, attorneys’ fees are capped at $125 an hour. However, attorneys’ fees and lawsuits 

initiated by organizations such as Defenders of Wildlife are not 

subject to those caps. Is that correct? 

Mr. WOOD. That is my understanding. 

The CHAIRMAN. And Mr. Johnson also said that costs the govern- ment $21 million in fees that have been paid, which also may be 

inaccurate, since the Department of the Interior does not have the 

mechanisms to track that kind of information of what is actually 

paid. That $21 million goes to attorneys, rather than going to the 

goal of conservation. 

So, Mr. Wood, in your opinion, is the profit that is gained 

through attorneys’ fees a driving mechanism behind environmental 

organizations that initiate lawsuits? 

Mr. WOOD. Yes, the profit motive is an unfortunate incentive for 

more and more litigation. 

The CHAIRMAN. All right. Well, let’s go to this. Mr. Li’s paper— 

when he came up with 13 days and 62 days, that was the median, 

the mean. It was not an average. You said medium, correct? All 

right. 

So, here is the problem in the paper of Mr. Li’s. Even though 

that may be the medium, we found that there were 606 formal 

78 

consultations that lasted twice the statutory 135 days, 110 formal 

consultations that lasted more than 2 years, 58 formal consultations that lasted between 1,000 and 4,000 days, 213 informal 

consultations that lasted longer than 2 years. And that figure is 

magnified by project postponements that go through the informal 

consultation and then formal consultation, not to mention the preconsultation. 

In fact, that is one of the things that is so maddening, sitting up 

here, is to realize you have pre-consultation, and then informal consultation, and then formal consultation, and then litigation that 

will drag things out for years after years after years. 

Mr. Wood, do you find those statistics in the study surprising, 

that the consultation process takes this long? 

Mr. WOOD. Not at all, and it is unfortunate that the study omits 

the pre-consultation period. 

The CHAIRMAN. Which drastically skews the results of those. 

Mr. Wood, I have one other question I can ask you. Can you just 

clarify the burdens that consultation places upon emergency 

actions such as those at the Oroville Dam? 

Mr. WOOD. I think it makes it more likely that you will see emergencies like that, because someone who wants to repair or upgrade 

a dam might put that off because they realize the process is going 

to be more expensive and take longer than it should. 

The CHAIRMAN. I just want to—I have like a minute left here— 

just give one concept here. There were some things about state 

management of species which I felt were unfortunate. Because if I 

go back to the most recent species that was initiated in my state, 

each state was told they were supposed to come up with a management plan that was then rejected by the Department of the Interior 

after those management plans were invented. 

Those state plans solved the problem, and yet were denied the 

ability of going into place, except for one state. And that is a sad 

situation, which the Federal Government seems to pre-empt and 

think that only somebody here in Washington has the intellectual 

ability to come up with a management plan, and states cannot do 

it, and states do not care. That is wrong, that is inaccurate, that 

is simply an unfair statement to go on there, especially when we 

are talking about this bedrock Act. 

Not even the Flintstones like this bedrock Act, but it is still 

there, nonetheless. 

I appreciate the witnesses being here. This is a significant issue. 

One of the issues I want to address this year is really talking about 

what consultation is. It is in the law, it has to be done, but no one 

has really defined it. And, therefore, the agencies are all over the 

board on how they define it, how they work with it, what is the 

result of that. This is something that needs a clear definition so we 

can actually find out when that clock needs to start ticking, and 

who actually gets to consult, and in what manner those consultations need to be addressed and considered by the Federal agencies 

going in there. And with that, I appreciate you all being here. 

I don’t think we probably have enough time for a second round 

of questions, but I thank you for holding this hearing. I think it 

is a significant one, and I will yield back. 

79 

Mr. LABRADOR. Thank you, Mr. Chairman. And I thank the 

witnesses for their testimony today and the Members for their 

questions. 

Development of our infrastructure and resources is critical to the 

health, safety, economic growth, and stability of our Nation. As we 

turn our attention in the coming months to examining our infrastructure and resource needs, we must address the unnecessary 

regulatory burdens and delays that will impact any projects we 

choose to undertake. 

I have found interesting some of the comments from some of the 

Members today. Apparently the GDP grew over the last 25 years 

because of the ESA, not in spite of the ESA. 

[Laughter.] 

Mr. CLAY. That is not what I said. 

Mr. LABRADOR. But that is the conclusion that one can lead to. 

The examples we heard today are representative of thousands 

more critical projects that are mired in years of bureaucratic delays 

and litigation. We know that between 2008 and 2016 almost 600 

formal consultations with the Fish and Wildlife Service lasted twice 

the statutory 135 days, over 100 formal consultations lasted more 

than 2 years, and over 50 lasted more than 1,000 days. We also 

know that 70 percent of National Marine Fisheries Service consultations are not completed in a timely fashion. And none of these 

egregious statistics include the years and years of informal consultation that these projects have to undergo, nor do they represent 

the years of litigation that can serve to further delay a project. 

Delay and uncertainty in the case of the Endangered Species Act 

consultations can jeopardize human health and safety, harm our 

economy, and prevent good stewardship of the very species we are 

trying to conserve. The Services must strive to increase consistency 

between regions, adhere to timelines, and hold their employees accountable for completing consultations in an efficient, timely, and 

effective manner. 

I now ask unanimous consent that the following document be entered into the hearing record: a letter to Chairman Bishop from the 

Williamson County Conservation Foundation in Texas. 

[The information follows:] 

WILLIAMSON COUNTY CONSERVATION FOUNDATION, 

LEANDER, TEXAS

March 27, 2017 

Hon. ROB BISHOP, Chairman, 

House Committee on Natural Resources, 

Subcommittee on Oversight and Investigations, 

1324 Longworth House Office Building, 

Washington, DC 20515. 

Dear Chairman Bishop: 

Thank you for this opportunity to provide comments to the Natural Resources 

Subcommittee on Oversight and Investigations. We hope to provide some locally 

based insights on how critical infrastructure projects often face delay, uncertainty, 

and significant cost increases due to the inefficiencies of complying with the 

Endangered Species Act (ESA). We also have included some suggestions for program 

improvements for the ESA and implementation by the U.S. Fish and Wildlife 

Service (USFWS). 

80 

Williamson County in central Texas has for over a decade been one of the top 10 

fastest growing counties in the nation. Because of its location in an ecologically rich 

part of the state, as well as its close proximity to the city of Austin, the County 

must often deal with the important task of balancing environmental quality— 

including preservation of species listed under the ESA—with the needs of a rapidly 

growing population and accompanying economic development. Approximately two 

decades ago, the County began negotiations with USFWS that culminated in 

USFWS’ issuance of a County-wide incidental take permit (Permit) and approval of 

the County’s Habitat Conservation Plan (HCP) under the ESA. The Permit was 

issued in 2008, and for some projects, use of the permit and HCP has been successful. The HCP has, in many circumstances, allowed the County and its citizens to 

move forward in providing infrastructure and other necessities to the community, 

while also protecting over 900 acres of habitat for five listed species. Moreover, pursuant to its obligations under the Permit and HCP, the County is contributing to 

the scientific community’s understanding of an elusive and newly listed salamander 

species. However, even with the permit and HCP in place, the County has encountered significant inefficiencies, delays, and inconsistent direction from USFWS in obtaining clearance for critical infrastructure projects. 

Our proactive and hands on approach to dealing with the endangered species in 

the area has given us unique insight into some of the challenges and obstacles presented by the current application of the ESA by the USFWS. These comments focus 

specifically on administrative and legislative improvements we believe could save 

money and time for both USFWS as well as the regulated entities. 

STUMBLING BLOCKS 

Most of the inefficiencies, delays, and cost escalations Williamson County has 

faced in complying with the ESA fall into one (or more) of the following categories: 

(1) uncoordinated and unlimited project review by multiple federal agencies; (2) 

failure of federal agency(ies) to follow existing statutory deadlines or lack of deadlines for review; (3) USFWS policies, guidance, and protocols can change while 

project is under review; (4) projects with a federal nexus are not permitted to receive 

coverage under the Permit and HCP, which creates long delays and increases costs 

for all parties. 

(1) Uncoordinated project review by federal agencies 

One common roadblock experienced by the County is the lack of coordinated, concurrent federal agency review for roads and other projects. Under Section 7 of the 

ESA, any project authorized, carried out or funded by a federal agency that ‘‘may 

affect’’ listed species or habitat designated by USFWS as critical must undergo consultation between USFWS and the relevant ‘‘action agency’’ [e.g., U.S. Army Corps 

of Engineers (Corps) or Federal Highway Administration (FHWA)]. Consultation 

generally means a back-and-forth between, for example, the Corps and the USFWS, 

requiring submission of a biological assessment by the action agency, the Corps, 

which then receives comments by USFWS, and then additional revisions by the 

Corps, in a seemingly never-ending cycle until the issues ultimately are resolved 

and USFWS issues a biological opinion. While the ESA prescribes deadlines for 

some aspects of consultation, often, these deadlines are missed or the action agency 

and USFWS delay initiation of the formal process that begins the clock. This process 

is complicated further when multiple federal agencies are involved in a project (e.g., 

a road project is funded fully or partially with federal funds, and also requires a 

Clean Water Act section 404 authorization). All the while, the County must wait 

until this consultation process is complete. 

The problem can be simply stated in the following way: uncoordinated Federal 

agency reviews with no or unenforced deadlines create unnecessary consultation 

delays and indeterminate time frames for decisions. These delays create extra costs, 

not just for the regulated entity or project, but unnecessarily cause inefficiencies of 

both personnel and budget for the Federal agencies. 

(2) Lack of deadlines or adherence to deadlines 

While section 7 of the ESA contains mandatory deadlines for completion of various aspects of the consultation process, these timeframes are often not met and consultations frequently drag on long past the expiration of the deadline prescribed by 

ESA section 7. Some statutory and regulatory frameworks do not have deadlines at 

all. 

81 

(3) USFWS changes the rules during the game 

While the ESA, its regulations, and relevant case law are relatively clear, USFWS 

operates largely on its own guidance and policies, which may be changed without 

public notice or comment and which can have a significant impact on communities. 

For example, several of the species listed in Williamson County are karst invertebrate species. At the beginning of a transportation improvement project on IH 35 

in our County, USFWS karst survey protocol required three inspections of the cave 

to check for species. After construction on the project had begun, this policy was 

revised to 14 inspections without input by the affected public and despite the existence of its HCP. Williamson County must nevertheless comply with this burdensome new policy in order to remain in compliance. The County had construction 

crews on site when this change occurred, resulting in the County having to pay hundreds of thousands of dollars in delay damages to the construction company and 

costs for the additional biological surveys. 

(4) Projects with a federal nexus are not permitted to utilize the permit and HCP 

When Williamson County was in negotiations with USFWS regarding the details 

of its Permit and HCP, there was an understanding among the parties that projects 

with a federal nexus would be able to use the County’s HCP so that the consultation 

process would be streamlined significantly. This made sense, because the County’s 

HCP is based on USFWS’ own recovery standards for the certain species covered. 

Moreover, other USFWS offices in both southern and northern California have embraced this model. Nevertheless, the USFWS office that oversees the Williamson 

County’s Permit and HCP has been unwilling to allow projects subject to ESA 

section 7 to use the HCP, even though participation in the HCP would, in most 

cases, benefit the relevant species to a greater degree than not participating. 

Neither the species nor the County’s citizens benefit from this position. The species 

receives less conservation than it would if the ‘‘federal’’ project could participate in 

the HCP, while the project is subjected to months or years of delay, increased costs, 

or abandonment. This result is absurd. 

Two road projects in Williamson County were particularly affected by one or more 

of the stumbling blocks described above. US Highway 195 is a major transportation 

corridor providing a logistical link for the U.S. Army’s Fort Hood to coastal port 

facilities, and is a major regional link for private and commercial ground transportation. Despite the existence of the County-wide HCP that would have made compliance with the ESA a simple process encompassing a matter of weeks, interagency 

consultation on improvements to this road was complex. This resulted in the need 

to set aside two additional cave preserve areas at a direct cost of $1.8 million and 

caused the County to incur many millions of dollars in costs due to delays, redesign, 

reevaluation and consultation. Increased construction costs were incurred over the 

approximate ten-year period while obtaining environmental clearance and during 

this time there were numerous car crashes, many involving soldiers from nearby 

Ft. Hood, including several fatalities. 

Likewise, US Highway 183 is a multi-state, regional and local transportation artery that was being widened. The project involved no environmentally sensitive 

areas and replaced an existing bridge over a river. The time to complete the consultations should have taken no more than six months. The Federal Agency ‘‘ping 

pong’’ and associated delays with multiple ESA section 7 consultations on various 

portions of this highway drug this project on for three and one half years, resulting 

in increased of right-of-way costs, rising from $10 million to $37 million. A cost 

borne completely by the local tax payers. 

Clearly this brief commentary cannot provide all the details and travails of these 

two projects, but are a few examples of the inefficiencies caused by the administration of the ESA. 

POTENTIAL SOLUTIONS 

In short form here is our local perspective on solutions and remedies: 

• Require review deadlines and concurrent reviews by Federal Agencies. For 

instance a ‘‘scoping’’ meeting provision for all agencies and stakeholders 

which would determine the level of environmental review and establish 

deadlines. 

• Projects should be ‘‘entitled’’ upon Federal notification and submission, subject to rules and policies in place at the time negotiations begin unless jointly 

agreed for cost and efficiency. 

• Allow regional incidental take permits and HCP’s to be utilized for projects 

regardless of the source of funding or the agencies involved. 

82 

• Allow portions of the incidental take permits and HCPs to be amended without opening the entire HCP and Permit for review and revision, particularly 

when the level of species conservation and level of impacts authorized do not 

change significantly. This would prevent the need for additional NEPA process and the risk of opening up existing permits and HCP’s to a new round 

of third party litigation. 

Again, thank you for this opportunity to provide you and the subcommittee brief 

examples of our experiences with the ESA and our suggestions for improvement. We 

have enclosed additional suggestions which were provided by Williamson County to 

Members of Congress, and their staff persons, as well as to and committee staff in 

meetings we held with them last week while we were in Washington D.C. We stand 

ready to provide additional information, data, and suggestions pertinent to your 

deliberations and decision making. 

Respectfully, 

COMMISSIONER VALERIE COVEY, 

President. 

COMMISSIONER CYNTHIA LONG, 

Vice President. 

Enclosure 

***** 

Regulatory Reform Relating to Federal 

Agency Environmental Review 

and Approval Process 

And comprising 

Legislative and Administrative Topics 

for 

Department of Interior and 

US Fish and Wildlife Service 

Williamson County, Texas and the 

Williamson County Conservation Foundation 

March, 2017 

Administrative 

1. ENDANGERED SPECIES ACT SECTION 7 

The ESA section 7 process should be simplified. First, where a U.S. Fish and 

Wildlife Service-approved (the ‘‘Service’’) Habitat Conservation Plan (‘‘HCP’’) covers 

the project (or project area) nominally subject to a section 7 consultation, the consultation should be truly and significantly streamlined. The Service would already 

have conducted a jeopardy analysis when it considered whether to issue the 

Incidental Take Permit (ITP) in the first place. [Scope of review issue: Sierra Club 

v. U.S. Army Corps of Engineers, 803 F.3d 31 (D.C. Cir. 2015)] 

Secondly, there currently exists a disconnect between the scope of review the 

Service undertakes for linear projects and that undertaken by the U.S. Army Corps 

of Engineers. At present, even where the Corps takes narrow jurisdiction over a linear project (e.g., a single and discrete crossing of a wetland or stream). the Service 

83 

often assumes a much broader jurisdiction (e.g., the entire roadway or pipeline). The 

result is often that the Service’s consultation involves analyzing the effects of the 

entire linear project on the relevant species, but the incidental take statement (i.e., 

the ITP) issued by the Service only covers the discrete crossing over which the 

Corps has taken jurisdiction. This causes situations where a project proponent cannot move forward because take authorization is needed for the areas outside Corps 

jurisdiction and the ITP application and approval process is moving at a snail’s 

pace. In summary, there should be no overreach by the Service, and the Service and 

Corps should be required to conduct congruent reviews so that issues may be identified early in the review process and to ensure that statutory deadlines prescribed 

by the ESA are met. (Similar situations for section 7 are encountered with other 

federal agencies.) 

2. CONCURRENT REVIEW 

Require concurrent review process among all relevant agencies. Like the 

problem in number 1, above, projects are often delayed because there are multiple 

agencies—federal and state—that must review the project under various statutory 

schemes. These agencies are not required to conduct their reviews concurrently and, 

frequently, do not have any hard deadlines to complete such a review. Requiring all 

federal reviewing agencies to coordinate and establish a concurrent review process 

and schedule during the planning stage of the project, with hard, time limited 

deliverables, would increase efficiency among all agencies and provide the regulated 

community much-needed certainty. Further, reviewing agencies should be provided 

one opportunity for review and comment; rather than a never-ending loop of multiple reviews, drafts, and deliverables. 

3. CRITICAL HABITAT RULES 

Reconsider the critical habitat rules and policy adopted in the last 

administration and revert rules consistent with existing caselaw. The use of 

critical habitat designations, particularly where HCPs are in effect doing little or 

nothing to affect conservation of a species, only further complicate the considerations regarding federalized projects. (See also the sections on simplifying the 

Section 7 process and on implementing a concurrent review process.) Much of this 

could be accomplished as part of a settlement of the 20-state lawsuit pending in 

Alabama. The current rules work to increase the likelihood that the Service will designate as critical habitat areas currently unoccupied by the species, as well as areas 

that are only infrequently or sporadically used. The newest policy also establishes 

various requirements an existing habitat conservation plan must satisfy for the plan 

area to qualify for an exclusion from critical habitat designation, as well as factors 

that the Service will consider when making the threshold determination of whether 

to engage in an impact analysis at all. Finally, recent guidelines for inclusion of climate change considerations introduce specious and unquantifiable discussions. 

Climate change models are in themselves subject to continuing scientific debate, 

conjecture and adjustments and should not be the basis for additionally 

compounding critical habitat or mitigation and conservation guidelines. [Rules: 50 

C.F.R. 424 (available at 81 Fed. Reg. 7413–40 (Feb. 11, 2016)); and 50 C.F.R. 402.02 

(81 Fed. Reg. 7214–26 (Feb. 11, 2016)). Policy: Policy Regarding Implementation of 

Section 4(b)(2) of the Endangered Species Act, 81 Fed. Reg. 7226 (Feb. 11, 2016). 

Lawsuit: State of Alabama, et al. v. National Marine Fisheries Service, Civ. Action 

No. 16–593, Case 1: 16–cv–00593–N (S.D. Ala. Nov. 29, 2016)] 

4. NO SURPRISES RULE 

Clarify ‘‘No Surprises’’ rule in administrative guidelines. Provide Guidance 

and amend ‘‘No Surprises’’ rule to provide that amendments to one aspect of an 

HCP (e.g., addition of one species to the list of ‘‘covered species’’) do not re-open the 

entire HCP for review by the Service or to challenge by a third party. The rule 

should further be amended to make clear that when an HCP is amended such that 

the amendment provides additional benefit to a species or no changes to the plan 

goals (e.g., set-asides, preserve acquisition), the HCP will not be re-opened. [50 

C.F.R. 17.22(b).] As it is, fully active and effective HCPs are reticent to suggest even 

species positive actions due to uncertainty of Service proposals to modify the existing plan. See also this topic under the Legislative section. 

84 

5. FEDERAL HIGHWAY ADMINISTRATION POLICY 

Repeal or Amend Federal Highway Administration (FHWA) policy 

requiring that NEPA documents comply with Metropolitan Transportation 

Plan and Transportation Improvement Program or State Transportation 

Improvement Program, as applicable. The effect of this policy is that the final 

NEPA decision cannot occur unless the project scope, limits, and cost correspond 

with the Metropolitan Transportation Plan and Transportation Improvement 

Program or, as applicable, the Statewide Transportation Improvement Program. If 

the NEPA document is not consistent with these plans, then the plans must be 

amended—a process that can take months to complete. Throughout the development 

of any given project, it is common that the scope, limits and estimated cost change. 

This confines deliberations on projects to and unwarranted extent. For example, an 

engineering and traffic needs assessment might warrant additional lanes or modified interchanges. While these changes sometimes are captured in regular updates 

of the plans, where a change is late in the process, the final NEPA decision must 

be postponed until the requisite plans are updated. No statute or regulation ties 

compliance with transportation requirements to the environmental review process 

established by NEPA. This policy is contrary to the agency’s own rules and needlessly delays environmental approvals. FHWA should rescind the January 28, 2008 

policy memo and decouple the NEPA review process from the requirements in the 

transportation process. [FHWA’s NEPA regulations: 23 C.F.R. pt. 771; Council on 

Environmental Quality’s NEPA regulations: 40 C.F.R. pts. 1500–1508; FHWA Policy 

regarding transportation planning and NEPA review: https://www.fhwa.dot.gov/ 

planning/tpr_and_nepa/] 

6. DELISTING PROCESS AND LISTING IN ERROR 

Streamline and prioritize delisting petition process and adopt a 

reasonable definition of ‘‘listing in error.’’ At present, the Service is operating 

under deadlines to list and delist species established by settlement agreements in 

various cases brought by environmental groups well-versed in ‘‘sue and settle’’ tactics. Going forward, the Service should develop and put forward for public review 

and comment a policy that would prioritize certain species for delisting, particularly 

those that may have been listed in error. For example, the Service could establish 

a formula whereby a species whose known locations increase by a certain percentage 

over the number of locations known at the time of listing would automatically be 

placed in the front of the line for delisting actions. 

Further, the Service should propose and adopt, through the required public notice 

and comment procedures, a clear, reasonable, and concise definition of what it 

means for a species to be ‘‘listed in error.’’ Current regulations explain that delisting 

may be appropriate where ‘‘[s]ubsequent investigations may show that the best 

scientific or commercial data available when the species was listed, or the interpretation of such data, were in error.’’ 50 C.F.R. 424.11(d)(3). Where a party has petitioned the Service to delist a species, the ESA requires that the petition presents 

‘‘substantial scientific or commercial information indicating that the petitioned action may be warranted’’ in order for the Service to reach positive 90-day and 12- 

month findings on the petition. Service regulations finalized in 2016 revised the 

definition of the ‘‘substantial information’’ standard and, significantly, now require 

that the ‘‘substantial information’’ standard be applied ‘‘in light of any prior reviews 

or findings’’ the Service has made regarding a species’ status (e.g., 5-year status 

reviews and species’ recovery plans). The same regulations indicate: 

[w]here the prior review resulted in a final agency action, a petitioned 

action generally would not be considered to present substantial scientific 

and commercial information indicating that the action may be warranted 

unless the petition provides new information not previously considered. 

50 C.F.R. §§ 424.14(h)(1)(i),(ii). 

The Service should revise the delisting petition regulations to require delisting of 

a species on any ‘‘substantial scientific and commercial information’’ regardless of 

whether the Service previously has reviewed that information in a different context 

(e.g., 5-year status review or species’ recovery plan). [ESA provisions regarding petitions: 16 U.S.C. § 1533(b)(3); General delisting regulation found at 50 C.F.R. 

424.11(d)(3); Delisting petition regulations found at 50 C.F.R. §§ 424.14(h)(1)(i),(ii).] 

85 

7. CONSISTENCY 

Consistent application of law, regulation, and policy among Service 

offices. Currently, the Service operates in eight relatively disjunctive regions with 

each region having numerous field offices. Within the field offices, there is often little oversight given to individual staff persons responsible for reviewing applications 

for ITPs, draft HCPs, and consultation-related documents. Thus, ESA permitting 

and approval processes often vary widely among the various Service offices. Because 

of this, the regulated community operates with significant uncertainty as to how a 

given project might be treated by the Service. Providing more direction from Service 

headquarters—provided such direction is submitted for public review and comment—could give both Service staff and the regulated community much-needed 

stability, predictability, and accountability. 

8. MITIGATION POLICY 

Withdraw and reconsider the various recently adopted mitigation 

policies, including particularly the compensatory mitigation policy focused 

on Endangered Species Act. The prior policies focused on mitigation to the maximum extent possible. Recently adopted rules greatly complicated the process by trying to follow wetlands-style minimization of impacts and mitigation based on the 

remaining, possible habitat areas. In general, these rules were overbroad and would 

likely increase the burden on those required to provide mitigation under the 

Endangered Species Act (‘‘ESA’’). Additionally, the rules could be interpreted to require mitigation under the Migratory Bird Treaty Act and other statutes which do 

not, themselves, require mitigation for impacts to relevant resources. [Final 

Endangered Species Act Compensatory Mitigation Act Policy, 81 Fed. Reg. 95316 

(Dec. 27, 2016). Overarching mitigation policy, U.S. Fish and Wildlife Service 

Mitigation Policy, 81 Fed. Reg. 83440 (Nov. 21, 2016)] 

9. USE OF SOLICITORS 

Solicitors should be involved early in project planning and as part of the 

concurrent review process. The Service should make clear to its field office and 

regional staff persons that solicitors are there to advise the Service on legal matters—including whether a habitat conservation plan satisfies the criteria established 

by ESA section 10 or whether an action is ‘‘likely to adversely affect’’ a species that 

is the subject of ESA section 7 consultation. If a concurrent review process is established among relevant agencies (see number 2, above), involving Service solicitors 

at that stage would be extremely beneficial. 

10. MITIGATION GUIDANCE 

Provide guidance and training on the Constitutional limits on mitigation 

asks. Service requests for mitigation under the ESA and other statutes are subject 

to the Constitutional limits on takings of private property and the limitation on 

‘‘exactions’’—preconditions to an agency’s approval—as explained in a series of rulings by the Supreme Court. The Service should, in consultation with its attorneys, 

develop and put forth for public review and comment, guidance for its staff that 

explains the Constitutional limitations on requests or demands for mitigation, as 

elucidated by the Supreme Court. [U.S. Constitution, Amendment V; Koontz v. St. 

John’s River Management District, 133 S. Ct. 2586 (2014); Nollan v. California 

Coastal Comm’n, 483 U.S. 825 (1987); Dolan v. City of Tigard, 512 U.S. 374 (1994).] 

11. HABITAT CONSERVATION PLANNING HANDBOOK 

Initiate a rewrite of the new Habitat Conservation Planning Handbook 

(‘‘HCP Handbook’’). Among the many points to be made is that it should be clear 

that amendment of one aspect of an HCP does not open the entire HCP to reconsideration under whatever are deemed to be current standards. Additionally, and much 

like the mitigation policies referenced in number 10, above, the revised HCP 

Handbook makes an incidental take permit (‘‘ITP’’) application and approval process 

exceedingly complex and potentially costly, particularly with respect to the mitigation requirements set forth therein (and coupled with those laid out in the Service’s 

mitigation policies). [Joint U.S. Fish and Wildlife Service and National Marine 

Fisheries Service Habitat Conservation Planning Handbook, 81 Fed. Reg. 93702 

(Dec. 21, 2016)] 

86 

Legislative 

1. SECTION 7 CONSULTATION 

Revise ESA section 7 to streamline the consultation process for activities 

already covered by a Service-approved HCP. Section 7 should be amended to 

require that where a Service-approved HCP covers the project subject to section 7 

consultation, the Service must consider and adhere to the consultation that has 

already taken place pursuant to the Service’s intra-agency section 7 consultation associated with issuance of the existing incidental take permit (ITP). This is appropriate because, absent listing of a new species or designation of new critical habitat 

since the time of the ITP issuance, the Service would already have considered the 

project’s potential effects on listed species and critical habitat. [ESA consultation 

provisions: 16 U.S.C. 1536; ESA ITP provisions: 16 U.S.C. 1539.] 

2. CONCURRENT REVIEW 

Codify a concurrent review process requirement for agencies dealing 

with environmental clearance. Projects are often delayed because there are 

multiple agencies—federal and state—that must review the project under various 

statutory schemes. These agencies are not required to conduct their reviews concurrently and, frequently, do not have any hard deadlines to complete such a review. 

Requiring all federal reviewing agencies to coordinate and establish early on for the 

project a review process and schedule, with hard, time limited deliverables, would 

increase efficiency among all agencies and provide the regulated community muchneeded certainty. Further, reviewing agencies should be provided one opportunity 

for review and comment; rather than a never-ending loop of multiple reviews, 

drafts, and deliverables. 

3. CRITICAL HABITAT 

Codify a more reasoned interpretation of critical habitat or repeal the 

concept of critical habitat. Provisions concerning exclusions from critical habitat 

should be strengthened. For example, the Service currently has discretion to include 

areas in a critical habitat designation even where the Service’s required cost-benefit 

analysis indicates the cost of inclusion is greater than the benefit derived. Requiring 

the Service to exclude such areas would remove unnecessary discretion in making 

the decision. The need for revision to the critical habitat provisions of the ESA is 

particularly relevant given the recent Fifth Circuit decision to deny a rehearing of 

the dusky gopher frog critical habitat case. There, the Service designated as critical 

habitat areas currently unoccupied by the frog that also were not shown as likely 

to be habitable in the foreseeable future. [16 U.S.C. 1533(b)(2); Markle Interests, 

L.L.C. v. U.S. Fish and Wildlife Service, No. 14–31008 (5th Cir. June 30, 2016).] 

4. SCIENTIFIC STUDIES, PEER REVIEW AND STATISTICAL 

TRANSPARENCY 

ESA should be amended to include a definition of ‘‘best available 

science.’’ 16 U.S.C. 1532. This definition should require use of reliable, peerreviewed data and models and should account for known or potential sources of 

error. The accumulation and evaluation of any such information should be achieved 

through means that are transparent, replicable, using data sets that are publicly 

available, (to the extent required by law, especially for publicly funded research) and 

should not contain a requirement that it err on the side of the species. This point 

is especially important with respect to considerations of climate change in listing, 

delisting or down-listing, and critical habitat decisions, as well as in the Service’s 

review of incidental take permits under ESA section 10, biological assessments 

under ESA section 7, and proposals for mitigation actions. 

5. LITIGATION REFORM, MAINTAINING STATUTORY PRINCIPLES 

Address ‘‘sue and settle’’ litigation under ESA section 11. ESA section 11 

should be amended to eliminate the potential for recovery of legal fees, which would 

vastly reduce the number of organizations who make a lucrative practice of suing 

the Service and collecting legal fees when the Service is unable to meet its statutorily-imposed deadlines. Section 11 should also be amended to make the Service’s 

lack of funding a defense to litigation brought because the Service failed to meet 

its statutory deadline. [16 U.S.C. 1540.] 

87 

6. NO SURPRISES RULE 

Codify no surprises rule. [50 C.F.R. 17.22(b)]. Codifying the ‘‘no surprises’’ rule 

would make it much harder for any given administration to dispense with the no 

surprises requirement. At present, the Service may modify the rule by going 

through the public rulemaking process. If the ‘‘no surprises’’ rule were codified, 

changing or dispensing with the rule would take an act of Congress. This is directly 

related to the Administrative item #4. At present the Service maintains a discretionary role which was likely not a part of the original (1973) ESA considerations. 

7. LISTING CHANGES BY RULE OR GUIDANCE 

No technical listings or listing changes on taxonomic revisions. The 

Service should always be required to conduct a full-scale determination as to whether a species should be listed, even where a species is being taxonomically split from 

one species into two (or more). With respect to taxonomic revisions, the Service often 

accepts a taxonomic split for a given species and then indicates which of the species 

will be recognized as a listed entity. There appears to be no basis in law allowing 

the Service to treat species listings in this manner. For example, in 2012, the 

Service published in the Federal Register a proposed rule to accept a taxonomic split 

of the western snowy plover into three distinct species and to recognize as the listed 

entity one of the three species. The Service also proposed in that Federal Register 

notice to revise critical habitat for the species. While there was significant space 

dedicated to examining the proposed critical habitat designation, there was almost 

no discussion of the taxonomic revision. Likewise, in 1993, the Service made a taxonomic revision to a listed karst invertebrate species, Texella reddell; (also known as 

the Bee Creek Cave harvestman). Pursuant to the taxonomic revisions, the Bee 

Creek Cave harvestman became two listed species—the Bee Creek Cave harvestman 

and the Bone Cave harvestman (Texella reyesi)—and the Service conducted no additional analysis as to whether the ‘‘new’’ species met the standards for listing in the 

first place. [Western snowy plover proposed rule: 77 Fed. Reg. 2243 (Feb. 16, 2012); 

Bee Creek Cave harvestman final rule: 56 Fed. Reg. 43818 (Aug. 18, 1993).] 

8. SUNSET PROVISIONS 

Include sunset provision for listings. Many species have been listed without 

sufficient science indicating that they meet the requirements set forth in ESA 

section 4. Perhaps the best example of this circumstance is the Bone Cave harvestman in central Texas—a species that was known from only a handful of caves at 

the time it was listed, but is now found in nearly 200. The Service is currently reviewing a petition to delist this species based on the claim that it was listed in 

error, and a 90-day finding is due at the end of March 2017. A sunset provision in 

section 4 could require that species are automatically removed from the list of 

threatened and endangered species after a time certain (e.g., 20 years), but could 

go back through the relisting process if the best available science at that time supported relisting. [16 U.S.C. 1533; List of threatened and endangered species: 50 

C.F.R. 17.11 and 17.12.) 

9. STATE AND LOCAL GOVERNMENT ROLE 

Strengthen role of state and local governments under section 6. Although 

the ESA already contains provisions aimed at encouraging states to take actions to 

conserve listed species, states’ efforts to conserve species (such as the multi-state 

conservation effort aimed at the lesser prairie chicken) are often derailed because 

of third parties (or even the Service itself). ESA section 6 could be amended so that 

these kinds of efforts are encouraged to a greater degree (e.g., requiring that the 

Service place significant weight on such efforts when determining whether to list 

or delist a species) and so that these kinds of efforts are less likely to face challenge 

by third party groups whose interests are often misaligned both with the Service 

and the states. [ESA section 6: 16 U.S.C. 1535; Lesser Prairie Chicken Range-wide 

Plan: http://www.wafwa.org/initiatives/grasslands/lesser_prairie_chicken/range-wide_ 

conservation_plan/] 

The Williamson County Conservation Foundation (WCCF) was established 

in December 2002 to provide for conservation of endangered species in 

Williamson County while helping to promote responsible development. 

Williamson County is one of the fastest growing counties in the country. 

Rapid growth necessitates a regional approach to balancing development 

needs with the needs for conservation. 

88 

Mr. CLAY. Mr. Chairman, in response to your comments, I am 

from Missouri. If you want to be in denial about the effectiveness 

of the ESA, that is on you; but in Missouri, you can put lipstick 

on a pig if you want, but it is still called a pig. 

Mr. LABRADOR. Yes, but in Idaho we actually look at the reality 

of what is happening and how it is affecting the economy. 

I thank the witnesses for their valuable testimony and the 

Members for their questions. The members of the Committee may 

have some additional questions for the witnesses, and we will ask 

you to respond to these in writing. 

Under Committee Rule 3(o), members of the Committee must 

submit witness questions within 3 business days following the 

hearing, and the hearing record will be held open for 10 business 

days for these responses. If there is no further business, without 

objection, the Committee stands adjourned. 

[Whereupon, at 11:31 a.m., the Subcommittee was adjourned.] 

[LIST OF DOCUMENTS SUBMITTED FOR THE RECORD RETAINED IN THE

COMMITTEE’S OFFICIAL FILES]

Submitted by Rep. Grijalva 

• EARTHJUSTICE, September 28, 2015 Letter to DEQ 

Permitting & Compliance Division regarding Proposed MPDES 

Permit for the Montanore Mine Project Permit No. MT0030279 

• U.S. Fish and Wildlife Service, June 20, 2013, Memo from 

Noreen Walsh, Regional Director, Region 6 to Dan Ashe, 

Director regarding Montanore Mine Project 

• Submission for the Record which includes excerpts from the 

following documents: 

— Montana Department of Environmental Quality, 

February 12, 2016 Letter 

— Record of Decision, Montanore Project, February 2016 

by the Montana Department of Environmental Quality 

— Court Case: Rock Creek Alliance v. U.S. Forest Service, 

703 F.Supp.2d 1152 (2010) 

— Online article: Bonner County Daily Bee, January 22, 

2017, Rock Creek Mine Fight ‘Not a Done Deal’ 

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