```

[House Hearing, 109 Congress]
[From the U.S. Government Publishing Office]

 
   H.R. 3824, THREATENED AND ENDANGERED SPECIES RECOVERY ACT OF 2005

=======================================================================

                          LEGISLATIVE HEARING

                               before the

                         COMMITTEE ON RESOURCES
                     U.S. HOUSE OF REPRESENTATIVES

                       ONE HUNDRED NINTH CONGRESS

                             FIRST SESSION

                               __________

                     Wednesday, September 21, 2005

                               __________

                           Serial No. 109-31

                               __________

           Printed for the use of the Committee on Resources

  Available via the World Wide Web: http://www.gpoaccess.gov/congress/
                               index.html
                                   or
         Committee address: http://resourcescommittee.house.gov

                                 ______

                    U.S. GOVERNMENT PRINTING OFFICE
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                         COMMITTEE ON RESOURCES

                 RICHARD W. POMBO, California, Chairman
       NICK J. RAHALL II, West Virginia, Ranking Democrat Member

Don Young, Alaska                    Dale E. Kildee, Michigan
Jim Saxton, New Jersey               Eni F.H. Faleomavaega, American 
Elton Gallegly, California               Samoa
John J. Duncan, Jr., Tennessee       Neil Abercrombie, Hawaii
Wayne T. Gilchrest, Maryland         Solomon P. Ortiz, Texas
Ken Calvert, California              Frank Pallone, Jr., New Jersey
Barbara Cubin, Wyoming               Donna M. Christensen, Virgin 
  Vice Chair                             Islands
George P. Radanovich, California     Ron Kind, Wisconsin
Walter B. Jones, Jr., North          Grace F. Napolitano, California
    Carolina                         Tom Udall, New Mexico
Chris Cannon, Utah                   Raul M. Grijalva, Arizona
John E. Peterson, Pennsylvania       Madeleine Z. Bordallo, Guam
Jim Gibbons, Nevada                  Jim Costa, California
Greg Walden, Oregon                  Charlie Melancon, Louisiana
Thomas G. Tancredo, Colorado         Dan Boren, Oklahoma
J.D. Hayworth, Arizona               George Miller, California
Jeff Flake, Arizona                  Edward J. Markey, Massachusetts
Rick Renzi, Arizona                  Peter A. DeFazio, Oregon
Stevan Pearce, New Mexico            Jay Inslee, Washington
Henry Brown, Jr., South Carolina     Mark Udall, Colorado
Thelma Drake, Virginia               Dennis Cardoza, California
Luis G. Fortuno, Puerto Rico         Stephanie Herseth, South Dakota
Cathy McMorris, Washington
Bobby Jindal, Louisiana
Louie Gohmert, Texas
Marilyn N. Musgrave, Colorado
Vacancy

                     Steven J. Ding, Chief of Staff
                      Lisa Pittman, Chief Counsel
                 James H. Zoia, Democrat Staff Director
               Jeffrey P. Petrich, Democrat Chief Counsel

                                 ------                                

                            C O N T E N T S

                              ----------                              
                                                                   Page

Hearing held on Wednesday, September 21, 2005....................     1

Statement of Members:
    Bordallo, Hon. Madeleine Z., a Delegate in Congress from Guam    14
        Prepared statement of....................................    15
    Boren, Hon. Dan, a Representative in Congress from the State 
      of Oklahoma................................................    20
        Prepared statement of....................................    21
    Brown, Hon. Henry E., a Representative in Congress from the 
      State of South Carolina....................................    18
        Prepared statement of....................................    19
    Cardoza, Hon. Dennis A., a Representative in Congress from 
      the State of California....................................     8
        Prepared statement of....................................    10
    DeFazio, Hon. Peter, a Representative in Congress from the 
      State of Oregon............................................    22
    Gibbons, Hon. Jim, a Representative in Congress from the 
      State of Nevada............................................    11
    Gilchrest, Hon. Wayne T., a Representative in Congress from 
      the State of Maryland......................................    15
    Gohmert, Hon. Louie, a Representative in Congress from the 
      State of Texas.............................................    21
    Grijalva, Hon. Raul M., a Representative in Congress from the 
      State of Arizona, Prepared statement of....................   112
    Inslee, Hon. Jay, a Representative in Congress from the State 
      of Washington..............................................    17
    McMorris, Hon. Cathy, a Representative in Congress from the 
      State of Washington, Prepared statement of.................   113
    Miller, Hon. George, a Representative in Congress from the 
      State of California........................................    12
    Pallone, Hon. Frank, Jr., a Representative in Congress from 
      the State of New Jersey, Prepared statement of.............   114
    Pombo, Hon. Richard W., a Representative in Congress from the 
      State of California........................................     1
    Rahall, Hon. Nick J., II, a Representative in Congress from 
      the State of West Virginia.................................     3
        Prepared statement of....................................     5
    Saxton, Hon. Jim, a Representative in Congress from the State 
      of New Jersey..............................................     7
    Walden, Hon. Greg, a Representative in Congress from the 
      State of Oregon............................................    13

Statement of Witnesses:
    Burling, James S., Principal Attorney, Property Rights 
      Section, Pacific Legal Foundation..........................    73
        Prepared statement of....................................    75
    Clark, Jamie Rappaport, Executive Vice President, Defenders 
      of Wildlife................................................    67
        Prepared statement of....................................    69
    Manson, Hon. Craig, Assistant Secretary for Fish and Wildlife 
      and Parks, U.S. Department of the Interior.................    25
        Prepared statement of....................................    27
    Taylor, Gary J., Legislative Director, International 
      Association of Fish and Wildlife Agencies..................    55
        Prepared statement of....................................    56

    LEGISLATIVE HEARING ON H.R. 3824, TO AMEND AND REAUTHORIZE THE 
 ENDANGERED SPECIES ACT OF 1973 TO PROVIDE GREATER RESULTS CONSERVING 
AND RECOVERING LISTED SPECIES, AND FOR OTHER PURPOSES. ``THREATENED AND 
               ENDANGERED SPECIES RECOVERY ACT OF 2005.''

                              ----------                              

                     Wednesday, September 21, 2005

                     U.S. House of Representatives

                         Committee on Resources

                            Washington, D.C.

                              ----------                              

    The Committee met, pursuant to call, at 10:03 a.m., in Room 
1324, Longworth House Office Building, Hon. Richard W. Pombo 
[Chairman of the Committee] presiding.
    Present: Representatives Pombo, Duncan, Gilchrest, Cubin, 
Radanovich, Cannon, Gibbons, Walden, Hayworth, Drake Fortuno, 
McMorris, Gohmert, Renzi, Rahall, Abercrombie, Udall of New 
Mexico, Grijalva, Bordallo, Costa, Boren, Miller, DeFazio, 
Inslee, Udall of Colorado, Cardoza and Herseth.
    The Chairman. The hearing will come to order. We are 
holding a hearing today on H.R. 3824, the Threatened and 
Endangered Species Recovery Act.

  STATEMENT OF THE HON. RICHARD W. POMBO, A REPRESENTATIVE IN 
             CONGRESS FROM THE STATE OF CALIFORNIA

    The Chairman. The Endangered Species Act was signed into 
law and introduced to the American public in 1973, more than 
three decades ago. Right around this time, Americans were also 
being introduced to the first VCRs, jumbo jets, and Atari TV 
game consoles. In medicine, ultrasound diagnostic techniques 
were discovered, and the sites of DNA production on genes were 
discovered.
    Since then, Americans have experienced the introduction of 
innovative wonders like Microsoft Windows, the Internet, 
cellular phones, antilock brakes and air bags, Nintendo game 
cube, the Blackberry, et cetera. But, most importantly for our 
species, science, technology and the freedom of innovation have 
led to incredible advances in medicine. What was once a 7-day 
hospital stay in 1973 is now a half-day outpatient visit, 
perhaps even just a prescription from your doctor.
    America's endangered species, unfortunately, have not been 
the beneficiary of those society-wide advancements over the 
last three decades. America has been getting better, but for 
all intents and purposes, the ESA is still stuck in 1973 
wearing leisure suits, mood rings and collecting pet rocks.
    According to the U.S. Fish and Wildlife Service, only 10 of 
the roughly 1,300 species on the ESA list have recovered in the 
Act's history. That is a less than 1 percent success rate. And 
the Service's data on our species' progress toward recovery 
today isn't much better. Yet, despite these facts, ESA's 
groupies would have you believe that it is better than ever 
before. They defend the Act's original language from updates as 
if it were Shakespeare's works that we were editing. It has 
been 99 percent successful, they will tell you, because all but 
nine species are with us today.
    The official Fish and Wildlife Service data, however, tells 
a much different story: 39 percent of the Act's listed species 
are in unknown status--they have no idea; they could be 
extinct; 21 percent are classified by the Service as declining; 
3 percent, though currently still on the list, are believed to 
be extinct; 30 percent are classified as stable, though for 
many of the species in this category, this is only a result of 
corrections to the original data errors rather than an actual 
accomplishment of the Endangered Species Act; and, finally, 6 
percent are classified as improving, 6 percent.
    The math just doesn't add up. And across the board, 
according to the Service, 77 percent of all the listed species 
have only achieved somewhere between zero and one-quarter of 
their recovery goals.
    In fairness, I am sure this number includes the species in 
the unknown category, because if you don't know where the 
species is or if it is still around, you can't accurately gauge 
its status. Now, we all know it takes time to recover 
endangered species, but after three decades of implementation, 
do these sound like the statistics of a successful law? Of 
course not. But the defenders of the three-decade-old status 
quo are just getting warmed up. To help demonstrate what some 
of them have called their blind faith in the law, opponents of 
change may even go as far as to tell you that species with 
designated critical habitat are more likely to be improving, 
even though the official position of the Service in successive 
administrations, both Republican and Democrat, is that 30 years 
of critical habitat have done very little, if anything, to help 
species. On the contrary, it causes conflict, litigation and 
wastes valuable agency resources that could otherwise be spent 
in the field on species in need.
    I could go on and on, but the bottom line is the Endangered 
Species Act is in desperate need of an update. I would wager 
that none of my colleagues on the dais could say with a 
straight face that almost 34 years ago when Congress passed its 
first attempt at a species recovery law, we got it exactly 
right. Congress gets nothing exactly right.
    The ESA must be updated to incorporate 30 years of lessons 
learned. It must be modernized for the 21st century to provide 
the flexibility for innovation to achieve results. We must 
change the Act's chief unintended consequence of conflict and 
litigation into real cooperative conservation. The ESA's 
regulatory iron curtain has prevented this from happening. It 
has hurt species' recovery by leading the trend we all know as 
shoot, shovel and shut up. And it has hurt family farmers and 
ranchers by taking their property away unnecessarily.
    In my 13-year experience in Congress with the Endangered 
Species Act, it is here that the opposing line in the sand has 
always been drawn. Everyone here today wants a slot of work to 
conserve and recover endangered species, but not everyone wants 
to enlist the help of the private property owner to do it. 
Perhaps it is just an ideological difference. But I submit to 
you that if we do not enlist the property owner, we will never 
increase the Endangered Species Act's results for species 
recovery, because 90 percent of all endangered species in 
America have habitat on private land. We can never reasonably 
expect to achieve success if we do not make the landowner an 
ally of the species and a partner in that recovery. In this 
regard, protecting private property rights of American 
landowners is not only what is right constitutionally, it is 
the key to increasing our rates of species recovery.
    The bipartisan Threatened and Endangered Species Act will 
do just this. It begins to solve the longstanding problem of 
the Endangered Species Act by focusing on species recovery by 
creating recovery teams and requiring recovery plans by a date 
certain, increasing openness and accountability, strengthening 
scientific standards, creating bigger roles for state and local 
government, protecting and incentivizing private property 
owners, and eliminating dysfunctional critical habitat 
designations that cause conflict without benefit.
    So as we move forward in this process, I ask the Committee 
to rise above the partisanship, as the sponsors of this 
legislation have, and engage in honest debate. When you hear 
the tired and inane rhetoric of gut, rollback, eviscerate, take 
a step back and look at the conflict and ask yourself: What 
could we possibly have to roll back? It is not working. It is 
time to move forward, update this law, and bring it into the 
21st century.
    At this time, I would recognize the Ranking Member, Mr. 
Rahall.

   STATEMENT OF THE HON. NICK J. RAHALL, A REPRESENTATIVE IN 
            CONGRESS FROM THE STATE OF WEST VIRGINIA

    Mr. Rahall. Thank you, Mr. Chairman.
    You know, some of the words you used remind me of this past 
weekend. I spent all weekend helping my mom move out of her 
house, the house in which I grew up. I found a lot of leisure 
suits, moon rocks, marbles, other items to which you refer in 
your opening comment. Perhaps I should have worn one of my 
leisure suits today.
    Mr. Chairman, it is no secret that, for the past couple of 
months, you and I, as well as our staffs--and I salute them as 
well--have sought to find common ground and common cause on 
amendments to the ESA. I came to the table with a view that the 
Act does not require significant modification; that, where 
problems exist, those problems are largely caused by unanswered 
knocks on the Treasury door. You came to the table with a long 
history of seeking to make significant changes to the law; 
that, in fact, we had a patient in cardiac arrest and major 
surgery was in order. And I will admit that, throughout our 
long negotiations, that a mortal frame from a Grateful Dead 
song kept popping through my mind: Sometimes the light's all 
shining on me; other times I can barely see. Lately it occurs 
to me what a long strange trip it's been.
    Which brings us to the here and now. I figured you'd love 
the Grateful Dead, which brings us to the here and now. Despite 
our best efforts, our good intentions, we have not reached a 
consensus approach on amending the Endangered Species Act. But 
I want to make one thing perfectly clear. Throughout our 
negotiations, you were exceedingly fair. You were open minded. 
You treated me, my staff with dignity, with respect, and I have 
nothing but the utmost respect for the manner in which you have 
conducted the negotiations and which you have treated the 
minority side, and I salute you for that.
    But, of course, as Oscar Wilde once said, one should always 
play fair when one has the winning cards. In this case, your 
straight flush that you hold beats my three of a kind any day. 
So the legislation that's the subject of this hearing and which 
our Committee colleagues will have the opportunity to consider 
during markup tomorrow basically represents the end point of 
our negotiations as far as they went. I would like to briefly 
outline where we agreed, the major areas where we continue to 
disagree.
    Realizing that Congress will not appropriate what I believe 
to be adequate funding to implement ESA in its current form, I 
concluded that certain efficiencies could be built into the 
law, and chief among them was the elimination of the 
designation of critical habitat. Despite the law's requirement 
that critical habitat be delineated at the time of listing or 
within one year of listing, the fact of the matter is that only 
about 37 percent of the over 1,200 listed species have such 
habitat designated. It occurred to me that available resources 
could be better put to use by devising strong recovery plans 
with species habitat needs more appropriately determined during 
that process.
    At the same time, it was exceedingly important to me that 
we enact a strong jeopardy standard to guide the section 7 
consultation process. This in a sense is the very backbone of 
the Endangered Species Act.
    We agreed on those issues. But where we disagreed were in 
several areas which I felt would not enhance recovery. Chiefly, 
four major areas still separate us. First, the legislation 
you've introduced contains what I view to be a nebulous 
alternative consultation process which the Interior Secretary 
may devise. There are no parameters in the legislation to guide 
that process. I simply fail to see any need for an alternative 
consultation process to begin.
    Second, while we both agree that recovery plans, as is 
currently the case, are nonregulatory, the legislation you have 
introduced goes further to state they are also nonbinding. Yet, 
at the same time, the Secretary is to implement these 
nonbinding plans. If we are to have recovery, I believe that 
recovery plans must be something more than paper which, once 
completed, gathers dust on a bookcase.
    Third, we disagreed on the treatment of threatened species 
with the legislation you have introduced, the leading current 
law protective standards for them. My fear is that this would 
rapidly lead to threatened species leapfrogging to the 
endangered species list.
    And, fourth, there is a provision in this legislation which 
requires the Secretary to give landowners a decision within 90 
days on whether their proposed development might impact, or, in 
the parlance of the law, result in an individual take of a 
listed species. As I read the legislation, it is unclear 
whether this 90-day period in the Interior Department may 
request additional information even if the proposal is grossly 
inadequate. And, further, if the proposal is not acted upon 
during that 90-day period, it is deemed to comply with the law.
    But the Secretary tells the landowner he needs to alter his 
development plan slightly to benefit listed species, then the 
landowner--if the Secretary so says that, then the land owner 
may seek compensation from the Federal Government. The 
justification for this provision from what I can tell is that 
property owners deserve to have a final decision rendered at 
some known point. However, as drafted, the provision goes much 
further, saying property owners are entitled to compensation 
for the foregone use of their property even when there are 
procedures in place to allow their proposed development to 
proceed. These provisions, taken as a whole, raise a whole host 
of questions and concerns, including constitutional matters, I 
might add, which transcend the ESA in this debate. As well, 
they may have ramifications for a whole host of other 
environmental laws. Once we go down this path, my fear is that, 
as Julius Caesar noted, all bad precedence begin as justifiable 
measures.
    Again, Mr. Chairman, again, I salute you for your fairness. 
We did enter these negotiations in good faith. That good faith 
has not broken down, in this gentleman's opinion. The manner in 
which you have treated us is, as I said in the beginning, to be 
highly commended. But I look forward to continuing our dialog. 
And as I end, I want to quote the self-help author Dennis Foley 
who said, and I quote: Expecting the world to treat you fairly 
because you are a good person is a little like expecting a bull 
not to attack you because you are a vegetarian, end quote.
    I've served in this body for 30 years and not enough years 
though to carry that type of expectation--not to carry that 
type of expectation, I should say. But at the same time, Mr. 
Chairman, I must commend you for the integrity and the fairness 
in which you conducted our negotiations. Thank you.
    [The prepared statement of Mr. Rahall follows:]

     Statement of The Honorable Nick J. Rahall, Ranking Democrat, 
                       House Resources Committee

    Mr. Chairman, it is no secret that for the past couple of months 
you and I, as well as our staffs, have sought to find common ground, 
and common cause, on amendments to the Endangered Species Act.
    I came to the table with the view that the Act does not require 
significant modification. That where problems exist, those problems are 
largely caused by unanswered knocks on the Treasury door. You came to 
the table with a long history of seeking to make significant changes to 
the law, that in fact we had a patient in cardiac arrest and major 
surgery was in order.
    I will admit that throughout our long negotiations that immortal 
refrain from a Grateful Dead song kept popping through my mind: 
``Sometimes the light's all shining on me, other times I could barely 
see, lately it occurs to me...what a long strange trip it's been.''
    Which brings us to the here and now. Despite our best efforts, our 
good intentions, we have not yet reached a consensus approach on 
amending the Endangered Species Act. But I want to make one thing 
perfectly clear. Throughout our negotiations you were exceedingly fair 
and open-minded and treated me, and my staff, with dignity and respect. 
And for that, I salute you. Of course, as Oscar Wilde once noted, ``One 
should always play fair when one has the winning cards.'' In this case, 
the straight flush you hold as chairman beats my three of a kind any 
day.
    The legislation that is the subject of this hearing, and which our 
committee colleagues will have the opportunity to consider during 
markup tomorrow, basically represents the end point of our negotiations 
as far as they went. I would like to briefly outline where we agreed, 
and the major areas where we continue to disagree.
    Realizing that this Congress will not appropriate what I believe to 
be adequate funding to implement the Endangered Species Act in its 
current form, I concluded that certain efficiencies could be built into 
the law. Chief among them was the elimination of the designation of 
critical habitat. Despite the law's requirement that critical habitat 
be delineated at the time of listing, or within one year of listing, 
the fact of the matter is that only about 37% of the over 1,200 listed 
species have such habitat designated.
    It occurred to me that available resources could be better put to 
use by devising strong recovery plans, with species habitat needs more 
appropriately determined during that process. At the same time, it was 
exceedingly important to me that we enact a strong jeopardy standard to 
guide the section 7 consultation process. This, in a sense, is the very 
backbone of the Endangered Species Act.
    We agreed on those issues. But where we disagreed were in several 
areas which I felt would not enhance recovery. Chiefly, four major 
areas still separate us. First, the legislation you have introduced 
contains what I view to be a nebulous alternative consultation process 
which the Interior Secretary may devise. There are no parameters in the 
legislation to guide that process. I simply fail to see any need for an 
alternative consultation process to begin with.
    Second, while we both agree that recovery plans, as is currently 
the case, are non-regulatory, the legislation you have introduced goes 
further to state they are also ``non-binding.'' Yet, at the same time, 
the Secretary is to implement these ``non-binding'' plans. If we are to 
have recovery, I believe that recovery plans must be something more 
than paper which once completed, gathers dust on a bookcase.
    Third, we disagreed on the treatment of ``threatened'' species, 
with the legislation you have introduced deleting current law 
protective standards for them. My fear is that this would rapidly lead 
to threatened species leapfrogging to the endangered species list.
    And fourth, there is a provision in this legislation which requires 
the Secretary to give land owners a decision within 90 days on whether 
their proposed development might impact, or in the parlance of the law, 
result in an incidental take of a listed species. As I read the 
legislation, it is unclear whether during this 90-day period the 
Interior Department may request additional information even if the 
proposal is grossly inadequate. Further, if the proposal is not acted 
upon during that 90-day period, it is deemed to comply with the law. 
But if the Secretary tells the land owner he needs to alter his 
development plans slightly to benefit listed species, the land owner 
may seek compensation from the Federal government.
    The justification for this provision, from what I can tell, is that 
property owners deserve to have a final decision rendered at some known 
point. However, as drafted, the provision goes much further, saying 
that property owners are entitled to compensation for the foregone use 
of their property even when there are procedures in place to allow 
their proposed development to proceed.
    These provisions, taken as a whole, raise a whole host of questions 
and concerns, including Constitutional matters, which transcend the 
Endangered Species Act and this debate. As well, they may have 
ramifications for a whole host of other environmental laws. Once we go 
down this path, my fear is that, as Julius Caesar noted: ``All bad 
precedents begin as justifiable measures.''
    I look forward to continuing our dialogue Mr. Chairman. The self-
help author Dennis Wholey said: ``Expecting the world to treat you 
fairly because you are a good person is a little like expecting the 
bull not to attack you because you are a vegetarian.'' I have served in 
this body for enough years not to carry that type of expectation. At 
the same time, I must again commend you for the integrity and fairness 
with which you conducted our negotiations.
    Thank you.
                                 ______
                                 
    The Chairman. I thank the gentleman. And I will say that, 
in our efforts, as we move forward on this bill, that your 
staff and the staff of both minority and majority on the 
Committee did a fantastic job of working through a lot of very 
contentious issues. During the many hours that you and I spent 
together in trying to work this out, I believe that I was 
treated fairly and that we shared a common goal of improving 
the Act, most of which, most of this bill we agreed on. There 
are a few issues that we could not agree on, and the decision 
was made to let the Committee work its will on those particular 
issues. But I do appreciate the work that you put in, realizing 
that going into those negotiations, you did not believe the Act 
needed major changes and you worked with me all the way through 
that. And I appreciate that and I appreciate the good work that 
your staff and the Committee staff put in to get us to this 
point today.
    It is not normally the position of the Committee to allow 
opening statements other than the Chairman and Ranking Member. 
But because of this particular issue and the importance of it, 
I have made the decision to allow a few opening statements for 
members who have requested that opportunity. And at this time, 
I would like to recognize Mr. Saxton for his opening statement.

STATEMENT OF THE HON. JIM SAXTON, A REPRESENTATIVE IN CONGRESS 
                  FROM THE STATE OF NEW JERSEY

    Mr. Saxton. Thank you very much, Mr. Chairman.
    And let me commend you for your great effort on this. I 
know how long you have had a desire to address the issues that 
are important to you. And I know Mr. Rahall and you have worked 
diligently for quite some time this year in bringing this 
matter before the Committee for a hearing today and, I 
understand, the markup tomorrow.
    I would normally say in an opening statement at this 
juncture that I look forward to working with you to resolve any 
issues that may remain open. However, given the fact that we 
are having this hearing today and the markup tomorrow, I 
suspect that the die is pretty well cast as to the final 
product here.
    Having said that, I would just like to note that when the 
Committee was reorganized--this full Committee was reorganized 
in 1985--I became the Chairman of the Fisheries, Conservation 
and Wildlife Subcommittee, and one of the first efforts that we 
made back in those days was to get together a group of variety 
of stakeholders who had issues relating to the--of concern 
relating to the Endangered Species Act. And for months, just 
like you just have, we met in a good-faith effort to come to a 
resolution on a way to strengthen the Act. We recognized that 
it is not perfect. As a matter of fact, yesterday morning, I 
sat on the west side of the Chesapeake Bay looking across the 
bay at my friend's district, Mr. Gilchrest, and I sat by the 
owner of a marina. And we sat and watched the sun come up and 
thought about what we were going to do that day to try to get 
my boat back in operation. And as we sat there, he said, you 
know, he said, Congressman, I have lived here all my life. He 
said, I have watched this bay since I was a little kid, as long 
as I can remember. And he said, it is really sad that we have 
failed to manage our natural resources in such a way that this 
bay could be as healthy as it was when I was five years old.
    And as we talked about it, we talked about the Chesapeake 
Bay watershed. We talked about our inability to adequately 
manage natural resources. We talked about our seeming inability 
to protect wildlife habitat in the watershed. And I understood 
from his perspective at that point how important these issues 
are. He concluded our conversation by saying: I don't think the 
bay will ever be like it used to be.
    And that is a pox on all of our houses. Those are changes 
that we need to make to conservation laws and regulations like 
those involved with the Endangered Species Act.
    My concern about the legislation before us today is that 
with the elimination of the protections in the Endangered 
Species Act that relate to habitat, it seems to me that we are 
going in the wrong direction, and that concerns me a great 
deal. And I know that there are different approaches and other 
things that some, including yourself, have in mind that may 
help us to do a better job in managing natural resources like 
those in the Chesapeake Bay watershed, but I have great concern 
about the elimination of some of the provisions that are in the 
existing law which this legislation before us today proposes to 
change.
    So, on the one hand, I look forward to working with you as 
we move forward. On the other hand, that I see that we are 
having a hearing today and a markup tomorrow, I suspect that 
your votes are pretty well lined up. But, in any event, during 
the next 48 hours or so, 24 hours I guess it is, I will try to 
make my presence known and to express my views on how I think 
we should move forward.
    The Chairman. Thank you.
    I would like to recognize Mr. Cardoza.

 STATEMENT OF THE HON. DENNIS A. CARDOZA, A REPRESENTATIVE IN 
             CONGRESS FROM THE STATE OF CALIFORNIA

    Mr. Cardoza. Thank you, Mr. Chair.
    When the Endangered Species Act was adopted by Congress in 
1973, it was heralded as a landmark piece of environment 
legislation for the protection and conservation of threatened 
and endangered species. At that time, it was clearly understood 
that the ultimate goal of the Act was to focus sufficient 
attention on listed species so that in time they could be 
returned to a healthy state and removed from the list.
    I listened to Mr. Saxton just now about the Chesapeake. And 
when I was in college--I went to the University of Maryland--
and I sailed on the Chesapeake, and I thought it was a 
wonderful place. And it still is. The Potomac, however, had 
signs all along it that said, don't enter the water, because it 
was so polluted. We have made progress in some areas. We have 
not made progress in other areas. But we need to make sure that 
the laws of our country promote the successes and correct the 
failings.
    I fully support the goals of species protection and 
conservation, and believe that recovery and the ultimate 
delisting of species should be a U.S. Fish and Wildlife top 
priority. I am an original cosponsor of the threatened 
Endangered Species Recovery Act because I think it is an 
innovative and creative approach to ending the long-running 
conflict between protecting species and enforcing conservation 
actions on private land.
    The current system of critical habitat designations 
exemplifies the problem and the need for reform. I have seen 
numerous cases in my district where the designation of critical 
habitat seems to defy all logic completely. For example, in 
2002, the Service proposed to designate over 1.7 million acres 
as critical habitat in California and Oregon for vernal pool 
species. Almost a third of my entire county in the acreage of 
Merced where I live would have been designated as critical 
habitat and included current housing developments and parking 
lots.
    In 2003, the Service proposed 4.1 million acres in 
California as critical habitat for red-legged frog. Ladies and 
gentlemen, one must wonder: If it can be found on 4 million 
acres, then is it truly endangered? Or, on the flip side, are 
all 4 million acres truly critical to the red-legged frog?
    The Threatened and Endangered Species Recovery Act will fix 
the problem associated with critical habitat by replacing it 
with a recovery plan which will shift the focus from litigation 
to biology and recovery, provide for greater cooperation 
between the Service, the land owners and States, and establish 
new incentives for voluntary conservation efforts.
    Coming up with a thoughtful way to enable recovery of 
endangered species without costly litigation has been a top 
priority for me since I have been elected to Congress, and I 
believe this bill does just that, and that is why I dropped my 
current bill to fix the critical habitat problem. My original 
bill, 2933, from the 108th Congress tied the development of a 
balanced recovery plan to the designation of critical habitat. 
This Act takes that idea one step forward, further and 
eliminates the recovery plan system--excuse me--elevates the 
recovery plan system to the primary mechanism to protect the 
species.
    I also feel compelled, however, to mention a few things 
that this bill does not do. This bill does not gut, eviscerate, 
repeal or even weaken the ESA as has unfortunately been claimed 
in the recent press reports. In fact, I think many members of 
this Committee would be interested to know that my office has 
been inundated by representatives from the regulated community 
requesting certain provisions that were once included in the 
bill be put back in. This bill in no way is a home run for 
anyone, which in my opinion generally means that it is probably 
pretty good policy.
    I think it is unfortunate that many members of the 
environmental community, including some of those 
representatives here today, choose to continue to offer nothing 
but negative review after negative review when much of this 
bill text was a compromise as the Chairman and Ranking Members 
have indicated today.
    If the truth be known, much of the opposition comes from 
those who profit from the filing of critical habitat process 
suits. Will another opportunity be missed to move the ball 
forward when one side chooses to immediately dismiss the Act as 
it is in its entirety without so much as a meaningful 
discussion?
    Mr. Rahall mentioned a number of things that might be 
included in the bill. And I will tell you, sir, that I tend to 
concur that there are things that still need to be worked out 
in the bill. But I also believe that those things can be worked 
out and be discussed. Not all of them, possibly, but there can 
be adjustments.
    I have some concerns about the time line that you mentioned 
as well, and I think we can work on those things. Those are 
legitimate issues to be brought up.
    I want to, in closing, direct the audience and the Members 
to look at the picture that is posted up on the screen. That is 
in my district. It is a tire track on the top of a levee. It is 
teeming with ferry shrimp. It is about 200 yards away from some 
other vernal pools. It had occurred after a very heavy rain in 
my district, and all the vernal pools in my area were in full 
bloom. The reason why I show you that tire track in that 
particular location is, when I was on the city council of my 
hometown, we did a 2040 plan, which was, it was 45 years from 
the date of 2040 when we implemented it. And we devised a plan 
that would provide for the future growth of our community in 
the most environmentally friendly way that wouldn't destroy ag 
land, that wouldn't destroy other sensitive features in the 
area. There is 23 acres of vernal pools here that are not of 
any particular great category as opposed to hundreds of 
thousands of vernal pools that are special in the near 
foothills about 10 miles away from this site. But because there 
are 23 acres of substandard vernal pools in this area, the 
entire city plan, which designates the proper environmental 
path, is going to be hampered. And we can't build the streets 
and the things necessary to do good environmental planning 
because of an act that has gotten in the way of common sense.
    Ladies and gentlemen, this Act, the Endangered Species Act 
of 1973, is severely broken and needs to be fixed, and that is 
why we need to do it in a thoughtful way.
    Mr. Chairman, thank you for the time.
    [The prepared statement of Mr. Cardoza follows:]

Statement of The Honorable Dennis Cardoza, a Representative in Congress 
                      from the State of California

    Thank you, Mr. Chairman.
    When the Endangered Species Act was adopted by Congress in 1973, it 
was heralded as a landmark piece of environmental legislation for the 
protection and conservation of threatened and endangered species.
    At that time, it was clearly understood that the ultimate goal of 
the Act was to focus sufficient attention on listed species so that, in 
time, they could be returned to a healthy state and removed from the 
list.
    I fully support the goal of species protection and conservation, 
and believe that recovery, and ultimately delisting of the species, 
should be the U.S. Fish and Wildlife Service's top priority under the 
ESA.
    I am an original cosponsor of the Threatened and Endangered Species 
Recovery Act, because I think it is an innovative and creative approach 
to ending the long-running conflict between protecting species and 
enforcing conservation actions on private land.
    The current system of Critical Habitat designations exemplifies 
this problem, and the need for reform. I have seen numerous cases in my 
district where the designation of critical habitat seems to defy all 
logic completely, for example:
      In 2002, the Service proposed to designate over 1.7 
million acres as critical habitat in California and Oregon for vernal 
pool species. Almost 1/3 of the entire acreage of Merced County, where 
I live, would have been designated as critical habitat.
      In 2003, the Service proposed over 4.1 million acres in 
California as critical habitat for the red-legged frog. One must 
wonder, if it can be found on 4 millions acres, then is it truly 
endangered, or on the flip side--are all 4 million acres truly 
``critical.''
    The Threatened and Endangered Species Recovery Act will fix the 
problems associated with critical habitat by replacing it with a 
Recovery Plan which will:
      Shift the focus from litigation to biology and recovery
      Provide for greater cooperation between the Service and 
landowners and states
      Establish new incentives for voluntary conservation 
efforts.
    Coming up with a thoughtful way to enable recovery of endangered 
species without costly litigation has been a top priority for me since 
being elected to the Congress and I am pleased that this bill does just 
that.
    My original bill, H.R. 2933 from the 108th Congress, tied the 
development of a recovery plan to the designation of critical habitat. 
The Threatened and Endangered Species Recovery Act takes that idea one 
step further and elevates the recovery plan system to the primary 
mechanism to protect species.
    I also feel compelled, however, to mention a few things that this 
bill does not do. This bill does not gut, eviscerate, repeal, or even 
weaken the ESA as has unfortunately been claimed in recent press 
reports.
    In fact, I think many members of this Committee would be interested 
to know that my office has been inundated by representatives from 
regulated community requesting that certain provisions that were once 
included in this bill be put back in. This bill is in no way a ``home 
run'' for anyone, which in my opinion generally means that it is the 
best policy.
    I think it is unfortunate that many members of the environmental 
community, including those represented here today, choose to continue 
to offer nothing but negative review after negative review when much of 
this bill text was a compromise worked out between the Chairman and the 
Ranking Member.
    Another opportunity has been missed to move the ball forward 
together when one side chooses to immediately dismiss the Threatened 
and Endangered Species Recovery Act in its entirety, without so much as 
a meaningful discussion.
    Whether some people want to admit it or not, the ESA is not working 
the best of its ability to protect species and it is our job as Members 
of Congress and members of this committee to do something about it.
    Thank you again, Mr. Chairman for recognizing me, I look forward to 
today's hearing and to the testimony from the witnesses.
                                 ______
                                 
    The Chairman. Thank you.
    Mr. Gibbons.

STATEMENT OF THE HON. JIM GIBBONS, A REPRESENTATIVE IN CONGRESS 
                    FROM THE STATE OF NEVADA

    Mr. Gibbons. Thank you very much, Mr. Chairman.
    And like many of us here, I am pleased to be here to 
discuss this important piece of legislation. And I am proud to 
be a co-sponsor. As you know, in Nevada, more than 85 percent 
of the State is--or the land mass of the State of Nevada is 
controlled by the Federal Government, and as a result, many of 
us in Nevada have seen firsthand problems associated with the 
current ESA and in its current form. And for too long, Mr. 
Chairman, local ranchers, farmers, and State and local 
governments have found themselves as well as their scientific 
information on the outside of the ESA process. While the goal 
of the ESA is a noble one, too often the desire to preserve our 
sensitive species is driven by emotion rather than by science. 
Now, throughout Nevada, there are a myriad of examples of the 
need for incentives for landowners caught up in ESA procedures, 
for mechanisms to include sound science from local managers and 
for greater participation in the process by a broad range of 
stakeholders.
    Now, the people of Nevada know all too well about the 
misuse of the ESA, which can economically devastate a 
community. Past negative experiences with the ESA led Nevada to 
develop a very aggressive, locally led effort to keep the sage 
grouse off the endangered species list. Mr. Chairman, this 
program has been a great success. Locally led conservation 
efforts have provided a wide range of stakeholders with the 
most effective tools to preserve the species and to remain 
engaged in conservation. Now, efforts like this will be 
encouraged by passing reforms contained in H.R. 3824, so I am 
proud, Mr. Chairman, to be here today, proud to be a co-sponsor 
of this legislation that will help restore integrity to the 
Endangered Species Act, and to ensuring that both the 
environment and the interests of our communities are protected. 
And I will yield back the balance of my time.
    The Chairman. Mr. Miller.

   STATEMENT OF THE HON. GEORGE MILLER, A REPRESENTATIVE IN 
             CONGRESS FROM THE STATE OF CALIFORNIA

    Mr. Miller. Thank you, Mr. Chairman.
    And I, like many of my colleagues have already said, have 
been interested for a long time in changes in the Endangered 
Species Act, and I was initially rather interested when you 
suggested you were going to work with the stakeholders to focus 
the Act on recovery. I, like my colleague Mr. Saxton, believe 
that the die is probably cast here in terms of those 
discussions before this Committee. Maybe there will be an 
opportunity, but it doesn't look like that's going to happen in 
the House with the schedule that has been announced.
    I am disappointed with the legislation that is before us 
this morning. It really doesn't provide the kind of focus on 
the recovery of species that we need. I recognize and I have 
had many conversations with you and others from our delegation 
since our congressional districts are some of the most heavily 
impacted areas with the blanket designations of critical 
habitat that are unworkable, uneconomic and just don't make a 
lot of sense. But to go from that to this legislation where we 
really don't then have a recovery plan that would then 
designate that habitat that is necessary, it is pretty clear 
from most of the known science that these species will not 
recover without that habitat. And I was hoping that we would be 
able to make the tradeoff that you and Mr. Rahall had discussed 
for some considerable period of time of a very strong standard 
for that recovery, and then the designation of that recovery 
plan and the necessary habitat to do that recovery. But that 
apparently didn't work out, and that isn't here.
    I'm also concerned that the protective standards appear to 
have been eliminated for threatened species. I think that only 
makes the job more difficult down the road in terms of keeping 
these species from extinction and that if we don't take care of 
and think about the threatened species, we will simply just end 
up with more seriously endangered species that require more 
intensity, more action for their protection. And my concern 
also is that, in the time lines that have been laid out here 
and the idea that you make a proposal for the use of your land 
and if the Secretary doesn't find within 90 days that that is 
not--there is no takings there, you can go forward with that. 
It doesn't suggest that this has to be an approved use, it 
just--that you may get--you may not get to use your land 
because the zoning board decided they didn't want a landfill, 
they didn't want a hotel, they didn't want a whatever it is, 
and then the reading appears to suggest that there is an 
obligation to compensate you for whether or not that--for 
whatever reasons. Well, I think we--I guess we'll go through 
that in the markup or maybe some of the witnesses can testify 
to that. And also the suggestion that these suggestions for 
recovery are in fact nonbinding, nonregulatory I think also the 
status of these recovery plans has to be clarified in this 
legislation.
    So those are my remarks at the moment.
    The Chairman. Thank you.
    Mr. Walden.

STATEMENT OF THE HON. GREG WALDEN, A REPRESENTATIVE IN CONGRESS 
                    FROM THE STATE OF OREGON

    Mr. Walden. Thank you very much, Mr. Chairman. I appreciate 
your work on this and your efforts to put together a bill that 
has achieved a level of bipartisan support to reform the 
Endangered Species Act and update it in a way that we've not 
seen before. Like my colleague from California, Mr. Cardoza, 
who worked so hard on the area of habitat, critical habitat 
designation reform, I've put my efforts in on the side of 
science. As I learned, coming out of the water cutoff in the 
Klamath Basin, that when we got the National Academy of 
Sciences to do independent rigorous peer review of the 
decisions that led to the cutoff of the water, they concluded 
that the science really wasn't there to back up the decisions 
that cost 1,200 farm families their water that season. And in 
fact, some of the decisions made by the Federal scientists 
could have actually imperiled both the sucker fish and the coho 
salmon by changing how the system was managed.
    So what we are doing in this bill I think makes a lot of 
sense, a little different than what I originally proposed, but 
provides, the Secretary of the Interior shall within a year 
craft the criteria for what is considered to be the best 
science, and that a component of that will be the notion of 
peer review. And I just think that is really important.
    When the fate of a species or the fate of a community hangs 
in the balance, what's wrong with getting a second opinion and 
making sure that the data being used to formulate the decisions 
can withstand the rigors of review? We require that for 
publication in a medical journal and a scientific journal. Why 
wouldn't we require that same rigorous review by very certified 
by smart people when it comes to the fate of a species?
    And then I think, as we look at the recovery efforts, we 
have to look at some of the conflicts that are there. And I 
don't necessarily know if this bill gets all the way into this, 
but let me give you an example of what happens in the Pacific 
Northwest: 28 percent of our power costs go to salmon recovery 
efforts; 28 percent of the price ratepayers pay for power goes 
to salmon recovery efforts. And meanwhile, in the Columbia 
River, the Marine Mammal Protection Act has seen the return of 
sea lions, some 300,000 today versus 80,000 in 1972 when the 
Act was passed. Thirty sea lions in 45 days consume 54,000 
endangered salmon. Now, you think about that, 54,000 endangered 
salmon, 45 days by 100 sea lions hanging around the dams. The 
summer spill regime that's taking place this year cost 
ratepayers $77 million and was projected to help the passage of 
20--20 endangered Snake River salmon.
    So we have some conflicts here in the law where we are 
advocating one species over another in a recovery effort that's 
doomed to failure the way we are proceeding today. I believe 
these changes are thoughtful, reasonable and will set in motion 
the kinds of public and private partnerships that are 
essential.
    The portions of this legislation, Mr. Chairman, that you've 
crafted that provide for grants to private landowners is 
similar to what we have done in the State of Oregon where we 
recognize that recovery and species don't recognize property 
lines. And if you are going to have a plan that really works to 
recover the species, then you have to be able to reach out and 
build partnerships in the private sector side, and I think this 
bill does that.
    So, Mr. Chairman, I look forward to the hearing today and 
the markup tomorrow. With any bill, I am sure there are areas 
where we can continue to refine and improve as it goes through 
the process both in the House and hopefully in the Senate and 
in conference. So I wish you well on this journey, and I look 
forward to continuing to work with you on this legislation. 
Thank you.
    The Chairman. Thank you.
    Ms. Bordallo.

  STATEMENT OF THE HON. MADELEINE Z. BORDALLO, A DELEGATE IN 
              CONGRESS FROM THE TERRITORY OF GUAM

    Ms. Bordallo. Thank you, Mr. Chairman. And good morning.
    I, too, welcome the witnesses today and thank them for 
sharing their perspectives on the Endangered Species Act and on 
H.R. 3824. I want to state, Mr. Chairman, for the record my 
support for amending the Endangered Species Act to better 
orient this law toward species recovery, and my support for 
H.R. 3824. And I thank you, Mr. Chairman, for your leadership 
on this issue and for your efforts to bring about needed reform 
of this law.
    Mr. Chairman, my district Guam, like other communities 
across the country, has been witness to costly and burdensome 
conflict and litigation over the ESA. The law in its current 
form can and deserves to be improved. There are 11 listed 
species in Guam, and on average, it has taken the Fish and 
Wildlife Service a decade and a half to develop recovery plans 
for each of these species. In three cases, it has taken the 
Service nearly 30 years to do so, and that is why I am 
encouraged by the fact that H.R. 3824 would require a recovery 
plan within 2 years of the listing determination.
    In Guam's case, two of our native species were delisted two 
years ago, but they were not delisted for recovery. Sadly, they 
were declared extinct. I look forward to hearing the comments 
today from the witnesses with respect to the improvements 
proposed for recovery planning and execution.
    And last, as I stated last year during the hearing on Mr. 
Cardoza's critical habitat reform bill, landowners' access to 
their private property in Guam has been impacted by the ESA and 
actions of the Fish and Wildlife Service. These access issues 
still remain the source of concern and will be alleviated with 
the repeal of the critical habitat requirements in the current 
law.
    Again, I wish to thank you, Mr. Chairman, for your 
leadership on this issue, and I look forward to continuing to 
work with you and the members of the Committee to improve this 
law. Thank you.
    [The prepared statement of Ms. Bordallo follows:]

    Statement of The Honorable Madeleine Z. Bordallo, a Delegate in 
                           Congress from Guam

    Good morning Mr. Chairman. I too welcome the witnesses today and 
thank them for sharing their perspectives on the Endangered Species Act 
(ESA) and on H.R. 3824. I want to state for the record my support for 
amending the Endangered Species Act to better orient this law towards 
species recovery, and my support for H.R. 3824. I thank you Mr. 
Chairman for your leadership on this issue, and for your efforts to 
bring about needed reform of this law.
    My district, Guam, like other communities across the country, has 
been witness to costly and burdensome conflict and litigation over the 
ESA. The law in its current form can and deserves to be improved. There 
are 11 listed species in Guam, and on average, it has taken the Fish 
and Wildlife Serves a decade-and-a-half to develop recovery plans for 
each of these species. In three cases it has taken the Fish and 
Wildlife Service nearly 30 years to do so. That is why I am encouraged 
by the fact that H.R. 3824 would require a recovery plan within two 
years of the listing determination. In Guam's case, two of our native 
species were de-listed two years ago, but they were not de-listed for 
recovery. Sadly, they were declared extinct. I look forward to hearing 
the comments today from the witnesses with respect to the improvements 
proposed for recovery planning and execution.
    Lastly, as I stated last year during the hearing on Mr. Cardoza's 
Critical Habitat Reform bill, landowners' access to their private 
property in Guam has been impacted by the ESA and actions of the Fish 
and Wildlife Service. These access issues remain a concern, and the 
limitations on access will be alleviated with the repeal of the 
critical habitat requirements in current law.
    Again, I thank you Mr. Chairman for your leadership on this issue, 
and I look forward to continuing to work with you and the Members of 
the committee to improve the ESA.
                                 ______
                                 
    The Chairman. Thank you.
    Mr. Gilchrest.

 STATEMENT OF THE HON. WAYNE T. GILCHREST, A REPRESENTATIVE IN 
              CONGRESS FROM THE STATE OF MARYLAND

    Mr. Gilchrest. Thank you, Mr. Chairman. I want to applaud 
you for your effort to reform and reauthorization the 
Endangered Species Act after so many years. This is a very 
difficult process, and Mr. Rahall made a comment about the 
ability to be compatible in your discussions to bring us to 
this point. And so I know this is a lot of hard work, and it is 
very difficult. And it is very complex, and we are dealing with 
an issue that the public assumes that Congress is going to 
restore the prodigious bounty of nature's design and people in 
many industries are heavily dependent upon that. So your 
attempt to bring this through fruition through this Committee, 
through the Floor vote is commendable.
    I want to add, though, a little perspective from my 
district. A number of people here today commented on the 
Chesapeake Bay, and we have endangered species issues in the 
Chesapeake Bay. But there was one that I read recently in the 
New York Times about something called a tiger beetle where 
there was a community, which is actually about a mile from my 
house across an estuary, a tidal basin called the Susquehanna 
River, where there is a series of homes that have been built 
fairly recently on a bluff that is about 100 feet, a 
magnificent view of this tidal basin, which is about 12 miles 
long, and the Chesapeake Bay. The issue was, according to the 
New York Times, that the people wanted a hardened riprap at the 
bottom of the bluff to prevent erosion because the bluff was 
eroding at about a foot a year, and they were concerned about 
their property. The Endangered Species Act kicked in to 
evaluate whether or not a hardened riprap would affect this 
endangered species, a tiger beetle, which is about an inch 
long, and it looks like a saber tooth tiger. What happened, 
though, in the months ahead--and there is pretty much a 
resolution to this issue now--was that--which is what causes me 
concern with your reform of the Endangered Species Act, because 
I see that the kind of scientific review that was present with 
this, the kind of consultation between the various Federal 
agencies that were involved, the kind of habitat that was then 
looked at, the kind of things that are present now in the 
Endangered Species Act, which I realize in certain parts of the 
country certainly need improvement, certainly need efficiency, 
but the kind of active human exchange of information and dialog 
under the present circumstances revealed a number of telling 
things that the engineers for the community and the community 
themselves were unaware of prior to this.
    For example, if you built a riprap the way that they wanted 
to protect their shoreline, obviously that would have impacted 
the tiger beetle, but what it would have done on either side of 
that stone riprap, it would have accelerated erosion on other 
people's property.
    The second thing with the geological service, they came in 
and they did an evaluation that basically said the Delmarva 
peninsula, of which this is a part, was formed by silt, sand, 
mud and tiny gravel coming down the Susquehanna River over tens 
of thousands of years. So, in essence, the entire Delmarva 
peninsula is a sand bar. It is a barrier island. Its soil is 
unstable. And so much of the problem from the erosion of the 
bank did not come from the water or the wakes of boats or storm 
surges. It came from simple rain falling on the land, going 
through the sand, soil, hitting various areas of clay, being 
forced out to the bluff and causing the erosion from that 
perspective. So after an understanding of habitat and an 
understanding of the geological history of the area and 
understanding the ability for the various Federal agencies to 
consult with each other, the resolution was not a stone riprap. 
The resolution is probably going to be more trees and more 
vegetation on those banks which can be a part of it. The other 
possible solution is a break water off the shoreline to buffer 
some of the wave action. And the other solution is natural, 
which came about as a result of the conservation programs for 
agriculture, reducing the nutrients into that particular 
estuary, and it has abounded with SAVs or subaquatic 
vegetation. That abounding of grass offers a buffer, reduces 
the energy of storm waves and boat wakes.
    So the point is, if you eliminate the idea of habitat, you 
take away the consultation. You change the ability of 
communities to discuss this, bringing in these kinds of 
specific scientific assessments. My feeling on this particular 
issue is that everybody wins. Reducing those steps which causes 
that consultation to take place in the way that the bill is 
presently, I think, reduces the opportunity to find the 
solution that we found in my particular district. But I would 
like to continue to work with the Chairman between now, the 
Floor and certainly the Conference Committee. Thank you.
    The Chairman. I appreciate the gentleman's comments. And I 
am sure, as he gets more and more into the legislation, what we 
actually put in the bill, you would agree that what we are 
trying to do is exactly the same kind of things that you 
described as what happened in Maryland. In that case, you did 
have the State legislature that stepped in. Our efforts to 
bring State and local government into being part of this, the 
incentives and grant programs that are in the bill are designed 
so that we do bring property owners into being part of the 
solution. If in every case we were able to work it out the way 
that we did in Maryland, it would be a very different 
implementation of the law. Unfortunately, that is not the way 
it is implemented most of the time.
    Mr. Inslee, did you have a comment you wanted to make?

STATEMENT OF THE HON. JAY INSLEE, A REPRESENTATIVE IN CONGRESS 
                  FROM THE STATE OF WASHINGTON

    Mr. Inslee. I do. And I appreciate your courtesy as always, 
Mr. Chair.
    I just wanted to point out what we are talking about today 
is not really the first Endangered Species Act. The first 
Endangered Species Act reads: Bring out every kind of living 
creature that is with you, the birds, the animals and all the 
creatures that move along the ground so that they can multiply 
on earth and be fruitful and increase in number upon it to keep 
their various kinds alive throughout the earth.
    Genesis really had the first Endangered Species Act. And 
the heart of Genesis is a continuation of the concept found in 
Corinthians. It says: This is the Lord's and everything in it.
    And the reason I point that out is the subject we are 
talking about, namely, the Creator's creatures, really does not 
belong do us. And the reason I point that out is it seems to me 
that, when we're dealing with this Act, we should do so with 
infinite care realizing that the weight of eternity is on us, 
because once these species are gone, they are gone forever.
    So the question I have is, have we done in this proposal we 
have before us tomorrow, shown that infinite care that we ought 
to with this important Act? And I just want to say this is a 
bipartisan concept. I was at Cape Disappointment. It's the 
westernmost point in the United States where Lewis and Clark 
went, and I was at a lighthouse. And I was inside the 
lighthouse, and I heard these people outside, just a few weeks 
ago. And all of a sudden, all these people were screaming. I 
didn't know what was up, so I ran out there and I ran out. And 
what they were screaming about, I mean, literally yelling, was 
a great whale that was about 100 yards off the coast working 
its way up toward Alaska. And the thrill and the ecstasy these 
people seeing this endangered creature that is being restored 
in large part because of this Act is really something that's a 
very strong sentiment and value statement of the American 
people I believe on a bipartisan basis. So I have to ask 
myself: Is this bill that we'll consider tomorrow consistent 
with those values of Americans? And I don't believe it is by a 
long stretch. I think this bill is not modernizing the Act; it 
is euthanizing the Act. And the reason I use euthanizing, and I 
am not using the words the Chairman has asked us not to use, I 
am not using the word eviscerate or gut or one of those other 
words. I use the word euthanize because it is putting it down 
with the guise of kindness, putting it down with the guise of 
making it stronger. What are the fish without the oceans? What 
are the birds without a tree to nest in? They are nothing. And 
without a critical area, ability and tool to recover species, 
the Endangered Species Act is largely nothing. It is the major 
tool to prevent the way we--and I stress we--are leading these 
creatures to extinction, which is to destroy their habitat.
    And the thing that is very curious to me and I cannot 
fathom, it is argued here that we need to take away this tool 
in our tool box of recovering these species because the Act 
doesn't work well enough. It doesn't save enough species quick 
enough. And we would all like to see the Act save them quicker 
and with more reliability. But the thing that I cannot 
understood is, if you had a rash of bank robberies, and you 
didn't think your law was strong enough and effective enough to 
deal with bank robberies, would the Congress's first act be to 
take away the police cars, to take away the whistles, to take 
away the firearms? This is the major enforcement tool of the 
Endangered Species Act because it addresses the main reason 
these species go extinct. The main reason these species go 
extinct is not because our constituents go out there and gas 
them and shoot them intentionally. That is largely not the 
problem we have with extinction. It is that we--I stress we--
are destroying their habitat at rates--we're the sixth largest, 
the sixth great period of extinction. And I wish this Committee 
would look at the science a little bit more. There's been five 
great periods of extinction. We now for the sixth time in the 
globe's history are destroying creatures faster than they are 
evolving. It is the sixth time that's happened in world 
history. And I wish this Committee would look at that science a 
little bit, that one-third of all the mammals--one-third of all 
the mammals on earth, according to the most recent science, 
could be endangered in the next several decades.
    So I don't think we've shown the care we need to show to 
try to truly modernize this Act. And I think in this hearing 
what we'll find is the reason this Act is not being as 
effective as we would like is that the executive branch doesn't 
have the resources to do the job we've given it, and that's why 
these species are sitting on these lists too long. Thank you, 
Mr. Chairman.
    The Chairman. Mr. Brown.

STATEMENT OF THE HON. HENRY E. BROWN, JR., A REPRESENTATIVE IN 
           CONGRESS FROM THE STATE OF SOUTH CAROLINA

    Mr. Brown. Thank you, Mr. Chairman. And I appreciate your 
holding this hearing today. And I certainly appreciate your 
leadership and oversight of the issue that's reforming the 
Endangered Species Act of 1973. I know that this issue has been 
one of your biggest priorities, and I am proud to be an 
original co-sponsor of the Threatened and Endangered Species 
Recovery Act of 2005. It is an issue that is very important to 
many of my constituents in South Carolina's First District.
    Mr. Chairman, as you know, in the 32 years that the 
Endangered Species Act has been in effect, we have learned a 
lot of lessons over time. I believe the Threatened and 
Endangered Species Recovery Act of 2005 keeps the best parts of 
the Endangered Species Act of 1973 but reforms the sections 
that need to be reformed. The bipartisan support of the 
proposed legislature is evidence of the support that these 
reforms have across the country.
    Mr. Chairman, and South Carolina's first district is a very 
unique district. It encompasses the majority of the coastline 
of South Carolina. It has a sensitive ecosystem that many of my 
constituents work on the ocean for their livelihood.
    I would like to give you an example of the eastern oyster 
as one of the examples out of many as to why the Endangered 
Species Act needs to be reformed. The eastern oyster has been 
in decline in the Mid-Atlantic region for over a century 
primarily because of fishery mismanagement and various oyster 
diseases. However, the same species is thriving elsewhere up 
and down the eastern coast including South Carolina and along 
the Gulf Coast. U.S. shellfish farmers produce over half a 
billion eastern oysters every year, nearly twice the wild 
harvest. Unfortunately, the way the current Endangered Species 
Act is written, any listing will have to encompass the species 
throughout its range from Maine to Texas. Listing the eastern 
oyster as an endangered species will run counter to scientific 
evidence and common sense. It would also destroy an entire 
industry in South Carolina, killing thousands of jobs and 
creating economic hardships, and do more damage than good to 
both the species and the environment.
    How is it that the Endangered Species Act could be so badly 
misused? Unlike other environmental laws, such as the Clean Air 
Act and the Clean Water Act which are updated every few years, 
the Endangered Species Act hasn't been significantly revised in 
three decades. Mr. Chairman, there is a better way to protect 
endangered species, and I believe it is the Threatened and 
Endangered Species Recovery Act of 2005 which will resolve this 
problem. Thank you very much for your leadership.
    [The prepared statement of Mr. Brown follows:]

Statement of The Honorable Henry E. Brown, a Representative in Congress 
                    from the State of South Carolina

    Chairman Pombo, thank you for holding this hearing, I appreciate 
your leadership and oversight on the issue of reforming the Endangered 
Species Act of 1973. I know that this issue has been one of your 
biggest priorities and I am proud to be an original cosponsor of the 
Threatened and Endangered Species Recovery Act of 2005; it is an issue 
that is very important to many of my constituents in South Carolina's 
1st District.
    Mr. Chairman as you know in the 32 years that the Endangered 
Species Act has been in effect we have learned a lot of lessons over 
time. I believe the Threatened and Endangered Species Recovery Act of 
2005 keeps the best parts of the Endangered Species Act of 1973 but 
reforms the sections that needed to be reformed. The bipartisan support 
of the proposed legislation is evidence of the support that these 
reforms have across the country.
    Mr. Chairman, South Carolina's 1st District is a very unique 
district it encompasses the majority of the coastline of South 
Carolina. It has a sensitive eco-system and many of my constituents 
work on the oceans for their livelihood.
    I would like to give you the example of the Eastern Oyster as one 
example out of many as to why the Endangered Species Act needs to be 
reformed.
    The Eastern Oyster has been in decline in the Mid-Atlantic region 
for over a century, primarily because of fisheries' mismanagement and 
various oyster diseases. However, the same species is thriving 
elsewhere up and down the East Coast including South Carolina and along 
the Gulf Coast.
    U.S. shellfish farmers produce over a half-billion Eastern Oysters 
every year--nearly twice the wild harvest. Unfortunately, the way the 
current Endangered Species Act is written, any listing will have to 
encompass the species throughout its range, from Maine to Texas. 
Listing the Eastern Oyster as an endangered species will run counter to 
scientific evidence and common sense. It will also destroy an entire 
industry in South Carolina--killing thousands of jobs and creating 
economic hardship--and do more damage than good to both the species and 
the environment.
    How is it that the Endangered Species Act could be so badly 
misused?
    Unlike other environmental laws, such as the Clean Air Act and 
Clean Water Act, which are updated every few years--the Endangered 
Species Act has not been significantly revised in three decades.
    Mr. Chairman, there is a better way to protect endangered species 
and I believe it is the Threatened and Endangered Species Recovery Act 
of 2005.
                                 ______
                                 
    The Chairman. Thank you.
    Mr. Boren.

 STATEMENT OF THE HON. DAN BOREN, A REPRESENTATIVE IN CONGRESS 
                   FROM THE STATE OF OKLAHOMA

    Mr. Boren. Thank you, Mr. Chairman. Thank you, Ranking 
Member Rahall, for holding today's hearings.
    This is an issue that's very important to my district. As a 
representative from eastern Oklahoma--and from eastern Oklahoma 
the Endangered Species Act is a complicated issue, because we 
are a region of sports men and women, but we are also an area 
that looks at economic development.
    As we all know, the challenge we face in reforming the ESA 
is to create a balance between the important goal of 
conservation and preservation of some of our Nation's most 
beloved and important species, and making sure our property 
owners, businesses, workers and communities don't suffer 
unnecessarily for these efforts.
    As an avid sportsman, and I think many of you all have 
probably been in my office and you see the deer heads and the 
bear that I have in my office, you all know that I am a hunter. 
I appreciate the importance of saving and restoring the 
Nation's species of our great country.
    I also represent one of the poorest congressional districts 
in the United States. And local economic growth, small and 
medium-sized businesses are our only hope for the future.
    Unfortunately, too many times, the ESA law as is currently 
written stand in the way of this economic development that we 
need in our part of the United States. I have heard from 
numerous communities in my district which must put off 
construction or expansion of businesses due to the various 
requirements of the ESA. One such community in my district is 
Durant, Oklahoma, which is in part of the historic range of the 
American bearing beetle. The leaders of Durant have worked hard 
and had success in bringing businesses to their area of far 
southeastern Oklahoma, but each year, the construction of new 
sites for these businesses is brought to a screeching halt to 
look for the bearing beetle, but no presence of the beetle has 
been found since the year 2003.
    This disruption costs the community time, money and 
potential for future job growth.
    There must be a better way to balance the needs of the 
species and the needs of the communities. I feel this 
legislation we are here to discuss today achieves much of that 
balance.
    I want to thank you, Mr. Chairman. I am a proud coauthor of 
this legislation. I also want to thank Congressman Cardoza for 
his leadership, and thank you again Mr. Chairman for allowing 
me to have a statement. Thank you.
    [The prepared statement of Mr. Boren follows:]

Statement of The Honorable Dan Boren, a Representative in Congress from 
                         the State of Oklahoma

    Thank you Chairman Pombo and Ranking Member Rahall for holding 
today's hearing on an issue that is very important to me and many 
constituents in my district. I appreciate the work you have both done 
to bring us here today.
    As the representative from eastern Oklahoma, the Endangered Species 
Act is a complicated issue because we are a region of sportsmen and 
women as well as a region that is in great need of continuing economic 
development. As we all know, the challenge we face in reforming the ESA 
is to create a balance between the important goal of conservation and 
preservation of some of our nation's most beloved and important species 
and making sure our property owners, businesses, workers and 
communities don't suffer unnecessarily for these efforts.
    As an avid sportsman myself, I appreciate the importance of saving 
and restoring the native species of our great country. I also represent 
one of the poorest Congressional districts in the United States and 
local economic growth--small and medium sized businesses are our hope 
for the future. Unfortunately, too many times the ESA law, as it is 
currently written, stand in the way of this economic development. I 
have heard from numerous communities in my district which must put off 
construction or expansion of businesses due to various requirements of 
the ESA.
    One such community is Durant Oklahoma, which is in part of the 
``historic range'' of the American Burying Beetle. The leaders of 
Durant have worked hard and had success in bring businesses to their 
area of far southeastern Oklahoma, but each year the construction of 
new sites for these businesses is brought to a screeching halt to look 
for the Burying Beetle, but no presence of the beetle has been found 
since 2003. This disruption costs the community time, money and the 
potential for future job growth.
    There must be a better way to balance the needs of the species and 
the needs of the communities. I feel this legislation we are here to 
discuss today achieves much of that balance and look forward to hearing 
from today's witnesses and moving this legislation forward tomorrow. 
Thank you Mr. Chairman.
                                 ______
                                 
    The Chairman. Thank you.
    Mr. Gohmert.

   STATEMENT OF THE HON. LOUIE GOHMERT, A REPRESENTATIVE IN 
                CONGRESS FROM THE STATE OF TEXAS

    Mr. Gohmert. Thank you, Mr. Chairman. I'm delighted that 
you have had the courage to take this on. It's an emotional 
issue, and when it was originally passed, it seems to me it was 
based more on emotion than well-thought-out policy.
    People are agreeing on both sides on many issues, but then 
some are saying, Well, gee, it's not working. And to address 
the analogy that bank robberies--to try to discourage bank 
robberies, this bill would be like doing away with law 
enforcement officers. I think the analogy is better put to say 
that since, the way the law is now, we are providing incentives 
to landowners who find endangered species to eliminate the 
species before anybody finds out about it, it is more analogous 
to providing incentives to banks to leave everything unlocked 
and unattended so that there are more bank robberies. That's 
really more analogous to what we are dealing with in the 
current law.
    So I applaud the efforts to provide incentives to retain 
endangered species, rather than to get rid of them the way it 
exists now. And it sounds like a lot of good thought on both 
sides went into it.
    One thing I would like to mention, especially in view of 
things like Hurricane Katrina and terrorist threats that are 
alive and upon us, a provision potentially that if it is a 
matter of national security, that that might trump some 
litigation that may arise. Because we have already heard--and I 
haven't looked into it beyond the news reports--that there were 
ecological groups suing to prevent strengthening of the levees 
that would have saved lives in New Orleans.
    I realize there are some environmental groups that feel 
like the animal world has more rights and is better off if 
there are not humans alive. But I'd point out to those groups 
that there are no animal rights unless humans are around to 
preserve them and see that they are observed. Otherwise, I have 
noticed, lions, if they disagree with somebody's rights in the 
animal world, they just eat them. They don't preserve their 
rights.
    So I would say the number one factor and thing to consider 
is making sure that our species is preserved so that we can be 
about preserving the rest of the species; and also a way to--I 
think there's good thought in this--to try to curb litigation. 
Any additional steps to doing that would be wonderful, because 
litigation ends up going, if it goes the full avenue of 
opportunity, clear to the Supreme Court, that's already said 
they think it's fine for government to take away privately 
owned property and give it away to somebody that's going to pay 
them more money, their good old buddies that'll pay more to the 
local government. So we can't trust them to preserve property 
rights.
    We need to have the teeth in here to avoid as much 
litigation as possible.
    But thank you so much for your courage in moving forward 
and the consensus you brought, Chairman.
    The Chairman. Thank you.
    Mr. DeFazio.

  STATEMENT OF THE HON. PETER A. DeFAZIO, A REPRESENTATIVE IN 
               CONGRESS FROM THE STATE OF OREGON

    Mr. DeFazio. Thank you, Mr. Chairman. Thank you for the 
time.
    You know, there are problems with the Endangered Species 
Act, and they are real problems. We don't need mythology. And 
as I understand the case in the Southeast, it was actually Mr. 
Fortuno, the fact that suits over the locks and the necessity 
of diverting money from the levees to the locks was what the 
litigation was based on. But perhaps we can do that in another 
venue.
    In 1992, the law expired. In 1996, we had a legitimate 
effort in this Committee to try and update and reauthorize the 
act; and I supported a bipartisan proposal, I believe it was by 
Mr. Saxton and Mr. Gilchrest at that time, which failed to get 
a majority.
    There are problems particularly with multispecies, as my 
colleague from Oregon pointed out. I give one example: The 
sturgeon that spawns below Libby Dam needs high flows to spawn. 
It hasn't spawned in a long time. The salmon coming upstream 
need lower flows to come upstream. So we have an inherent 
conflict here which the law gives--the current law gives us no 
way of satisfactorily resolving. So those things do need to be 
dealt with.
    The bipartisan proposal I supported a number of years ago 
would have set up multispecies HCPs that would have covered 
basins, would have involved States in that process; and if a 
State could come up with a satisfactory plan to prevent a 
listing or to move forward a recovery that could take the place 
of the Federal action--as my State has done recently with the 
sage grouse under the existing law, as difficult as it was to 
get there--it should be easier to get there.
    But I think there are some extraordinary defects in the 
proposal before us. Let me--I have read parts of the bill and 
particularly Section 14 on compensation. As I see it--let me 
give an example.
    My State, say you own some F2 forest land which you are not 
allowed to develop, and in return for that, you get a tax break 
from the State in terms of your property taxes, and you grow 
timber as a business, and you can't develop it. You're also 
required to have a riparian setback even for timber harvesting 
on that land.
    Someone who owned that land under this Section 14, as I 
understand it, could say, despite State law--because the 
riparian setback is to recover salmon, could say, we intend to 
build waterfront condominiums on our forest land, and we would 
like to be compensated for that. End of story, according to 
Section 14.
    I proposed it. You can't evaluate it. You can't assess it. 
You don't have to show it's compliant with State law, that it's 
feasible, practicable, out of the floodplain, anything. You 
have to pay me for that fantasy. It's a lot like the MAI, which 
was an international preemption which was being proposed for a 
loss of possible property, which would have preempted a lot of 
Federal laws here in the United States of America because of 
multinational corporations. That is an extraordinary defect in 
this. It doesn't have a way to set fair market value.
    You know, when I was a freshman on this Committee, I joined 
with Mr. Miller in opposing then-Chairman Mo Udall on a 
property transfer, because the taxpayers weren't getting fair 
market value because there was going to be a change in zoning 
after. We were assessing the Federal land as undevelopable, 
saying it's worthless, we're giving it to a developer who then 
was going to develop it at a very high cost, but we're getting 
that value. So I opposed that.
    And under this, people who have undevelopable land could be 
making claims which will have to be evaluated in 90 days, with 
no way of getting additional information, no requiring it be 
compliant with State law. So I see this as a license to 
speculate.
    If I were a--you know, if there are smart speculators out 
there, and there are a few, I would look at the movement of 
this bill, assess whether or not I thought it was going to go 
into law, and I would say, Gee, I'm going to go out and buy 
some land now which is prohibited from development, that's 
cheap; and, you know, even though under State law I couldn't 
develop it, I'm going to make claims under Federal law, get 
compensated and more than make my money back, and then continue 
perhaps to have a tree farm on this property. There's also no 
current ownership requirement.
    That would be one way to get at the speculators, as we did 
in a recent measure, adopted in Oregon, which said you had to 
have owned the land at the time this law went into effect 
originally, which would be say perhaps pre-1973 ownership of 
land; then you could make this sort of a claim under the 
Endangered Species Act. Otherwise, you have--you know, you may 
have knowingly purchased land.
    So--and then I don't understand where the money is going to 
come from to compensate these claims which can't be evaluated 
and aren't set at fair market value. So I think there are some 
real problems.
    I would hope that the negotiations between the majority and 
the minority could continue. I don't understand the rush to 
have one hearing 1 day, mark the bill up the next day. The law 
expired 13 years ago, and it's annually renewed. We could take 
maybe a week, 2 weeks, another month to go through it and, you 
know, perhaps come to some consensus on the needs for updating 
and improvement and reauthorization of the law.
    I would hope the Chairman would consider that request. And 
I'm going to--no disrespect to the witnesses, but I have to go 
a hearing on the imponderable future of Amtrak, where we are 
doing the same thing, but we aren't going to mark up a bill 
tomorrow. We're going to hold a hearing today and start 
thinking about how that bill might work.
    Thank you, Mr. Chairman.
    The Chairman. Well, listening to the gentleman, with all 
his ifs and possible scenarios, unfortunately, a lot of the 
scenarios that you draw out in your statements don't have 
anything to do with what's actually in the bill. And we do have 
a provision in there--you talk about Section 14; the bottom of 
page 57, 14, number 3, goes into State and local law, nuisance 
law.
    Mr. DeFazio. Mr. Chairman.
    The Chairman. And to stop the individual from speculating 
in a manner----
    Mr. DeFazio. Would the Chairman yield on that?
    The Chairman. Sure.
    Mr. DeFazio. It says ``nuisance.'' in my State, nuisance 
does not go to development; development is not considered a 
nuisance. But development can be prohibited under State law 
without being a nuisance.
    This is--that word ``nuisance'' has a very different 
meaning in my State. Perhaps in California development is a 
nuisance. Not in my State.
    Thank you.
    The Chairman. We will have the opportunity to continue to 
discuss that provision, but it reminds me of something my dad 
used to say to me all the time, ``If frogs had wings, they 
wouldn't hit their butt on the ground so hard when they 
jumped.'' and it's like, we keep up with all these scenarios, 
it's way beyond what--anything that's in the bill. And I'd ask 
my colleagues to try to limit their support or opposition to 
what's actually in the bill.
    At this point, I'd like to----
    Mr. Miller. Mr. Chairman.
    The Chairman. Mr. Miller.
    Mr. Miller. Well, maybe it's possible at some point before 
this bill gets voted out of Committee for your staff, or you 
could walk us through it section by section and tell us what 
you think these sections mean, because these aren't ``what-if'' 
scenarios. There's a whole range of proposals that could be 
made by a landowner that have nothing to do with nuisance, have 
nothing to do with State law, in which we could end up on a 
mandatory basis having to compensate that individual and maybe 
having to compensate that individual over and over and over 
again.
    I think, you know, we should have some kind of walk through 
this legislation. Most members of this Committee have not seen 
this legislation until the last couple of days, and if these 
questions are not valid or not supported by the language in the 
law or prohibited by the language in the law, then we ought to 
know that that's the reading of it.
    I mean, that's the purpose of this process that we go 
through, but we're not going to go through that process.
    The Chairman. I'll be happy to walk the gentleman through 
this.
    Mr. Miller. Walk the Committee through it.
    The Chairman. I'll be happy to walk the Committee through 
it. We're holding a hearing and a markup, and through that 
entire process I'd be happy to do that for him.
    Mr. Miller. OK.
    The Chairman. At this point, I'd like to call up our first 
witness, The Honorable Judge Craig Manson, Assistant Secretary 
for Fish and Wildlife and Parks.
    If I could have you remain standing briefly, and as is 
customary in the Committee, to take the oath.
    [Witness sworn.]
    The Chairman. Thank you, Mr. Manson. Welcome back to the 
Committee.
    I know that you and your staff have had an opportunity to 
review the proposed legislation. We've had an opportunity to 
talk over the past several months on issues that you felt were 
important that we address, so the Committee is anticipating--
looking forward to your comments on the legislation that's 
before us today. Thank you for being here. And when you're 
ready, you can begin.

 STATEMENT OF THE HONORABLE CRAIG MANSON, ASSISTANT SECRETARY 
    FOR FISH AND WILDLIFE AND PARKS, U.S. DEPARTMENT OF THE 
                            INTERIOR

    Mr. Manson. Thank you, Mr. Chairman. I do appreciate this 
opportunity to comment on H.R. 3824.
    Since the bill was--although we have had a chance to chat 
over the last several months on various provisions of the 
Endangered Species Act and possible reforms to it, since the 
bill was just introduced, we have not had time as an 
Administration to develop a formal position on the bill; and 
after we've had more time as an entire Administration, we'll be 
happy to state a formal position and discuss more with the 
Committee in that respect.
    But generally we support provisions of the bill that enable 
the Department and the Fish and Wildlife Service to better set 
priorities, provide stability for landowners and encouragement 
of private stewardship and focus over the long term on the 
recovery of species. We also recognize the importance of 
decisions informed by scientific standards that are transparent 
and generated by generally accepted scientific practices.
    We have made great strides improving the administration of 
the Act. For example, under the banner of cooperative 
conservation, we have a host of programs that promote 
partnerships with States, landowners and other citizen stewards 
to protect and enhance habitat for threatened and endangered 
species. Those programs and related programs also help to 
maintain, protect and restore habitat in ways to help prevent 
the need to list species as threatened and endangered.
    We do recognize that habitat loss is one of the key factors 
that contribute to the decline of species, and over the last 4 
years, we have spent literally hundreds of millions of dollars 
to restore hundreds of thousands of acres of habitat for 
threatened and endangered species. We've implemented 
streamlined Section 7 consultation processes for activities 
such as hazardous fuel treatment projects, habitat restoration 
and cutting completion time of consultations by up to one-
third.
    We recognize that the successful completion of fish and 
wildlife--protection of fish and wildlife species depends 
significantly on cooperation of private landowners, who manage 
the vast majority of habitat, and we look forward to 
opportunities to partner with private landowners. We recognize 
that private landowners bear a burden of protection of habitat 
that is important, and they--and we recognize that they bear 
that burden on behalf of society as a whole.
    For certain areas in the Act, we need Congressional action 
in order to update and improve implementation. And with that in 
mind, I offer the following comments on H.R. 3824.
    For many years now, the Department has noted that one area 
of the Act that continues to be a challenge and a source of 
controversy is the designation of critical habitat. We have 
been supportive and continue to support the need to change 
critical habitat, to provide discretion to focus on those 
actions that provide the greatest benefit to species in he most 
need of protection. We believe that the habitat needs of 
species can be better addressed through conservation actions 
such as Section 7 consultations, the recovery planning process, 
Section 6 funding to States, as well as cooperative 
conservation programs and partnerships.
    And as I've testified before, the Fish and Wildlife Service 
has been embroiled in a relentless cycle of litigation over the 
implementation of the critical habitat provisions of the Act 
for well over a decade.
    Section 3 of the bill would define best available 
scientific data and require the Secretary to issue within 1 
year of enactment regulations to establish necessary criteria 
to identify such data. We recognize that the data and 
scientific information utilized by bureaus must meet the 
highest possible ethical and professional standards.
    Section 10 of the bill provides new criteria for developing 
and issuing recovery plans. And as I've said, we've been 
supportive of developing a robust recovery program because we 
do believe that that is the purpose of the Act, after all.
    There are provisions of the bill that we've had time to 
study that concern us, and they involve the species 
conservation contracts as well as the exceptions to 
prohibitions that include the land--the property owner's 
ability to request a written determination with respect to the 
proposed use of the property owner's property.
    We emphasize that private property owners, as I said 
earlier, bear a burden of protecting habitat that society at 
large should bear. However, the concern that we have with these 
provisions involve the lack of flexibility as well as the cost 
of implementing them. It is unclear from these provisions how 
the determination of fair market value would be determined 
other than between the Secretary and the property owner. And 
it's unclear what property interest would be acquired under the 
conservation grant program.
    We're willing to work with the Committee to explore other 
ways to lessen the potential burdens of the Act on private 
property owners, and we look forward to finding ways to 
continue to enhance the partnership that private property 
owners have in carrying out the protection of species on their 
land.
    It's important to understand that private property owners, 
as I said earlier, bear that burden that society at large 
should bear and that the protection of habitat on private 
property is essential to the Act. And that's why we've engaged 
in these cooperative programs.
    These programs reflect the President's vision of citizen 
stewardship and, if taken to their logical zenith, would 
actually eliminate the problem of the burdens on private 
property owners. So we're fully supportive of the philosophy 
behind the provisions, but we remain concerned about the cost 
and the methods of implementing those provisions.
    I'm prepared to answer any questions, Mr. Chairman, that 
you or the Committee might have; and I want to express our 
appreciation of your efforts with Mr. Rahall and other members 
of the Committee to bring this bill forward.
    Thank you very much.
    [The prepared statement of Mr. Manson follows:]

 Statement of The Honorable Craig Manson, Assistant Secretary for Fish 
        and Wildlife and Parks, U.S. Department of the Interior

    Mr. Chairman and Members of the Committee, I am Craig Manson, 
Assistant Secretary for Fish and Wildlife and Parks at the U.S. 
Department of the Interior. Thank you for the opportunity to testify 
before you today regarding H.R. 3824, the ``Threatened and Endangered 
Species Recovery Act of 2005.''
    At the outset, let me note that because the bill was introduced 
just days ago, on Monday, September 19, we have not had sufficient time 
to fully analyze the legislation or to develop a formal Administration 
position on the bill. After we have had more time to review the bill, 
we would be happy to more fully discuss its provisions with the 
Committee. Given this, I plan today to provide some general 
observations on the Endangered Species Act and the Department's role in 
implementation, and then offer some preliminary comments on the 
Threatened and Endangered Species Recovery Act.
    Generally, we support provisions of the bill that better enable the 
U.S. Fish and Wildlife Service to set priorities, provide stability for 
landowners and encouragement of private stewardship, and focus, over 
the long term, on the recovery of species. We also recognize the 
importance of decisions informed by scientific standards that are 
transparent and generated by generally accepted scientific practices.
The Department's Role in Endangered Species Act Implementation
    The Endangered Species Act was passed in 1973 to conserve plant and 
animal species that were in danger of extinction. The Act states that 
the policy of Congress is that the federal government will seek to 
conserve threatened and endangered species, and that the purposes of 
the Act are to provide a means to conserve the ecosystems upon which 
listed species depend, to develop a program for the conservation of 
listed species, and to achieve the purposes of treaties and conventions 
such as the Convention on International Trade in Endangered Species 
(CITES).
    Under the law, species may be listed as ``endangered'' or 
``threatened.'' All species of plants and animals, except pest insects, 
are eligible for listing if they meet the criteria specified in the Act 
and, once listed, the species is afforded a range of protections 
available under the Act, including prohibitions on killing, harming, or 
otherwise taking listed species of animals. In addition, federal 
agencies are to utilize their authorities to carry out programs for the 
conservation of endangered or threatened species, and must insure that 
any action authorized, funded, or carried out by the federal agencies 
is not likely to jeopardize the continued existence of any listed 
species or result in the destruction or adverse modification of a 
listed species' critical habitat, which is designated pursuant to the 
Act.
    Currently, there are 1,268 listed domestic species (993 endangered 
and 275 threatened). Of these, 286 are candidate species being reviewed 
on an annual basis. The Service has determined that these candidate 
species warrant listing, but listing proposals are precluded by higher 
priorities. In addition, the Service currently has published proposed 
rules to list 16 species as either endangered or threatened. The 
Service has 58 pending petitions to list a total of 76 species as 
either endangered or threatened. Of these petitions, the Service has 
published 11 findings that the petitioned action to list the subject 
species may be warranted, and has initiated a status review for the 
involved species.
    The Department has made great strides in improving administration 
of the Act. For example, under the banner of the Department's 
Cooperative Conservation Initiative, we have a host of grant programs 
that promote partnerships with states, landowners, and other citizen 
stewards to protect and enhance habitat for threatened and endangered 
species. These and related grant programs also help maintain, protect, 
and restore habitat in ways that help prevent the need to list species 
as endangered or threatened. The Service has worked to improve our 
recovery program, including the establishment of a process whereby high 
priority recovery needs of species can better be allocated and 
addressed by Service Regions, and the development of a new recovery 
implementation database for better tracking of recovery actions. We 
have also implemented streamlined section 7 consultation processes for 
several kinds of activities, such as hazardous fuels treatment 
projects, habitat restoration, and recreational activities in the 
Pacific Northwest, cutting completion time for consultations under the 
program by one-third.
    The Service has also worked with the National Marine Fisheries 
Service to develop an analytical framework for use in consultations and 
the preparation of Biological Opinions. This framework makes the 
process more transparent, objective, and reproducible, and yields more 
consistent and legally defensible conclusions.
    We recognize that successful protection of many fish and wildlife 
species depends significantly on cooperation of private landowners who 
manage the vast majority of habitat. The Department developed our 
Cooperative Conservation Initiative programs, among others, to enhance 
successful implementation of the Act by working with landowners. The 
Service looks for opportunities to partner with private landowners.
    The President's budget emphasizes investments that work through 
partnerships to help improve habitat and recover populations of at-
risk, threatened, and endangered species. Building on Secretary 
Norton's vision of cooperative conservation, in 2002, the Department 
launched two new conservation initiatives: the Landowner Incentive 
Program and the Private Stewardship Grants Program (referred to 
collectively as the Species Protection Partnership Program). Both 
programs offer incentives for private landowners to protect imperiled 
species and restore habitat, while engaging in traditional land 
management practices like farming or ranching. Nationally, the 
Landowner Incentive Program offers a positive, non-regulatory 
opportunity for landowners and Tribes to protect at-risk and endangered 
species, most of which depend upon private land for habitat. Together, 
the Landowner Incentive Program and Private Stewardship grants reflect 
a cooperative way of doing business--working in partnership with 
landowners. The response from landowners is overwhelmingly positive. In 
addition, other tools such as the Cooperative Endangered Species Grants 
(section 6) and funds provided for habitat conservation planning 
assistance and related land acquisition also support cooperation.
    For example, in Fiscal Year 2004 the Service, through its Partners 
for Fish and Wildlife Program, established partnerships with private 
landowners to restore valuable fish and wildlife habitats. The Service, 
in cooperation with its partners, restored and improved over 36,000 
acres of wetlands; almost 263,000 acres of native prairie and 
grasslands, and other uplands; 375 miles of riparian corridors, 
streambanks, and instream aquatic habitat; and 28 fish passage barriers 
were removed.
    Unfortunately under the Act, our work related to endangered species 
has been in large part driven by lawsuits. As of September 8, 2005, the 
Service is involved in 34 active lawsuits on listing issues with 
respect to 93 species; including 8 lawsuits on 90-day petition findings 
for 11 species, 8 lawsuits on 12-month petition findings for 11 
species, 11 lawsuits regarding final determinations for 22 species, 11 
lawsuits regarding critical habitat for 13 species, and 22 lawsuits 
regarding merits challenges on 65 species. The Service is also 
complying with court orders for 51 lawsuits involving 103 species.
    For many years now, the Department has noted that the one area of 
implementation that continues to be a challenge and a source of 
controversy is the designation of critical habitat. The Service has 
been embroiled in a relentless cycle of litigation over its 
implementation of the listing and critical habitat provisions of the 
Act for over a decade. This has resulted in a Section 4 program with 
serious problems due not to agency inertia or neglect, but to a lack of 
scientific or management discretion to focus available resources on the 
listing actions that provide the greatest benefit to those species in 
utmost need of protection. In FY 2004, the Service proposed critical 
habitat for 12 species and completed critical habitat designations for 
25 species. Currently, the Service is working on 31 critical habitat 
proposals for 51 species. All of the FY 2004 and FY 2005 proposed and 
final designations were the result of court orders or settlement 
agreements.
    Protection of habitat is the key to sustaining and recovering 
endangered species. However, the critical habitat process under the Act 
is not an effective means of conserving habitat; the Service has 
characterized the designation of critical habitat as the most costly 
and least effective class of regulatory actions it undertakes. In 30 
years of implementing the Act, the Service has found that the 
designation of critical habitat provides little additional protection 
and can result in negative public sentiment, and also because there is 
often a misconception among the public that, if an area is outside of 
the designated critical habitat, it is of no value to the species. At 
the same time, the designation of critical habitat imposes burdensome 
requirements on federal agencies and landowners and can create 
significant economic and social turmoil.
    We have been inundated with lawsuits for our failure to designate 
critical habitat, and we face a growing number of lawsuits challenging 
critical habitat determinations once they are made. Almost universally, 
the courts have declined to grant relief. Consequently, as the result 
of court orders and court-approved settlement agreements, the Service 
has little ability to prioritize its activities to direct resources to 
listing program actions that would provide the greatest conservation 
benefit to those species in need of attention. As noted by the previous 
Administration, lawsuits that force the Service to designate critical 
habitat necessitate the diversion of scarce federal resources from 
imperiled but unlisted species that do not yet benefit from the 
protections of the Act.
    The Service is not operating under a rational system that allows 
them to prioritize resources to address the most significant biological 
needs and, as a direct result of litigation, the Service has had to 
request a critical habitat listing subcap in its appropriations request 
the last several fiscal years in order to protect funding for other 
Endangered Species Act programs. At this point, compliance with 
existing court orders and court-approved settlement agreements will 
likely require funding into Fiscal Year 2008.
Preliminary Comments on the Legislation
    For certain areas in the Act, we need Congressional action in order 
to update and improve implementation. With this in mind, I offer the 
following preliminary comments on H.R. 3824, the Threatened and 
Endangered Species Act of 2005.
Section 3: Definitional Changes
    Section 3 of H.R. 3824 would define ``best available scientific 
data'' and require the Secretary to issue, within one year of 
enactment, regulations to establish necessary criteria to identify such 
data. Because we recognize that our resource management decisions can 
have an impact on communities, individuals, and natural resources, the 
Department has been working to strengthen the science behind our 
decisions for some time. We recognize that the data and scientific 
information utilized by our bureaus must meet the highest possible 
ethical and professional standards.
Section 5: Repeal of Critical Habitat
    We have been supportive of need to change critical habitat to 
provide individual agency discretion to focus on those actions that 
provide the greatest benefit to the species most in need of protection. 
We believe that habitat needs of listed species may be addressed 
through conservation mechanisms such as listing; section 7 
consultations; the recovery planning process; section 9's prohibitions 
of unauthorized take; section 6 funding to states; and the incidental 
take permit process, as well as through cooperative conservation grants 
and partnerships.
Section 10: Recovery Plan Provisions
    Section 10 of H.R. 3824 provides new criteria for developing and 
issuing recovery plans under the Act. Recovery of threatened and 
endangered species is the primary purpose of the Act. The recovery 
planning process and on-the-ground implementation are among its most 
important components. Our available resources would be better spent 
focusing on those actions that truly benefit species in need--like the 
development and implementation of recovery plans.
    Most importantly, section 10 would elevate the importance of 
recovery planning by requiring that final recovery plans for listed 
species be published within 2 years after the date a species is listed, 
and, for species listed on the date of enactment but without a recovery 
plan, would require the Secretary to develop a priority ranking system 
for preparing and revising recovery plans, along with a schedule for 
development or revision of plans. These changes should advance the 
recovery planning process and ensure that recovery remain a primary 
purpose of the Act.
    There are provisions in the bill that, even with the small amount 
of time we have had to study the bill, concern us. Several of these 
concerns are detailed below.
Section 10: Species Conservation Contract Agreements
    Section 10 of H.R. 3824 would create long-term ``species 
conservation contract agreements.'' These provisions would require the 
Secretary to enter into these agreements in cases where a landowner 
presents a contract to the Secretary and the Secretary finds that the 
landowner owns the land or sufficiently controls the use of the land to 
ensure implementation of such an agreement. The Secretary would then be 
responsible for funding between 60 and 100 percent of the landowner's 
costs to implement conservation practices specified in the agreement. 
The payments have no matching requirement.
    We have concerns about the lack of flexibility under these 
provisions as well as the cost of implementing them.
Section 13: Exceptions to Prohibitions
    Section 13 of H.R. 3824 includes a provision that allows a property 
owner to request from the Secretary a written determination that a 
particular proposed use of the owner's property complies with section 
9(a) of the Act. The provision provides that, if the Secretary does not 
provide a written answer within 90-days (subject to an extension that 
may be granted by the property owner), the Secretary is deemed to have 
determined that the proposed use complies with section 9(a) of the Act.
    We recognize the importance of stability and certainty for 
landowners, and the need to create incentives to encourage landowners 
to protect species habitat. However, we have concerns with this 
section. We believe it could add significant additional process to our 
implementation of the Act. In addition, in many cases the 90 day 
deadline may not be adequate time to complete such a determination. 
Finally, while the Secretary may request an extension, it is not at all 
clear that an extension would be granted and, for those requests that 
result in ``deemed decisions'' that the use does not comply, the 
Secretary would be required to pay compensation under the provisions of 
Section 14 of H.R. 3824.
Section 14: Private Property Conservation
    Section 14 of the legislation would establish a new conservation 
aid program for private property owners who receive determinations from 
the Secretary that proposed uses on the property would not comply with 
section 9 of the Act. Grants awarded under these provisions would have 
no matching requirement, and would be in an amount of no less than the 
fair market value of the proposed use. The provisions would require 
mandatory payments by the Secretary to a landowner if certain criteria 
are met.
    As noted above, we recognize that successful protection of many 
fish and wildlife species depends significantly on cooperation of 
private landowners who manage the vast majority of habitat. The 
Department's Cooperative Conservation Initiative and other programs are 
specifically designed to provide opportunities to partner with private 
landowners. In fact, we believe that if participation in these programs 
was taken to its logical zenith, they could eliminate the problem the 
Committee is seeking to address.
    We have concerns about the lack of flexibility under section 14 as 
well as the cost of implementing it. We are also concerned that the 
determination of fair market value lies with two interested parties--
either the Secretary or the property owner. Finally, it is unclear from 
the language of the bill what, if any, property interest the United 
States is acquiring from the property owner after payment of fair 
market value. We are willing to work with the Committee to explore 
other ways to lessen potential burdens of the Act on private 
landowners.
Conclusion
    Mr. Chairman, we realize that assembling this legislative package 
has been a monumental task, and we greatly appreciate your continued 
commitment to species conservation. I have presented here, in very 
summary fashion, some initial comments that we have identified in this 
bill. We look forward to working with the Committee as we move to 
strengthen and improve the Endangered Species Act.
                                 ______
                                 
    The Chairman. Thank you, Mr. Secretary.
    In your opinion, would repealing the current critical 
habitat requirement allow the Agency to utilize other existing 
conservation mechanisms listed in your testimony, such as 
listing Section 7 consultations, et cetera, to better provide 
for threatened and endangered species?
    Mr. Manson. Yes.
    The Chairman. Under current law, under the current 
implementation of the Act, is it your opinion that critical 
habitat listings, the way that they're currently being done, 
lead to recovery?
    Mr. Manson. Currently, the way critical habitat--and it's 
important to understand that when we talk about critical 
habitat designations, we're talking about a legal process as 
opposed to the actual creation, enhancement or restoration of 
habitat on the ground that actually contributes to the recovery 
of species. We're talking about a process-laden activity that 
is driven by litigation more than anything else. And, in fact, 
we've noted over the years, as did the previous Administration, 
that it results in diversion of resources, both fiscal and 
personnel, from tasks that really contribute to recovery of 
species.
    We have biologists testifying in court. We have biologists 
preparing declarations for use in court. We have resources 
being used to pay attorneys' fees and things of that nature 
instead of going into actual on-the-ground conservation efforts 
under the current scheme of designating critical habitat.
    The Chairman. If we look at the way it's working right now, 
you're familiar, obviously, with critical habitat listings on 
things like the red-legged frog----
    Mr. Manson. Yes.
    The Chairman.--where the critical habitat map that was 
originally released included subdivisions and places that were 
not critical habitat or habitat that was necessary to recover a 
species. You contrast that with the proposed legislation that 
we have in front of us, where the habitat that is protected is 
directly related to a recovery plan.
    Under that scenario, would not an adopted recovery plan 
with specified habitat that is necessary for the recovery of 
that species--would that--in your opinion, would that not work 
better in terms of working toward a recovery of that species?
    Mr. Manson. Yes, and I believe I've testified in this 
Committee to that effect before.
    The Chairman. In your testimony, you also acknowledge the 
importance of creating incentives for private landowners who 
protect habitat. This, I happen to believe, is one of the most 
important parts of the proposed legislation.
    You note that there are concerns with the 90-day deadline 
and potential burdens. However, you don't dispute the merit of 
providing a written determination. In your opinion, what would 
be an acceptable timeframe for the Secretary to provide a 
written determination?
    Mr. Manson. Well, if I may, Mr. Chairman, there are ways 
that the Fish and Wildlife Service could work with a private 
property owner to say, you know, here's something that would 
work and here's something that wouldn't work. In fact, in our 
Partners Program, that's something that goes on. In terms of a 
timeframe, that's something that I think we would have to spend 
some time working on.
    And I understand the need for certainty and the need for 
expeditious resolution of issues. I don't have an answer for 
that question right now as I sit here. But certainly there are 
ways that the Fish and Wildlife Service can work with private 
landowners, just as county extension agents and The Natural 
Resources Conservation Service and other agencies work with 
landowners and some of our folks do themselves in various 
programs to define activities that are acceptable and those 
that are not acceptable.
    The Chairman. Once a property owner enters into what has 
become the common practice of informal consultation, is there 
anything that requires Fish and Wildlife to ever give that 
property owner an answer under current law?
    Mr. Manson. Well, of course, informal consultation is 
usually a prelude to a formal consultation if we're talking 
under the Section 7 process. And of course, the Federal action 
agency can request that formal consultation commence. And once 
that happens, then there are timeframes for that to go on.
    But if, in fact, a--if we're talking about a situation 
where there's an application for a Section 10 permit or there's 
just an informal request for advice for something of that 
nature, there are no time limits under current law or an 
informal request for advice by a private landowner.
    The Chairman. Recognizing the pivotal role that is played 
by private landowners, because they manage the vast majority of 
habitat, the Department's cooperative conservation initiative 
is not being taken to its logical zenith in that something else 
needs to be done.
    Noting that you don't dispute the merits of private 
property conservation, in your opinion, would allowing a 
property owner to use a certified third-party appraiser answer 
that concern?
    Mr. Manson. That would answer the concern that we have 
specifically about the fair market value issue, yes.
    The Chairman. Thank you. My time has expired.
    Mr. Rahall.
    Mr. Rahall. Thank you, Mr. Chairman.
    Judge Manson, thank you for being with us today. And you 
raise an issue which I have had in mind in regard to the 
pending legislation. Currently, the Interior Department has a 
Cooperative Conservation Initiative which includes a landowner 
incentive program to provide incentives to private landowners 
to conserve sensitive species habitats which we've been 
discussing.
    There's also the private stewardship grants program where 
funds are provided to property owners to fund conservation 
actions for imperiled species on private lands. Additionally, 
the Department has a Challenge Cost Share Program and the 
Partners for the Fish and Wildlife Program both are well--both, 
as well, involving private property owners.
    We all know that the appropriations process is hard to come 
by these days. And at the same time, as I believe you noted, 
these programs can achieve the same goal as what is being 
proposed by Section 14 of the pending legislation.
    Do you believe that we can afford a new, probably redundant 
program as envisioned by Section 14. And the issue of cost 
aside, is such a program necessary in light of the existing 
departmental programs in this area?
    Mr. Manson. That's a question, Mr. Rahall, that I'm afraid 
I don't have an answer for you as I sit here today. That's 
something that I would need to study a little more and consult 
with other elements in the Administration.
    But certainly you--we're certainly in favor of, as Mr. 
Pombo suggested, carrying the cooperative conservation notion 
further, and we agree that it's not been taken to its logical 
zenith yet.
    Mr. Rahall. Well, although we are on a fast track to get 
this bill through the House, I'm sure it will not be quite as 
fast a track in the other body and we'll have time before a 
conference committee. So I'd appreciate it if the Department 
could get some more consultation and insight into this 
question.
    Mr. Manson. We certainly will.
    Mr. Rahall. A second question. No, I'm sorry; that's the 
only question I have. And I'd like, Mr. Chairman, to ask 
unanimous consent to yield the balance of my time to Mr. 
Miller.
    The Chairman. Without objection.
    Mr. Miller. I thank the gentleman for yielding.
    And I thank you, Mr. Manson, for your testimony. You 
touched upon this in your testimony.
    On page 26 of the bill it says, nothing in the recovery 
plan shall be construed to establish regulatory requirements or 
otherwise to have the effect other than a nonbinding guidance 
except with respect to any program or project covered by the 
implementation agreement under this paragraph.
    What is the Department's position on the idea that the 
recovery plan in this instance would be nonbinding and 
nonregulatory?
    Mr. Manson. Well, that's the current state of the law, that 
recovery plans are nonbinding and nonregulatory. And the way 
that has worked out in practice is that recovery plans are 
given great deference by State agencies, by the Fish and 
Wildlife Service itself, and by other agencies that have to 
work with recovery plans.
    It seems to me that just looking at the way the recovery 
planning process is set up here that it's likely that that 
practice would continue.
    Mr. Miller. Let me ask you, on the question that you also 
raise in your testimony, and that is the idea that a written 
proposal is submitted to the Secretary and the Secretary has 90 
days in which to make a determination of whether or not that 
proposal constitutes a take.
    What is the Department's position on that?
    Mr. Manson. Well, as I said, there's no--understand, 
there's no formal Administration position on this. But we're 
very concerned about that particular provision, that 
implementation of that would be difficult, that it creates 
administrative difficulties in meeting that requirement, that 
it's somewhat inflexible, that----
    Mr. Miller. The position is, or the point that you make in 
your testimony is that the Secretary, within that 90-day 
period, either makes a decision that this is a take and 
therefore would be required to provide for compensation; or 
makes a decision that it's not a take, and that's the end of 
the process, and that's based upon the written submission by 
the requester, as stated in the bill. Is that correct?
    Mr. Manson. That's right.
    Mr. Miller. And no additional information can be--or no 
extension can be extended to the Secretary to gather additional 
scientific evidence or whatever other kind of evidence if the 
requester does not go along with that.
    Mr. Manson. Well, it's certainly not clear.
    Mr. Miller. Well, it says that the requester may--the 
Secretary may request and the requester may agree to it or not.
    So it's in the hands of the requester?
    Mr. Manson. Right. And it's not clear that the requester 
need grant an extension.
    Mr. Miller. So if the Secretary asks for an extension to 
get additional scientific evidence, or whatever kind of 
evidence, the requester can say, No, make the ruling in 90 
days.
    Mr. Manson. And that would be a concern.
    Mr. Miller. That would be a concern, yeah. I'd assume that 
would be a concern because that would also set up the 
litigation of whether or not the Secretary may or may not have 
been arbitrary in making a decision because the Secretary 
didn't have the information.
    Mr. Manson. That would be a concern, yes.
    Mr. Miller. So this proposal--and, again, there's no 
guidance in the bill at all of what that proposal contains. It 
can simply be, I want to build 250 condominiums on 300 acres, 
and if you don't let me do it, you have to compensate me or 
either tell me it's not a take, right?
    Mr. Manson. That's the way it would appear, yes.
    The Chairman. The gentleman's time has expired.
    Mr. Miller. Thank you.
    I thank the gentleman also for yielding me his time.
    The Chairman. Mr. Duncan.
    Mr. Duncan. Thank you very much, Mr. Chairman. And first, I 
want to welcome Judge Manson back here. He's been here before 
us many times, and he always handles his very difficult job in 
a very intelligent, very sensitive way.
    I really don't have any questions. I just want to, first of 
all, commend the Chairman for what I regard as very common-
sense legislation and commend the Chairman and his staff for 
all the hours and all the work they've put into this.
    The latest figures I have show that Tennessee has one of 
the highest numbers of endangered species on the list and so, 
as you can imagine, this is a big issue in my State. And 
everyone has read and heard horror stories of ridiculous 
rulings that have come out over the last many years. And these 
rulings and the way the law presently is always hits the 
hardest on the smallest of our landowners. It hits the hardest 
on the small- and medium-size farmers, and the people that are 
least able to fight it. The big giants always seem to be able 
to get their way.
    But I think that what we're trying to do in this 
legislation is help what--I don't like to refer to it as ``the 
little guy,'' but that's what I think most people understand or 
would refer to it as. And so I commend the Chairman.
    You know, the worst polluters in the world, the worst 
environmental protection in the world is in the Socialist and 
Communist countries. Only in the free market, free enterprise 
system can you generate the excess funds to do the good things 
for the environment that all of us want done. And I think that 
anyone who approaches this legislation with a truly open mind 
would call this a very moderate bill. In fact, in almost any 
country in the world, this legislation would be hailed as great 
environmental legislation.
    The United States has made greater progress in regard to 
environmental protection than any country in the world in the 
last 25 or 30 or 40 years. Yet there are some, what I'd regard 
as extremist groups, who can't seem to admit that we've made 
progress; and they always have to tell people, tell their 
members that--how bad everything is and how terrible a piece of 
legislation is. And I think it's probably more related to fund-
raising than it is to actual concern about endangered species.
    But I thank you, Mr. Chairman, for yielding me this time.
    The Chairman. I appreciate the gentleman's comments, and I 
know that over the years he has worked extremely hard on this 
issue, and I appreciate his input into the legislation and to 
the Committee.
    I'm going to recognize Mr. Miller under his own time.
    Mr. Miller. Thank you, Mr. Chairman.
    And thank you, Judge Mason--Manson, excuse me. On the 
question of fair market value, there's a provision here that 
fair market value must be paid for the affected portion of the 
property and that the owner shall establish the fair market 
value, and that that is a rebuttable presumption on behalf of 
the owner, what the owner establishes that fair market to be, 
and then further ambiguities on fair market value would be 
resolved in the favor the property owner.
    I can have some discussions about whether or not that's 
fair to the taxpayer in terms of setting up these presumptions. 
But, in any case, if that determination is made and fair market 
value is arrived at under that process, it says, ``Funds 
available to the Secretary that are not mandated by law shall 
be spent for other activities.'' so the Secretary will be 
mandated to pay these out of other funds available to the 
Secretary. It, in fact, says, ``Any funds available to the 
Secretary that are not mandated by the law to be spent on other 
activities.''
    The fact of the matter is, much of the spending of the 
Department of the Interior is contained in the report language 
of the Appropriations Committee or under different arrangements 
that various Members of Congress have made there.
    Can you comment on what funds you think would be available 
to the Secretary to pay these compensations under this 
provision?
    Mr. Manson. Well, I haven't had a chance to--I'd have to go 
back and sit down with the budget and go through that. I 
haven't had a chance to consider that particular issue.
    Mr. Miller. Does the Department--do you have a position, or 
the Department have a position, on whether or not these other 
funds in the Department should be readily available to pay 
these claims?
    Mr. Manson. That's something that we've not yet analyzed.
    Mr. Miller. Well, I think that would be important. A lot of 
us have interest in many other areas, whether it's the national 
park system or whether it's the BLM or these other lands and 
the stewardship of those lands and the funds that are 
available. And I think if this is sort of an indirect 
appropriation of those monies, we would want to know what the 
Secretary's position is and what the Department's position is, 
because it may also dramatically change the way people are 
going to have to legislate around here if, in fact, they think 
that some other use of that money is going to be made available 
for one purpose and then, in fact, it's commandeered for 
another purpose.
    Mr. Udall of Colorado. Would the gentleman yield?
    Mr. Miller.
    Mr. Miller. Yes, I do yield.
    Mr. Udall of Colorado. I know a lot of us on the Committee 
have been working on this whole issue of PILT funding, and it's 
been a bipartisan effort. I wonder if the Secretary would 
comment on whether these moneys might come out of the PILT 
moneys which are short-funded at this point in time already.
    Mr. Manson. I don't have a position on that at this time.
    Mr. Udall of Colorado. There is nothing on the bill that 
would prevent those moneys perhaps being directed into these 
landowner payments.
    Mr. Manson. I couldn't comment on that right now.
    Mr. Udall of Colorado. I think it's worth considering.
    I thank the gentleman for yielding.
    Mr. Miller. I thank you.
    The other question you raised is the--we now have different 
arrangements with landowners, and sometimes they work out in 
cooperation with State and Fish and Wildlife agencies and 
others about the use of those lands. You raised some concerns 
about the species conservation contract agreements that require 
the Secretary to enter into these agreements and then to fund 
those agreements.
    Could you elaborate on that?
    Mr. Manson. Well, the concern that I have there--let me 
just move back to where I was on that particular issue.
    The concern there is that, as I said earlier, there's--I'm 
concerned about the cost of implementation there. It calls for 
60 to 100 percent of the landowner's costs in implementing the 
conservation practices there. There's a--there's no matching 
requirement there, particularly, and a lot of our grant--
existing grant programs do have matching requirements.
    And those are concerns that I would categorize as not 
overwhelmingly significant, but they are concerns when you talk 
about grant programs.
    The Chairman. The gentleman's time has expired.
    Mr. Miller. Thank the gentleman.
    The Chairman. Mr. Gilchrest.
    Mr. Gilchrest. Thank you, Mr. Chairman.
    Welcome, Mr. Manson. It's been a long time since we've been 
together on the Eastern Shore, Blackwater Refuge and other 
places, restoring habitat, planting bay grasses and so on. And 
I hope you're feeling well.
    Mr. Manson. I am, thank you.
    Mr. Gilchrest. That's wonderful. I have just one quick 
comment and three quick questions. The comment is looking at 
all the provisions in the legislation before us, to go back to 
the example, and there are thousands of examples, and this is 
not a major one by any stretch of the imagination.
    But it shows me, in this issue on the Sassafras River with 
the tiger beetle, that the present regulations in the present 
statute of ESA brought people together so that they could 
exchange information; Section 7 consultation worked, the 
scientific community elaborated and made a broader view of what 
the issue was, rather than just that bluff and just that 
beetle, to look at the whole ecosystem.
    And my concern is that some of the provisions in the 
present legislation that would reduce the potential for that 
kind of exchange of information, which brings that issue to a 
much broader success, would not work. The question I have, 
though, is--that's just my opinion, my strongly held opinion.
    In Section 8, Section 4(d), this deals with the present ESA 
threatened species and endangered species--the same for many 
different circumstances, certainly for buying and selling, 
importing and exporting, et cetera, et cetera. It seems to me 
that Section 8, 4(d), separates those two designations, so that 
the endangered species will receive the protection of Fish and 
Wildlife Service, but the threatened species, one species at a 
time, would have to be reviewed and regulated to receive that 
protection.
    I'd just like you to comment on that.
    Mr. Manson. Well, in fact it struck me as I read Section 8 
of the bill, that what it does is it restates the existing 
Section 4(d), existing Section 4 and then adds some caveats to 
existing Section 4(d).
    Under existing Section 4(d), threatened species are treated 
differently than endangered species. The prohibitions of 
Section 9, the take prohibitions of Section 9 do not apply 
under the current statutory language of existing Section 4(d). 
It's only by regulation adopted some 25 years ago that the 
prohibitions of Section 9 apply to threatened species.
    This provision, as I read it, in Section 4(d), existing 
Section 4(d), does allow the Secretary, by regulation, to apply 
prohibitions of Section 9 to threatened species. And this 
Section, as I read it, puts some caveats on those regulations 
that would be adopted. It says that each regulation published 
under 4(d) would have to be accompanied by a statement of 
reasons for applying that particular prohibition. And then----
    Mr. Gilchrest. If I could interrupt just for a second, so 
you're reading number 2?
    Mr. Manson. Number 2, yes, sir.
    Mr. Gilchrest. Each regulation published under this 
subsection shall be accompanied by a statement of the Secretary 
of the reason or reasons for applying any particular 
prohibition to the threatened species.
    That's existing law?
    Mr. Manson. No, that would be new law.
    Mr. Gilchrest. Now, would that be cumbersome for the 
Secretary or the Fish and Wildlife Service to do that for each 
particular species?
    Mr. Manson. No, because, I wouldn't think so. As Section 
4(d) works out in practice right now, individual regulations 
are published for--the prohibitions, when the effect of the 
existing 4(d) regulation is relieved, we publish individual 
regulations. So this would be just doing it the other way 
around, in essence, so--and then three----
    Mr. Gilchrest. I probably have 30 seconds.
    Well, I don't have any time left. I'll have to--well, we'll 
continue. I had some other questions about, does this in fact 
lessen the protection for threatened species?
    Do threatened species under this bill, in your opinion, 
have less protection than existing law?
    Mr. Manson. Not under--no, not under the existing statute, 
no.
    Mr. Gilchrest. So the proposed statute before us did not 
reduce the protection for threatened species?
    Mr. Manson. Not from the existing statute, no, because the 
protections that threatened species have under the existing 
statute are the same as they would have under this statute. Now 
the issue has to do with regulations and the nature of 
regulations adopted under the statute.
    Mr. Gilchrest. Thank you very much.
    Mr. Rahall. Mr. Chairman, may I speak very briefly out of 
order?
    The Chairman. Yes, Mr. Rahall.
    Mr. Rahall. I want to apologize to the next panel, to the 
Committee for having to leave. A higher power is calling me for 
a delegation meeting, that is, our senior Senator, Robert Byrd, 
so I do have to depart; and I want to express especially to the 
next panel and Jamie Clark my appreciation for all of the work 
that she has put in on this issue over many, many years and 
especially during these consultation processes and these 
negotiations.
    I appreciate her invaluable help and I apologize for having 
to run.
    The Chairman. Thank you.
    Mr. Cardoza.
    Mr. Cardoza. Thank you, Mr. Chairman.
    Mr. Manson, we've heard a number of times before that a 
substantial amount of your budget is consumed in the litigation 
process, which hampers the ability for your agency to do sound 
science and actual restorations. Is that correct?
    Mr. Manson. Yes. We've testified in this Committee before 
about the issues, particularly with respect to critical 
habitat, the amount of money that we spend on litigation over 
critical habitat, in particular, and how that diverts resources 
from other activities that we feel would contribute more to the 
conservation of species.
    Mr. Cardoza. In fact, when we were doing significant work 
on my particular area with the $1.67 million acres of rental 
pools for ferry shrimp and red-legged frog, when I talked to 
the folks that were in the process of that, and we criticized 
the fact that there were parking lots that were paved over that 
were included in the listings and all, it was told to me at 
that time that there was no money to buy current zoning maps 
because of the overextension of the budget.
    Mr. Manson. I don't recall the specific issue about zoning 
maps.
    Mr. Cardoza. I don't know the gentleman that told me that, 
but someone told me that.
    Do you have any idea, the amount of money that's being 
spent by your agency on litigation?
    Mr. Manson. I do. I don't have the figure with me right 
now, but we are currently involved in 35 active lawsuits, and 
complying with another 42 court orders; and with each of those 
court orders comes the payment of attorneys' fees as well.
    Mr. Cardoza. That's my point. Because it's my understanding 
that there are certain organizations that continuously, like a 
mill, just churn out these lawsuits, and then because of the 
way the law is written, they get compensation that continues to 
fund their activities because they are churning out these 
suits.
    Would that be a fair characterization of your experience?
    Mr. Manson. I would say that we see the same plaintiffs 
over and over and over again.
    Mr. Cardoza. Thank you. In your opinion, you mentioned to 
Mr. Pombo, I believe, or in response to Mr. Rahall that you had 
some concerns about the time line portion of getting the answer 
back to the landowner.
    Mr. Manson. Yes.
    Mr. Cardoza. I have conflicts in both areas. I believe the 
landowner deserves a timely answer, and as well, I am concerned 
that we've enough time to do the science that Mr. Walden has 
said that we need do in some of these areas.
    How do we reconcile that in the best way that--I know you 
haven't had a long time to think about this, but do you have 
any opinions about what would be the best way to reconcile 
this? Because the Committee is going to have to deal with that 
issue.
    Mr. Manson. Right, I see the tension there and I agree that 
that's an issue. I also agree that landowners deserve timely 
answers to any issues that they bring. Any citizen deserves a 
timely answer to issues they bring in front of the government. 
And in this area, in particular, landowners deserve timely 
answers because things that they are doing on the land are time 
sensitive, whether it's farming or ranching or development or 
whatever it is; those are all time-sensitive activities.
    And I think my concern is not so much that we've time to do 
the science, because I think that in most cases the science is 
done for those kinds of questions that would be asked. My 
concern is more on the administrative side of getting those 
things done and having the resources to respond responsibly and 
timely in an administrative fashion. If we do some of these 
other things that are being talked about, we may, in fact, have 
some of those resources freed up to do some of those things.
    Mr. Cardoza. Thank you. In my area there is a community of 
Newman and there's a creek called Orestimba. And the community 
was unable to clear the creek when it had been maintained for a 
number of years because of something called the elderberry bark 
beetle. And the community flooded, I believe it was three times 
in about a 10-year period, for lack of the ability to clear 
that beetle.
    So what we're talking about, oftentimes--it's often pitted 
as developers against the environment. But, in reality, this 
channel that was created to divert the water away from the 
community to keep it from flooding was then overgrown by a 
shrub that enhanced the habitat for elderberry bark beetle. 
They then go into that area. And it wasn't developers, but it 
was really a vulnerable community who was trying to gain 
protection there.
    How often do you see these kinds of situations, the real-
life situations not being development, but being--trying to 
protect our citizens, somewhat maybe like the hurricane that we 
just experienced or other things?
    Mr. Manson. Well, that's much like the situation we had 
with trying to keep our forests healthy. There are a number of 
situations like that. It's not all about building and 
development. But there are situations where work has to be done 
on the land and the issues come down to very similar things 
such as you described. And that happens not only in California, 
but across the country.
    Mr. Cardoza. I have one additional question, sir.
    Clearly, there are issues that we still need to correct. 
This is early legislation that has some technical corrections 
and glitches that are still in it. But from your perspective as 
the person who implements the current law and would have to 
implement this law, do you see--we're hearing terms, 
``eviscerate the environment'' and ``devastating consequences 
to the world as we know it.'' from your perspective, as the 
regulator who would have to oversee this law versus current 
law, which do you think might work better in real practice?
    Mr. Manson. Well, on the provisions that I have commented 
on, aside from the ones that we have concerns about, I think 
that these are reasonable approaches and workable ones.
    Mr. Cardoza. Thank you, sir.
    The Chairman. Mrs. Cubin.
    Mrs. Cubin. Thank you, Mr. Chairman.
    And thank you, Judge, for being here. We really do 
appreciate all the cooperation that you always give us.
    One of the major goals of this legislation, as you know, is 
to ensure the utilization of the best available scientific data 
when listing, downgrading or delisting a species under the ESA. 
This bill grants the Secretary a fair amount of flexibility in 
determining within 1 year regulations to help determine what 
constitutes best-available scientific data.
    So what currently underused, underutilized data sources, 
such as local governments and so on, impact studies, do you 
foresee that the Secretary would be able to use to include 
within the new regulations?
    Mr. Manson. Well, you mentioned State agencies, for 
example. We have made an effort to recognize that State 
agencies are repositories of great scientific knowledge, 
particularly about their areas. We continue to try to 
strengthen our cooperative relationships with academic 
institutions, particular natural States where there is a great 
connection to the land and to endangered species issues, 
particularly in the West.
    And I'm sure there are others. Those are several that come 
to mind right off the bat.
    Mrs. Cubin. Thank you.
    According to Fish and Wildlife Service, only 10 out of the 
1,264 listed species or listed and threatened species have been 
recovered, while I think it's 24 have gone extinct. And I 
wonder if you'd agree that poorly defined recovery plans played 
a significant role in what I consider to be, frankly, an 
embarrassing rate of less than 1 percent recovery.
    Mr. Manson. Well, in some cases, that certainly may have 
contributed. The fact is that we have a lot of species that 
don't have recovery plans. We have species that have been on 
the list for years or decades in some cases for which there are 
no recovery plans, and that I think is a shame, and we have not 
done a good job focusing on recovery.
    Mrs. Cubin. So, how do you foresee the recovery plan 
requirements included in this legislation assisting the 
Department in working with individual State governments to 
manage the recovery process of the ESA listed species?
    Mr. Manson. Well, if these provisions became law, there are 
time limits on getting recovery plans done. There are 
requirements that we adopt regulations to define the recovery 
process. And I would, without prejudging how that would come 
out, but we made it in this Administration an important element 
of our program to work with States. And in various regions of 
the Fish and Wildlife Service, although not in all regions, the 
Service has made States an important part of the recovery 
planning process, and I imagine that that is something that 
would likely turn up in regulation.
    Mrs. Cubin. I don't have anything further.
    Thank you very much, Judge.
    The Chairman. Thank you.
    Mr. Abercrombie.
    Mr. Abercrombie. Thank you, Mr. Chairman.
    Mr. Secretary, thank you. I realize you are in a difficult 
position, having just received the bill, you know, a day or so 
ago. But you are aware of some of the discussions that have 
been going on, and I appreciate and you can appreciate our 
difficulty, too. Some of our questions may seem a bit abstract 
because we are trying to figure out what we do with, all 
scientific information versus best. And we have--you know, 
where individual words become very important, so we are going 
to look at those kinds of things.
    But you did say in your testimony you had some general 
observations, and that's what I'd like to concentrate on here a 
little, a little bit of the philosophy.
    So you understand my position, I think a lot of this can 
be--a lot of the confrontation that's taking place, a lot of 
the 35 active lawsuits and the 42 court orders might be 
obviated, actually put to the side if we could agree on 
compensation, on the question of compensation for the taking of 
land. Not even getting into a real argument about what 
constitutes a taking, because that's always subject--that's 
been subject to court decisions from the time of the revolution 
as to what constitutes--in fact, there's a big argument right 
now, is there not, across the country about whether land can be 
taken for a public use or a private use.
    So I'm not really concerned about pejorative examples like 
2,000 acres is going to be developed and the Service allows 
them to do it. I don't know about the rest of the country, I 
just asked Mr. Cardoza about California, but I can tell you, in 
Hawaii, the Fish and Wildlife Service doesn't make zoning 
decisions. It doesn't make a decision about whether somebody is 
going to put houses on land, that kind of thing. That's up to 
our county council and zoning boards and all kinds of things 
like that. So I think that's a shimmer; I don't think that 
that's a real issue.
    The question I have for you, and my reaction to your answer 
was--I thought it was a little vague. I understand. But 
philosophically, doesn't the Bush Administration support paying 
compensation to property owners if the government deems it in 
the public interest to take land?
    Mr. Manson. Philosophically, we do support paying 
compensation to landowners whose land----
    Mr. Abercrombie. If we could just get that on the record, I 
think we'll be a long way down the road. Now, you don't have to 
go back now and have Karl Rove down and beat on your head and 
say: What did you do? I am just--I wrote a little note to 
myself, fair market value; is the Administration prepared to 
support this? And that is--if we can get that far, then we can 
wrestle with this legislatively as to how to make that work.
    What I mean by fair market value: Supposing you've got 
land. You know, all of us are going to decide a lot of our 
position on the basis of where we are locally anyway. Right? 
Because that's who you have to answer to electorally. The fact 
that somebody wants to develop land for housing, we've got a 
situation like that in my district right now, it doesn't mean 
it's going to happen. The fair market value isn't based on 
highest and best use necessarily; that would be something we'd 
have to get squared away in our legislation here. Because 
highest and best use, you can put all kinds of implications 
into that as to what the profitability might be. That presumes 
financing is there and all the rest of it. But if you are doing 
fair market value and land was presently, say, in conservation 
or in agriculture, that's how you would make your judgment. 
Wouldn't you think? Is that a fair assessment?
    Mr. Manson. That's a fair assessment.
    Mr. Abercrombie. Or should we make that--maybe the better 
question to you is: Should we make that clear in the 
legislation as to what we're talking about when we talk about 
compensation?
    Mr. Manson. Well, there are a lot of ways to skin the 
compensation cat, so to speak.
    Mr. Abercrombie. And I was going to suggest to you, we 
could do things like tax credits. We could do things like 
bonds. You know, it doesn't necessarily mean that you're going 
to have to come up with, I mean, the final legislation.
    Mr. Miller. Would the gentleman yield?
    Mr. Abercrombie. Sure.
    Mr. Miller. I think this is kind of--you are at a central 
point in this legislation. It says that it would be the fair 
market value of the foregone use of the affected portion of the 
property. So in the scheme of things, the best thing I could do 
as a landowner, if I want to build--and this is not unusual in 
the central valley. I want to develop 2,000 lots. I just want 
to develop 2,000 lots. That's probably going to be ruled as a 
take. Now, irrespective of what happens later in the zoning 
process when I go through the county, I go through all the rest 
of that. So, instead of 2,000 lots, I end up with 1,500 lots. 
But the take's already been established, and the theory is that 
I've foregone those 500 lots. It doesn't say whether I was able 
to get those 500 lots based upon--so, and that is established 
by the landowner.
    Mr. Abercrombie. Can I take back my time? I understand. 
That's why I raise the issue. I think we need to come to grips 
with that, as to what we mean by taking and the definition. I 
am not sophisticated enough in legal terminology at this stage 
to know whether or not what Mr. Miller just cited means that 
somebody could say, well, 10 years from now, I expect to be 
putting in 2,000 house lots down here, whatever it is, even 
though that may be something that has to go through six or 
seven different zoning hoops and county councils and all the 
rest of it. It may never happen. So we need to come to grips 
with that. That's really my point. We need to make clear in 
this legislation what we mean by fair market value if we have 
some question as is indicated here as to whether that could be 
taken advantage of in some adverse way. That's up to us to do 
that in the legislation. Right?
    Mr. Manson. I think that's an issue that we're concerned 
about.
    Mr. Abercrombie. OK. But philosophically though.
    Mr. Manson. Philosophically, we're not opposed.
    Mr. Abercrombie. We're not opposed to trying to reconcile 
the legitimate, as defined by legislation----
    Mr. Manson. Right.
    Mr. Abercrombie. A legitimate interest of landowners and 
those who see a threatened or endangered species in connection 
with that land.
    Mr. Manson. Absolutely, we're not opposed to the notion of 
paying compensation to landowners whose land is taken by the 
government for what is a public use.
    Mr. Abercrombie. Now, one other question. My time is up. 
But I think we need to explore this 90-day question as to 
whether that's sufficient time, really, to do this in the wake 
of trying to understand what is best available scientific 
evidence and so on. We will have to explore that at another 
point, Mr. Chairman. Thank you.
    The Chairman. I thank the gentleman.
    Mr. Walden.
    Mr. Walden. Thank you very much, Mr. Chairman.
    Judge, a couple of questions. When you appeared before our 
Committee a year or two ago on the legislation--required 
independent peer review of the science legislation I had, I 
know you expressed some reservations about that bill at that 
time. You've had a chance to read through these provisions, I 
would assume. Have the concerns that you raised at that time 
been addressed by the language in this legislation?
    Mr. Manson. I believe so.
    Mr. Walden. Are you comfortable with the scientific data 
requirements that are written into this proposal?
    Mr. Manson. I can say I'm comfortable with those.
    Mr. Walden. Thank you.
    Second, I want to get to the issue Mr. Abercrombie and Mr. 
Miller both raised, because I think it is--and I like the way 
that you got at this issue. Because I believe that if the 
government comes in and tells you, you can't use your property, 
then it's a public interest and the public needs to step up and 
help compensation so that all the burden isn't on the private 
property owner. And I'm not a lawyer, but you are. Help me 
understand this. Because when you are talking fair market 
value, doesn't that really mean that I can't come to you with 
some speculative venture that would never be allowed under 
State or local laws and come to the Federal Government and say, 
hey, I want to do 2,000 condo units and you don't want me to do 
any, so therefore you've got to pay me for the loss; when in 
fact maybe the local zoning or State laws would never have 
allowed you to do 2,000 units? You'd still have to meet 
whatever the local zoning and State laws were. Right?
    Mr. Manson. Well, you certainly would have to, as I 
understand the bill as written, it talks about foregone use. 
And you would have to show that was--I would imagine you would 
have to show it was a use that you could actually have 
foregone.
    Mr. Walden. Exactly. And to do something other than that, 
wouldn't that verge on fraud? Wouldn't it be a fraudulent claim 
to the government to come to the Federal Government and say, I 
was going to do 2,000 units because that's what I want to do. 
Oh, by the way, the local governments never would have allowed 
me to do it, but that's beside the point.
    Mr. Manson. It certainly would not be a valid claim, I 
would think.
    Mr. Abercrombie. Would the gentleman yield 10 seconds on 
that?
    Mr. Walden. Sure.
    Mr. Abercrombie. Mr. Secretary, can you define in the 
context of Mr. Walden's question what you understand the phrase 
``foregone use'' to mean in the context of this bill?
    Mr. Manson. Well, it would seem to me just by looking at 
the plain meaning, and I'm making an assumption here, that it 
would mean a use that one could legally and feasibly have 
accomplished and not something that one wished one might have 
done.
    Mr. Walden. And then let me--if that got to your point, Mr. 
Abercrombie, then let me go to the next stage. This isn't some 
radical concept of compensation. Don't we do this very thing 
when we run a highway through somebody's ranch?
    Mr. Manson. Well, through a condemnation process.
    Mr. Walden. Right. But then we establish a fair market 
value process. That's the piece I'm getting at.
    Mr. Manson. Well, and that's true. And my concern was that 
the fair market value provisions as written in this bill don't 
seem to conform with any usual processes that are known and 
used in those situations. The provisions seem to suggest that 
the landowner could establish a fair market value himself or 
herself. And there are accepted systems and means of doing 
that, and those did not seem to appear in this particular bill.
    Mr. Walden. Your suggestions are very helpful, because we 
want to get it right. We don't want to have a blank check to 
anybody that just wants to say, well, my property is worth a 
gazillion dollars.
    I have a question for you on the jeopardy language in the 
bill, and I hope you've had a chance to look at that. In your 
personal opinion, do you think that the jeopardy standard in 
the bill would apply to currently ongoing Federal projects? 
And, if so, do you think that would trigger a reconsultation of 
all of them that are in the works?
    Mr. Manson. I think there's a question about that. I think 
that that is a--that that is an arguable proposition. And so 
there's--that would be of concern I think to those who are 
involved in situations where they've got ongoing projects.
    Mr. Walden. And finally, a broader ESA question. Doesn't 
the language of the ESA prohibit the killing, harassing of 
species that are on the list?
    Mr. Manson. Section 9 does, yes.
    Mr. Walden. Why then, for example, the wild Chinook Snake 
River salmon, why are they allowed to be harvested out in the 
ocean? Why is that not a violation of the ESA?
    Mr. Manson. That, of course, is something that is under the 
jurisdiction of NOAA. And as I understand it, they have a 4-D 
rule for commercial harvest.
    Mr. Walden. That allows the harvest of a species that is 
threatened with extinction? Is there anything in your 
jurisdiction where you allow the harvest of any species that is 
either endangered or threatened?
    Mr. Manson. Well, we don't have species that are of 
commercial value, so we don't have things that are harvested.
    Mr. Walden. Well, how about sport value?
    Mr. Manson. We do have species that are allowed to be taken 
for sport fishing purposes.
    Mr. Walden. This whole concept bothers me. When you look at 
the amount of money and effort we put into recovering a 
species, and yet there are some, because of outside political 
pressures, whether it's sporting or commercial or whatever, we 
allow to be harvested.
    Mr. Manson. Well, the theory of, at least in the case of 
species under the jurisdiction of the Interior Department, that 
are allowed to be taken for sport fishing purposes is a limited 
number of species. The theory is that the sport fishing does 
not--is not something that contributes to the threat to the 
species.
    Mr. Walden. Thank you.
    The Chairman. Mr. Inslee.
    Mr. Inslee. Thank you, Mr. Chair.
    Judge, some have suggested that we need to change this Act 
because the Act is flawed. Some have suggested that the 
executive branch of the Federal Government is flawed, that it 
has not complied with its statutory obligation to the American 
people to recover these species. So I'm going to ask you some 
questions about that, of that nature.
    During the Clinton Administration, the American people had 
521 species that were listed for protection. During the first 4 
years of the first President Bush's Administration, 234 species 
were protected for the American people. Can you tell us the 
number of species that have been protected by listing during 
your Administration that were not required by court order or 
lawsuit or citizen petition? In other words, you weren't forced 
to do it.
    Mr. Manson. Well, first of all, citizen petition is the 
usual way that species get on the list. As to those that have 
been listed other than by court order, I think the number is 
probably less than five.
    Mr. Inslee. Well, less than five.
    Mr. Manson. Yes.
    Mr. Inslee. I want to make sure I understand that. Clinton 
Administration, 521 species protected for the American people. 
The first Bush Administration, 234. The second Bush 
Administration, 5 or less. And if you'd count----
    Mr. Manson. I'm talking about court order.
    Mr. Inslee. Zero. Now, does this in all fairness--we can 
assume that, all of a sudden, species didn't get healthy with 
the election in 2000, can we? There is not some biological 
thing that suggests that these species are no longer suffering. 
Is that a fair statement?
    Mr. Manson. I think it's fair to say that there is no 
correlation between a Presidential term and the health of 
species, yes.
    Mr. Inslee. Unfortunately, that seems to be the case. What 
then explains, if the biology indicates that we continue to 
have increasing numbers of species under stress, and this 
compliance with the law during the first Bush Administration 
and the second Bush Administration, now we see this precipitous 
drop to almost zero, almost zero protection of these species 
for the American people, how do you explain that?
    Mr. Manson. Well, first of all, when I say--my answer to 
your question was the number listed other than by court order. 
That's an important thing to understand. There were a number of 
species listed by court order in both of the two previous 
Administrations that you listed.
    Second of all, we have taken an approach that avoids 
listing to some extent by focusing on the creation and 
restoration and enhancement of habitat. And you heard several 
members of the Committee mention the sage grouse, and there are 
other examples, where we determined that listing was not 
required because of efforts to restore and enhance and protect 
habitat that reduced threats below the level necessary to find 
that listing was warranted.
    The other factor is that the fact that we have so many 
petitions for--we have so many court orders, as I've testified 
in this Committee before, that we do very little discretionary 
work.
    Mr. Inslee. So I guess what you're saying then is that this 
Bush Administration is doing it right by not listing species 
for protection, and the first Bush Administration did it wrong 
by listing species for protection when they listed 234. Is that 
kind of what we understood?
    Mr. Manson. I'm saying we are doing it differently.
    Mr. Inslee. That is certainly the case. You are doing it 
differently.
    Let me ask you about critical habitat. You came before this 
Committee in April, I believe, of 2004. And at that time, you 
said that there had been some legislation amending the Act, and 
you said, quote: Later this week, this draft critical habitat 
guidance will be finalized, and the Service will begin applying 
it, close quote. And that was referring to a critical habitat 
guidance that has been missing from your agency for years that 
prevented critical habitat from being designated, which was one 
reason for the difficulty of recovering these species. Your 
agency didn't have guidance to your employees how to designate 
critical habitat, and you were rightfully criticized for over a 
year about that and you refused to act. And then, in April 
2004, you came to our Committee and said you were going to do 
it that week. Has that been done?
    Mr. Manson. Well, we have not done formal guidance.
    Mr. Inslee. I guess, the answer--excuse me. Go ahead. I 
don't want to interrupt.
    Mr. Manson. What we have done is we have done informal 
guidance, and we continue to develop that informal guidance as 
we go along. And the fact is that field offices get guidance 
constantly on how to do critical habitat.
    Mr. Inslee. Well, Judge, we're talking about what I would 
characterize as euthanizing the Endangered Species Act, thereby 
removing and stripping the Federal Government of the ability to 
protect critical habitat and statutorily removing that very 
important tool to protect these species. People have criticized 
the Federal Government saying, well, this system is messed up 
about designation of critical habitat. And it is. And the 
reason is, is that your agency under your leadership has 
abysmally failed to give guidance to your employees about how 
to designate critical habitat. And you came to us, these people 
right here, Republicans and Democrats, when we justifiably 
criticized your failure in that regard, and you told us you 
were going to do it that week. It's been over a year now. Now, 
are you telling us now that what you said in April was just 
false? Or have you now concluded that it's not important, this 
is not an important issue enough to give guidance to your 
employees? Which is it?
    Mr. Manson. Neither one. We actually decided to take a 
different approach to critical habitat guidance as we got more 
and more court decisions about critical habitat, and so we have 
taken the approach of giving informal guidance to the field 
offices, and that's what we've done.
    The Chairman. The gentleman's time has expired.
    Mr. Inslee. Thank you.
    The Chairman. Miss McMorris? Pass.
    I did want to move to the next panel. If anybody had one 
additional question that they would like to ask Judge Manson 
before we excuse him.
    Mr. Udall of New Mexico. Mr. Chairman.
    The Chairman. I'm sorry.
    Mr. Udall of New Mexico. There's some here that haven't----
    The Chairman. I'm sorry. Mr. Udall.
    Mr. Udall of New Mexico. And then Ms. McMorris hasn't and 
then I think Mark Udall hasn't. Thank you.
    Just to be really clear about, Mr. Secretary--first of all, 
let me thank you for your testimony here today. I wish that you 
had had a real opportunity to study this bill and analyze it 
and be able to take a position, because the unfortunate thing 
today with this rocket docket we have going on here is that 
when the crucial questions have been before us, you have made 
statements. Mr. Miller asked about the 90 days notice, and you 
said that's a concern. You were asked on the appropriations for 
Section 14. Well, we haven't had a chance to consider it. No, 
we haven't had a chance to analyze it. In your testimony, your 
written testimony, you say: We haven't had a sufficient time to 
fully analyze the legislation or to develop a formal 
Administration position on the bill. After we've had more time 
to review the bill, we'll be happy to fully discuss its 
provisions with the Committee.
    This is--you are not going to have a chance to discuss it 
with the Committee. We're marking it up tomorrow, we are 
sending it on to the House Floor. Does that concern you at all? 
Wouldn't you like--you're the--you are the expert. You are 
the--and the experts below you. We are not going to get to hear 
from any of the scientists, we are not going to have the 
opportunity to hear from any of the people that really know 
this in your agency, and we're moving forward on this rocket 
docket to hear the bill today, mark it up tomorrow, and send it 
on to the House. Does that concern you at all?
    Mr. Manson. Well, certainly it's always nice to have the 
luxury of time. But sometimes it doesn't work that way, and I 
understand that.
    Mr. Udall of New Mexico. So it doesn't concern you, that 
sounds like. You as the--you're the representative of the 
experts in the government that know and understand the 
Endangered Species Act, and you have really been cut out of the 
process. And that doesn't bother you at all?
    Mr. Manson. If the Congress chooses to pass this bill, then 
we will make it--we will do our utmost to work with the 
Committee and make it work.
    Mr. Udall of New Mexico. But you think that's a wise 
course, to not listen to the people that are under you that 
have the expertise?
    Mr. Manson. It's not up to me to make judgments about the 
congressional----
    The Chairman. Would the gentleman yield?
    Mr. Udall of New Mexico. I would like to address the 
Chairman. I think that this is an extraordinary procedure where 
we aren't able to actually hear from the agency. And I would 
just ask the Chairman to delay this rocket docket we're on and 
give us the opportunity to hear from the Administration fully 
on this bill. And I would just respectfully make that request 
to the Chairman, and I would hope that some of my colleagues 
would join me in that request. And at this time, I will yield 
to the Chairman.
    The Chairman. I appreciate the gentleman yielding. Over the 
last couple of congresses, we've had over 45 hearings on the 
Endangered Species Act where we have heard from the 
Administration, from any and every outside group that anybody 
could dream up to testify on the Endangered Species Act. It's 
not like this is a new issue. I realize that this is a new 
bill, and there are issues that we need to work out, and I'm 
continuing to work with members in the minority and the 
majority on what their issues are. But this is not a new issue. 
And the gentleman has sat through hours and hours and hours of 
testimony and discussion on the Endangered Species Act. So to 
try to act like this is something that we haven't fully vetted 
and it has not been before this Committee, I think, is a little 
bit more than disingenuous.
    Mr. Miller. Would the gentleman yield?
    Mr. Udall of New Mexico. I will yield----
    Mr. Miller. Just on that point. I don't think this is about 
pointing fingers. I've been here 31 years, I've sat through a 
zillion hours on the Endangered Species Act. But we are now 
down to the bill, and I think the question is really the airing 
of the bill. And it's not about good faith or any of that, it's 
that we're now down to what will become the law. And I think 
it's important that people have an opportunity to comment on 
that, whether they're Members of Congress or they're outside 
organizations. I think that's the point that we're trying to 
make. Not to delay this, not to push this to the next Congress. 
You know, I differ with some of my colleagues on this side and 
with many in the environmental community on this idea. I don't 
think that you can ever get it right. I suspect the informal 
guidances you're giving as to how to stay out of a lawsuit, not 
how to protect a species, it's just that more of that's the 
concern there because you are trying to weave your way through 
the courts. And I think that if we could deal in a proper 
fashion with critical habitat, we could probably erase 70 
percent of the delays, the bureaucracy, all the problems, the 
lawsuits and the litigation and all the rest of that. And so 
this law becomes very important because it goes right to the 
issue of critical habitat. The question is, has this been 
properly balanced? And I don't say that, again, accusing people 
of intentions or bad faith, but we are now down to that point; 
we have sort of broken the dam here to talk about critical 
habitat. I think it's very important that we do that. So when 
we're talking about time to get this right, it's not that we 
are going to end up in agreement or consensus, but there may 
be, as I've seen I think already Mr. Manson's testimony 
already, there are some things that we have to rethink in terms 
of how this bill will in fact operate.
    The Chairman. I'm going to give Mr. Udall an additional 
minute because we burned his time.
    Mr. Udall of New Mexico. Mr. Chairman, and Mr. Miller said 
it very well. I would just like to say it, maybe, a little bit 
differently. I think that this is a--this piece of legislation 
which with the way it's moving now is headed for the Floor 
very, very quickly and being marked up within the next day or 
so. It's 74 pages of new information. It has the possibility of 
passing the House. Your party's in the majority. It looks like 
it has support. It seems to me that we're rushing to judgment 
here. We should have the opportunity to at least hear from the 
Administration. They are the ones that have administered this 
law. They've got the experts. They've got the scientists. And I 
do it with no intent of delay. I just think we could--I'm sure 
that Mr. Manson within a week or so would be able to come back 
and tell us his formal position on what all these provisions 
are and us have the opportunity to question him. So I would 
just renew that request.
    I also have several other questions of Mr. Manson, and I 
think others on this side do also, so I would like to have 
another round. I hate the idea of keeping this other panel 
waiting, but I would like that opportunity. Thank you, Mr. 
Chairman.
    The Chairman. I recognize the other Mr. Udall.
    Mr. Udall of Colorado. Thank you, Mr. Chairman.
    Judge Manson, I'd like to go back to section 8 of the bill. 
I'm concerned that perhaps we left my friend and colleague, Mr. 
Gilchrest, with the wrong impression about section 8. And 
starting at the top of page 15, as I read it, the first three 
lines on that page would repeal part of what's now Section 4(d) 
of the Act itself. And if I could, I want to read to you the 
part of the current law that would be repealed: Whenever any 
species is listed as a threatened species pursuant to 
subsection C of this section, the Secretary shall issue such 
regulations as he deems necessary and advisable to provide for 
the conservation of such species.
    So, in that context, isn't it true that section 8 would 
eliminate the current requirement that steps be taken to 
conserve a threatened species?
    Mr. Manson. The wording is different. The effect, I think, 
is not necessarily to eliminate the requirement or the ability 
of the Secretary to issue regulations to conserve threatened 
species. I think, it seems to me, the aim of it is at the 
section 9 prohibitions.
    Mr. Udall of Colorado. I think you've focused on a key 
question, and piggy backing what Mr. Udall from New Mexico 
visited with you about and we just discussed in Committee. As 
lawmakers, whenever you see a shall versus a may, of course it 
draws your attention. And in your proposed section of the 
legislation in this, it reads: The Secretary may by regulation 
published on or after the date of publication. Current law says 
shall. And this is why, again, I think it's so important to 
have additional opportunities to give the Department of the 
Interior a chance to understand what this may or may not 
involve.
    If I could just, moving to another point, and then I want 
to yield to my friend from California, Mr. Miller, if I have 
time remaining. Mr. Walden made the point about foregone use. 
And the bill doesn't define foregone use. Would it be helpful 
to have a definition in this proposed legislation when it comes 
to the concept of foregone use?
    Mr. Manson. In legislation, generally, it's frequently 
helpful to have definitions. I don't know that--I don't know in 
this instance that we could come up with a definition of 
foregone use that's any more specific than the plain meaning of 
foregone use. And, if so, it would have to be one that relates 
to the term foregone use as would be generally understood with 
respect to compensation and condemnation and those sorts of 
considerations generally.
    Mr. Udall of Colorado. It sounds like that's as close to a 
yes as I'm going to get from you.
    Mr. Manson. I think it is.
    Mr. Udall of Colorado. I would like to yield to my 
colleague from California, Mr. Miller.
    Mr. Miller. I thank the gentleman for yielding. And I don't 
think there's much time on your clock, but let me see. And I 
hope we do have a second round because I have a question on 
compensation.
    But the point that Mr. Udall just raised with you on the 
protective regulations, section 8, the fact of the matter is 
that first sentence that is being stricken from the law, I 
think you unintentionally misspoke when you said it's just a 
question of regulations. The law requires the Secretary to 
provide for the conservation of such species as he or she 
determines for the conservation. We don't--we are not all in 
agreement here on the ESA. But that is clearly a different 
approach in terms of providing for that conservation of the 
species early on that is threatened as opposed to what may or 
may not take place if the Secretary so desires under the bill 
as it's written, and it's a very fundamentally different 
approach. It's sort of like mitigation before the hurricanes to 
fix the levees so you don't have to recover the city that's 
flooded. If you deal with threatened species and you provide 
for the conservation of species, you may be able to tread more 
lightly on private property owners in the consideration as that 
species is drawn into consideration in the path of timber, 
mining development or what have you. So it's a very different 
and I think fundamental change to the core integrity of the 
Endangered Species Act.
    And I just want to point out, that's a matter of statute, 
not a matter of regulation. It was a decision by the Congress 
that in fact the threatened species should have their 
conservation provided for in this instance. So I don't think 
it's just, well, the Secretary may do it. The Secretary shall 
do it and shall provide for the conservation. There's nothing 
in the bill at the moment that would suggest that the 
conservation has to be key to that.
    Mr. Udall of Colorado. I think you have to look 
historically at how it's been done. And historically, what 
happened with Section 4(d) was, about 25 years ago or so, a 
regulation that----
    Mr. Miller. I understand that. That regulation has been 
very controversial. But the question of whether you want to 
amend that regulation is one thing, and whether you have to 
amend it in compliance with the law as is currently written or 
you want to do something else under the bill. And you may want 
to do that, and that's my point. I just think we just have to 
recognize, as Mr. Udall did, this is a fundamental change in 
the direction of the Endangered Species Act with respect to 
threatened species and the conservation of those species. 
Again, I'm not asking you to agree with me on the intent or 
what you want to do, but that's what that section of the law 
that is being repealed in this Act requires for threatened 
species.
    I thank the gentleman for yielding me his time. And, Mr. 
Chairman, I would join in the request that we have a second 
round with Mr. Manson, Judge Manson.
    The Chairman. Mr. Costa.
    Mr. Costa. Thank you very much, Mr. Chairman.
    I think it's important that the recommendations that Judge 
Manson made in his comments in his opening statement we 
consider. And I also would like to weigh in and looking at 
creating flexibility as it relates to the comment period. I 
think 90 days creates all sorts of new issues and flexibility, 
and that particular area as was commented on earlier, I think, 
is something that needs to be addressed in the bill.
    I would like to--Judge Manson, it's good to see you. It's 
been some time.
    Mr. Manson. Yes.
    Mr. Costa. In a previous life for both of us, we worked on 
a number of issues in California. And I'd like to ask you a 
question as it relates to that on this measure that we're 
considering on the issue of incidental takes. And I'm not sure 
if we're talking about section 9 or some other references that 
we may see in the legislation. Most of the conversation that 
we've dealt with here this morning has focused on change of use 
of land and the impacts and how you compensate landowners. As 
you may know, part of my area--and as they say, all politics is 
local--is Kern County. Kern County has perhaps among all the 
counties in California the most listed endangered species. If 
it's not the leading county, it's up there, one or two or 
three. We had a case back in the early 1990s that you might 
remember that involved a farmer, Mr. Lin, I might if my memory 
serves me correctly, who was arrested by the U.S. Fish and 
Wildlife Service for an incidental take and as it related to, I 
believe, the kangaroo rat, and his tractor was later 
confiscated as corroborating evidence. I always thought that 
was rather unusual but interesting. And, obviously, it created 
a lot of I think frustration among many people in the valley 
who were attempting to try to deal with habitat conservation 
plans. Mr. Cardoza talked about the problem with the beetle 
issue that we dealt with earlier as well. And I'm wondering how 
you think this would apply, should this legislation become law, 
with current use practices of landowners on the issues of 
incidental take.
    Mr. Manson. Well, that's an interesting question. 
Presumably, under this legislation, perhaps Mr. Lin could have 
gone to the Fish and Wildlife Service in advance and said: 
Here's what I'm planning to do, give me my 90-day letter, or 
however long it turned out to be. And----
    Mr. Costa. But he's engaged in normal everyday farming 
activity, cultivating, working his land. This isn't virgin 
land; this is land that is in production.
    Mr. Manson. Right. And so that's an issue I'd have to think 
about how this particular bill would relate. I think, under 
current practices, that case would not have occurred, quite 
frankly. And, of course, under the way the State law bill that 
you and I worked on in California, it wouldn't occur, either.
    Mr. Costa. Well, obviously, that was in part to address 
that issue there. But, I mean, there are--I concur with many of 
my colleagues that this is obviously important legislation and 
one that needs to be gone over thoughtfully as it relates to 
the changes that are being considered. But I am as concerned 
not just about change of land issue, which we have a lot of in 
parts of California and other parts of the country, but also 
landowners that are engaged in current normal practices in 
which there are habitat issues that exist in which they have, 
in essence, been there for generations. And, frankly, I think 
the law has not been compatible in the past, and I think any 
changes we need to make needs to take that into account.
    Mr. Manson. That's a well taken comment.
    Mr. Costa. Thank you very much, Mr. Chairman. Reserve the 
balance of my time.
    Mr. Abercrombie. Mr. Chairman, I was going to ask Mr. Costa 
to yield to me.
    The Chairman. He yielded back his time. You're out of luck.
    Mr. Costa. For the gentleman of Hawaii, I would be happy to 
yield my time.
    The Chairman. Your time's up now.
    Neil, we're going to go ahead and do another round because 
I know that George had additional questions.
    Mr. Abercrombie. Well then, Mr. Chairman----
    The Chairman. OK. One quick question.
    Mr. Abercrombie. No, for you. Just a reminder. Because, in 
relation to the last point. Is it on the record that the 
Secretary will try to provide for the Committee what the costs 
of litigation have been to this point?
    The Chairman. Mr. Secretary, can you do that?
    Mr. Manson. I can do that by this afternoon.
    The Chairman. Over what period of time, Neil?
    Mr. Abercrombie. I'd like to know since the--I'm not trying 
to create a separate issue here. I just want to make sure that 
that I understood it correctly from before: That the argument 
here is that we haven't been able to get to some of the 
recovery plans and some of the other issues in terms of 
expenditures because there are enormous costs associated with 
litigation and that. And you said you thought you would be able 
to provide an answer. I just want to make sure that that 
doesn't slide off the table.
    Mr. Manson. Right. If it's over the last 4 years, we can 
get something over today.
    Mr. Abercrombie. Well, these are ongoing suits. You have 35 
suits going on. It doesn't necessarily have to be today. But 
you understand, if we can get something of an idea of what's 
been spent by the Department, regardless of the Administration, 
over the--since this has come into effect. Because what the 
Chairman is trying to get at and what I think a lot of us are 
trying to get at is, how can we actually get to recover 
species? How do we actually get to protect species? And if 
millions of dollars or tens of millions of dollars are in 
lawsuits, then we've got to do something to the law to end it. 
Everybody wants to do that.
    Mr. Manson. If you mean since 1973, that's a little more 
daunting a task.
    Mr. Abercrombie. Well, just say the current suits that 
you're defending.
    Mr. Manson. We can get you that today.
    Mr. Abercrombie. How much it has cost, because I presume 
that that transcends Administrations.
    Mr. Manson. Yes, it does.
    Mr. Abercrombie. That's all.
    Mr. Udall of New Mexico. Neil, could I--could you just 
yield just a second? Could you add to that just how much the 
bill is going to cost? How much money is going to be paid out 
on the bill? Give us an estimate on that, too? That would be 
great.
    Mr. Manson. That would be quite a bit more daunting a task, 
so I don't know that I could do that.
    The Chairman. Mr. Miller had a follow-up clarification.
    Mr. Miller. Just for a point to clarify. I asked you 
earlier about the question that nothing in the recovery plans 
should be construed as regulatory, and then in the legislation 
or otherwise to have the effect other than as a nonbinding 
guidance. That's not--when you answered, I'm not sure you 
addressed that part of it. That's not the current situation. 
It's my understanding, is recovery plans are in fact 
enforceable. You entered into an agreement for the recovery 
plans. So the idea that they are nonbinding, I don't know if--
you want to explain that? If----
    Mr. Manson. Well, no, recovery plans--under this bill, 
there's a provision that you can enter into an agreement with 
respect to recovery plans. But recovery plans as they currently 
exist can be--there's no requirement that anybody enter into 
any agreement with respect to a recovery plan. Now, a habitat 
conservation plan is a binding agreement, but a recovery plan 
itself----
    Mr. Miller. So you are saying, once you establish a 
recovery plan, under current law, it's not binding on anyone?
    Mr. Manson. Right.
    Mr. Miller. Thank you.
    The Chairman. I'm going to excuse the judge at this point 
and thank you. Other members have questions, there will be 
follow-up questions, and if you can provide those for the 
Committee as quickly as possible, it would be greatly 
appreciated. But I'm going to excuse you at this point and call 
up the next panel. Thank you very much.
    Mr. Manson. Thank you.
    The Chairman. I want to welcome our second panel.
    We've got Gary J. Taylor, Legislator Director, 
International Association of Fish and Wildlife Agencies; Jamie 
Rappaport Clark, Executive Vice President, Defenders of 
Wildlife; and James S. Burling, Principal Attorney, Property 
Rights Section, Pacific Legal Foundation. If I could have you 
rise and raise your right hand.
    [Witnesses sworn.]
    The Chairman. Thank you very much. Let the record show, 
they all answered in the affirmative.
    Welcome back to the Committee. I appreciate you taking the 
opportunity to come in and testify on this legislation.
    Mr. Taylor, we are going to begin with you.

 STATEMENT OF GARY TAYLOR, LEGISLATIVE DIRECTOR, INTERNATIONAL 
           ASSOCIATION OF FISH AND WILDLIFE AGENCIES

    Mr. Taylor. Thank you, Mr. Chairman.
    I am Gary Taylor, Legislative Director of the International 
Association of Fish and Wildlife Agencies, and I appreciate the 
opportunity to appear before you today to represent our 
perspectives on H.R. 3824, a bill to reauthorize the Endangered 
Species Act. All 50 State fish and wildlife agencies are 
members of the Association.
    The Act has proven to be a vital conservation tool for 
protecting threatened and endangered species, but we recognize 
that improvements are needed in its design and statutory basis 
and in its implementation. The Association welcomes this 
opportunity to work with you and the Committee, to encourage 
Congress to reaffirm and clarify the important role of the 
States in the management of listed species.
    We find several aspects of the bill to be an improvement 
over current law. Most of the recommendations of our General 
Principles, which are attached to our testimony, are grounded 
in the authority and role of the State fish and wildlife 
agencies, and it is the primary focus of our comments with 
respect to this bill. We are appreciative that the bill 
addresses some of our concerns and recommendations and point 
out other opportunities to do that.
    We strongly believe that, over the last 30 years, the 
States' role in managing resident threatened and endangered 
species has departed from what Congress originally intended. 
Federal law is well settled that it is the State's role to 
manage resident fish and wildlife within their borders. Now is 
the opportunity to reaffirm that role in the Endangered Species 
Act. Congress specifically provided for the States' role in 
section 6 of the Act. This authorizes the Secretary to enter 
into a cooperative agreement with any State that establishes 
and maintains an adequate and active program for conservation 
of listed species. Congress intended that the States have a 
strong partnership with the Federal Government. And this is 
well substantiated in legislative history.
    Unfortunately, over the past 30 years, the role of the 
State fish and wildlife agencies in implementing the Act has 
been poorly utilized. This is particularly true for missed 
opportunities in section 6 cooperative agreements between the 
States and the Fish and Wildlife Service. Section 6 has merely 
served as a vehicle for Federal funding of State programs. H.R. 
3824 is an opportunity to ensure that the States' role in 
managing listed species is clearly spelled out. The bill goes a 
long way to remedy the consequences of a 1977 memorandum from 
an assistant solicitor that misread section 6(f) in isolation 
from the rest of the Act, and concluded that all permits for 
take of threatened or endangered species must be decided by the 
Fish and Wildlife Service and cannot be part of a section 6 
cooperative agreement with the State.
    Further, as Judge Manson referenced, the Fish and Wildlife 
Service published a blanket role which imposed on threatened 
species all of the applicable take provisions for endangered 
species unless it publishes a less restrictive 4-D role.
    The combination of these two policies has seriously 
constrained what we believe was Congress's original intent, and 
that is for the States to be the lead in particular in 
threatened species conservation. That is the type of management 
teamwork that we believe Congress intended under the Act for 
State and Federal agencies. H.R. 3824 restores that 
congressional intent.
    We are encouraged by the bill's emphasis on species 
recovery and the provision of certain landowner incentives, but 
strongly urge the addition of bill language affirming the 
States' role in the full range of recovery planning and 
implementation, including the opportunity to take the lead on 
recovery plans. H.R. 3824 requires the development of criteria 
and a recovery plan identifying when species recovery is met, 
but we strongly believe recovery plans must have a statutory 
trigger directing the Secretary to initiate the process for 
down or delisting a species once population and habitat 
recovery objectives are met. We urge the addition of that 
language to H.R. 3824.
    We believe that post delisting monitoring obligations and 
process also needs revision. It is too onerous and too subject 
to Federal agency discretion. The Association recommends that 
Congress simply eliminate that part of the statute requiring 
Federal approval of a post delisting monitoring plan. Once 
delisted, these species simply come back under the full and 
exclusive authority of the State fish and wildlife agencies or 
concurrent authority with Fish and Wildlife Service with 
respect to migratory birds; they don't simply fall off the 
jurisdictional radar screen.
    Guidance for developing post delisting monitoring and other 
considerations can be part of the recovery plan. The Secretary 
would retain emergency authority to list the species under 
circumstances of precipitous decline.
    Mr. Chairman, the Association wishes to emphasize that the 
desire of the States is not just to achieve better coordination 
as Federal agencies implement the Act, but to have recognized 
in statute the States' role as peer agencies in developing and 
implementing the full range of conservation programs within 
their borders. Opportunity to comment on a course of action is 
not the same as opportunity for meaningful participation in 
shaping that course of action. State participation should not 
be limited by lack of an invitation to participate.
    Thank you, Mr. Chairman, for the opportunity to share our 
perspectives, and I would be pleased to answer any questions.
    [The prepared statement of Mr. Taylor follows:]

          Statement of Gary J. Taylor, Legislative Director, 
        International Association of Fish and Wildlife Agencies

    Thank you, Mr. Chairman, for the opportunity to appear before you 
today to share the perspectives of the International Association of 
Fish and Wildlife Agencies (IAFWA) on the Endangered Species Act, 
particularly the role of the State fish and wildlife agencies in 
implementing the Act, and for the opportunity to provide comments from 
our preliminary review of H.R. 3824 the bill which you just introduced 
on Monday. I am Gary Taylor, Legislative Director of the International 
Association of Fish and Wildlife Agencies, and we look forward to 
working with you and Committee staff as H.R. 3824 matures through the 
legislative process
    We agree with many of the goals and objectives of H.R. 3824, 
although we are still analyzing the full details of the bill in 
comparison to the IAFWA General Principles for ESA Reauthorization, 
which are attached to this statement. We are encouraged by the emphasis 
on recovery and the provision of certain landowner incentives but, 
again, need to fully understand the details of the bill. We appreciate 
that H.R. 3824 proposes two legislative remedies which would enhance 
the role of the states, and we would sincerely encourage your serious 
consideration of an even greater role for the states in several other 
areas I will address later. There are also some proposals in the bill, 
such as compensating landowners for forgone use, which we do not 
support since they are not consistent with established Association 
policy. In other areas, as Section 7 consultation changes, we prefer to 
comment later following further review. One final general observation, 
Mr. Chairman, is that with the addition of the more sophisticated 
process contemplated by H.R. 3824 much more robust Congressional 
appropriations will be required in order to satisfy the requirements of 
this bill.
    The International Association of Fish and Wildlife Agencies was 
founded in 1902 as a quasi governmental organization of public agencies 
charged with the protection and management of North America's fish and 
wildlife resources. The Association's governmental members include the 
fish and wildlife agencies of the states, provinces, and the federal 
governments of the U.S., Canada, and Mexico. All 50 states are members. 
The Association has been a key organization in promoting sound resource 
management and strengthening federal, state, and private cooperation in 
protecting and managing fish and wildlife and their habitat in the 
public interest.
    The Association affirms that the Endangered Species Act has been 
and must continue to be a vital conservation tool for protecting 
threatened and endangered species and their habitats. However, the 
Association recognizes that improvements are needed in the design and 
statutory basis of the Act, and in its implementation and 
administration.
    Since passage of the ESA, the State Fish and Wildlife agencies have 
identified what works and what does not work in meeting the goals of 
the Act, and have through extensive discussion and dialogue over the 
past 15 years, arrived at a set of recommendations for necessary 
statutory amendment or other reform through policy or regulation. As 
previously indicated, these recommendations (IAFWA: Reauthorization and 
Reform of the Endangered Species Act: General Principles, September 30, 
2004'') are included as an appendix to my testimony. The ESA must be 
streamlined for efficiency, amended to ensure increased authority and 
responsibility for States, and reformed to provide increased certainly 
and technical assistance for landowners and water user.
    The State fish and wildlife agencies objectives are very 
straightforward: 1) to successfully carry out our responsibility as 
public trust agencies to ensure the vitality of our fish and wildlife 
resources for present and future generations; and 2) to encourage, 
facilitate and enhance the opportunities, means and methods available 
to all citizens and especially landowners in our states to contribute 
to meeting this conservation objective in cooperation with our agencies 
and our federal counterparts. Much of this involves solving problems 
and reconciling differences, and we believe any ESA bill should provide 
new and useful tools, opportunity and direction to achieve both of 
these objectives.
    Let me now reflect on the need for reaffirmation and enhancement of 
the role of the state fish and wildlife agencies in ESA implementation. 
State fish and wildlife agencies are particularly interested in having 
a greater role in listing decisions and in on the ground efforts to 
recover listed species.
    First, we believe that any ESA bill must restore Congressional 
intent that reflects and respects the authorities, role and 
responsibilities of the state fish and wildlife agencies in fish and 
wildlife conservation in general, and listed species in particular, 
through the Section 6 language which says that ``In carrying out the 
program authorized by this Act, the Secretary shall cooperate to the 
maximum extent practicable with the States''. We firmly believe that 
reaffirming the role of the State fish and wildlife agencies in all 
aspects of the ESA to reflect our concurrent jurisdiction over listed 
species sets the stage for more efficient and effective administration 
of endangered species programs.
    The State fish and wildlife agencies have broad statutory 
responsibility for the conservation of fish and wildlife resources 
within their borders, including on most Federal public lands. The 
states are thus legal trustees of these public resources with a 
responsibility to ensure their vitality and sustainability for present 
and future citizens of their States. State authority for fish and 
resident wildlife remains the comprehensive backdrop applicable in the 
absence of specific, overriding Federal law. State fish and wildlife 
agencies must be given the opportunities to be fully involved in every 
aspect of the Act, from consideration of listing petitions to de-
listing through meaningful recovery plans. With appropriate and 
adequate funding, states are in the best position, exercising their 
expertise and relationships with landowners, other governments, etc., 
to more fully engage in implementation of the ESA.
    Further, we believe any ESA bill must restore Congressional intent 
for a statutory distinction between ``threatened'' and ``endangered'' 
status. The Executive branch agencies have blurred this distinction to 
a point where there is de facto no difference. Congress intended the 
distinction, and specifically prescribed different statutory 
obligations and liberties. The flexibility of this distinction needs to 
be restored as a tool for appropriate use by the resource agencies. A 
careful reading of section 6 of the ESA and its legislative history 
will conclude, we believe, that Congress originally intended he states 
to be the lead in threatened species recovery, as long as they 
qualified under an approved section 6 cooperative agreements. However, 
an ill-advised USDI Solicitor's opinion regarding section 6, combined 
with a blanket rule (50 CFR17.31) promulgated by the FWS that 
presumptively extends the take prohibition to threatened species unless 
a less restrictive specific 4(d) rule is developed, minimizes the 
utility of the threatened status and the potential for state lead in 
threatened species conservation. We appreciate that some clarity on 
this issue has been provided in H.R. 3824. A section has been added to 
Section 6 cooperative agreements, to provide for incidental take to be 
covered in the agreement. The language on P.38, Line 20 could be 
clearer if reference was made to apply to all covered species instead 
of ``such species'' which might be construed to reference only 
incidental take of candidate species. Further, the added provisions in 
Section 6 (P. 38, Line 10, etc.) provides a program for candidate 
species, a category not defined in ESA. Candidate is defined in 50 CFR 
424.02 as ``any species being considered by the secretary for listing 
as an endangered or a threatened species, but not yet the subject of a 
proposed rule''. The regulations are clear that ``none of the 
substantive or procedural provisions of the Act apply to a species that 
is designated as a candidate for listing. 50 CFR 424, 15(b). If a third 
category of species is being contemplated by this bill, a definition of 
candidate species should also be included in the bill.
    The Association strongly urges Congress to clarify it's original 
intent that the States may, under an ``approved full authorities 
cooperative agreement'' with the United States Fish and Wildlife 
Service (Service) incorporate endangered and threatened species 
``take'' provisions into their conservation programs. Unfortunately, 
over the last thirty years, certain administrative actions have been 
put in place that we believe are contrary to Congress' original intent 
for the Act. These practices have tied the hands of the State 
government agencies in being full partners with the Service and have 
undermined the authority of State government agencies to manage their 
resident fish and wildlife populations. Although not required by the 
terms of Section 6 of the Act, it has become the practice for the 
federal government, through the Service, to control the process to 
permit regulated ``take'' of listed species. A plain reading of the Act 
and examination of legislative history assumes that States which are 
parties to ``full authorities'' cooperative agreements will establish 
their own implementation process, so long as the process conforms to 
the requirements for approval by the Service. Through this Section 6 
process, the State is implementing provisions of the federal ESA, not 
just implementing its own State conservation program. Such an agreement 
is still subject to Section 7 consultation and must also comply with 
NEPA.
    A 1977 Memorandum of a USDI Assistant Solicitor stated that Section 
6(f) of ESA imposes a federal ``minimum floor'' on State laws 
concerning taking of endangered and threatened species. Under this 
misreading of Section 6, (which isolates Section 6(f) instead of 
reading all sections of the ESA together) all permits for the ``take'' 
of endangered or threatened species have been determined to require 
issuance by the FWS and cannot be a part of a section 6 cooperative 
agreement with a State. A correct reading of ESA permits a State that 
follows the requirements set out in Section 6 to incorporate terms of 
``take'' provisions in an agreement it may reach with the Service. We 
believe language in H.R. 3842 does provide clarity to this matter but 
request that it be further clarified to ensure that it applies to all 
covered species under the agreement.
    Further the ESA makes a clear distinction between species that are 
``threatened'' and those that are ``endangered''. The Act provides for 
them in different ways, allowing more leeway for management flexibility 
for species that are threatened. However, the Service developed a 
blanket rule published at 50 CFR 17.31. This blanket rule imposed all 
of the applicable take provisions for endangered species on threatened 
species, unless the Service publishes a less restrictive rule for a 
particular threatened species. The blanket rule is often referred to as 
the ``default setting''.
    Section 4(d) of the ESA permits the Secretary (Service) to issue 
necessary regulations for the conservation of threatened species. 
Section 4(d) requires the Service, to the greatest extent possible, to 
cooperate with the States that have entered into full authorities 
cooperative agreements in developing those rules. Congress intended the 
States to play a significant role in threatened species conservation. 
Congress stated this intent by giving the State the potential lead in 
developing Section 4(d) rules. This important component of the ESA has 
not been recognized by the States' Federal partner. This, in turn, has 
crippled State fish and wildlife agencies in their role to manage and 
protect threatened species. When a State's Section 6 cooperative 
agreement is silent as to Section 4(d) rules, the blanket ``default 
setting'' rule becomes applicable. All applicable take provisions for 
endangered species are imposed on threatened species. This is not the 
Federal and State management teamwork Congress intended. H.R. 3824 
begins to address this default setting by providing discretion to the 
Secretary regarding the promulgation of take restrictions to threatened 
species. The blanket or default setting presumption is eliminated. 
Further, the bill requires a species specific 4(d) rule. All of these 
points provide some clarity to the impact of a 4(d) rule.
    Turning to the listing process, the Association concurs with the 
provision in H.R. 3824 which requires the use of best available 
scientific data but we are concerned that administrative rulemaking 
that would establish standards for that could lead to even further 
litigation. As an alternative, the Association recommends that the 
state fish and wildlife agencies be institutionalized in the ESA in two 
particular listing process amendments:
    Prelisting Data Collection and Reviews: State agencies have 
expertise in conducting population status inventories and geographic 
distribution surveys to facilitate review of which species should be 
advanced to the official proposed stage for listing consideration. The 
use of the states in this role in the 90 day review process would need 
to be amended into the ESA to address a recent federal court decision 
(Center for Biological Diversity v. Morganweck, CV-04-F-0108, D. Colo. 
(2004)) which directed the USFWS to not engage the states in the 90 day 
review of the listing petition. The USFWS and NOAA Fisheries can and 
should avail themselves of the States' expertise by contracting with 
(or by use of other means) the States to provide these data and 
analysis.
    Presumption of State Information: If a determination is made that 
substantial information is submitted with a listing petition, the 
Secretary should be required to provide all listing petitions to the 
appropriate State fish and wildlife agency or agencies for review as 
H.R. 3824 proposes. We recommend further, that there should be a 
statutory rebuttable presumption in favor of State information and 
recommendations on listing, which the Secretary could refute if the 
Secretary disagreed with the State recommendation, only through 
required use of formal peer review. The Secretary would, however, 
retain authority for the final decision regarding listing.
    With respect to Recovery Plans, Congress needs to make these more 
meaningful with both incentives and obligations for all parties to the 
plan. H.R. 3824 is a step in the right direction, particularly with 
respect to financial incentives for private landowners to engage in 
conservation efforts identified in the recovery plan. However, with 
respect to other federal agencies, while H.R. 3824 authorizes and 
allows the Secretary to enter into an agreement with other federal 
agencies to implement the plan, in the absence of such an agreement, 
the recovery plan remains non-binding guidance. We encourage you 
consider providing further incentives such as expedited section 7 
consultation for federal agency actions that are consistent with an 
approved recovery plan, in order to encourage other federal agency 
engagement. Meaningful recovery plans that are appropriately funded and 
implemented should be the blueprint for conservation of listed species, 
i.e. delivering on the ground what is necessary to bring those species 
to a point where the provisions under the ESA are no longer necessary.
    We are encouraged that H.R. 3824 begins to address the complex 
issue of delineating state-specific recovery goals and objectives, as a 
means of articulating both approaches to recovery and opportunities for 
delisting as recovery is achieved. The latter will, we believe, provide 
very strong incentives for states and local partners to take aggressive 
conservation action on behalf of wide-ranging species. Perhaps as no 
other species has, the sage grouse provides clear instruction on how 
state-by-state conservation, with full engagement by local partners, 
can result in rangewide progress.
    H.R. 3824 requires the development of criteria in the recovery plan 
identifying when species recovery is met but we strongly believe 
recovery plans must have a statutory trigger to compel the Secretary to 
initiate the down or de-listing process once population/habitat 
recovery objective are met. Further, the process to down or de-list 
needs to be expedited, which also requires a statutory change. The 
Secretary should be directed in statute to initiate the process for 
down or de-listing a species once the objective, measurable criteria as 
set forth in the recovery plans are reached.
    The post de-listing monitoring obligations/process also needs 
revision--it is too onerous and subject to too much federal agency 
discretion. For example, the states believe that biological recovery 
objectives for grizzly bear have long been satisfied but the Service 
has never settled on a post--de-listing monitoring plan and thus until 
very recently, held up a delisting proposal for this species. The same 
is true of the bald eagle. That is simply unacceptable and needs to be 
changed.
    The Association recommends that Congress simply eliminate that part 
of the statute requiring federal approval of a post--delisting 
monitoring plan. Once delisted these species simply come back under the 
full and exclusive authority of the state fish and wildlife agencies; 
they don't fall off the jurisdictional radar screen. Guidance for 
developing post de-listing monitoring and other considerations can be 
part of the recovery plan. The Secretary would retain emergency 
authority to list a species under circumstances of precipitous decline.
    Creating and implementing meaningful recovery plans will require 
both Congressional action in amending the ESA and as importantly, in 
appropriating adequate funding. We also recognize that it will require 
a significant shift in the focus and workload of the Service and NOAA--
Fisheries in implementing the recovery plans, and in changing their 
budget focus from listing species and designating critical habitat to 
recovery emphasis. State fish and wildlife agencies should be given the 
opportunity to take the lead in developing and implementing recovery 
plans, and we see no provision authorizing that in H.R. 3824. In fact, 
we note with concern that H.R. 3824 appears to provide opportunity for 
the Service to bypass state fish and wildlife agency participation in 
recovery planning by authorizing the Service to enter into an agreement 
with private landowners to develop short and longer term recovery 
agreements. We strongly urge the addition of language affirming the 
states role in the full range of recovery planning and implementation. 
Since State Fish and Wildlife agencies are expected to play a 
significant role in drafting and implementing recovery plans, adequate 
funds will need to be made available to the states for that purpose.
    With respect to the proposal in H.R. 3824 which would eliminate the 
statutory requirement to designate critical habitat, the Association is 
in agreement with moving critical habitat to the recovery planning 
process and to remove the statutory mandate to designate. However we 
recommend that the Secretary be provided the discretion to designate 
critical habitat when needed because there may be instances where 
protections through designation are appropriate and prudent. The 
statute needs to be appropriately amended so that the Secretary's 
discretion over when and whether or not to designate critical habitat 
is clarified and broadened. State agencies should be equal partners 
with federal agencies in evaluating the need for critical habitat and 
the rule-making and decision making process for identification and 
designation.
    Finally, let me highlight another of our general principles 
``preventative conservation. The Association reemphasizes that it is 
vitally important to secure funding (separate from ESA) for the States 
to provide for conservation programs for nongame fish, wildlife and 
their habitats in order to facilitate a conservation safety net before 
it is necessary to impose the ESA to prevent species extinction. If we 
can address the limiting factors causing a species decline before they 
reach a stage where the ESA is the only protection against extinction, 
we can employ a series of voluntary, non-regulatory approaches that 
provide more flexibility and creativity for conservation programs with 
private landowners and other jurisdictional entities. This preventative 
management makes good biological and economic sense. However, emphasis 
on preventative conservation must be coupled with ensuring that the 
states' authorities in this area are not eroded through federal 
rulemaking under the ESA. As an example, when candidate species and 
other ``at-risk'' species are brought into federal ESA-based 
conservation agreements (e.g. Habitat Conservation Plans and Candidate 
Conservation Agreements). to which the state(s) may not even be a 
partner, if can serve as a strong disincentive for state conservation 
action.
    We continue to urge Congress to look favorably on the dedication of 
funds from various potential sources (Outer Continental Shelf gas and 
oil royalties and leases; gas and oil royalties and leases from 
exploration and development on federal public lands; or other sources, 
that will be matched with state and private funds) to finance these 
state-based preventative conservation programs.
    It is only through dedicated and assured funding that we can get 
out ahead of the curve of endangered species listing.
    Thank you for the opportunity to share our perspectives and I would 
be pleased to answer any questions.

        INTERNATIONAL ASSOCIATION OF FISH AND WILDLIFE AGENCIES

   REAUTHORIZATION AND REFORM OF THE ENDANGERED SPECIES ACT: GENERAL 
                               PRINCIPLES

                         September 30, 2004 \1\
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    \1\ Adopted by the Association at the March 1993 meeting in 
Washington, D.C.; revised, modernized and approved at the September 
1995 meeting in Branson, MO; and updated and adopted at the September 
2004 meeting in Atlantic City, New Jersey. This position paper is an 
evolving work, reflecting the best information available at the time of 
adoption, but subject to change as new issues and information arise. 
Although adopted by the International Association of Fish and Wildlife 
Agencies, and endorsed by Regional Associations, each State reserves 
the prerogative to take its own position on issues of concern.
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Introduction
    The Association affirms that the Endangered Species Act (ESA or 
Act) has been and must continue to be a vital conservation tool for 
protecting threatened and endangered species and their habitats. 
However, the Association recognizes that improvements are needed in the 
design and statutory basis of the Act, and in implementation and 
administration of the ESA.
    In 30 plus years of experience with the ESA, the State Fish and 
Wildlife agencies have identified what works and what does not work in 
meeting the goals of the Act, and herein provide recommendations for 
necessary amendment or other reform through policy or regulation. 
Significant reform could free up human and financial resources to serve 
more species, put more money on the ground, and allow more people to 
interact positively with rare or declining species. The ESA must be 
streamlined for efficiency, amended to ensure increased authority and 
responsibility for the States, and reformed to provide increased 
certainty and technical assistance for landowners and water users, for 
example:
    a.  The Association concludes, from member agency involvement in 
the application of the Act, that the Act provides some degree of 
discretionary flexibility. However, administration of the Act often 
results in regulatory approaches and judicial challenges that are 
forced upon the Federal agencies by special interest groups and which 
alienate local communities and result in the courts deciding how the 
Act is applied.
    b.  The Association opines that this era of ``conservation through 
conflict'' has been beneficial to neither the health of the species and 
habitats the Act seeks to protect, nor the Act itself. In fact, it 
erodes rather than builds public support essential to achieving the 
admirable goals of the Act. Recent Federal agency movement toward 
increased State and public participation in recovery planning should be 
enhanced, but must recognize and respect State authorities and 
responsibilities for planning on-the-ground delivery of collaborative 
conservation programs. The States are not just another voice to be 
heard in the public process; they have a primary responsibility for 
wildlife conservation.
    c.  The Association opines that federal agencies have not 
recognized or applied the statutory distinction provided for between 
the classifications of ``threatened'' and ``endangered'' or fully 
embraced the role of the states in threatened and endangered species 
recovery. This has compromised effectiveness of the Act.
    d.  Similarly, the lack of consistent definitions of recovery (e.g. 
in terms of population size and distribution), ``significant portion'' 
of a species range, and what constitutes historical range and 
constituent elements of critical habitat has lead also to compromised 
effectiveness of the Act, and unnecessarily prolonged debate as to 
which conservation actions will be given priority for funding and 
implementation.
    e.  The Association advocates and supports efforts to take 
ecosystem and broader (e.g. regional) approaches to management and 
recovery, and to apply the Act to ``clusters'' or ``guilds'' of 
species, as already allowed for under the Act. These approaches greatly 
enhance the utility of the Act, and improve both the efficiency and 
efficacy of the listing, critical habitat designation, and recovery 
processes. Listed and imperiled species sharing a common habitat often 
require compatible protection and recovery actions. Therefore, the 
agencies should, where appropriate, more frequently employ this means 
of conservation.
    f.  The Association appreciates recent changes by the 
Administration to provide incentives to State and private landowners 
through new funding programs; to provide regulatory protections for 
landowners that voluntarily do good deeds to aid endangered species 
under safe harbor, candidate conservation and state conservation 
agreements; and to provide certainty of protections under the ``no 
surprises'' and ``PECE'' policies and enhancement of survival permits. 
These changes improve the effectiveness of the Act, and the Association 
advocates that, along with the changes recommended in this document, 
these policies be established in law.

Guiding Principles and Recommendations for Reform

I. Preventive and Restorative Management
    The Association reaffirms its commitment to prudent, proactive 
conservation of fish, wildlife, and the natural communities on which 
they depend, so the need to impose the rigors of the ESA for common 
species is minimized and to ensure that species in greatest 
conservation need are restored. We do not advocate avoiding application 
of the Act; rather, we advocate addressing species and habitat declines 
by cooperative prevention strategies before a crisis situation is 
reached, and benefiting multiple species by taking a coordinated, 
comprehensive, management approach once species are listed. Federal and 
State agencies and their partners must, where possible, anticipate 
impacts on species and habitats, and address those factors 
comprehensively (where feasible) and proactively, rather than by 
reacting to them. We must design remedies that restore the few, and 
benefit the many.
    The ESA should and does play a crucial role as the necessary tool 
of last resort for protecting against extinction, but it also must work 
in concert with, and not against, other management actions. In concert 
with preventive management actions, the ESA could not only restore 
species undergoing precipitous declines, but also ensure that they 
persist and never need the protections of the Act again.
    Federal and State conservation agencies must cooperate fully in 
coordinating application of the many existing Federal statutes relating 
to public lands management (NFMA, FLPMA, etc.), habitat conservation 
(HCPs, SHAs, CCAAs, SCAs, Critical Habitat), and project impact review 
(ESA Section 7, NEPA, etc.); comparable State laws (nongame and 
endangered species laws; habitat protection laws; and environmental 
review statutes and programs); and county and local land-use planning 
ordinances and programs. A more comprehensive integration of the 
relevant statutes at all levels would enhance their utility for 
conservation of fish and wildlife and their habitats, ensure 
sustainability of ecological communities, restoration of species at 
risk, and preclude the need to list other species.
    Further, there needs to be a major thrust to adequately fund 
endangered species recovery efforts and (distinct from ESA 
reauthorization) to fund broader State/Federal programs for 
conservation of the vast majority of non-game fish and wildlife species 
that are currently receiving far less than adequate attention, and 
thereby providing the means to prevent species from becoming 
endangered. Based programmatically on the highly successful Sportfish 
and Wildlife Restoration Programs under the Wallop-Breaux and Pittman-
Robertson Acts, the fish and wildlife diversity funding initiatives of 
the past several years, which have been supported by IAFWA, all 56 fish 
and wildlife agencies among the States, and by a large and still-
growing grass-roots coalition across the country, are intended to 
secure permanent, dedicated funding to provide among other things, for 
prevention of species imperilment, through development of comprehensive 
wildlife conservation strategies and provision of routine fish and 
wildlife management practices by the States and their conservation 
partners.
    Finally, the Association encourages use of both legally binding 
State Conservation Agreements and inter- and intra-governmental 
agreements for candidate species and species of concern in lieu of 
listing them as candidate, threatened or endangered, where management 
actions specified under such Agreements can remove the threat(s) to the 
species. Broad, non-regulatory, landscape scale, comprehensive habitat-
based agreements must also be encouraged. Clarification of the 
Endangered Species Act to recognize and support such cooperative 
agreements is required. Affirmation of State authority for non-listed 
species must be legislatively assured and the role of the State fish 
and wildlife agencies in this process must be institutionalized. By 
requiring the Secretary to concur with State-led conservation 
agreements involving affected jurisdictional entities and private 
landowners (where appropriate) that are determined by the Secretary to 
be adequate to address the needs of and recovery of declining or at-
risk species, the Secretary will be legally shielded from a requirement 
to impose certain regulatory implications through suspension of the 
consequences of listing. Private landowners should be given legal 
assurances that, once they commit to certain responsibilities under 
such agreements, no additional liabilities will be imposed on them, 
unless by mutual agreement. The incentive for Federal agencies to 
participate is that they would incur no liability under Section 7 if 
actions to recover declining species were taken prior to listing.

II. The Role of State Fish and Wildlife Agencies
    The Association advocates legislative assurance of the co-equal 
role of the State fish and wildlife agencies under the Act. Under the 
ESA, States share jurisdictional authority for listed species, which is 
executed through a cooperative agreement (ESA Section 6) with the U.S. 
Fish and Wildlife Service (USFWS) or the National Oceanic and 
Atmospheric Administration Fisheries (NOAA Fisheries). And yet, the 
State fish and wildlife agencies are often not adequately included in 
the implementation of the Act. The States, where they have the fiscal 
resources, expertise, staff, and political support to do so, should 
play a much greater role in administration of the Act with the USFWS 
and NOAA Fisheries. The Section 6 Cooperative Agreement should be 
redesigned to function as a true partnership agreement between and 
among the States, USFWS, and NOAA Fisheries, requiring close 
collaboration, coordination, and mutual agreement on implementation of 
all aspects of the Act. The Section 6 agreement can be the vehicle to 
identify the respective roles of the States and federal agencies. It 
should provide the flexibility to allow States that so chose to assume 
the lead for, or total assumption of, aspects such as pre-listing 
conservation, recovery planning and implementation oversight, SHA and 
HCP administration, delisting responsibilities, and post-delisting 
monitoring. Even when States do not take the lead, their involvement 
should be co-equal with the Federal agencies. States should also be 
given the financial resources to assume an expanded role in ESA 
administration and implementation.
    There should be coordinated joint rulemaking and decision-making 
processes between and among the USFWS, NOAA Fisheries, and the State 
fish and wildlife agencies for administrative and regulatory actions. 
In the rare cases where the States, USFWS, and NOAA Fisheries cannot 
reach agreement on administrative, regulatory, and implementation 
actions, the respective Secretaries of Interior or Commerce should have 
the final decision to resolve disagreements.
    The role of the State fish and wildlife agencies in coordination/
co-administration of the Act with the Federal agencies must not be 
subject to the Federal Advisory Committee Act (FACA), since the States 
share jurisdictional authority with USFWS and NOAA Fisheries for listed 
species. It is simply not appropriate for the day-to-day cooperation 
between the States and Federal agencies to be subject to FACA. Thus, 
the ESA must be amended to ensure that FACA does not apply to any 
aspect of State participation in all aspects of the ESA.

III. Listing
    The Association contends that other features of the Act, such as 
the recovery plan process, should provide sufficient latitude for 
balancing or harmonizing the needs (socio-economic) of mankind, without 
changing the listing process itself to embrace those issues. Listing 
should be decided based solely on biology, and States should be equal 
partners with the federal agencies in petition evaluation, data review, 
rule-making and decision-making for all listing, downlisting and 
delisting actions.
    The State fish and wildlife agencies can and should be fully 
empowered and authorized to facilitate the listing process. Areas of 
reform include:
    a.  Prelisting Data Collection and Reviews: State agencies have 
expertise in conducting population status inventories and geographic 
distribution surveys to facilitate review of which species should be 
advanced to the official proposed stage for listing consideration. The 
USFWS and NOAA Fisheries can and should avail themselves of this 
expertise by contracting with (or by use of other means) the States to 
provide these data and analyses.
    b.  Reliance on Sound Science: The threshold of what constitutes 
substantial information provided in a listing petition to warrant 
further consideration must be raised. The petitioner should be required 
to provide the data on which they are relying in the petition. The 
Services need broad flexibility to reject petitions lacking scientific 
basis.
    c.  Adequate Time Frames for Listing Decisions: The statutory time 
frames allowed for listing decisions are too short to provide for 
adequate information to be collected and analyzed. This causes a flawed 
decision making process precipitated by legal action. The Services 
should have flexibility to delay decisions, especially on species where 
there is little information with which to make a decision or in cases 
where major scientific studies are underway that will provide 
information for decision making.
    d.  Presumption for State Information: If a determination is made 
that substantial information is submitted with a listing petition, the 
Secretary should be required to provide all listing petitions to the 
appropriate State fish and wildlife agency or agencies for review. 
There should be a rebuttable presumption in favor of State information 
and recommendations on listing, which the Secretary should be required 
to refute through peer review if the Secretary disagreed with the State 
recommendation.
    e.  Exclusions of a State or Geographic Area in the Listing 
Process: The Act should provide greater flexibility to not list a 
distinct geographic area or State within the range of a species if it 
is receiving adequate management within that portion of its range. 
Providing geographic exclusions will ensure that States that have 
adequate management programs for rare species are not penalized for 
lack of effort or result elsewhere, and would provide an incentive for 
States to provide adequate management. Similarly, there should be 
greater flexibility to delist a distinct geographic area or State 
within the range of a species where ESA protections are no longer 
needed.
    f.  Joint Rule-Making and Decision Making Between the USFWS, NOAA 
Fisheries and the State Fish and Wildlife Agencies: State agencies have 
jurisdictional authority for species prior to listing, and share 
jurisdiction for species when listed and during post-delisting 
monitoring stage. Because of this co-equal role with the Federal 
agencies, State agencies should be given the choice to participate 
fully in petition evaluation, data review and rule-making processes, 
and be given an equal say in listing decisions. Decisions should be 
made on a consensus basis, whenever possible, by the State agencies, 
USFWS, and NOAA Fisheries. If the partners cannot agree on a listing 
decision, the respective Secretary of Interior and Commerce should make 
the final decision.

IV. De-Listing
    Efforts to recover listed species must receive enhanced attention, 
at least concomitant with the attention given to listing. The 
Association suggests that additional focus and attention on recovery 
planning and achievement will lead to species population status 
commensurate with down- or de-listing. Legislative criteria linking the 
process to initiate down- or de-listing action to meeting objectives in 
approved recovery plans should be mandated. Incremental down- or de-
listing by State or geographic population should proceed with much 
greater priority than it now receives. De-listing must be maintained 
and activated based solely on biology. To emphasize the importance of 
the de-listing process, funding for de-listing actions should be 
increased and receive a specific-line item within the appropriations 
provided for listing actions. Until the USFWS catches up with the 
backlog of listing proposals, de-listing actions too often get 
relegated to a low priority because of the process pressures and legal 
challenges with many listing petitions. This approach does not 
recognize the importance of acknowledging and rewarding accomplishments 
under the Act to building public support for the Act and the 
conservation programs carried out under it.
    The Association advocates that the States be authorized to design 
and develop monitoring programs on de-listed species, with recognized 
(by the federal agencies) full legal responsibility for species 
conservation, and report annually to the Secretary during the five-year 
period on the status of the monitored species. Funds must also be 
provided to the States to conduct these monitoring and evaluation 
efforts.

V. Critical Habitat Designation
    The Association advocates that critical habitat designation should 
occur concurrently with recovery planning, except when there is an 
urgent eminent threat to a significant amount of occupied habitat that 
would warrant designation at the time of listing. The Secretary should 
retain discretionary authority over when and whether or not to 
designate critical habitat, and not be under a statutory mandate to 
always designate critical habitat. State agencies should be equal 
partners with the Federal agencies in evaluating the need, planning, 
identifying areas, rule-making, and decision making processes for all 
critical habitat designations.
    State fish and wildlife agencies have expertise, knowledge and data 
regarding a species extant and historic ranges, where it may now be 
extirpated, and which habitats might have the potential to facilitate 
species recovery. Habitats for recovery may include those that were 
historically occupied, if they are still capable of supporting the 
species; in the absence of such areas, non-occupied but potential 
habitat should be identified for recovery. Whether either or both kinds 
should be identified as ``critical habitat'' must be decided on a 
species-by-species basis. The Association recommends clarifying the 
regulatory implications of what constitutes ``adverse modification of 
critical habitat'' (discussed in the section on Prohibited Acts).
    The Association recognizes the value of voluntary non-regulatory 
efforts of many landowners to protect, manage and restore habitats 
needed for recovery. Many landowners have implemented or are willing to 
commit to implement management programs that equal the biological 
protections of critical habitat. Providing these conscientious 
landowners with protections from the regulatory implications of 
critical habitat designations rewards their good acts and provides 
incentive for other landowners to do likewise. The Act provides that 
the Secretary has discretion to exclude areas for critical habitat 
designation, if the benefits of exclusion outweigh the benefits of 
designation. The Association recommends expanding the types and use of 
exclusions and institutionalizing them in policy and statute, 
including:
    a.  exclusion of all lands covered by a HCP, SCA, SHA, or other 
approved conservation plan from critical habitat designations;
    b.  exclusion of State lands that have protection equivalent to 
that provided by designation of critical habitat; which provide a net 
benefit to the species through protection and management of the land; 
and which have an effective management program;
    c.  exclusion of county and private lands under a cooperative 
management agreement between the State and the Service, another Federal 
agency, or private conservation organization or partnership that has 
protection equivalent to that provided by designation of critical 
habitat; provides a net benefit to the species through protection and 
management of the land; and which provides an effective management 
program;
    d.  exclusion for important Military training areas that have 
adequate Integrated Natural Resource Management Plans;
    e.  provide a stewardship incentive exclusion for state, county and 
private lands that would be voluntarily entered into conservation 
partnerships or some other form of management agreement;
    f.  automatic removal of critical habitat designations for all 
future HCPs, SCAs, and SHAs when approved by the Service according to 
standards that the plans or agreements achieve a net conservation 
benefit and have undergone public review.

VI.  Recovery Plans/Recovery Teams
    Once a species is listed, States must make every effort to address 
the factors that will result in recovery of the species and its 
ultimate delisting. The intent of the Act is to recover species, not 
just list them. The States can and must play a major role in recovery 
planning and implementation. State fish and wildlife agencies should 
always be given the opportunity to take the lead on recovery planning, 
or in the absence of an appointed recovery team or appropriate 
surrogate, to provide professional review of draft recovery plans 
prepared by a FWS or NOAA Fisheries staff or contractor. The utility of 
a team approach not only provides for application of a broad base of 
knowledge and perspectives, but also better intergovernmental 
coordination regarding biological, social, economic and environmental 
factors. State fish and wildlife agency participation brings management 
expertise, practicality, and experience in working with both private 
landowners and local land use regulatory agencies (county Planning and 
Zoning agencies, for example), both of which are vital to success of 
recovery programs.
    Recovery plans should present a number of recovery options that are 
technically feasible and will lead to species recovery and delisting. 
Different recovery options may have significantly different social, 
economic and environmental consequences. Statutory deadlines should be 
imposed on the agencies to produce a draft recovery plan no later than 
2 years after listing, a final recovery plan not later than 3 years 
after listing, and a revision every 10 years. Recovery plans should:
    a.  identify jurisdictional responsibilities through implementation 
agreements;
    b.  provide multiple recovery approaches that are technically 
feasible, as options for agencies to use to best meet social, economic, 
and environmental needs;
    c.  have the flexibility to provide short term interim management 
strategies for those species for which there is little information with 
which to develop a full recovery plan or when interim recovery 
strategies are the best approach to stabilize populations;
    d.  identify specific (i.e. quantified, measurable) population and 
habitat objectives that, when attained, trigger down or delisting;
    e.  include appropriately documented and credible justification for 
all goals, objectives, and implementation approaches;
    f.  identify habitat important for recovery of the species, 
designate (if appropriate) critical habitat for regulatory purposes; 
and provide an indication of important habitat factors necessary for 
the species--i.e., simple protection may not be the best course of 
action--recovery and maintenance may require habitat changes such as 
openings, diversity, early successional stages, etc.;
    g.  provide pro forma Section 7 approval for Federal agency and 
State agency actions that are consistent with recovery plans;
    h.  provide ``short form'' HCPs for private landowners for certain 
activities, and (where appropriate) exemption from Section 9 and 10 
restrictions for others;
    i.  provide certainty to cooperating landowners regarding their 
fate under the ESA;
    j.  be exempt from NEPA, if comparable State process is satisfied; 
and
    k.  satisfy plan amendment requirements for ESA under NFMA, FLPMA 
and other Federal land management acts, if the proposed actions are 
consistent with the appropriate recovery plan.

VII. Distinction between Threatened and Endangered
    The ESA distinguishes between ``threatened'' and ``endangered'' 
species, with the status of ``endangered'' being subject to more 
protective regimes than ``threatened''. Clearly, two separate 
categories were legislatively provided for in the Act for very definite 
and distinct purposes. Although threatened species are imperiled and at 
risk of becoming endangered, there is greater leeway for management 
flexibility and protections provided. The USFWS and NOAA Fisheries 
apply rules for protecting endangered species to threatened species as 
well, regardless of whether additional protections are warranted. The 
agencies or congress must reassert the distinction between these 
classifications in the Act, including greater application and 
involvement by the States in development of Section 4(d) rules allowing 
for management flexibility.

VIII. State Conservation Agreements, Candidate Conservation Agreements, 
        Safe Harbor Agreements and Habitat Conservation Plans
    The Association supports the use of state conservation agreements, 
candidate conservation agreements, safe harbor agreements, and habitat 
conservation plans. The State fish and wildlife agencies can provide 
contacts, expertise, and knowledge to contribute toward successful use 
of these tools in conserving listed species and their habitats. The use 
and applications of these tools should be more fully clarified and 
understood by all agencies. State Conservation Agreements, Candidate 
Conservation Agreements, and Safe Harbor Agreements provide incentives 
to states and private landowners to invest in conserving rare species 
and in recovering species that are listed. They can remove the threat 
of future regulatory restrictions that are too often associated with 
listed species. Habitat Conservation Plans, in their limited 
application thus far, have already been used effectively to bring 
together affected and interested parties, to examine and agree on 
short-term objectives and long-term goals, and provide certainty to the 
recovery process while minimizing impacts on private lands and meeting 
the recovery needs of affected species. The Act should be amended to 
specifically include these as recovery tools.

IX. Certainty and Incentives for Private Landowners
    Private landowners can play a major positive role in species 
recovery, if they are involved in the process early, given appropriate 
information on what they can and cannot do, and have certainty about 
the fate of their own land management practices under ESA. Most 
landowners want to be good stewards of their land. Most will work with 
fish and wildlife resources agencies, if they are approached with 
courtesy and respect, and sensitivity to their interests and plans. 
Federal agencies and States must do a better job of matching existing 
incentives (under several programs at all government levels, such as 
Farm Bill programs, the Landowner Incentives Program, and Private Lands 
Stewardship Program, etc.) with landowners who are interested in 
conservation. In return, Federal and State agencies need to assure 
landowners that, if they agree to certain habitat conservation 
measures, we will not require any more of them. This certainty must be 
assured for prelisting State Conservation Agreements, Safe Harbor 
Agreements, and Habitat Conservation Plans.
    Several areas are ripe for providing additional monetary 
conservation incentives for private landowners including changes to 
inheritance tax law to remove the disincentive that forces the breaking 
up of large tracts of land to pay taxes; and establishment of a 
permanent statutory basis for the Landowner Incentive Program for fish 
and wildlife habitat conservation on private lands.

X. Prohibited Acts
    The Association advocates that the USFWS and NOAA Fisheries clarify 
the standards they will apply in making a determination if alteration 
to habitat constitutes harm, and thus a ``take'' under Section 9 of the 
Act. Not all habitat actions lead to species decline; some disturbance, 
in fact, may be vital to recovery of species dependent on early 
successional stages.
    The Act should be amended to affirm the current regulatory standard 
for prohibiting ``destruction or adverse modification of critical 
habitat'' for federal actions under the Section 7 process. The 
prohibition now applies if the ``destruction or adverse modification of 
critical habitat'' would jeopardize the continued existence of a listed 
or proposed species. The Association is concerned that a more 
restrictive standard, i.e. one that would prohibit any minor loss or 
adverse modification of critical habitat, would establish quasi-
sanctuaries on state and private land and create regulatory grid-lock 
for many federal actions including those funding State programs. The 
Act needs to provide both adequate protection and flexibility to manage 
the quantity, quality and location of critical habitat for species 
recovery. The Association believes that as long as adequate mitigation 
is required in the Section 7 process to offset any minor loss or 
adverse modification of critical habitat, than the current ``jeopardy'' 
regulatory standard is appropriate.

XI. Funding
    The Association supports enhanced appropriated funding for all 
aspects of the ESA. We realize the challenges faced by Congress in 
meeting all national needs. However, we strongly urge a re-focus of 
appropriated dollars so that Section 6 funding can be significantly 
increased, if necessary by reallocating non-traditional Section 6 
granting funds. The amount available in recent fiscal years to States 
is both grossly inadequate, and not at all proportionate to the 
responsibility of the State fish and wildlife agencies for listed 
species. The amount of funding provided under the program has not grown 
in relation to increases in the number of listed species. In 1977, 
Congress provided $4.2 million for assistance to states to deal with 
194 listed species. In 2002, the number of listed species (1,263) was 
more than six times as large, yet Congress provided just $7.52 million 
for assistance to States. This represents a decline in real support for 
this program, when adjusted for inflation. We also suggest that as 
States assume a greater lead in administering the ESA, Congress should 
redirect other Federal appropriations now going to USFWS and NOAA 
Fisheries to the States for funding implementation of the Act.
    At the same time, we believe that existing funding must be more 
effectively spent, and alternative-funding sources should be fully 
explored. The Association suggests that continuing to spend substantial 
money on species that are essentially recovered, at least in part of 
their range (such as the bald eagle), should be from sources other than 
those available under the ESA. The USFWS, NOAA Fisheries, and State 
fish and wildlife agencies all need to explore processes for assigning 
funding to listed species to ensure that those in the most significant 
need of recovery attention (and not just those that are the most 
charismatic) are addressed first.
    Finally, the Association reemphasizes that it is vitally important 
to secure funding (separate from ESA) for the States to provide support 
for conservation programs for nongame fish, wildlife and their habitats 
in order to facilitate a conservation safety net before it is necessary 
to impose the ESA to prevent species extinction. This preventive 
management makes good biological and economic sense.
    The Association's Teaming With Wildlife initiative, and other 
wildlife diversity funding programs that build on the tremendously 
successful Pittman-Robertson and Wallop-Breaux user pay-user benefit 
programs for wildlife and sportfish, would provide new reliable sources 
of funding for State programs. These funds should be allocated to the 
States for conservation, recreation and education programs relating to 
fish and wildlife and their habitats. If we can address the limiting 
factors causing a species decline before they reach a stage where the 
ESA is the only protection against extinction, we can employ a series 
of voluntary, non-regulatory approaches that provide more flexibility 
and creativity for conservation programs with private landowners and 
other jurisdictional entities.
                                 ______
                                 
    The Chairman. Thank you.
    Ms. Clark.

              STATEMENT OF JAMIE RAPPAPORT CLARK, 
                     DEFENDERS OF WILDLIFE

    Ms. Clark. Thank you, Mr. Chairman, and members of the 
Committee. I appreciate the invitation to speak on behalf of 
Defenders of Wildlife, Environmental Defense and World Wildlife 
Fund on H.R. 3824.
    Before coming to Defenders of Wildlife, I worked for the 
Federal Government for almost 20 years for both the Department 
of Defense and Department of the Interior. I have seen the 
Endangered Species Act from different perspectives, that of an 
agency working to comply with the law, leading the agency 
charged along with other Federal agencies, States and private 
landowners with implementing the law, and now from a 
conservation organization working to ensure the law is fully 
implemented to conserve endangered and threatened plants and 
wildlife.
    The common lesson I've drawn from all these experiences is 
that the Endangered Species Act is one of our most farsighted 
and important conservation laws. That's why it is so important 
to make sure that any changes to the Act will make it more 
effective in conserving species and their habitat.
    As you know, Mr. Chairman, our organizations were asked by 
Mr. Rahall to provide technical assistance to him in his 
negotiations with you over this bill. We did so, and having 
heard you say many times that you believe that the Act was not 
doing a good enough job recovering species, we were hopeful 
that you and Mr. Rahall could reach agreement on a bill that 
would enhance the recovery of species.
    Frankly, Mr. Chairman, after reviewing the bill when it 
became available 2 days ago, we were very disappointed. Far 
from enhancing species recovery, H.R. 3824 will not only 
actually undermine species recovery in several important ways 
but could lead to further species extinctions. I have described 
these in detail in my written testimony but will highlight four 
major problems this afternoon.
    First, the bill eliminates the protection of critical 
habitat but fails to replace it with adequately protected 
habitat necessary for the recovery of endangered species.
    Second, the bill undermines the fundamental requirement of 
the Act that Federal agencies consult with the Secretary to 
ensure their actions will not jeopardize threatened or 
endangered species, removing the essential checks and balances 
of section 7 consultation and the benefit of expert advice from 
the services.
    Third, the bill creates a windfall for developers by 
allowing them to bypass by the Act's prohibition against 
killing or injuring endangered species and its procedures for 
mitigating the impacts of such takes by requiring that it will 
take permit or statement.
    Fourth, the bill eliminates protection for threatened 
species, species such as the bald eagle, the loggerhead sea 
turtle, the southern sea otter by deleting the current 
mandatory requirement that the Secretary issue regulations that 
are necessary and advisable for the conservation of threatened 
species.
    In evaluating any bill to change the Endangered Species 
Act, the benchmark has to be: Does it truly aid species 
conservation? If the answer is, no, then we have failed. By 
that measure, H.R. 3824 is a failure because it clearly will 
undermine species conservation.
    There is a better way. The Endangered Species Act can be 
improved to enhance species conservation and make the law more 
workable for landowners and others, and we suggest the 
following steps.
    First, make species recovery the central focus of the Act. 
There are three essential elements. One, provide an unambiguous 
statutory definition of jeopardy as any action that will impair 
species recovery. Two, require that the habitat necessary for 
the recovery of a species be identified in recovery plans. And, 
three, require that the impact of agency actions on this 
habitat be considered in determining whether the action will 
result in jeopardy to a threatened or endangered species. 
Changes to the critical habitat provisions of the law today 
should only be considered if these three elements are first in 
place.
    Second, enhance the science underlying species conservation 
by establishing science advisory boards for the Fish and 
Wildlife Service and the National Fishery Service modeled after 
those very successfully used by the Environmental Protection 
Agency. Rather than Congress telling agencies what constitutes 
best available science, provide the resources and allow the 
agencies to seek the advice of clearly qualified scientists.
    Third, promote greater partnerships with the States. 
Section 6 of the Act should be amended to specify that there be 
consultation with state fish and wildlife and conservation 
agencies on the full range of endangered species decisions from 
conservation of candidate species to recovery of listed 
species. Federal funding in support of State conservation 
efforts should be increased as well.
    Fourth, provide incentives for conservation on private 
lands.
    And, fifth, funding for implementation of the Act should be 
dramatically increased.
    With these steps, the Endangered Species Act can be 
improved to enhance its ability to recover species. With these 
steps, you can keep the commitment to future generations 
Congress made in 1973 when it adopted the Endangered Species 
Act. Thank you.
    [The prepared statement of Mr. Clark follows:]

Statement of Jamie Rappaport Clark, Executive Vice President, Defenders 
of Wildlife, on behalf of Defenders of Wildlife, Environmental Defense, 
                        and World Wildlife Fund

    Mr. Chairman, Mr. Rahall, and Members of the Committee, I am Jamie 
Rappaport Clark, Executive Vice President of Defenders of Wildlife. 
Thank you for this opportunity to present the views of Defenders of 
Wildlife, Environmental Defense, and World Wildlife Fund on H.R. 3824, 
the Threatened and Endangered Species Recovery Act of 2005.
SUCCESS OF THE ENDANGERED SPECIES ACT
    Prior to coming to Defenders of Wildlife, I worked for the federal 
government for almost 20 years, for both the Department of Defense and 
the Department of the Interior. I served as Director of the U.S. Fish 
and Wildlife Service from 1997 to 2001. Thus, I have seen the 
Endangered Species Act from different perspectives: that of an agency 
working to comply with the law; leading the agency charged, along with 
other federal agencies, states, and private landowners, with 
implementing the law; and now leading a conservation organization 
working to ensure that the law is fully implemented to conserve 
threatened and endangered plants and wildlife.
    The common lesson I have drawn from all of these experiences is 
that the Endangered Species Act is one of our most farsighted and 
important conservation laws. For more than 30 years, the Endangered 
Species Act has sounded the alarm and saved wildlife that we humans 
have driven toward extinction. Today, we have wolves in Yellowstone, 
manatees in Florida, and sea otters in California, largely because of 
the Act. We can still see bald eagles in the lower 48 states and other 
magnificent creatures like the peregrine falcon, the American 
alligator, and California condors, largely because of the Act.
    Indeed, there can be no denying that, with the Endangered Species 
Act's help, hundreds of species have been rescued from the catastrophic 
permanence of extinction. Many have seen their populations stabilized; 
some have actually seen their populations grow. Some have even 
benefited from comprehensive recovery and habitat conservation efforts 
to the point where they no longer need the protections of the Act.
    In so many ways, Congress was prescient in the original 
construction of the Endangered Species Act. First, it crafted an Act 
that spoke specifically to the value--tangible and intangible--of 
conserving species for future generations, a key point sometimes lost 
in today's discussions.
    Second, it addressed a problem that, at the time, was only just 
beginning to be understood: our looming extinction crisis. Currently 
there is little doubt left in the minds of professional biologists that 
Earth is faced with a mounting loss of species that threatens to rival 
the great mass extinctions of the geological record. Human activities 
have brought the Earth to the brink of this crisis. Many biologists 
today say that coming decades will see the loss of large numbers of 
species. These extinctions will alter not only biological diversity but 
also the evolutionary processes by which diversity is generated and 
maintained. Extinction is now proceeding one thousand times faster than 
the planet's historic rate.
    Lastly, in passing the Act, Congress recognized another key fact 
that subsequent scientific understanding has only confirmed: the best 
way to protect species is to conserve their habitat. Today, loss of 
habitat is widely considered by scientists to be the primary cause of 
species endangerment and extinction.
    Reduced to its core, the Act simply says the federal government 
must identify species threatened with extinction, identify habitat they 
need to survive, and help protect both accordingly. And it has worked. 
More than 1800 species currently protected by the Act are still with 
us; only 9 have been declared extinct. That's an astonishing success 
rate of more than 99 percent. It highlights that the first step toward 
recovering a species is to halt its decline.
    With this record in mind, the benchmark against which to measure 
any proposal to change the Act is: Does it truly aid species 
conservation? If the answer is no, then we have failed.
H.R. 3824 UNDERMINES SPECIES RECOVERY
    Mr. Chairman, you have been quite critical of the Act for not doing 
a better job of recovering species. The Act can be improved to better 
promote species recovery. Unfortunately, the bill you have introduced, 
H.R. 3824, is very disappointing. Instead of promoting recovery, H.R. 
3824 would deal a tremendous setback to the recovery of threatened and 
endangered species.
    H.R. 3824 undermines species recovery in several ways:

1. H.R. 3824 Fails to Protect Habitat Necessary For Species Recovery
    H.R. 3824 establishes new recovery planning requirements that fail 
to ensure that habitat necessary for species recovery will be 
adequately protected or even considered in determining, under section 7 
of the Act, whether agency actions are likely to jeopardize the 
continued existence of threatened and endangered species. Thus, the 
bill's elimination of critical habitat without providing an improved 
way of protecting habitat essential to species recovery is a 
significant step backward, one that seriously undermines the purpose 
and intent of the law.

2. H.R. 3824 Weakens the Obligation of Federal Agencies to Consult on 
        Their Actions
    H.R. 3824 significantly weakens the substantive and procedural 
protections of section 7, generally considered the Act's most important 
and effective provision. For example, authorizing the Secretary to 
establish undefined ``alternative procedures'' for complying with 
section 7 could all but eliminate the current requirement that each 
federal agency consult with the Services on ``any action'' which is 
likely to harm endangered or threatened species. Further, H.R. 3824 
creates several exemptions from the requirements of section 7 with 
respect to section 10 conservation plans and section 6 cooperative 
agreements. If federal agencies are not even required to engage in 
section 7 consultation, the bill makes it highly unlikely that they 
will do anything to promote species recovery.

3. H.R. 3824 Creates a De Facto Exemption From the Prohibition Against 
        Take of Endangered Species
    H.R. 3824 creates a broad and unwarranted de facto exemption from 
the current prohibition against take of an endangered species, 
contained in section 9 of the Act. Under H.R. 3824, a landowner can 
demand from the Secretary a written determination of whether a proposed 
activity will violate the take prohibition. If the Secretary fails to 
respond within 90 days, the bill provides that this shall be deemed a 
determination that the activity will not result in a take. Given the 
overburdened U.S. Fish and Wildlife Service, bogged down already in a 
morass of missed deadlines, it is easy to see how landowners will be 
able to secure de facto exemptions from the Act simply by waiting 91 
days. Not only will this impede species recovery, it may result in 
piecemeal whittling away of important habitat, thereby accelerating 
species extinctions.

4. H.R. 3824 Weakens Protection of Threatened Species
    H.R. 3824 undercuts prospects for recovery of threatened species as 
well as endangered species. Currently, section 4 of the Act requires 
regulations for threatened species that meet a highly protective 
standard: ``necessary and advisable for the conservation'' of the 
species. In other words, under current law, the Secretary is required 
to issue regulations that are necessary and advisable for the recovery 
of threatened species. H.R. 3824 eliminates any requirement whatsoever 
for regulations protecting threatened species. Moreover, even where the 
Secretary chooses to issue a regulation for a threatened species, H.R. 
3824 eliminates the protective standard for such regulations.

5. H.R. 3824 Weakens the Scientific Foundation for Endangered Species 
        Decisions
    H.R. 3824 weakens the role of science in virtually every decision 
under the Act. Language requiring scientific information to comply with 
the Data Quality Act, to be empirical, peer-reviewed, and consistent 
with yet-to-be-written regulations before it can be considered the 
``best scientific data available'' creates new procedural hurdles that 
threaten to exclude important scientific information such as population 
modeling and projections. Moreover, by failing to provide additional 
resources to comply with these new requirements, while maintaining and 
adding new deadlines, the bill virtually guarantees continued problems 
implementing the Act, further reducing the likelihood of species 
recovery.

6. H.R. 3824 Eliminates the Endangered Species Committee, the Act's 
        Ultimate Safety Valve
    H.R. 3824 eliminates the Cabinet-level Endangered Species 
Committee, established by Congress in 1978 to resolve truly 
irreconcilable conflicts between species conservation and development. 
The exemption provisions contained in section 7(e)-(n) have only rarely 
been used, testifying to the Act's flexibility for resolving conflicts. 
Nevertheless, the availability of the Endangered Species Committee, 
with its power to decide the ultimate fate of a species, has served as 
an important caution sign and an essential safety valve for conflict 
resolution. Eliminating it will only lead to further controversy over 
species conservation, rather than promoting species recovery.

7. H.R. 3824 Requires Taxpayers to Pay Developers and Corporations Not 
        to Violate the Law
    H.R. 3824 requires taxpayers to pay developers, corporations, and 
others the fair market value of any use of their property which is 
determined to violate the prohibition against take of an endangered 
species. Under the bill, developers are not required to first avail 
themselves of the Act's permit procedures under section 10 or, if a 
federal permit is involved, section 7 consultation. There is no 
requirement that the proposed activity be more than speculative and 
there is no limit on the number of times a developer can receive 
compensation for different proposed activities on his or her land. 
Thus, a developer might propose construction of a shopping center that 
will wipe out the habitat of an endangered species. Once the developer 
has been compensated for that use, he or she can propose an office park 
on the site and become entitled to compensation again. Instead of 
promoting species recovery, this provision creates a windfall for 
developers and corporations, requiring taxpayers to pay them over and 
over again for not killing or injuring endangered species.

IMPROVING SPECIES RECOVERY UNDER THE ACT
    Mr. Chairman, your bill, H.R. 3824, will not make the Endangered 
Species Act do a better job at recovering species or improve the Act 
generally. Those goals are achievable, however, if this Committee and 
the Congress will take a more productive path The following steps would 
improve the Act and ensure it works better for all stakeholders:
    1.  Make species recovery the central focus of the Act
    2.  Properly protect and manage habitat that is needed for species 
recovery.
    3.  Enhance the science underlying endangered species conservation
    4.  Promote greater partnerships with the states
    5.  Provide incentives for conservation on private lands
    6.  Significantly increase funding for the Act
    Allow me to elaborate on each of these recommendations.

1. Make species recovery the central focus of the Act
    The goal of the Act is to conserve species and the ecosystems upon 
which they depend. Section 3(3) of the Act defines conservation as 
``the use of all methods and procedures which are necessary to bring 
any endangered species or threatened species to the point at which the 
measures provided pursuant to this Act are no longer necessary.'' In 
other words, the goal of the Act is to recover species. Implementing 
that goal has, however, been elusive.
    We can make the ESA more effective for species and less onerous for 
landowners by ensuring that federal agencies do their part to promote 
species recovery. That means making sure that federal agencies are held 
to a high standard. If federal agencies are allowed to do things that 
make recovery less likely to occur, that push recovery off into the 
distant future, or that increase the cost of recovery, not only will 
species conservation suffer but the regulation of private landowners 
and others will almost certainly increase. Yet, federal agencies have 
been allowed to do exactly that.
    Section 7 of the Act requires all federal agencies to consult with 
the Secretary of the Interior or Commerce to insure that their actions 
are not likely to jeopardize the continued existence of a listed 
species or adversely modify or destroy critical habitat. However, there 
is no statutory definition of jeopardy in current law. The only 
definition of jeopardy is regulatory and several courts have now found 
that definition invalid because it ignores the effects of an action on 
species recovery.
    As federal agencies have ignored the effects of their actions on 
recovery of species, recovery has become an ever more distant goal. 
Consequently, the burden on private landowners to make up for what the 
federal agencies have not done has grown ever greater. If you really 
want to make the Act more effective at recovering species and less 
burdensome for private landowners, you can do that in one simple step: 
define jeopardy in the Act so that agencies insure that their actions 
will not make it less likely that a species will recover or 
significantly delay or increase the cost of recovery.
    The goal of recovering species and, therefore, the definition of 
jeopardy, should be clear and unambiguous, without any qualifications 
such as ``in the long-term.'' The addition of that phrase creates a 
serious risk that actions that have substantial adverse impacts on a 
species, but are of short duration, may not be seen as jeopardizing the 
continued existence of the species. By adopting an unambiguous 
definition of jeopardy, Congress will make clear that the central goal 
of the Act is to recover species and that section 7 consultations on 
federal agency actions must assess whether the actions are likely to 
impair recovery.

2. Properly protect and manage habitat that is needed for species 
        recovery
    Since species recovery is the central goal of the Act, the key step 
in achieving that goal is properly protecting and managing habitat 
necessary for species recovery. Accordingly, the Act should make clear 
that the habitat necessary for recovery needs to be identified and 
protected. The recovery plan is the logical and appropriate place to 
achieve this.
    Section 4(f) of the Act requires the Secretary to develop and 
implement recovery plans. In order to make these plans truly effective 
in achieving species recovery, several changes should be made. First, 
there should be a deadline for developing recovery plans, perhaps 36 
months from the date a species is listed. Second, specific areas of 
land or water that are of particular value to the conservation of the 
species and that are likely to require management or protection in 
order to accomplish the goals of the recovery plan should be 
identified. Third, there should be a clear requirement that, in 
considering whether a federal agency action is likely to jeopardize a 
listed species, the effects of the action on the habitat identified in 
the recovery plan must be considered.
    Adoption of these measures, in combination with a clear statutory 
definition of jeopardy tied to a recovery standard, could eliminate the 
need for designation of critical habitat. If such measures were 
adopted, designated critical habitat should be treated as habitat 
necessary for recovery in the interim while habitat necessary for 
recovery is identified,.

3. Enhance the science underlying species conservation
    There has been much debate over the quality of science underlying 
endangered species conservation decisions. Unfortunately, most of the 
proposals to address this, including H.R. 3824, have focused on 
restricting the types of data that can be considered or requiring time-
consuming and cumbersome peer-review of virtually all conservation 
decisions. Rather than throwing more roadblocks in the way of 
consideration of the best available science, as the Act requires, you 
should increase the scientific capacity of the FWS and NMFS by creating 
for each of them a science advisory board modeled after the very 
successful science advisory board of the EPA. In that manner, rather 
than having Congress tell these agencies how they should do science--
Congress can give them the benefit of useful input from scientifically 
qualified authorities.

4. Promote greater partnerships with the states
    An important way to strengthen the Act is to take full advantage of 
the experience, expertise, and other strengths of state fish and 
wildlife and conservation agencies. The role of the states in the 
conservation of imperiled species should be strengthened and improved 
by fostering a stronger partnership between the states and the federal 
government. Currently, section 6 of the Act calls generally for 
cooperation between state and federal governments, but specifically 
addresses only the acquisition and management of land. Section 6 should 
be amended to specify that there be consultation with the State 
agencies concerned regarding revisions of the list of endangered 
species and threatened species, development and implementation of 
recovery plans, acquisition of lands, waters, or interests therein, 
issuance of permits, and measures to direct attention and resources to 
species before they become endangered or threatened.
    As a further step in this direction, section 6 should be amended to 
replace the current system of ``full authorities'' and ``limited 
authorities'' cooperative agreements, with a simpler and more 
meaningful approach. States should have the flexibility to enter into 
cooperative agreements covering as many--or as few--species as the 
states choose. For each species covered by a proposed agreement, the 
state must demonstrate that it has an ``adequate and active 
conservation program'' that includes scientific resource management of 
such species and that is consistent with the purposes and policies of 
the Endangered Species Act. The allocation of federal funds to the 
states in support of their programs should be based on a somewhat 
shorter, but more meaningful set of criteria. First among these is the 
number of species to which the cooperative agreement applies. In 
addition, strong enforcement provisions, species recovery requirements, 
and adequate funding and staffing to implement state endangered species 
programs should be considered.

5. Provide incentives for conservation on private lands
    Most private landowners are good stewards of their land. The Act 
should encourage this conduct by providing financial and regulatory 
incentives for conservation. Using existing programs, such as the 
Partners for Fish and Wildlife program and Farm Bill conservation 
programs to contribute to the conservation of endangered species should 
be encouraged. Providing landowners with safe-harbor assurances for 
their voluntary actions promoting species conservation should likewise 
be encouraged. Establishing a program to provide financial assistance 
for the implementation of conservation measures under safe harbor 
agreements would also encourage the broader use of such agreements.

6. Significantly increase funding for the Act
    Everyone knows the U.S. Fish and Wildlife Service and NOAA are 
chronically under funded to carry out their responsibilities under the 
Endangered Species Act. Interestingly, it would not take much to change 
that. Devoting a mere fraction of the money the government spends on 
roads, mines, timber hauls and other ``habitat-busting'' projects 
instead to endangered species conservation would pay dramatic 
dividends, both for species conservation and for the regulated 
community waiting for decisions on permits and plans.

CONCLUSION
    When Congress adopted the Endangered Species Act more than thirty 
years ago, it made a commitment to future generations to protect and 
restore endangered species and their habitat. As this Committee 
considers changes to the Act, you should ask yourselves whether you are 
keeping that commitment. H.R. 3824 reneges on that commitment by 
undermining the Endangered Species Act's effectiveness at recovering 
threatened and endangered species. The changes I have outlined today 
would make the Act more effective in conserving species and, in so 
doing, keep the Endangered Species Act's commitment to our children, 
grandchildren, and generations to come.
    Thank you for considering my testimony. I'll be happy to answer 
questions.
                                 ______
                                 
    The Chairman. Thank you.
    Mr. Burling.

  STATEMENT OF JAMES S. BURLING, PRINCIPAL ATTORNEY, PROPERTY 
            RIGHTS SECTION, PACIFIC LEGAL FOUNDATION

    Mr. Burling. Thank you, Mr. Chairman, members of the 
Committee for this opportunity to talk about the Threatened and 
Endangered Species Recovery Act of 2005.
    The Endangered Species Act up to date has shown much 
promise that has not been fulfilled. Over 1,300 species have 
been listed, 10 recovered. What we have seen from the 
Endangered Species Act is an intrusion by the Federal 
Government into the minutia of local decisionmaking on how 
people can use their own land. It has led to a decimation of 
certain resource industries and a perception from the public 
that the Act is clearly flawed.
    If landowners are made part of the process of species 
recovery, we can go a long way; 75 percent of all listed 
species have habitat on private property. Private property 
owners and private water owners really can make a difference in 
converting--in the conversion of these landowners from 
antagonists into allies for conservation.
    One of the problems that we have now that is addressed in 
this bill is landowners having an inability to learn from the 
Fish and Wildlife Service and the Federal Government what they 
can and cannot do with their land. Landowners have a Hobson's 
choice: If they have property that may be a habitat for an 
endangered species and they choose to use that property, they 
can go to jail. If instead they want to go to the Federal 
Government and say, is my use of this property going to impact 
and violate the Endangered Species Act, they don't get an 
answer. They are told, perhaps you can go through a habitat 
conservation plan costing tens of thousands of dollars.
    We represented a gentleman, Robert Morris, who had wanted 
to cut five trees on his property. The trees provided shade for 
riparian habitat. He was told that if he cut the trees, he may 
end up violating the ESA, but he was not told definitely that 
he would. And he was never able to get a final determination 
from the government, therefore never able to go to court to 
seek compensation. We have many other examples like that.
    Mr. Burling. This determination allows landowners to put 
their proposal forth to the government asking, is this going to 
violate the Act or not?
    It does have limitations on the amount of information 
requests right now that the Federal Government can ask a 
landowner to provide. I have litigated too many cases where 
landowners have had endless times of going back and asking for 
more and more and more and more information, at tens and tens 
of thousands of dollars of costs, achieving nothing but delay 
and robbing the bank account of the landowner.
    Under this provision, if you had a timber harvest owner, 
like Mr. Morris, he could find out definitely whether cutting 
his five trees is going to violate the Act. If it is, then they 
move on the aid package after that. But it does take the 
landowner out of eternal limbo.
    Section 14 provides a much needed grants and aids 
provision. It can, for example, help provide develop new 
forestry techniques, new farming techniques, new mining 
reclamation techniques and new water utilization processes that 
would help protect an endangered species. And grants can 
certainly go a long way to helping that.
    The aid provision will provide aid to compensate landowners 
for the fair market value of the forgone use. I see that 
particular language as being a limitation on the government's 
liability because we are talking about, say, in the case in Mr. 
Morris, we are talking about compensation for the inability to 
cut those five trees, not for the full fair market value of the 
property, but for those five trees. Say hypothetically that 
these trees could not be cut because it was a spotted owl 
habitat. It may be that the Fish and Wildlife Service may think 
that the spotted owl may not be there in several years; time 
limitations could be put on the process of compensation. That 
is why I believe this Act has 180 days that the landowner would 
negotiate with the Secretary over the particular details.
    Now, there are provisions that say, if you want to do a 
nuisance, say that if a landowner wanted to build in a riparian 
habitat and the State's law of nuisance and the public trust 
document prohibited that, that landowner would not be entitled 
to aid. On the other hand, if a landowner wanted to put 
property to a use that is prohibited by State or local zoning 
or that is prohibited, for example, from the provisions of a 
habitat conservation plan, then taking into account fair market 
value of the property, the fair market value would reflect the 
fact that you can't use this property for particular ways and a 
particular manner, and the fair market value is discounted.
    In litigation dealing with fair market value that the 
Federal Government has had for many, many years, we know that 
the fair market value is what a willing seller will pay to a 
willing buyer for property. That would not include putting a 
skyscraper in a corn field. But it would perhaps include 
cutting down some trees on the property as part of a lawful 
timber harvest program. Thank you.
    [The prepared statement of Mr. Burling follows:]

          Statement of James S. Burling, Principal Attorney, 
           Property Rights Section, Pacific Legal Foundation

    Mr. Chairman, members of the committee, on behalf of Pacific Legal 
Foundation (PLF), I thank you for this opportunity to comment on the 
proposed Threatened and Endangered Species Recovery Act of 2005.
    In its 32 years of existence, the Endangered Species Act (ESA) has 
had little success at achieving its potential of conserving and 
recovering species. Unfortunately, it has been more successful at 
creating deep divisions between landowners and federal regulators. Of 
the 1,300 species listed under the Act, only 10 domestic species have 
been recovered and delisted and the relationship between the ESA and 
those recoveries is doubtful, at best. From the countless battles over 
various land uses across the nation, to the intrusion of the federal 
government into the minutiae of local land use decision-making, to the 
decimation of certain natural resource industries, and to the 
widespread public perception that the ESA is severely flawed and 
broken, the ESA has done far more to make life miserable for humans 
than it has for meeting its goals of the conservation and recovery of 
threatened and endangered species.
    Approximately 75% of all listed species have habitat on private 
property. See Accounting for Species: The True Cost of the Endangered 
Species Act, Randy T. Simmons and Kimberly Frost, at page v, available 
at: http://www.perc.org/publications/articles/esa--costs.php. It makes 
little sense to perpetuate a program that provides terrible 
disincentives for landowners who may have habitat for listed species. 
Such disincentives will do little to conserve and recover species; 
instead they will continue to create resentment and impede the 
conservation and recovery of listed species that live on nonfederal 
property.
    Sections of the proposed Threatened and Endangered Species Recovery 
Act of 2005 may, for the first time in 32 years, change these dynamics 
and convert landowners into willing and powerful allies of those 
seeking to conserve and recover threatened and endangered species. By 
fostering cooperation between landowners and the federal government, 
this proposal has the potential of increasing substantially the 
effectiveness of the ESA. By transforming the relationship between 
landowners and the federal government from antagonists to partners in 
conservation and recovery, this proposal will serve to harness the 
entrepreneurial spirit of the landowner in America's quest to conserve 
its threatened and endangered flora and fauna.
    These comments will focus primarily upon the three sections that 
have the most potential of transforming the Act into a vehicle for 
species recovery, specifically portions of Section 13(d) (Written 
Determination of Compliance), Section 14 (Private Property Conservation 
fund), and Section 12 (Species Recovery Agreements).

Section 13(d): Written Determination of Compliance
    One of the most vexing problems for landowners under the current 
statute is their inability to determine whether an activity will 
actually impact a species in violation of the ESA. This has put 
landowners to a very uncomfortable choice: they can either attempt to 
use their property--and run the risk of violating the ESA with its 
attendant penalties, or expend substantial resources to participate in 
a Habitat Conservation Plan (HCP) or, if appropriate, an Incidental 
Take Permit or Statement (ITP). Unfortunately, for the small landowner 
seeking only a modest use of his property, the costs of such an HCP or 
ITP may exceed the value of the project or even the property. For 
example, PLF represented a landowner, Robert Morris, who sought to cut 
five trees on his property near Philipsville, California--where removal 
of the five trees was a permitted use under state law and the only 
economic value of the property. When the National Marine Fisheries 
Service indicated that the cutting of these trees might violate the 
Endangered Species Act by removing shade from the aquatic habitat for 
endangered salmon, his only option was to seek an HCP--at an estimated 
cost that exceeded the value of the trees.
    Similarly, John Taylor owned property near the Mason Neck Wildlife 
Refuge near nesting habitat for bald eagles. When Mr. Taylor sought to 
build a modular home to make life easier for his elderly and disabled 
wife, the United States Fish and Wildlife Service refused to give him 
permission unless he agreed to conditions that were beyond his means 
and control. What is worse, the service refused for years to provide a 
final and appealable denial. Section 15 would entitle persons in 
conditions similar to Mr. Taylor to obtain a final determination as to 
whether a proposed use will violate Section 9(a).
    Landowners need a meaningful way to determine whether a particular 
activity on their property will or will not violate the ESA before they 
are required to go through the time and expense of seeking an HCP or 
ITP. Section 13(d) provides such a mechanism. It adds a new subsection 
10(k) to 16 U.S.C. Sec. 1539. Landowners have the option of applying to 
the Secretary for a written determination as to whether a particular 
activity will be in compliance with the ESA. To obtain a determination, 
landowners must submit a written description of the activity (including 
the nature, specific location, and duration), a description of any 
incidental take that the requestor reasonably expects to occur as a 
result of the proposed action, and any other information the requestor 
chooses to include. Upon receipt of a submission with the required 
information, the Secretary shall, within 90 days, provide the requestor 
with a written determination of whether the proposed use will comply 
with section 9(a) of the ESA. Requiring the Secretary to adhere to a 
timetable is especially important so that landowners will not face 
endless delay--delay that otherwise could last for years. Because 
landowners often face severe time constraints that are not faced by 
regulatory agencies, requiring the Secretary to make a determination 
within 90 days is very sensible.
    Under this provision, it is anticipated that the following 
scenarios may occur:
      A landowner who seeks to cut trees on a certain portion 
of his property during a certain period of time may request a 
determination as to whether the activity will violate Section 9(a). By 
examining the information submitted by the requestor, and any other 
available information, the Secretary will be able to inform the 
landowner whether the proposed activity will comply with Section 9(a).
      (It is anticipated that if a landowner obtains a 
certification under this section that a proposed use will not violate 
Section 9(a), that the certification may be limited for the reasonable 
duration of the project and be subject to revocation if there is an 
unanticipated change of circumstances).
      If the Secretary in the above scenario determines that 
there is not adequate time to make the necessary determination, the 
requestor and the Secretary may agree to an extension of the time in 
which a determination may be made. This may be important when the 
Secretary requires more time to examine the range and existence of a 
particular species--such as when seasonal conditions require more time 
for a full evaluation by the Secretary.
    With this provision, landowners will no longer be kept in eternal 
limbo, afraid to act and unable to afford a way of determining whether 
their activities will, in fact, violate the ESA.
Section 14: Private Property Conservation
    The next most significant provision of the proposal is Section 14, 
Private Property Conservation. This section, through Grants and Aid, 
will foster collaborative efforts between landowners and the Federal 
Government.
    Section 14 amends Section 13(a) and establishes that the Secretary 
may provide conservation grants to promote the ``voluntary conservation 
of endangered and threatened species by the owners of private 
property.'' Amended Section 13(b) requires that grants, among other 
things, ``must be designed to directly contribute to the conservation 
of an endangered species or threatened species by increasing the 
species numbers and distribution.'' In addition, amended Subsection 
13(c)(i) gives the highest priority to grants that ``promote the 
conservation of endangered species or threatened species while making 
economically beneficial and productive use of the nonfederal property 
on which the conservation activities are conducted.'' This is 
especially important, because if landowners are able to make 
economically beneficial use of their property while at the same time 
conserving a threatened or endangered species, the antagonism that 
currently may exist between some landowners and the federal government 
may be ameliorated. Through the HCP process and other cooperative 
ventures, landowners have demonstrated their ability and willingness to 
manage their land uses for species conservation and recovery, 
especially where compensation and regulatory certainty are provided. 
This reform may further encourage landowners. For example:
      Grants may be used to develop forestry techniques that 
preserve habitat while allowing economically productive timber 
management activities.
      Grants may help develop farming techniques that better 
allow a coexistence between threatened and endangered species and 
farming.
      Grants may help provide ways of addressing mining 
activities in areas that are the habitat for threatened and endangered 
species so that mining activities will enhance species habitat through 
innovative mining and reclamation techniques.
    Amended subsection 13(d) creates a program that provides relief to 
landowners who have been unable to receive a determination under 
Section 14(d) (amended subsection 10(k)) that a proposed activity will 
not violate Section 9(a) and converts those landowners into partners 
for conservation and recovery. If a landowner agrees to forego the use 
of his property that would result in a violation of Section 9(a), the 
landowner will be entitled to aid equivalent to the fair market value 
of the foregone use. In this way, landowners will no longer be forced 
to bear the entire cost of the preservation of a threatened or 
endangered species when the conditions that have led to the precarious 
state of the species are not the result of activities of the landowner. 
It is important to note that amended Subsection 13 (d)(3) makes it 
clear that if the Secretary can determine that the proposed use would 
constitute a nuisance under a state's long-standing law of property, 
then the landowner will not be eligible for aid. Thus,
      If a landowner proposes to destroy riparian habitat in a 
manner that is prohibited by a state's law of nuisance and public-trust 
doctrine, then the landowner will not be entitled to aid.
      If a landowner seeks to develop property on a steep 
hillside in a manner that constitutes a nuisance under State law, the 
landowner will not be entitled to aid.
      But if a landowner seeks to put his property to a 
traditional lawful use, such as placing a home on a lot in a 
residential subdivision, or engaging in normal farming activities, the 
landowner will be entitled to aid if the owner decides to forego the 
use because the Secretary is unable to provide assurance with a 
determination letter that the use will not violate section 9(a).
    Amended Subsection 13(f) provides that the landowner has the duty 
of establishing, in the first instance, what the fair market value of 
the foregone use is. The Secretary may rebut this value. Under well-
established federal precedent, fair market value is defined as ``what a 
willing buyer would pay in cash to a willing seller.'' See e.g. United 
States v. 564.54 Acres of Land, 441 U.S. 506 (1979). This means what 
knowledgeable buyers will pay voluntarily for property based on its 
existing uses and those uses that are reasonably foreseeable in the 
future. This will not include purely speculative uses that have no 
basis under current market conditions. Likewise, the existence of state 
and local regulations is relevant to a determination of fair market 
value. The government is adept at utilizing appraisers and other 
experts to help determine the fair market value in cases where it 
condemns nonfederal property and it is anticipated that the Secretary 
may utilize similar means when disagreements over the fair market value 
may arise. Thus,
      A landowner who proposes to engage in a timber harvest in 
accordance with state and local law will be able to claim reasonably 
that the fair market value of the use is the reasonably anticipated 
profit from the harvest after all expenses are accounted for.
      If a landowner seeks to develop land in a manner that is 
prohibited by the zoning laws of a local municipality, then that 
prohibition will affect the determination of fair market value.
      If a landowner seeks to harvest timber in a manner 
prohibited by a State's forestry laws, then that prohibition will 
affect the determination of fair market value.
      If a landowner seeks to fill tidal wetlands that are 
protected by a State's public trust doctrine, the prohibition will 
affect the determination of fair market value.
      A landowner who proposes to build a single-family home in 
accordance with state and local law, will be able to claim that the 
fair market value of that use is the value attributed to a lot by 
virtue of the ability to build that single-family home. The landowner 
may not claim that the value of the foregone use includes uses not 
allowed by state or local law, such as housing that exceeds local 
density requirements when there is no reasonable chance of obtaining a 
variance.
      A landowner who proposes to build a skyscraper in a corn 
field (assuming such were allowed by local law) will not be able to 
claim that fair market value of the use includes such an unrealistic 
and speculative project.
      The Secretary will be able to rebut a suggestion from a 
landowner who claims that the fair market value is anything other than 
what a willing buyer will pay to an unrelated willing seller in the 
open market.
      A landowner who does not employ the services of a 
licensed appraiser operating under the Uniform Standards of 
Professional Appraisal Practice (USPAP) will, in all likelihood, be 
rebutted by the Secretary when she presents evidence from an appraiser 
that meets the USPAP requirements.
      A landowner who has already agreed to set aside land 
under an HCP, will not be eligible for aid for foregoing a use on the 
land previously set aside because any enforceable agreement to set the 
subject land aside will be accounted for in the fair market value.
      A landowner seeking aid for foregoing a frivolous use 
will not gain by this provision as the time and costs of proceeding 
with administrative process and then gathering adequate evidence of 
fair market value will likely exceed any aid available for the 
frivolous use.
      A landowner who deliberately falsifies data or an 
estimation of fair market value would be engaging in fraud, actionable 
under federal law.
Section 10(c): Species Recovery Agreements and Species Conservation 
        Contracts
    Section 10(c) amends Section 5 (16 U.S.C. Sec. 1534) and provides 
for voluntary species recovery agreements and species conservation 
agreements. These species recovery agreements of not less than 5 years 
will allow landowners to voluntarily work to protect and restore 
habitat, contribute to the conservation of listed species, and 
implement a management plan. In exchange for these agreements, the 
Secretary will make annual payments or provide other compensation. This 
section will, therefore, enlist the support and cooperation of 
landowners by making them active partners in the recovery of listed 
species.
    In addition to species recovery agreements, section 12 also 
provides for species conservation agreements. This will promote 
landowners' use of conservation practices for the conservation of 
species and their habitat. Landowners who enter into long term 
contracts of 30 years will be entitled to contract payments equal to 
the actual costs of the conservation practices; landowners who enter 
into shorter contracts of 20 or 10 years will be entitled to 80% and 
60% of the costs, respectively. This provision will encourage 
landowners to enter into long-term agreements for the long-term 
conservation of listed species, but it may discourage shorter-term 
agreements even if they will help conserve the species and it may, 
therefore, discourage some landowners altogether from entering into 
agreements.
    It is important to stress that these contracts and agreements will 
be voluntary. New Subsection 5(l)(2)(A) provides, in part, that the 
Secretary ``may not require a person to enter into an agreement under 
this subsection as a term or condition of any right, privilege, or 
benefit.'' By making these agreements strictly voluntary, landowners 
are much more likely to be enthusiastic and willing partners of the 
recovery and conservation efforts promoted by this Act.
Other Provisions:
    Critical Habitat: Section 5 repeals existing provisions providing 
for the designation of critical habitat. Despite inflated claims of 
certain professional critical habitat litigation mills, there is no 
evidence that the designation of any critical habitat has contributed 
to the recovery of any threatened or endangered species. Of the 15 
species determined to have recovered, only two had a designation of 
critical habitat and there is no showing that the critical habitat 
designation had anything to do with that recovery. Critical habitat 
designations have been beset with agency failures--failures both to 
meet deadlines for designating critical habitat and failures to perform 
adequate analyses--especially economic analyses--prior to a critical 
habitat designation. The entire management agenda of the critical 
habitat program is being driven by court decisions that have nothing to 
do with weighing whether critical habitat designations do any good at 
all for any species.
    When the Fish and Wildlife Service designated over 400,000 acres of 
critical habitat for the Alameda whipsnake in four California counties, 
in response to a court challenge, the Agency openly acknowledged it 
included areas that were not essential to the conservation of the 
species:
        We recognize that not all parcels within the proposed critical 
        habitat designation will contain the primary constituent 
        elements needed by the whipsnake. Given the short period of 
        time in which we were required to complete this proposed rule, 
        and the lack of fine scale mapping data, we were unable to map 
        critical habitat in sufficient detail to exclude such areas.
65 Fed. Reg. 58933, 58944 (October 3, 2000).
    The deficiencies did not stop there, however. The Agency also 
failed to adequately consider the economic impacts of the critical 
habitat designation. Although the critical habitat included highly 
populated areas of the State of California in the midst of a housing 
shortage, and costs associated with critical habitat were estimated at 
$100 million for the University of California, and a like amount for 
the mining industry, and state and local agencies identified severe 
limits that would flow from critical habitat affecting fire and flood 
protection activities, the Service concluded the designation of 
critical habitat for the Alameda whipsnake would have no significant 
economic effect.
    In response, Pacific Legal Foundation attorneys, representing home 
builders, small businesses and local landowners, challenged the 
critical habitat designation in court. In Home Builders Association of 
Northern California v. United States Fish and Wildlife Service, 268 F. 
Supp. 2d. 1197 (E.D. Cal. 2003), a federal court invalidated the 
critical habitat designation for the Alameda whipsnake and remanded the 
matter to the agency to redesignate the critical habitat and redo the 
economic analysis.
    This has lead to further litigation. Recently, Pacific Legal 
Foundation attorneys filed suits in federal court challenging the 
critical habitat designations of 42 species in 42 counties of the State 
of California, covering almost 1.5 million acres. Each of these 
designations was promulgated as a result of a court action and suffers 
from the same deficiencies as the critical habitat for the Alameda 
whipsnake--the designations are over broad and the economic analyses 
are inadequate.
    Thus, the ESA critical habitat requirement is, at best, 
inefficient, and, at worst, wasteful, on two fronts. First, according 
to the very agency tasked with the responsibility for protecting listed 
species, the designation of critical habitat provides no meaningful 
protection to the species beyond the protections already provided by 
other provisions of the Act, such as the Section 9 take provision which 
prohibits anyone from harming a listed species. This was also the 
conclusion of the district court in Home Builders. While the 
environmental intervenors argued that the invalid critical habitat 
designation should be left in place for the protection of the Alameda 
whipsnake, the court found no evidence that setting aside the critical 
habitat would have any harmful effect on the species.
    And, second, the critical habitat requirement breeds endless 
litigation that diverts limited resources from true conservation 
efforts.
    What critical habitat designations have done is make the use of 
millions of acres of nonfederal land especially difficult, with 
landowners facing severe risks if they move forward with projects or 
even if they merely continue a traditional use of their land.
    Best Scientific Data: Section 3(a) defines ``best available 
scientific data'' to be the data the Secretary deems most accurate, 
reliable, and relevant. Moreover, this data will be made public for 
review by affected members of the public. There have been too many 
instances where data relied upon by the agency has proven to be 
unreliable and, remarkably, unavailable to the public for review. For 
example, in the listing of the California gnatcatcher, the 
determination that the California gnatcatcher was a separate species 
from the common Mexican gnatcatcher was a scientifically controversial 
decision--and one for which the underlying data was unavailable for 
public review.
    At present, both the implementing agencies and the courts have 
interpreted ``best available'' to mean any evidence whatsoever. This 
has resulted in unnecessary listings and overly broad ``critical 
habitat'' designations. For example, in a July 15, 1998, study entitled 
Babbitt's Big Mistake, the National Wilderness Institute documented the 
following.
        Historically data error has been the most common actual reason 
        for a species to be removed from the endangered species list. 
        Species officially removed because of data error include: the 
        Mexican duck, Santa Barbara song sparrow, Pine Barrens tree 
        frog, Indian flap-shelled turtle, Bahama swallowtail butterfly, 
        purple-spined hedgehog cactus, Tumamock globeberry, spineless 
        hedgehog cactus, McKittrick pennyroyal and cuneate bidens. 
        While officially termed ``recovered'', the Rydberg milk-vetch 
        and three birds species from Palau owe their delisting to data 
        error (see Delisted Species Wrongly Termed Recovered by FWS, p. 
        16). Many other currently listed species have been determined 
        to by substantially more numerous and to occupy a much larger 
        habitat than believed at the time of listing (see Environment 
        International, Conservation Under the Endangered Species Act, 
        1997).
Publications, Studies, Reports, Legislative Briefs at http://
www.nwi.org.
    ``Best available'' data is often not peer reviewed. Currently, the 
agencies use peer review on an informal, ad hoc basis. This has proven 
inadequate as events in the Klamath area have shown. In 2001, the 
Biological Opinion for the Klamath Project concluded that any water 
diversions for irrigation purposes would jeopardize listed salmon and 
sucker fish, although numerous claims were made that the Biological 
Opinion ignored more reliable data that showed that water diversions 
would not jeopardize the fish. Based on this conclusion, the Bureau of 
Reclamation prohibited all water diversions from the Klamath Project to 
Klamath area farmers who depend on irrigation water from the project. A 
firestorm of protests followed calling on the Administration to take a 
closer look at the data for 2002. In response, the Administration 
subjected the data to ``peer review'' by the National Academy of 
Sciences. An expert scientific committee of that body subsequently 
determined that the 2001 Biological Opinion was faulty because the 
``best scientific and commercial data'' showed that water diversions 
for irrigation would not jeopardize the listed fish.
    The proposed reform requires that the Secretary promulgate 
regulations that will ``establish criteria that must be met to 
determine which data constitute the best available scientific data.'' 
This should help establish minimal standards of reliability for 
scientific data relied upon by the agencies.
    Better Supported Listing Decisions: Section 4 requires that the 
``best available scientific data'' be used in listing decisions. 
Factors to be considered include the inadequacy of existing regulatory 
mechanisms. It is hoped that this will include private conservation 
efforts. This provision also refers to ``other natural or manmade 
factors.'' Here, it is hoped that the existence of hatcheries and 
similar programs will be taken into account. One of the problems with 
some of the salmon listings in the Pacific Northwest is that they 
failed to include the populations of hatchery salmon. This provision 
does require that the use of ``distinct population segments'' be used 
``only sparingly.'' It is hoped that the Secretary will abide by the 
spirit of this guideline; otherwise it may not be terribly meaningful 
and the specter of listing genetically identical populations (for 
example, a wild salmon that coexists with hatchery salmon) will 
continue.
    This section also requires that the Secretary conduct, at least 
once every five years, a review of listed species ``based on the 
information collected for the biennial reports to Congress.'' The data 
in these reports, however, can be weak and subjective. It may be more 
efficacious not to limit the reviews to this data.
    Posting of Data: Section 6 requires that data supporting a petition 
to list a species must be provided to the Secretary and must be posted 
for public review on the internet. This will avoid the perception that 
some listing decisions have been based on a paucity of reliable 
evidence. Advocates of listing a particular species should welcome the 
opportunity for a full public review and discussion of the data upon 
which listing petitions are based.
    Jeopardy: Section 3(c) revises the definition of the term 
``jeopardize the continued existence'' to include an agency action that 
``would be expected to significantly impede, directly or indirectly, 
the conservation in the long-term of species in the wild.'' This new 
definition is not an improvement from the plain language of the term 
``jeopardize the continued existence'' and may make it more difficult 
for agencies to move forward with needed projects.
    In conclusion, this proposal will go a long way to increase the 
effectiveness of this nation's efforts to conserve and recover 
threatened and endangered species by harnessing the cooperation and 
ingenuity of America's landowners. Thank you for this opportunity to 
share my views with this Committee.
                                 ______
                                 
    The Chairman. I thank the gentleman.
    I thank the panel.
    I think we are in recess. But we will go ahead and start 
the questions until they figure out what they are doing.
    Well, we will go the round of questions. And I thank the 
panel for their testimony. I am going to begin with Ms. Clark, 
and I want to talk to you about habitat and try to understand--
I want to try to understand exactly where it is you are coming 
from. And we have been through this before and as an 
Administration--when you were in the Administration, I know you 
have gone through all this, but when you were in the 
Administration and had actual oversight on this, it was your 
determination the critical habitat has turned our priorities 
upside-down; species that are in need of protection are having 
to be ignored. This is a biological disaster. In 25 years of 
implementing the ESA, we have found that designation of 
official critical habitat provided little additional protection 
to most listed species while consumed significant amounts of 
scarce conservation resources. These lawsuits, forcing the 
service to designate critical habitat, necessitate the 
diversion of scarce Federal resources from imperiled but 
unlisted species which do not yet benefit from the protections 
of the ESA.
    I understand in your testimony what you are trying to get 
at in terms of the recovery habitat. I don't understand why you 
tie that to maintaining the current critical habitat process if 
the current critical habitat process is so broken and does 
little or nothing to recover species. Why are you trying to tie 
getting rid of a broken part of the law to something else?
    Ms. Clark. You're right, Mr. Chairman, we have gone around 
on this issue, and I am happy to continue to talk about it 
because it is the heart of the Endangered Species Act. As I 
have said many times, it really doesn't matter what you do for 
species if you don't take care of their habitat.
    And at the same time, it is, I think, illogical and 
irresponsible to throw out any habitat protection system, even 
one that can be made to work better if there is not something 
that supplements and does a better job. And this bill does not 
do that.
    The current elimination of habitat, without providing 
another effective means of designating habitat or articulating 
habitat necessary for species recovery, will only compromise 
species that are already in precarious states even more.
    I did lay out in my testimony, as well as in my oral 
statement, what I would hope would be a discussion topic of a 
way to achieve, I think, a mechanism, a system that habitat can 
be protected, that species can be recovered, that clear, 
unambiguous standards for whether or not recovery would be 
impaired would be able to be implemented by biologists across 
the country. And I am happy to discuss that at greater length.
    The Chairman. Well, as I said, I understand what you're 
trying to get at in terms of recovery habitat. And we have, I 
think, we fundamentally have a disagreement about what the bill 
language actually does and what we are able to achieve on that. 
Because our focus from the very beginning, you and I have had 
this discussion for a number of years, is that we should be 
focusing on recovery and not just on land use.
    Ms. Clark. I agree.
    The Chairman. And that is where we failed in the current 
implementation of the law is that the focus has shifted into 
land use, and we have forgotten about recovery. And we are 
trying to go back to putting the focus on recovery. That is 
something that you advocated while you were at the Department 
of the Interior. It is something that we tried to reflect in 
this bill.
    Much of what we have been able to come up with was a direct 
result of the discussions that we have had over the last 
several months. There are differences. There are things that 
you and I may never agree on. But when it comes right down to 
the essence of what we are trying to do, I think we are in 
agreement. I think there is just a disagreement in terms of 
what whether or not the language that is in the bill actually 
achieves what we are both saying we want to do.
    Ms. Clark. I would agree, Mr. Chairman, that I believe very 
much in your statements that you want to promote an Endangered 
Species Act that does a better job recovering species. And I 
have said that, whether I was a biologist with the service, the 
director of the agency or now Defenders of Wildlife, the bill 
in its current form, I believe very strongly, will not achieve 
either biologically or from an implementation standpoint the 
objectives you're trying to achieve. But I would be happy to 
continue to have this dialog with you and try to work through 
it.
    You can't substitute a mechanism that is currently a 
regulatory mechanism that requires agencies to evaluate the 
impacts on designated habitat with something that is 
nonbinding, that is nonregulatory, with a confusing definition 
of jeopardy and words like, what is it, areas of special value. 
Trust me, when you're implementing this law across the country 
in field stations across the country, you want consistency. You 
want--we talked--you talked in the panel before about the 
important need for clear, unambiguous guidance.
    I would find it very difficult to translate the language in 
this bill into guidance that would provide for consistent 
implementation in the field of the Fish and Wildlife Service. 
That, combined with definitional problems and substantive 
implementation issues that make this discretionary, I think 
sends the whole notion of habitat protection spiraling 
backwards that would then compromise recover.
    The Chairman. I realize my time has expired, and I am going 
to have to yield. But I would remind you, when you were 
responsible for administering this law, you said the current 
critical habitat system was broken. It didn't work. It didn't 
provide protection, additional protection for species. And now, 
you come before us and say, oh, we can't mess with it because 
it works so great. It can't be--there is no consistency in 
that.
    I realize we have a difference in what the effect is of 
this bill if it were to become law, and that we can continue to 
work on. But I think we agree the current critical habitat and 
the way it is being implemented does little or no good in terms 
of recovering species. That was your conclusion when you were 
at the Department of the Interior. That is the current 
Administration's conclusion that is responsible for 
administering this law; the current critical habitat system 
does not work.
    Ms. Clark. The current critical habitat system really can 
be made to work better, I agree. And yes----
    The Chairman. Using your words. It doesn't work.
    Ms. Clark. It needs to work better. But that is different--
you're taking isolated responses that I have made in quotes 
that I keep seeing on both sides of me or that I had--I made in 
response to having to lead an agency out of a zeroing out of 
the listing budget by Congress when I made a conscious decision 
that providing species in need of protection, the protection of 
the Act, was more important than dealing with critical habitat. 
We worked in the last Administration to--with this Congress, in 
fact, with the late Senator John Chafee to try to address the 
necessary changes to critical habitat to make it more effective 
for recovery. So, yes, I stand behind the comments that I have 
made and the comments I continue to make.
    All I am suggesting is that this bill does not--does not 
achieve anything to advance the need for habitat for species 
for recovery.
    The Chairman. I put your quotes up there. But I could just 
have easily put up the quotes from Secretary Babbitt, who said 
basically the same thing on a number of occasions, quotes from 
judges that have found in different cases, on times that you 
were sued, at the Department of the Interior, saying the 
current critical habitat system doesn't work.
    What we are trying to do is trying to fix that and make it 
work better, as you say.
    I am going to recognize Mr. Miller.
    Mr. Miller. Thank you, Mr. Chairman, I want to follow on.
    I would hope that we would use Ms. Clark's statements and 
her candor as the means by which--and this is what I assumed 
was going on in these negotiations--was that there is 
recognition that the current critical habitat arrangement 
doesn't work for a whole host of reasons, one the expenditure 
of public resources and whether or not there is marginal 
protection provided to the species.
    And that is what we were setting out to do--and I thought 
in the negotiations, that is what you were setting out to do. 
So I would hate to have her candor be used as a weapon against 
her when, in fact, that is what opened the door for many of us 
to rethink this process.
    And I want to, one, thank her for having the courage to 
step forward to participate in those negotiations because there 
is many, I recognize, in the environmental community that 
aren't happy that those negotiations took place. There is many 
in the environmental community that think the answer is just no 
to any change. And I think that is a problem.
    So for you in, you know, the Defenders and the EDF and 
World Wildlife Fund, I appreciate the time and effort. I guess, 
when I sit here and having listened to how this is proceeding 
and when I listened to how you two talk here, we were so close 
on the intent, but we still seem to be very far apart on the 
solution here. And I thought what part of this negotiation was 
about was the idea that we were going to move away from these 
big blanket designations of critical habitat, 4 million acres, 
3 million, whatever it is, and we were going to move to a 
designed recovery habitat with very strong standards about 
jeopardy, and we would, in fact, be able to tailor make the 
necessary habitat for the recovery of that species.
    And that sounds--when I explain that in the developing 
communities or I explain that to my cities and counties, they 
say that makes so much more sense, and we have been around 
this--I want to get credit for other things that States have 
done, that park districts have done in a credit and debit 
system in this operation. But this really held out the hope. 
And so I would just like, if I might, to have you once again 
explain what you were trying to--your offer that was made and 
what you were trying to do in refining and make more workable 
the critical habitat, recovery habitat--I think they are 
becoming interchangeable--so a habitat system that works for 
the recovery of the species.
    Ms. Clark. OK, I will try to do that.
    The important focus is, the central tenet of the law should 
be recovery. I don't hear anyone disagreeing with that. So how 
do we do a better job of recovering species? If you accept the 
importance of habitat in recovering species and you accept the 
importance of developing a recovery plan that is biologically, 
scientifically driven with stakeholder involvement, it seems to 
me that--one of the frustrations with the current critical 
habitat mechanism is the timing.
    Current law requires you to designate habitat concurrent 
with listing it and allows that 1-year kickout if you need more 
time to determine it. Very frustrating, very difficult because 
there is so little known other than the threats of the status 
of the species.
    Mr. Miller. You basically make an uninformed decision.
    Ms. Clark. Exactly.
    Mr. Miller. And that is why you get sued.
    Ms. Clark. It frustrates the regulatory community. It 
frustrates the environmental community, and sometimes, it is 
questionable for the species potentially. So for years, there 
has been a lot of discussion and I believe agreement of moving 
the identification of habitat to the recovery planning process. 
And everybody agrees on that part.
    So to current critical habitat, which is--has force of law, 
is regulatory and binding, and it allows for agency actions to 
be reviewed to evaluate their impact on habitat, that notion 
was to be lifted and moved into the recovery planning process. 
And so to have recovery plans that have a deadline for 
completion--and we have said, something more like 36 months 
just because of the magnitude of time and engagement to get one 
of these accomplished--so to develop a recovery plan that has 
the habitat necessary for recovery be defined and described in 
a recovery plan, biologically, to have an unambiguous 
definition of jeopardy that clearly, makes it clear that any 
action that impairs recovery would also jeopardize the 
continued existence of the endangered or threatened species and 
a clear direction that agencies examine the impact of their 
actions on habitat necessary for recovery in determining 
whether there is jeopardy. So you link it all together.
    You have identification of habitat shifted to recovery. You 
have a clear definition of jeopardy that is recovery based, and 
you have agency actions--and rightfully so--Federal agency 
actions evaluated against that recovery plan and against the 
habitat that is identified for jeopardy.
    Mr. Miller. You are running out of time here. But that 
offer, that consideration by you and others who you are 
representing is a dramatic departure from existing law.
    Ms. Clark. It is a very dramatic departure.
    Mr. Miller. In the sense, one that is based on a great deal 
more information when the Secretary would make that 
determination as to the applicability of that habitat to that 
recovery plan.
    Ms. Clark. Yes.
    Mr. Miller. Today, they just throw a blanket out because 
they throw the blanket further and further trying to avoid a 
lawsuit, and you end up getting sued anyway.
    Ms. Clark. What you often have now is a designation of 
court order critical habitat absent a recovery plan and absent 
the biological underpinnings of what would inform the 
identification of habitat.
    Mr. Miller. So you end up with a huge number of landowners, 
be they public or private, who now have questions raised about 
what they can or cannot do on their land, whether it is or is 
not going to be habitat, and that determination is all kicked 
down the road later on as you start to weed out what is 
necessary or not necessary.
    Ms. Clark. Because you're informed by a scientific-based 
recovery planning process. Yes.
    Mr. Miller. Well, I don't know----
    The Chairman. It sounds like we are all in agreement here.
    Mr. Miller. That is my point. You know, before, that is my 
point, is that is the result I think that we want. I am sure 
you will have different bells and whistles on it than I would 
put on it. But the fact of the matter is, that is the targeted 
approach that I think people want to take as opposed to what 
happens today.
    But to take what happens today, the fact that Ms. Clark 
disagrees with it, I disagree with it, you disagree with it, to 
take that and say, well, then we are going to go--which I think 
is a mistake here in terms of the ambiguity in this and the 
unenforceability of it--I just would like to, before you two 
split the ways here, I would think there is a chance to have a 
second conversation about whether that is doable because I 
think some of us are willing to burn a fair amount of credit to 
achieve that result because I think it works both for the 
species, and I think it works from the economic point of view 
that we also have to consider.
    Mr. Cardoza. Mr. Chairman, I know Mr. Miller is out of 
time, but if you would yield for a second, I have a point on 
this matter that I think is important.
    The Chairman. Go ahead.
    Mr. Cardoza. Thank you for your indulgence. I think one of 
the things that I am fearful of here--and I think Mr. Miller 
has really tried to move the effort forward with his last 
statement, because I do think we have gotten the admission that 
the critical habitat designation is currently broken. That is a 
fundamental thing to understand and to come to some kind of 
agreement on.
    And the question is how we wordsmith the fix, in my 
opinion. And what has transpired in the paper--and I 
understand, for negotiation reasons, some of this rhetoric gets 
overly heated--but what we are trying to do here is not 
devastate the Endangered Species Act. It is to try to fix it 
and make it workable. And if we can now take what Mr. Miller 
was just saying and add the fact that what we are trying to 
do--and hopefully someone is listening out there--that we are 
not trying to destroy the Act but actually make it workable to 
do what it was set out to do, then we can start engaging in the 
discussion of the wordsmithing. The wordsmithing is not going 
to be easy. But as the process moves forward, I think that this 
Committee and this Chairman and the others that are working on 
it, this effort, can in fact, do the right thing, for once, in 
this Congress.
    We may not all be in total agreement, but certainly, we can 
move this in a very positive way if we have that spirit.
    The Chairman. Thank you.
    Mr. Cannon.
    Mr. Cannon. Thank you, Mr. Chairman.
    I would just like to thank you in particular for moving 
this bill to a point where we are nitpicking over the way we go 
forward as opposed to the need to go forward. I think that is a 
remarkable success. And I commend you. And I don't particularly 
have any questions, but if the Chairman would like to continue 
questioning, I would be happy to yield time to him. Otherwise, 
I yield back. Thank you.
    The Chairman. I recognize Mr. DeFazio.
    Mr. DeFazio. Thank you, Mr. Chairman.
    In response to the concerns I raised earlier, I believe 
that Mr. Burling was addressing those. I am a bit puzzled--and 
perhaps since I am not a lawyer, perhaps I am at a disadvantage 
in this context--but back to page 57, line 15, in an amount, no 
less than the fair market value. So I guess that means the 
Secretary could actually pay more for the use that was proposed 
by the property owner.
    Now, as I understood the gentleman's testimony as saying, 
if someone was proposing to build a house and the building of 
that house would require the removal of trees which currently 
is, say, prohibited because perhaps they are bald eagle nesting 
trees that the only compensation would go to the value of those 
trees, not the loss of the use of that property for building 
the house; it seems to me that is contradicted by the language 
here. But you went on--and this is sort of a long question. But 
you went on to say, you qualified your interpretation saying it 
had to do with nuisance statutes. So I don't know. I just don't 
follow that.
    So you're saying that all this would do is allow, if I 
owned a piece of property, I had five really tall trees 
configured in an area where I wanted to build a house that 
happened to be bald eagle nesting or other endangered species 
that all I could--and I proposed to build a house there and cut 
the trees, I could only be compensated for the value of the 
trees, not for the loss of the use of the property for building 
the house or not for the value of the house that I would have 
built or, if the house was to be a rental house, not for the 
value of the rent that I would have accrued from the rental 
house or, if it were to be a resort, not from the loss of 
profit that I would make from the resort on that property, only 
for the value of the trees? Is that what you're saying?
    Mr. Burling. No. So I do need to clarify my statements. If 
the landowner only sought to cut down the five trees, as Mr. 
Morris did, that would be how the compensation would be 
calculated. If a landowner, though, wanted to build a home and 
the restriction on the home was because of the trees that had 
to be cut down, and the first part of the equation is, is that 
particular use a nuisance or not? If it is not a nuisance under 
State Law, then----
    Mr. DeFazio. Can you go to nuisance? In my State, if you 
own forest land and you receive a subsidy from the taxpayers of 
the State, that is, you pay very low property taxes, you're 
prohibited generally from siting a dwelling or other thing on 
that property, permanent dwelling other than something 
appurtenant to the forest use, would that be covered by 
nuisance law?
    Mr. Burling. No that is not a nuisance. That is a statutory 
restriction on the use of the property.
    Mr. DeFazio. So this would waive State statutory 
restrictions?
    Mr. Burling. No, it would not. If I may try to continue to 
get to the rest of your question. If the restriction is based 
on State law or regulatory restriction, then you look at what 
the fair market value of that particular use is with those 
State or local restrictions in place, in which case the fair 
market value would be approximately zero if you're absolutely 
prohibited under State law of putting the property to the use--
--
    Mr. DeFazio. Could you point to me where it says that? 
Because there is a bone of contention here.
    Mr. Burling. Because it talks about the fair market value 
of the forgone use, page 59.
    Mr. DeFazio. The use that was proposed.
    Mr. Burling. That is correct.
    Mr. DeFazio. I don't see anywhere that says that use had to 
be compliant with State law. It says, below the nuisance. This 
is the hang-up for people who aren't lawyers here, you know.
    Mr. Burling. Well, interpreting fair market value, the 
courts say that is what a willing seller will pay to a willing 
buyer for the use of the property.
    And if the particular use is prohibited, you are not going 
to find a willing buyer buying property from a willing seller. 
And in that case, courts are going to find the fair market 
value and the Secretary certainly ought to say the fair market 
value of this particular use that is a prohibited use is 
nothing. Now, there is lots of litigation out there about how 
you determine fair market value of regulated property.
    Mr. DeFazio. So this would put a lot of lawyers to work. 
Couldn't we be more specific in this area? What would be--if 
your interpretation is correct, couldn't we have another 
section that would say the use must be allowed under State law?
    Mr. Burling. If you want to put something like that in 
there, that makes sense only insofar as State law--we're not 
talking about the particular State law that it dictated by the 
Endangered Species Act. As you may know, the Endangered Species 
Act, when it finds that there is a--under the Endangered 
Species Act, if a State law fails to adequately take care of 
protecting endangered species, States are encouraged to amend 
their laws and fix their laws to that effect. So just so long 
as you make it clear, this is not law dictated by the 
Endangered Species Act itself or where the States have a great 
deal of incentive to do that, I think it does make some kind of 
sense to make sure that landowners are not going to be 
compensated by the Federal Government for something that the 
local governments are not allowing them to do in the first 
place.
    That is the beef that the landowners may have with the 
local Government, but we don't have to talk about that here at 
this time.
    The Chairman. Would the gentleman yield for just a second 
on that point?
    Mr. DeFazio. Yes.
    The Chairman. I guess the question is, you want the 
property owner to be compensated for what they are actually 
losing.
    Mr. Burling. Correct.
    The Chairman. And if somebody came in and said, I have 
agriculture land, I don't have water available for development, 
it is not zoned by the county or the city for development, but 
I had planned on some day building luxury condominiums here; 
would that be part of the equation here or would it just be 
what they are actually losing?
    Mr. Burling. Standard appraisal practice does not make that 
part of the equation. A highly speculative use that is not 
grounded in the State proper law, State laws, is not going to 
be part of that use. If you can't farm that property because 
you may be endangering a rodent and you traditionally farmed 
that property, that is where we can start talking about 
compensation, not luxury condominiums where it simply cannot be 
done feasibly because of the lack of water, in your example, 
and the violation of State law.
    Mr. DeFazio. Reclaiming my time on that then. Following 
that discussion, I just don't think that the language in the 
bill quite takes us there because the Secretary is prohibited 
from asking for additional information. If I didn't volunteer 
the information and nowhere here does it say I must provide, 
you know, information to the Secretary saying that my proposed 
use is compliant with State laws that weren't coerced by the 
Endangered Species Act, and I, you know, and the Secretary 
can't ask for additional information, must make a decision, 
then, you know, it seems to me that putting in further 
proscription, prescription, whatever, here, regarding State 
law, would be useful, beneficial and I think is somewhat agreed 
upon, because I just have a real hang-up on it because when I 
look at the fair market value section on page 59, forgone, 
including business, when forgone following a written 
determination under 10K, the proposed use would violate Section 
9(a), the property owner shall establish the fair market value. 
Property owner. Not an appraisal. Not lawyers determining 
whether or not it's an allowable use and says a fair market 
value shall be considered a rebuttal presumption. I am not a 
lawyer, but I think that means, pay me.
    Ambiguities regarding the fair market value shall be 
resolved in favor of the property owner, ambiguity. I just 
don't get that kind of protection in there that you are telling 
me is there. And I don't know why we could explicitly state it 
if that is a consensus agreement.
    Mr. Burling. In normal circumstances, when the government 
becomes liable to pay a landowner for property, usually in 
condemnation context, the government will utilize an appraiser. 
And it is the job of the appraiser to look up all the issues 
dealing with the property, local zoning. And there are 180 days 
for the landowner and the property owner to negotiate for that.
    If the Secretary did not utilize an appraiser in these 
negotiations to determine the fair market value of the 
property, I think it would be malfeasance on the part of the 
Secretary.
    Mr. DeFazio. But it says the Secretary can't ask for 
additional information. It doesn't say the Secretary shall have 
the property appraised. You're saying this is custom and 
practice, but it says here: The property owner shall establish 
the fair market value, and it should be considered rebuttable 
presumption. Ambiguities shall be resolved in favor of the 
property owner. Where is the room for the assessor and the 
appraiser?
    Mr. Burling. What I see this process doing, if I could just 
walk you through it.
    Mr. DeFazio. You're creating something here a lot of 
lawyers are going to get rich on.
    The Chairman. The gentleman's time has expired. And I fully 
understand what some of the confusion is on this provision. And 
I think that by the time we mark this bill up, we can take away 
a lot of what that confusion is because the gentleman from 
Oregon has some legitimate concerns and points that I think 
need to be tightened up in the language.
    Mr. DeFazio. Thank you.
    The Chairman. We are called to vote. We have three votes. 
The Committee is temporarily recessed while we go vote. And 
then we will return for questions. So I would encourage the 
members to please return after the series of votes.
    [Recess.]
    The Chairman. We are going to restart the hearing. If I 
could have the witnesses back at the witness table.
    We are going to begin with Mr. Walden, which is I believe 
where we left off. I apologize to our panel for the delay.
    Mr. Walden.
    Mr. Walden. Thank you very much, Mr. Chairman.
    I want to pick up where we left off before we had to go 
vote on the Floor of the House. We were talking about the 
portion of the bill that deals with compensation for private 
landowners whose value of their property is somehow encumbered 
or reduced because of an Endangered Species Act listing. And it 
appears to me there are ways we can clarify and tighten up what 
is here so that the taxpayers aren't being handed a blank check 
to sign. Is that how you see it? I mean, do you think we can 
get there in this piece?
    Mr. Burling. Absolutely.
    Mr. Walden. I want to ask each of you that question. When 
it comes to this issue of compensation for reduction of use of 
the property owner, is that something we can, you think, get to 
language that works that is fair to both sides?
    Mr. Burling. I think it will be very simple to do that. If 
we are worried about the blank check problem, I think language 
dealing with selection of appraisers to make sure appraisers, 
licensed appraisers under the laws of the State, using 
appropriate standards, language like that should help. If 
you're worried about the particular use being lawful in a 
State, I think that is easy enough to put that in: This is a 
use lawful under the State and local regulation. These are 
hardly insurmountable issues.
    What I am happy to hear is there seems to be--and I can't 
speak for Congress of course--there seems to be consensus that 
landowners must be made part of the equation and allies to 
conservation rather than antagonists to it.
    Mr. Walden. Ms. Clark, can you address the same questions 
and issue.
    Ms. Clark. I will try, although I am not an attorney. I am 
really concerned that this compensation provision will create a 
kind of a terrible precedent.
    That said, there are some other concerns. There are already 
procedures in place in the Endangered Species Act for 
developers to obtain permits under either the Federal agency 
section 7 consultation of the section 10 HCP permit program.
    The compensation program, as I read it, as we read it in 
this bill, would eliminate the need to get a permit and any 
incentives for developers or companies to mitigate the impact 
on endangered or threatened species. So that is a significant 
concern.
    And also, it would potentially result in a financial 
windfall for unscrupulous developers to then get this rotating 
financial payment for proposed activities because of the way it 
is set up. Nobody--you know, we asked in the original panel 
where this money would come from. It certainly isn't coming out 
of the Fish and Wildlife Service budget because they are 
already overtaxed. But the additional outcome that is not clear 
to me from the way that this compensation provision is 
constructed is that there would be no incentive for developers 
today to participate in a conservation plan or more incentive-
based programs.
    Mr. Walden. Actually, there is a grant program in this 
legislation to encourage that, and we deal with the no-surprise 
policy and some of those incentives.
    I want to get back to a core issue. Do you think then that 
private property owners should not receive compensation in any 
case when they lose their ability to use their private property 
or portion thereof? Is that your view then that we should never 
compensate?
    Ms. Clark. There are mechanisms in the law today to allow 
for landowners to comply with the law and for landowners to 
move forward with their investment.
    Mr. Walden. What if you come in, though, and say you can't 
farm anymore on your property because of some examples we have 
heard about?
    Ms. Clark. Well, to my knowledge, if you look at the 
consultation records of the Fish and Wildlife Service or the 
section 10 records, less than 1 percent of proposed actions 
have ever been stopped in their tracks.
    Mr. Walden. So then we are not talking about a big problem 
out there when it comes to the compensation side.
    Ms. Clark. No, because there are mechanisms within the law 
to allow, once minimization and mitigation has occurred, for 
these actions to go forward.
    Mr. Walden. Then the bill shouldn't be that big when it 
comes to compensating private property owners.
    Ms. Clark. Well, but the way this is constructed, it 
provides a work-around or a shunt around the necessary 
requirement to avail themselves of the current permitting 
procedures under sections 7 and 10 and the current requirement 
to minimize and mitigate the impact of their activities. And it 
allows, in fact, a direct drive, the way that we read it, to be 
compensated for proposed speculative activities.
    Mr. Walden. Mr. Burling, do you read it that way?
    Mr. Burling. No, I don't because, right now, for landowners 
of ordinary means and ordinary ability, these HCP programs and 
the compensable taking permit programs simply do not work. They 
may be fine for the large developers and the people with means, 
but for the ordinary farmer, the ordinary landowner, fine, see 
if you can cut a few trees. The system we have does not work.
    Mr. Walden. And if I may, Mr. Chairman, Mr. Taylor, can you 
comment on this discussion since I have not heard from you on 
it?
    Mr. Taylor. Very briefly, Congressman. I am not a lawyer, 
but our association has an established position on compensable 
taking. This provision of the law is inconsistent with that, 
and therefore we do not support the compensable taking.
    Mr. Walden. And what is the position of your organization? 
That never should there be compensable taking?
    Mr. Taylor. Paraphrasing, since I don't have it in front of 
me, but our position is essentially that the compensation of 
the private property protections under the takings clause of 
the constitution with respect to compensation for taking should 
remain the province of the courts.
    Mr. Walden. I don't understand what that means.
    Mr. Taylor. Well, again, I am not an attorney. Our 
position----
    Mr. Walden. But you're representing, from your association, 
I am trying to understand what your association--just leave it 
to the Courts to decide irrespective of these laws?
    Mr. Taylor. The mechanism available for property owners who 
feel aggrieved against compensation is largely and should 
remain largely the province of the courts. That is the position 
of our association.
    Mr. Walden. I appreciate knowing that. Given the Supreme 
Court's most recent decision regarding private property rights, 
I respectfully would disagree because the court has gone way 
off where a layman would go in terms of reading the 
constitution. But my time has expired.
    Thank you, Mr. Chairman.
    The Chairman. Thank you.
    Mr. Inslee.
    Mr. Inslee. I wanted to ask about one of the great concerns 
I have about the bill is the loss of the critical area 
designation and essentially a very strong, enforceable 
statutory protection for the habitat that needs to be 
protected. And I am sensitive to the argument that suggested 
that there might be a better time to do that, namely in the 
recovery process, rather than right at the listing process, 
because we might have more science at that point; we can more 
carefully define where that is.
    The bill, if I can find the language here, essentially 
doesn't have any language that I can find talking about 
critical areas or critical habitat. It does have a provision on 
page 21 that, as part of the recovery plan, requires an 
identification of those specific areas that have special value 
to the conservation of the species.
    Now, my reading of that--this is page 21, lines 4 through 
6, my reading of that, when it talks about lands of special 
value, to me is a significant diminution of--compared to lands 
of critical value or critical habitat. And the reason I say 
that is, when I read that language, to me it means, well, we 
are not going to take care of the ordinary needs of breeding 
and feeding and moving around; we are just going to care about 
the special areas where I guess the animals have their 
Christmas parties or something, something that is ultimately 
special, not normally what they do to procreate and live.
    And to me, that is a significant lesser protection of 
really what is critical habitat for the survival of the species 
than would be in existing law. And I just wonder, any of the 
panelists have any comment about that concern?
    Ms. Clark. Yes. I do. And I share your concern. The current 
bill identification of the special area or specific areas is 
not the same as what I was talking about previously, 
identification of areas necessary for recovery. So there is a 
difference in that, if you were to describe in the recovery 
plan the areas necessary for recovery and then allow decisions 
being made under the Endangered Species Act to use that as a 
foundation for making jeopardy decisions or jeopardy 
determinations with an unambiguous jeopardy definition that 
addresses recovery impairment, then I think you make the full 
circle. And just to be clear, we object to eliminating the 
current construct of critical habitat without an adequate 
replacement that would support the advancement of recovery. And 
I have tried to be clear that the construct in the current bill 
we believe does not do that.
    Mr. Burling. I see this proposal of taking the emphasis 
away from broad multi-million acre areas of critical habitat 
and focusing recovery plans on these areas of special value of 
conservation to the species, I see it focusing the efforts of 
the regulatory agencies more than what we have now. What we 
have now is a program that is not working. It is like the 
doctor giving medicine to a patient. It is not curing the 
disease, and it is causing a terrible reaction in a patient. 
This is a more targeted medicine, an alternative medicine that 
I think has potential of doing far more for species than what 
we currently have as critical habitat.
    Mr. Inslee. Couldn't we--if that is the goal, couldn't we 
use the same language that we did in critical habitat to say 
that is what we are getting at, making sure that we preserve 
the land that is critical to their continuation as a species, 
not this, quote, special, close quote--I don't know what 
special means--couldn't--why would we not use that same 
language with its known recognized, codified and now litigated, 
on numerous occasions, definitions? Why wouldn't we use that 
same language if we wanted to have the same level of 
protection?
    Mr. Burling. I think the current definition of critical 
habitat is not working. It is beset by litigation on both 
sides. We have a number of lawsuits saying the critical habitat 
doesn't adequately look at economic impacts. The Center For 
Biological Diversity has a number of their own lawsuits.
    It is not working.
    Mr. Inslee. I would agree it is not working. One of the 
reasons is that the person charged by the President of the 
United States for enforcing this a year ago told us he was 
going to do something that is necessary to help solve this 
problem and today told us he just doesn't think that is 
important any more. And there are problems, but one of the 
difficulties I have is with the executive branch currently and 
with Congress for not funding the efforts to do that.
    And I want to ask Ms. Clark, if I can, about these funding 
issues. My perception about difficulties in the enforcement of 
this Act, both from the ability of recovery of the species, 
sort of the environmental side of the coin, and from the 
certainty of the landowner, so that the landowner has certainty 
and foreknowledge about what is allowed and what is not, both 
of those are severely damaged by Congress's failure to give the 
administrative agencies the ability to conduct a scientific 
research and go through the decisionmaking process in a timely 
fashion that will allow this to work. And that is a major 
problem that we now have.
    Is that a fair statement? If you can just comment on it.
    Ms. Clark. That is a fair statement. In fact, it is quite 
true and has been for a number of years. The lack of resources 
is a significant if not an overwhelming factor in the 
responsiveness of the Federal agencies charged with overseeing 
the law, the Fish and Wildlife Service and National Fishery 
Service. It has hampered their ability to conduct the necessary 
scientific reviews to make the decisions on whether or not a 
species should be protected by the law. It is the listing 
backlog you have heard referred to. It clearly compromises and 
has restricted responsiveness to a public awaiting outcomes on 
decisions, on activities under either the Federal agency 
consultation provision or the private landowner section 10 
provision. But at least as importantly, it has seriously 
compromised the ability of the agency to do their part in 
accelerating or moving species through the spectrum from 
critically endangered toward recovery because there is just no 
money in the program to invest in the strategies and the 
activities to support recovery efforts.
    Mr. Inslee. When I was listening to Judge Manson talk, I 
was alerted to the fact that when an otter in the Aleutian 
Islands was considered for listing, at the time, there were 257 
other species awaiting ESA protections. Even though the report 
was finished in 2002, the recommendation that the sea otters be 
listed, Judge Manson sat on it for 15 months while the otters 
declined, and 257 other species were not listed.
    Is it a fair statement that, unless Congress funds the 
ability to make these decisions, that even if we made changes 
to this Act, we would still experience enormous failure in 
recovery to the species and enormous frustration to landowners 
because of the uncertainty in this process?
    Ms. Clark. Regardless of what kind of amendments or what 
kind of Endangered Species Act results from any debate, if you 
don't fuel it and if you don't give it the necessary resources 
to be implemented, it hardly matters what is written on the 
paper.
    It is extremely frustrating. Speaking only for the Fish and 
Wildlife Service, when I was there, I spent a lot of time in 
that agency, and there are incredibly dedicated professional 
biologists that are trying to do their job. They just aren't 
resourced, or they don't exist. The West Coast is probably--is 
significantly better staffed than anywhere else in the country, 
and they fall way behind. It is--they are falling behind 
statutorily mandated deadlines, not because of lack of 
responsiveness but because the resources to conduct the 
activities have never been financed.
    Mr. Inslee. Now my reading of this Act is that I don't 
believe, in real life, it would help solve that problem. There 
is nothing in this Act that I think would help solve these 
chronic problems of underfunding these agencies in dealing with 
this process. In fact, I think it will even get worse because, 
frankly, if a landowner's request is immediately approved in 90 
days, if there is no action on it, you actually remove some of 
the political force to get Congress to fund these agencies so 
they can make timely decisions for the benefit of landowners.
    My perception is, if anything, if these amendments change, 
we will have less of an ability to get these agencies funded. 
What is your thinking about that?
    Ms. Clark. It is certainly possible, and just to be clear, 
this 90 day, if the service does not respond in 90 days, the 
activity can go forward, is especially troublesome. And I know 
the question was asked a number of times, well, if it is not 90 
days, what should it be? Should it be 120 days, 180 days? Just 
to be clear, it is not the number of days. It is the fact that 
the kickout default for nonresponse is an activity that could 
eliminate significant populations, or significant habitats 
could go forward unreviewed. And the reason that will occur is 
because of lack of resources.
    One of the things I just want to make sure, particularly 
with Gary sitting next to me, I think I do think that there has 
been a lot of discussion and a lot of debate rightfully so 
about enhancing the role of States.
    The States have tremendous expertise and tremendous 
capability, and as we go through this review of the Endangered 
Species Act, it makes clear sense and it is, in fact, 
appropriate. It should not be just Fish and Wildlife Service 
that should be stepping forward. Other Federal agencies really 
do need to step to the plate. And by eroding some of the 
provisions and consultation, it creates an ability for other 
Federal agencies to disregard their affirmative 
responsibilities, and the opportunity to enhance the role of 
States needs to be carefully looked at because they are right 
there on the ground and can do a terrific--an important job. 
And they need to be resourced as well.
    The Chairman. Your time has expired.
    Mr. Inslee. You have been very gracious. Will you allow me 
one more short question?
    The Chairman. If it is a short one, yes.
    Mr. Inslee. Mr. Burling, this 90-day issue, the idea is, if 
the government doesn't act within 90 days, the landowner is 
allowed to go ahead with this procedure on the assumption that 
if the government doesn't come through in a timely fashion, it 
happens. Should that be a similar situation for a listing if a 
citizen petitions for a listing and the government fails to act 
within 90 days or whatever number we pick, that it becomes 
listed? Should we take a similar approach?
    Mr. Burling. The 90 days in this provision is to prevent 
landowners from bearing the excessive cost of the eternal delay 
that happens. If we're talking about when you're going to list 
a species that is also going to have a substantial impact for a 
long, long time on landowners, I think it makes sense to be 
more deliberate in how you do that; 90 days is far too short a 
time to have some sort of cutoff, of course, for determining 
whether or not you have a listing of a species. That takes far 
longer than simply looking at a proposal, whether you want to 
build homes on property or cut trees or some such thing. That 
should not take very long at all; 90 days is a nice amount. 
That can be changed one way or the other. But I think we are 
really dealing with a completely different level of analysis, 
compared to the listing of a species versus approving a use of 
property.
    Mr. Inslee. Thank you, thank you very much, Mr. Chairman, 
for your courtesy.
    The Chairman. Mr. Udall.
    Mr. Udall of New Mexico. Thank you very much.
    Ms. Clark, under section 13, it requires the Secretary to 
give private property owners an answer within 90 days. This is 
following up on what Jay just asked here regarding whether 
their proposed development would comply with section 9 of the 
ESA. Does it make any difference if we change that 90 days to 
188, 180 days or some other--let's just pick 180 days. Does it 
make any difference in your mind?
    Ms. Clark. You can pick 180 or 280 days. But if you don't 
provide the resources for the agency to be able to be 
responsive to make the decision or to evaluate it, it is 
irrelevant. Because it is not a lack of desire of the Fish and 
Wildlife Service to be responsive to a request. It is the lack 
of resources in the agency to be able to be responsive.
    Mr. Udall of New Mexico. Thank you.
    Ms. Clark, you said earlier, it doesn't matter--I think 
this was in your testimony--it doesn't matter what you do for 
species if you don't protect their habitat. And I would like to 
ask the panel to just give us their big picture look in terms 
of habitat and what is happening.
    You know, Mr. Inslee mentioned in his testimony this idea 
that we have had five massive extinctions in the history of the 
Earth. And the current one we are undergoing with extinction of 
species, we have had experts before this Committee who have 
talked about its being man-caused and that that is the driving 
force.
    So I wonder if each of you could just give me your big-
picture look in terms of what is happening to habitat at this 
particular point in time? How much are we losing? What kinds of 
impacts is that having?
    Mr. Burling. We are losing habitat. It is having an 
undeniable impact on species in this country. A solution, 
though, when you look at the fact that 75 percent of these 
species exist on private land, is to enlist the landowners in 
helping solve the problems rather than having them butt heads 
as we have for so long.
    I would hope that with the landowners behind preserving and 
protecting and conserving and restoring and recovering 
endangered species that we can really take care of the problem 
in the ways that we have not been able to do in the past 32 
years.
    Mr. Udall of New Mexico. Ms. Clark?
    Ms. Clark. It is common scientific knowledge, or 
representation, that loss of habitat is the single leading 
cause of species decline and endangerment in this country. If 
it is not direct loss, then it is habitat fragmentation or the 
transition of habitat and the overriding impact of invasive 
species that is shaping and changing the landscape today.
    To recover species or to have a sustainable natural 
resources legacy or to have a manageable landscape in this 
country we have to figure out how to deal with habitat and 
habitat sustainability. And I do agree, providing incentives 
and enlisting the support and knowledge of the States, 
enlisting private landowners who do own a significant amount of 
this habitat, to protect species is appropriate and important.
    Also, putting--asking the Federal agencies to step up. The 
Federal Government does oversee a significant land base in this 
country and having the Federal agencies step up to do their 
part for species management and species maintenance is a big 
part of this equation.
    Mr. Udall of New Mexico. Mr. Taylor, do you have anything 
to add?
    Mr. Taylor. Just a couple of observations, Congressman.
    First of all, I certainly would affiliate myself with the 
remarks from my colleagues. Those are all very accurate. I do 
think that there are a number of other Federal, State and local 
laws, that government simply needs to do a better job of 
coordinating the implementation of those laws and give focus to 
the integration of how they affect the quality of our life; and 
that includes the habitat that may or may not be impacted for 
fish and wildlife resources.
    Mr. Udall of New Mexico. Ms. Clark, could you just take a 
minute and talk about your predation program, the one that----
    Ms. Clark. Compensation, great word to use, the 
compensation program.
    Defenders of Wildlife, a number of years ago instituted, 
with support from the community, a program--two programs. One 
is our Predator Compensation Program which, in essence, does 
provide financial payment for livestock that are taken, as a 
result of direct knowledge, by predators--wolves, grizzly 
bears.
    We also have a program, our Proactive Program, that 
provides financial support for private landowners, ranchers, 
farmers, to implement proactive measures to manage for 
potential conflicts between listed endangered species 
predators--wolves, grizzly bears--and their ranching 
livelihood.
    Mr. Udall of New Mexico. Thank you.
    Thank you, Mr. Chairman.
    The Chairman. Mr. Abercrombie, do you have questions?
    Mr. Abercrombie. Yes, please. Thanks, Mr. Chairman.
    Now, I realize that the time is short that you have had to 
look at this, although apparently at least one of you has been 
involved in some of the what are called ``negotiations,'' these 
discussions. In some respects, if someone was looking in from 
the outside at this, reporters, say, who are going to transpose 
this into the public mind, what they are going to get is, you 
know, press releases with purple language and apocalyptic 
pronouncements and ideological claptrap of one kind or another 
that comes out there at the margins.
    What we don't need in order to pass legislation is a lot of 
lectures about what we should do or not do. What we need is 
language.
    Now, do you have--I realize you don't have it today, this 
is especially pertinent where, I think--Mr. Taylor, you know, 
representing the organization that you do--I have gone through 
your testimony here, admittedly at a surface level, but there 
is nothing specific here about the areas that I think, if we 
can resolve, we can get this bill passed.
    The question of--give me 2 seconds here--the taking 
threatened species; let me give you a quick example. I do think 
there needs to be specific--species-specific regulations about 
it. You're dealing with a loggerhead turtle; you're not dealing 
with a lynx or a bobcat. You're dealing with an entirely 
different context and circumstance. And I think the Chairman is 
trying to address in this bill, is my reading of it, How do we 
deal with these things?
    Now, if the language that helps us to deal with that helps 
us to fix what is admitted by everybody is a bill which needs 
revision or is a law which needs revision, we need to have 
specific language from you as to how to accomplish that.
    On separate regulation for threatened species, we need, 
based on their vulnerability, for example; that is a word--I 
don't know if you can translate that into law.
    Mr. Burling is over here representing a law firm. I see he 
has a very extensive thing on property rights. I am sure they 
could twist and turn everything I am saying upside down and 
make us all look like fools. Of course, that is not their 
purpose. And their desire there is to give us enlightenment and 
perspective and depth of analysis.
    But from the point of view of legislation, we have to have 
language that will stand up to the intent and purpose of the 
Congress. And in this instance, I am just giving you an 
example, threatened species, I think we need to base it on 
what--on the vulnerability. The loggerhead turtle, because of 
the context within which we deal with it, is a hell of a lot 
more threatened, I guarantee you, than some other species who 
may be less threatened simply because they are harder to get 
at. That kind of thing.
    Second thing, the critical habitat that is going to go on 
at length here--how we define it and how we deal with it--we 
have to get rid of these lawsuits because there is no recovery 
going on. Again, I think that is what everybody has admitted, 
that is what the Chairman's object is here, to deal with this 
thing. Everybody on this panel and the previous panels has 
indicated, that is what they want to get done.
    We need specific language to do that, because I will tell 
you I have a tough time trying to differentiate--and I am 
quoting--likely to reduce the survival and recovery of the 
listed species, unquote and quote, actions that reasonably 
would be expected to significantly impede directly or 
indirectly the conservation in the long term of the species in 
the wild.
    Now, from my point of view as a legislator, just reading 
that, I think they are both aiming in the same direction. But 
there may be people out there that are able to say, Well, that 
moron can't see what the word ``impede'' actually means, 
especially because you can go over 100 years of settled law or 
something like that. That is what I am driving at.
    If this language is no good, describing it in hyperbole as 
totally destructive of the environmental impact act--the 
Endangered Species Act--doesn't solve anything. We need to have 
specifics as to why that language is not adequate to the task 
and what you would do to improve it.
    And finally, on the written determinations and the question 
of surveys, whether or not 90 days is enough time, I don't know 
if you can get a car loan in 90 days, so it is not--I am not 
quite sure that that is--and surveys and what constitutes best 
science as opposed to all science; and again I am still not 
clear as to what fair market value is of the forgone use.
    I think I know. And I appreciate the discussion you had, 
Mr. Burling, with Mr. DeFazio on that. Because I am sure all of 
us could go off into a whole series of examples which may or 
not bear any relation to reality, which then can be picked up 
by the press especially and become a template for the average 
person's understanding of what we are trying to do here.
    So we need specifics in those areas. And if that happens 
and--and then the last thing about funds. We need some 
suggestions about alternative funding. I have already said 
something like bonds. We could do something with bonds, maybe 
do tax credits. It doesn't necessarily have to come out of the 
general fund made available to the Department of the Interior. 
There are all kinds of ways to deal with that funding issue.
    And I think we are in general agreement here that we want 
to see some kind of compensation. I want to see it from the 
point of view of getting rid of the lawsuits and getting people 
to get more of that willing seller/willing buyer thing that I 
think has been pretty successful.
    The reason I went on at such length in this dissertation 
is, if we could hit these three areas--the threatened species 
and those definitions, the critical habitat and the 
compensation area--and we get some definitions and some 
suggested language, I think we can do this. And I think we have 
to do it.
    And I think there are a lot of members here, and I am going 
to say in conclusion, Mr. Chairman, I want to help you get this 
done. I, for one, and I am sure--now, I am not speaking for 
other people, but I am sure my views represent the views of a 
hell of a lot of members on this side of the dais here, that we 
want to help you get this done.
    My only thought is, it may take us a little bit more time; 
maybe we need a little bit of breathing room to pull this off. 
But I think we can do it, and I pledge myself to try and help 
you do that, and I ask you folks and anybody else who has an 
interest.
    It doesn't do any good to throw brickbats, and I am not 
saying you are; but I am just saying that some of the stuff we 
have been handed out in the hall and all that. I don't want to 
see that crap. I don't pay any attention to that stuff. What I 
pay attention to is what can help us get the legislative job 
done. And if you can help us with that, help the Chairman, I 
guarantee there are a whole lot of members in here that will 
try to push this through in a way that will accomplish the 
goals that everybody stated they want to see accomplished.
    Thank you.
    The Chairman. Thank you, Mr. Abercrombie.
    Mr. Miller.
    Mr. Miller. Thank you, Mr. Chairman. Thank you for your 
patience and thank you for extending the time for us, and I 
will try to be quick.
    Mr. Taylor, is it in your statement--and, Jaime, maybe you 
can comment on this--but in your statement, on page 5, you say 
that--you note concern on the bill, that it appears to provide 
an opportunity for the service to bypass State fish and 
wildlife agencies--there on the bottom of that page in the 
recovery plan authorized. Don't we do that now, currently, 
under existing law?
    Mr. Taylor. Don't we do what, Congressman?
    Mr. Miller. Don't we consider State wildlife agencies when 
we are putting together these recovery plans and proposals?
    Mr. Taylor. Inconsistently. I think you heard Secretary 
Manson observe that in some regions the States are consulted; 
in others, they are not. I mean, our----
    Mr. Miller. So--it is not a requirement under current law, 
so you are not talking about this law taking away a right? You 
would like to see what you have now expanded in some fashion?
    Mr. Taylor. Our proposal and our suggestion is that the 
States have expertise that they can contribute significantly to 
the drafting and the implementation of recovery plans, and that 
the law needs to insinuate the role of the States throughout 
that entire process so that expertise can be taken advantage 
of.
    And it appeared to us, in authorizing the agreement between 
private landowners and the Fish and Wildlife Service, that at 
least it was silent on the role of the States.
    Along those same lines, there does not appear to be any 
opportunity in here for the States to take a more prominent 
role in drafting and implementing recovery plans. That is one 
of the two areas, in particular, that the States have the most 
interest in, contributing to informed decisionmaking on the 
front end of the Act with respect to making decisions on 
listing petitions and then in implementing--in designing and 
implementing recovery efforts for the listed species.
    Mr. Miller. Let me just--I don't mean to make your answer 
incomplete. I am very mindful of the time, because the Chairman 
has been sitting here.
    Ms. Clark, would you care to comment on that? I guess I 
just----
    The Chairman. If you would yield for just a second and I 
want to go back to Mr. Taylor, a listing decision should be 
based on science. It is either endangered or it is not. There 
is no role--in my mind, there is no role for the State to play 
in whether or not a species is endangered. There's a role for 
the State to play in gathering information and providing and 
working with Fish and Wildlife to determine whether or not a 
species is endangered, but the ultimate decision is a 
scientific decision. It is not a negotiation.
    Mr. Taylor. I think we are saying the same thing, Mr. 
Chairman.
    The Chairman. I just wanted to make sure, because I think 
we are on the same page in that.
    Mr. Taylor. We are not suggesting that the decision to list 
be based on anything other than science. What we are suggesting 
is that since States have expertise on many of these species 
and since much of the data that the Fish and Wildlife Service 
uses in deciding whether a species qualifies for listing or not 
are generated by the State fish and wildlife agencies that the 
statute should recognize the expertise and the authority of the 
States and the contributions that they can make to the listing 
process.
    We aren't suggesting at all that the decision be based on 
anything other than science.
    Mr. Miller. The Chairman's reading of the bill is, there is 
nothing that precludes that from happening, contributing to the 
decisions.
    The Chairman. There is nothing----
    Mr. Miller. The decision is the decision the Secretary 
would make based upon science, but there is nothing prohibiting 
them from contributing that information or what have you in the 
bill.
    The Chairman. Correct. But what Mr. Taylor is asking for is 
certainty that the States will be brought into the process. So 
if you have a species being listed in one State, that their 
fish and game or fish and wildlife agency participate in that 
process, so that the Secretary is not making a decision, as we 
have seen in California, with him listing a species where they 
didn't consult with the State, and a species ended up being 
listed.
    Mr. Taylor. In the other context to remember, Mr. Chairman 
and Congressman Miller, is that many of these species, before 
they are listed, are under the exclusive jurisdiction of the 
States; and so the authority that exists within the State fish 
and wildlife agencies to ensure the sustainability of the 
species needs to be appropriately recognized and utilized in 
decisions that the Secretary would make with respect to the 
status of those species. It simply is good government, and it 
is taking advantage of expertise that exists already on the 
ground.
    Mr. Miller. If I can just ask Ms. Clark if she cares to 
comment on this. I thought maybe there was more of this done, 
or am I misunderstanding what is going on here?
    Ms. Clark. I believe it is fair to suggest or to say that 
it is probably being inconsistently applied across the country. 
And I actually do think that section 6 can and should be 
amended, that is, the cooperation with the State section, 
should be amended to more overtly and more obviously state the 
expected requirements and responsibilities of collaboration and 
coordination with the States that have the expertise, the 
political will and the financial resources to step up on 
everything from providing science information for the Secretary 
to determine whether or not a species should be listed to the 
issuance of a permit to the development and implementation of 
recovery plans.
    It can be--there is internal policy in the Fish and 
Wildlife Service that is apparently being inconsistently 
applied. So to make amendments to the law to make it more 
affirmative and more transparent, I think would be valuable.
    Mr. Miller. Thank you.
    Thank you, Mr. Chairman.
    Thank you very much for your time and hanging out here 
after the votes.
    The Chairman. Mr. Walden.
    Mr. Walden. Thank you, Mr. Chairman. I am glad we are into 
this topic, because I remember we had a discussion about the 
lynx habitat, designation of critical habitat in the Northwest. 
And it has been a couple of years, so don't hold me to this 
specifically, but it seems to me I had heard from my own State 
of Oregon, from their wildlife and fisheries service that they 
have done a lot of research back in the history of Oregon and 
seen like maybe two lynx or something they thought were passing 
through and yet there was the declaration of an enormous region 
of the State for habitat.
    And it struck me then that we probably don't do as good a 
job at the Federal level of involving those State agencies in 
the processes back here, and there needs to be that formal 
ability for States to weigh in. Because we have some 
extraordinarily talented people, as you said, Mr. Taylor, on 
the ground doing this before we ever show up on the scene at 
the Federal level. It is your prerogative first.
    So that was one of the things I am hoping, in the way this 
is crafted in the bill, will result in a real formal process. 
And I guess that has been my whole issue with science is, you 
know, we require rigorous review for publication in a 
professional journal. We require peer review, and I think it is 
the Clean Water Act, No Child Left Behind Act has peer review 
requirements. This is sort of a standard we find throughout 
medical research, other scientific research and decisions in 
the government, and I have never understood why it was lacking 
here as a requirement. I am aware the agencies can go ahead and 
ask peer review, but we don't do that.
    So do any of you have any problems with the science piece 
of this proposal?
    Mr. Taylor. Well, I would just suggest that a very readily 
available body of expertise exists in the State fish and 
wildlife agencies to act as kind of a first level of peer 
review. And we made some recommendations and suggestions in our 
statement that would allow the Secretary to utilize the 
expertise of the States.
    I made reference to a recent court decision that basically 
directed the Fish and Wildlife Service that they could not use 
data collected by the State fish and wildlife agency with 
respect to a listing decision--petition, a listing petition 
decision, but they had to restrict the universe of information 
that they considered in assessing the merits of the listing 
petition to only the information that was submitted within the 
petition. And the Fish and Wildlife Service went to the State 
fish and wildlife, agency which had good information on the 
species, but the courts basically said, you can't do that.
    So we would suggest that there needs to be some remedy 
that----
    Mr. Walden. But in this draft, in this bill, there is an 
opportunity to weigh in with the Secretary when the Secretary 
promulgates rules regarding the scientific criteria because the 
Secretary is directed a year after passage to promulgate those, 
rules and in that process, you would be able to try to 
influence the Secretary to try and include----
    Mr. Taylor. Correct. But we would argue that the States, 
with the authorities that they have for these species, need to 
be given statutory deference from nongovernmental organizations 
or private individuals, because these are species that are--
whose fate is being considered, over which the States have 
jurisdictional authority.
    And as I observed, Congress has repeatedly, in Federal 
public lands statutes and the Endangered Species Act and in 
other laws, recognized that within their borders that the 
States have principal jurisdiction over fish and wildlife. And 
we are simply suggesting that the States provide a great 
opportunity to provide that level of expertise for the 
Secretary in the decisionmaking process. And we have never 
suggested that the final decisionmaking authority should be 
taken from the Secretary, but that States should inform that 
decision with much greater weight than the Secretary gives to 
it now, Congressman.
    Mr. Walden. All right.
    Mr. Burling, do you want to comment on that science piece 
of this?
    Mr. Burling. The science piece, I think, is a vast 
improvement over what we have now. We have a lot of very 
questionable nonpeer-reviewed science reports written by 
graduate students that make it into the listing process.
    We can appreciate their concern and care about this, but it 
is really time that we do put this sort of science to a level 
of scrutiny that we have in every other area. I am not a 
biologist, but before I became a lawyer, I was a geologist; and 
I am aware it is quite easy to come up with random data points 
and make incorrect conclusions.
    You need to have the peer review. We need to have a hard 
look at all the science. We have enough species that have been 
listed by accident. We have enough controversial listings that 
to have the data out there and all the data available, we will 
not end up with a situation like with the gnatcatcher where 
some of the raw data was never available for the evaluation of 
that listing, which was quite controversial. I think that by 
putting the data out in the light of day for everybody to see 
is really going to help.
    Mr. Walden. This is a sunshine law change as much as 
anything, to put it all out there on the Internet, available to 
the public regardless of whether you live in Pendleton, Oregon, 
or Portland, Maine, to see. I think it is important, so--I 
realize my time has expired. I don't know if Ms. Clark wanted 
to respond to that.
    Ms. Clark. Yes, I would.
    Clearly, the need to have consistent and transparent 
decisionmaking on all aspects of the Endangered Species Act is 
important. I do have some concerns about this and let me just 
share them, because I think they are resolvable, at least I 
hope they would be. While peer review--as I read this, while 
peer review and empirical data are important parts of science 
and important considerations, to restrict what kinds of 
scientific data can be used ignores what I consider to be 
important principles of conservation, biology, population 
modeling, population viability analysis, projections that are 
commonly accepted scientific National Academy principles, so 
that one might need some clarity.
    Also, I just want to ensure that there is a recognition 
that all of the additional restrictions and requirements add 
time to the process of decisionmaking, as well as financial 
costs; and so that would have to be accommodated as well.
    But the thing, the issue that does concern me--I am not 
sure if it is intended or not--in here where you talk about not 
less than a year after the date, the Secretary shall issue 
regulations to establish the criteria.
    I am concerned, to be blunt about it, that it punts the 
decision and a clarification that I believe should be made by 
Congress to the political whims of an Administration that can 
change regulation from Administration to Administration. And 
so, if you want clarity----
    Mr. Walden. I figured the last thing people wanted was a 
bunch of politicians sitting around and deciding what science 
is.
    Ms. Clark. But you have already gone down that road by 
deciding what kinds of science determinations and evaluations 
and mechanisms should take precedence. But to allow the 
determination of what constitutes best available science to the 
political whims of the Administration could be problematic.
    Mr. Walden. All right. Thank you.
    Thank you, Mr. Chairman.
    The Chairman. Mr. Udall.
    Mr. Udall of New Mexico. May I follow up on this a minute 
here?
    On this issue of listing in the science behind listings, 
there was a field hearing by Mr. Walden, I think, out in--
September 9, 2004, out in Arizona, in the Southwest; and they 
answered your questions, or questions that were put in by the 
Committee, on thoughts on peer review. And they said 
specifically that Fish and Wildlife Service's established 
policy is to solicit the opinion of three independent 
specialists for all listing proposals and critical habitat 
designations. Similarly, the Fish and Wildlife Service has a 
policy to solicit independent peer review during the 
development of recovery plans.
    So it is clear that there is a solid, strong peer review 
process in place; and in fact, in 2003, the GAO was asked to 
look at that process. And they said--and this is just a short 
little quote--but, ``Experts and others have found most of the 
Service's listing decisions to be scientifically supported, the 
courts have overturned few listing decisions on the basis of 
inadequate science, and the Service has delisted few species on 
the basis of new information, suggesting that protection under 
the Act was not originally warranted.''
    So I think we--I think we have a system in place that has 
been functioning, and as far as court review and all of that, 
it hasn't shown up any deficits.
    And I would be happy to yield.
    Mr. Walden. Thank you. As I recall a hearing we had here, 
Judge Manson testified that it has only been in the last few 
years that a requirement has been in place for peer review at 
Fish and Wildlife.
    Mr. Udall of New Mexico. I believe since 1994.
    Ms. Clark. Correct. It was put in place in 1994.
    Mr. Walden. And my point was that was put in place by 
regulation, not by statute.
    Ms. Clark. It was put in place by policy that was----
    Mr. Walden. So even less than regulation.
    Ms. Clark. Right, in Federal Register policy 
pronouncements.
    Mr. Walden. My point was, OK, that is great, but it could 
change any time. And if it is there and it is good, then why 
not put it in the statute?
    Ms. Clark. I would agree. If you took the 1994 policy and 
translated it into statutory language that would be an 
appropriate enhancement of scientific decisionmaking.
    Mr. Udall of New Mexico. I will offer it as a amendment 
tomorrow if you would support me.
    Mr. Walden. I haven't read the 1994 language, so obviously 
you two have, or you wrote it, so----
    My point was, if you recall, we had the argument against 
peer review; it would be too costly and too burdensome. And 
then I hear from Judge Manson and others that we are already 
doing that. Then it can't be too costly and burdensome, if you 
are already doing it and it works wonderfully; you can't have 
it both ways.
    Ms. Clark. But the peer review process that is currently 
undertaken is incorporated into the timeframe of statutory 
decisionmaking, and it is incorporated into the timeframe of 
the Agency.
    Mr. Walden. But it failed in the case at Klamath because 
those decisions had not been peer reviewed in the data. And 
when the National Academy did do the peer review--you have read 
the report, I'm sure--it came back and said historical data 
don't support the decisions, the two principal decisions.
    Ms. Clark. Right. You could have had more data. You could 
have had support.
    Mr. Walden. That is not what it said. They always say, you 
can have more data, but it said the 10-year history of the data 
doesn't support conclusions made by the decisionmakers. That is 
what the National Academy said.
    But I am on Mr. Udall's time. He has been very gracious. 
Thank you.
    Mr. Udall of New Mexico. I hope you will get some more time 
and give me some. I want to ask Ms. Clark a question on her 
service.
    I see in your bio here you have served in the Department of 
the Army as a fish and wildlife administrator and also the 
natural resources cultural program manager at the National 
Bureau. I have been impressed in this Committee, when the 
military generals and others come before us that they really--
they get the Endangered Species Act, and they are very decisive 
in terms of moving on those issues.
    And I am just wondering, because of your--I know it was a 
while ago, your service there, what is it that allows them to 
proceed with such aggressiveness and get things done?
    Ms. Clark. I just want to clarify, I was not in the 
military; I was a civilian. But I grew up in the military as 
well.
    The Department of Defense has an incredibly impressive land 
base, and it is very geographically diverse. I believe what 
allows them to do such a great job of managing their lands is, 
they get land sustainability. They know they are not going to 
get more lands to train on because we are fast running out of 
vast expanses of lands to support things like expanding 
military weaponry needs and battlefield readiness conditions. 
And so they take care of what they have.
    And recognizing the importance of and the role that 
endangered species conservation plays, too, they recognize the 
importance and connection between endangered species and 
habitat conservation. And what is happening to these military 
lands, whether it is an Aberdeen Proving Ground on Chesapeake 
Bay or Camp Pendleton on the coast of California, it is fast 
becoming one of the greatest remaining green spaces. And the 
military is doing their best to try to manage for land 
sustainability, to support their mission readiness needs with 
the needs for conserving species, because they realize they are 
very integrated.
    And they also can put their money where their mouth is 
because they are amazingly well resourced.
    Mr. Udall of New Mexico. I may have inartfully asked that. 
You were an administrator, a fish and wildlife administrator 
with the Department of Army.
    Mr. Chairman, I would just also renew my request that we 
let the Administration weigh in on this bill and take positions 
on every provision before we actually mark it up.
    So thank you.
    The Chairman. I will take that request under submission. I 
realize that the gentleman bases his votes on what the 
Administration wants to do, so----
    Mr. Udall of New Mexico. Mr. Chairman, it would just be 
enormously helpful to me to hear from Mr. Manson, Judge Manson 
or others, with clarity.
    The Chairman. Mr. Abercrombie, you had an additional 
question you wanted to ask.
    Mr. Abercrombie. Yes.
    When I mentioned before to the three of you, some of the 
language, changes that would take place, and I just suggested 
those were areas where we needed some specificity, if you 
thought it would change for the better what we want to 
accomplish.
    But can I ask you just on the surface now--not to hold you 
to account forever and a day. Let me ask you Mr. Burling, for 
example, an amount equal to the fair market value the forgone 
use of the affected portion of private property, including 
business losses, how does that differentiate from--how would 
that help prevent the lawsuits and so on from going forward? 
Which I presume is the fundamental reason for putting this in 
here, to try and end that.
    Do you think the Pacific Legal Foundation would have to 
search for work if this language passed?
    Mr. Burling. Sadly, no, because there are enough State and 
local agencies that give us all the work we need and, I am 
sure, a few remaining Federal agencies as well. I think the 
language in here is attempting to reach a level that narrows 
the compensation available to the landowner for the forgone use 
only, and a lawful use at that.
    Mr. Abercrombie. Again, not to cut you off, because of the 
time factor, Mr. Manson, and the under Secretary indicated that 
the plain meaning of the phrase, forgone use, is well 
established in law--well understood; I don't know whether it's 
well established or not.
    Mr. Burling. Yes, I do believe----
    Mr. Abercrombie. Do you believe this language, as written, 
could be seen as the plain meaning if it did come to an 
argument in court about whether this is constitutional, or 
whatever it is; that this is written in such a way that plain 
meaning would aid and assist the court in coming to a quick 
decision?
    Mr. Burling. It is an argument I would be happy to make in 
a court.
    Mr. Abercrombie. Can you indicate to me from the point of 
view of the--I am trying to remember what you're--of the 
Defenders of Wildlife, the difference? How do you see the 
difference of likely reduced survival and recovery of listed 
species as opposed to the actions that reasonably would be 
expected, et cetera, et cetera; because if I am to listen to 
people in the hallway, for example, that means that throats are 
going to be cut and people shoved over cliffs and all the rest, 
and I don't believe it.
    Ms. Clark. Well, Congressman, I think what is important is, 
you take the shift in cumulative effects. It is not only the 
definition of jeopardy, but it is what happens to habitat, the 
definition of jeopardizing continued existence that is amended 
in this bill.
    We do have some concern with the terminology ``near term.'' 
we had it during the time of providing technical assistance to 
Mr.----
    Mr. Abercrombie. But you don't think this language advances 
the question of trying to actually get to a recovery plan in 
critical habitat designated and carried through on?
    Ms. Clark. I think that the definition of ``jeopardy'' can 
be made more clear, so that the prong--that prong matched up 
with recovery plans that articulate habitat, matched up with 
the requirement that actions undertaken be evaluated per the 
habitat described in the recovery plans--would advance the 
recovery.
    This complements what is in--this current bill does not do 
that, but I believe it can be made to work.
    Mr. Abercrombie. Is this language close to it?
    Ms. Clark. Yes, it is close.
    Mr. Abercrombie. Do you have a--again, I realize it is--not 
that it has to be definitive, but is there some suggestion, 
even right now as you look at it, where you see it is 
inadequate so you can explain it to a layman's ears?
    Ms. Clark. Actions that would impair the recovery--I would 
have to work with it, but I could work with it. The actions 
that would impair the ability of a species to recover, impaired 
recovery; we can certainly provide that language, because that 
is what I believe is trying to be achieved here.
    Mr. Abercrombie. OK.
    And last, Mr. Taylor, on the question of science--because 
that came up, and I realize what you're saying there--if you 
are in the State of Hawaii, our local land and natural 
resources, it is instructed by law to collect all kinds of data 
on invasive species, for example, with--I think a lot of times, 
``endangered species,'' we tend to think about animals. But we 
have a lot of endangered species that are in the category of 
specific flowers and vines and growth of one kind or another, 
peculiar to Hawaii simply because of its geographic location.
    Or we have a threatened species like the loggerhead turtle 
that are peculiar to our area of the world or out in 
northwestern Hawaiian Islands that we are trying to get into 
sanctuary stage--status right now.
    So how--do you have suggestions right now, even though you 
haven't had a lot of time to look at the bill, where the 
question of science could be improved in a way that 
accomplishes what I know the Chairman's intent is, to make the 
question of science more discernible to others who now question 
whether it is adequate under the revision of the law that he 
proposes?
    Mr. Taylor. Congressman, let me make a couple of 
observations.
    First of all, I think the call for the best available 
science is good and necessary. We ought to do everything we can 
to collect all the available information that exists on a 
species in order to make more informed decisions.
    With respect to standards, I understand we need standards 
against which to assess that. But it has been our observation 
that whether Congress promulgates standards or the executive 
branch promulgates standards, it is going to invite litigation.
    Mr. Abercrombie. It is inviting it now. What the Chairman 
is trying to do is, introduce language that will help to 
alleviate that. And when I am asking if the reaction to his 
work is going to be, Well, this won't do it, well, it is not 
doing it now.
    So I am saying, do you have even an immediate reaction, 
some suggestions?
    Mr. Taylor. What we suggest is that the State fish and 
wildlife agencies be put in a position of being----
    Mr. Abercrombie. To contribute their data.
    Mr. Taylor. No. Give them the responsibility to assess the 
merits of the listing proposal and the listing decision, and to 
make----
    Mr. Abercrombie. Is a record of empirical data available to 
them, based on the empirical data and other analysis that might 
already be available to them?
    Mr. Taylor. Correct. And then they make a recommendation to 
the Secretary.
    The Secretary, we would suggest that recommendation from 
the States would carry a rebuttable presumption in favor of 
that recommendation, unless the Secretary convened a peer 
review panel to overturn that.
    So that is what we suggest, that there be a hierarchy of 
consideration of the assessment of information, at which level 
the States would be given a principal role to play in making a 
recommendation to the Secretary, which the Secretary can 
overturn--the State's recommendation.
    Mr. Abercrombie. The reason you are making this 
recommendation is that your testimony is--as I understand it, 
there is a wealth of material out there already, much of it 
already collected, collated and understood, that could be 
useful and very helpful in coming to a timely decision.
    Mr. Taylor. And much of those data, you know, are used by 
the Fish and Wildlife Service already, not in making listing 
decisions; but you know well, the individual who collects the 
data is in the best position to interpret it. So just asking 
the States to do a data dump on all the information they have 
to the Federal regulatory agency that then interprets the data 
isn't making the most informed decision.
    Mr. Abercrombie. I understand. The analysis they would have 
available or they could make available as a result of their 
experience.
    Now, the bottom line for me there is, I agree with that, 
and I don't think--I doubt there are too many people here on 
the Committee who would dispute that to any degree. But we will 
need to get suggested language for that fairly quickly, if you 
could get to work on it.
    Mr. Taylor. I can send that to the Committee staff, 
Congressman.
    Mr. Abercrombie. Thank you very much.
    So again, Mr. Chairman, I think you are going to find a lot 
of support for what you want to accomplish here. But I do think 
probably we are going to need a little bit more breathing room.
    The Chairman. Well, tell the gentleman that I appreciate 
his words and the work that he has put into this.
    Most of these issues that have come up are issues that we 
talked about as we tried to negotiate a bill on this. Much of 
what Ms. Clark talks about are issues that we have covered and, 
I think, in all fairness, when we got to the point of not 
reaching a final agreement on the bill, but being in agreement 
on the bulk of the issues--when I introduced the bill, I didn't 
drop out all of the things that I agreed to that I really 
didn't like; I left them in.
    Mr. Abercrombie. That is because you're a legislator, not a 
theologian.
    The Chairman. Much of the criticism we have heard on the 
bill is from people who accepted things and agreed to things 
that they didn't like completely in the bill. And as you know 
all too well, the art of legislating involves a lot of 
compromise. And what you see in front of you is a bill that is 
not my bill; it is a big compromise from what I wanted.
    But I believe it improves the law to the point where the 
focus does shift to recovery. We do a better job--as a result, 
we do a better job of recovering species, and in the end, 
private property owners are protected, which was my goal when I 
went into this.
    We are going to get called to a series of votes in a few 
minutes. I did want to follow up on a couple of issues that did 
come up.
    Specifically, and I start with Ms. Clark, in this whole 
issue of the 90-day letter and I don't--in my opinion, I don't 
think 90 days is a magical number, but it is more to the issue, 
do you believe that a property owner should have--be able to 
have some kind of date certain to tell Fish and Wildlife, tell 
me ``yes'' or ``no''?
    Ms. Clark. A landowner should have a reasonable belief that 
they will get a response from the Fish and Wildlife Service in 
a reasonable amount of time. But the Fish and Wildlife Service 
has to be resourced to be able to respond in a reasonable 
amount of time.
    The Chairman. If the rest of the bill goes into effect and 
we stop having Fish and Wildlife defending themselves on 
lawsuits, maybe they will have more money and more time to 
respond to property owners. So it shouldn't be an issue.
    So I think--and I am going to turn to Mr. Burling on this--
in respect to that provision, I believe it is critical to 
protect property owners, that they have some kind of date 
certain, that they have some time clock--and, to me, it really 
doesn't matter how many days it is. But by some drop-dead date, 
Fish and Wildlife has to say ``yes'' or ``no'' and allow them 
the opportunity to move on from there, instead of keeping them 
in limbo forever.
    Mr. Burling. I could not agree with you more.
    I have had so many landowners over the years tell me, My 
property is in critical habitat. They tell me, If I move, I 
might go to jail, but they won't tell me that I can't do 
anything with my property; they won't give me that letter.
    So you sue the Fish and Wildlife Service, arguing that your 
property has been taken and you lose every time because you 
have no final decision from the Agency.
    We want a ``yes'' or ``no'' decision from the Agency for 
landowners within a reasonable period of time so they know what 
they can do with their property and so they can move forward 
with their lives.
    The Chairman. OK. Now let me ask you this question dealing 
with compensation.
    A property owner lives in a region of the country where 
they have an HCP, an established HCP that Fish and Wildlife has 
signed off on. They get to the point where they want an answer 
from Fish and Wildlife. Fish and Wildlife gives them their 
answer. The answer is, Yes, you may proceed, but you have to 
pay into the HCP to mitigate any impact you have.
    If that is the case, and they then turn around and say, OK, 
we want to be compensated, under those circumstances, would the 
maximum that they could be compensated for whatever they were 
required to pay into the HCP?
    Mr. Burling. I think the way this bill is structured, a 
landowner would have the option of turning down the HCP for one 
thing, saying the costs being imposed are too great.
    If that is not going to work, then perhaps the landowner 
and the Secretary can enter into those negotiations in the 
period of time to work out payment for that mitigation.
    The question comes down to, why should landowners 
necessarily have to pay costs that are far in excess of the 
project or far in excess of what the landowners are actually 
responsible for? I believe that the provisions that we have in 
this bill right now give landowners the choice.
    The Chairman. And if the Secretary were to answer, Yes, you 
can proceed, you don't have an impact, then would it not--would 
you not conclude from that that they--because they don't have 
an impact, they should not have had to mitigate to begin with?
    Mr. Burling. Absolutely. If you do not have an impact and 
you're allowed to proceed, then the regulations may have been 
overbroad.
    One of the problems we see with some HCPs is that they seem 
to be mechanisms of a funding source, a cash cow, where 
landowners are the cash cow providing these mitigation measures 
that are not necessarily relating to impacts caused by the 
landowners in a particular case. They just happen to be in the 
wrong place at the wrong time.
    The Chairman. Finally, on compensation in general, it is 
quite well established in law that if you're a property owner, 
and the Federal Government in the highway bill decides that 
they are going to build a new freeway across your property, 
that they have to pay you for the land they are taking for that 
freeway. Even if it does enhance the value of your property, 
you are still compensated for the land that is taken if they 
take it for a military base, a post office, a park, a school, 
what have you. Because that is a public use, a public good, we 
have established in law that you should be compensated if they 
take your land.
    Mr. Burling. Correct.
    The Chairman. Under the Endangered Species Act, if they 
come to you and say, you have 1,000 acres, you can use 800 of 
it, but 200 of it you can't use, we hear the argument that you 
shouldn't be compensated for that.
    Why is that?
    Mr. Burling. Under current law, which I believe is flawed 
in the courts, if you are allowed to use some of your property, 
therefore, courts conclude that you have not lost all value of 
your land, and you're not entitled to compensation.
    The Chairman. Let me bring you back to the highway example. 
They are not taking all of your land; you're left with part of 
your land.
    Mr. Burling. The law is terribly inconsistent, and it is a 
problem with the law. It is a rule that the more you own, the 
more the government can steal without paying for it. That is 
why I think moving on to an aid program that we have here 
relieves the government of being the guilty party by bringing 
landowners into cooperation rather than antagonism.
    The Chairman. Ms. Clark, I would like you to respond to 
that, if at all possible, because this is what I feel is one of 
the terrible inconsistencies in Federal law regarding private 
property and private property rights.
    In some cases, if we determine it is a public good, public 
use, a societal wish, we pay for it. And in other cases, we 
don't. And when it comes to the case of the Endangered Species 
Act, we have spent years debating this, if they are going to 
take property--if you're told you can't use 20 percent of your 
property, why should you not be compensated for what you're 
losing?
    Ms. Clark. My understanding of all this is that you know 
the fifth amendment provides compensation for a taking when 
that has been declared. And so our position is, there is not an 
additional need.
    You know, I have listened to this for the bulk of the day, 
and I am happy to kind of engage in this dialog, but there are 
mechanisms in the law to provide for the livelihoods of 
applicants and private landowners to move forward with their 
intended projects.
    The construct of compensation in this bill seems to me to 
be escape hatches and ways to work around current procedural 
mechanisms for advancing projects.
    The Chairman. Well, in my mind, it has little or nothing to 
do with advancing projects. It has a lot to do with a rancher 
or a farmer who is out there, who all of a sudden is told that 
their habitat is a potential habitat for species, and they are 
not allowed to use their property any more.
    Mr. Abercrombie. Would the gentleman yield?
    The Chairman. Yes.
    Mr. Abercrombie. This is really crucial. I want to really 
understand this, because the whole object here is to get these 
folks to cooperate. I spent the last 16 years here in this 
Committee working very diligently to support legislation that 
would encourage what is called the ``willing seller/willing 
buyer'' concept.
    And I work closely with--we have land, legacy land 
foundations out in Hawaii and other foundations that work to 
buy land for conservation purposes, and that has been very 
successful. You know, money is the way.
    Now, I am not sure what you mean, Ms. Clark. I really don't 
quite understand what you said. Procedural mechanisms are 
something--I am not interested in procedural mechanisms; I am 
interested in avoiding them. If there are ways to do this--tax 
credits, bonds, a special fund set up where you take a certain 
percentage of revenue or something that comes in and put it 
into a compensation fund--there are a whole bunch of ways to do 
this that I have done in my own legislative career. Mr. Miller 
is not the only one with 31 years; this is my 31st year of 
public service. And I have been involved in a whole spectrum of 
methodologies for getting funds together, and compensation to 
try to move projects along.
    I want to see these species protected and recovered. I am 
not interested in trying to see how much of the fuzz of a peach 
I can shave off of somebody's compensation in order to 
accomplish that.
    The Chairman. Reclaiming my time, I think that's really at 
the heart of what this is all about. I mean, we may just be at 
ideological opposite ends on this issue, but I firmly believe--
--
    Mr. Abercrombie. I don't want to see the bill get held up 
on this.
    The Chairman. No, neither do I, and it won't. The bill will 
end up passing on this. And I think because of the--partly 
because of recent court decisions, it strengthens this whole 
position.
    But I will--I am willing to do whatever we can to put the 
focus on recovery and do what we can to recover these species 
as long as my property owners are protected, as long as I don't 
have a farmer coming in to me again saying, I can't use my 
property because of this.
    I just had Fish and Wildlife out on my property and they 
told me I can't disk between the vineyard rows because of its 
impact on an endangered species. I've had Fish and Wildlife 
come out and tell me that I can't clean my ditch because of its 
impact on an endangered species. I mean, all of these things 
over and over and over again that you've heard and I've heard 
and everybody on this Committee has heard.
    Some of the biggest critics of this bill are the first ones 
to come to me and say, You've got to do something about this 
because of what it's doing to my constituents. And we have to 
do something to protect those property owners. That does not 
preclude us from focusing on recovery and recovering species.
    You can't be so wed to a broken law that you're unwilling 
to fix it. And the biggest critics of this bill so far--and the 
stuff that I've seen passed out, quite frankly, is garbage. We 
can do a better job. We can do a better job of recovering 
species and protecting property owners, a matter that--you know 
it and I know it. If you don't pull in property private owners 
to be part of the solution, it will never work. That's what we 
have to do. And the only way you pull them in is if they're 
protected; that's the bottom line on this.
    Mr. Abercrombie. I know we've got to go and vote, but may I 
make this suggestion to you folks--and other people may be 
listening out there. This bill is going to pass. Now the 
question is, is it going to pass with taking up the Chairman's 
offer, saying he's wide open on this question of--questions of 
how we define a critical habitat and how to get to recovery? If 
you've got a better idea--believe me, I know him very well--
he'll grab it and run with it.
    We're all politicians here. We can all take credit for 
stuff we didn't do, so that's not the problem, but--and give up 
on this property compensation bit. If somebody's got a better 
suggestion for him, give it to him. But that's going to pass, 
and that's got the overwhelming majority of support, I think, 
on both sides here.
    That's going to happen, so we need to get off of that and 
take advantage of the opportunity and the offer to try and 
tighten up the language in these other areas in a way that will 
accomplish what everybody says they want to do. Now, if we do 
that, I think we can get this ball not only down the field, but 
over the goal line.
    The Chairman. Thank you. I am going to have to dismiss this 
panel. I'm not going to make you guys hang around. We have a 
series of votes on the Floor. Thank you very much for your 
patience and for answering all our questions.
    The hearing is adjourned.
    [Whereupon, at 3:42 p.m., the Committee was adjourned.]

    [Additional material submitted for the record follows:]

    [The prepared statement of Mr. Grijalva follows:]

   Statement of The Honorable Raul M. Grijalva, a Representative in 
                   Congress from the State of Arizona

    Thank you, Mr. Chairman. I welcome the opportunity to hear from our 
witnesses today, however, I question whether it is appropriate at this 
time to focus on this legislation.
    In the face of one of the worst environmental disasters our country 
has ever seen, we have a role in examining the consequences of 
Hurricane Katrina. Damage to fisheries, wetlands, and wildlife refuges, 
along with other issues under our jurisdiction, merit discussion and 
oversight within this Committee.
    As for the legislation itself, having at this point absorbed some 
of the main points, I am disturbed at what is being proposed here. It 
should be clear to anyone reading this legislation, as it is clear to 
me, that this bill is designed to exterminate the Endangered Species 
Act, not reform it.
    Instead of working toward improving the recovery of endangered 
species, this bill will set up impossible hurdles for the agencies 
charged with protecting our nation's wildlife. Critical habitat, which 
is necessary for any species to survive, would be deleted from the Act. 
Recovery plans would not be binding. The Secretary would not be able to 
adequately determine if a species deserved listing in the first place 
because the scientific data she could use would be severely limited. 
The Act would no longer afford any protection to threatened species, 
thereby ensuring that they become endangered in short shrift.
    This bill would take away a critical safety net for endangered 
wildlife, while seriously enriching developers and others in the 
process. Provisions within this bill could literally end up costing 
taxpayers billions of dollars in a new entitlement scheme that would 
pay landowners who claim to be impacted by Endangered Species 
regardless of whether they really are, and without requiring any 
measures to conserve species on private land.
    This bill would make it impossible and too expensive to enforce any 
measures to protect species. Had this been the law of the land for the 
last 30 years, in all likelihood, the Bald Eagle would no longer be 
with us. The gray wolf, the manatee and numerous other species would 
likely be long gone.
    So, while I look forward to hearing the testimony today, I must 
express my serious reservations about this bill and the negative 
impacts it could have on our nation's wildlife. I sincerely hope we can 
refocus this debate where many agree we could use improvement, that is, 
improving the funding for the agencies so that they can implement the 
Act as originally intended and improving incentives for landowners to 
conserve habitat for species.
    Thank you.
                                 ______
                                 
    [The prepared statement of Ms. McMorris follows:]

Statement of The Honorable Cathy McMorris, a Representative in Congress 
                      from the State of Washington

    Thank you, Mr. Chairman.
    The Threatened and Endangered Species Act will restore common sense 
solutions to the Endangered Species Act. This legislation will help 
facilitate the relationship between protecting endangered species and 
our natural resources and land.
    We have seen firsthand the impact that the Endangered Species Act 
has had in Eastern Washington. One example is the impact on our river 
system in the Pacific Northwest. The manager of the Port of Clarkston, 
Rick Davis, gave a startling example when he compared the Columbia/
Snake river system to Interstate 5--no one would ever consider shutting 
down I-5, yet we have proposals before us that would shut down the 
Columbia/Snake river system, the results of which would destroy our way 
of life that is dependent upon the river.
    We all share a desire and recognize the importance of protecting 
our salmon populations. The Pacific Northwest has invested billions of 
dollars (much of it coming from the pockets of rate payers) to preserve 
and increase our salmon runs. Any new solution must take into account 
salmon protection and recovery but we must not do it on the backs of 
our natural resource industries. Breaching or removing our dams is not 
an option. The river systems throughout the Northwest are a critical 
part of our region's economy and should be used for transportation, 
irrigation and recreation.
    While we use the river system in different ways, we all share a 
common goal to solve our decades old problem of protecting endangered 
species while maintaining the value of our river system. In fact 
President Bush at Ice Harbor Dam said it well in August 2003 when he 
stated: ``The Washington way of life depends, and always will depend, 
on the wise protection of the natural environment. It's been a part of 
your past; it's going to be an important part of the future of this 
state--and our country, for that matter. And a vital part of the 
natural environment is the Pacific salmon.''
    We have created an adversarial relationship with the people who are 
most critical to the goal of saving the endangered species: America's 
farmers, ranchers and private property owners. Ninety percent of 
endangered species have habitat on private land. We must change our 
disincentives into real incentives so that we can begin recovering 
species.
    This bill will help us move away from litigation, lawsuits and 
punitive settlements, and allow us to better recover species by 
providing incentives, employing peer-review standards data based on 
objective scientific practices, and compensation of private property 
owners for lost use of land.
    Thank you, Mr. Chairman.
                                 ______
                                 
    [The prepared statement of Mr. Pallone follows:]

Statement of The Honorable Frank Pallone, a Representative in Congress 
                      from the State of New Jersey

    I must say I have to seriously question the timing and 
appropriateness of considering a bill that would cut the heart out of 
one of our nation's major environmental protection laws in the wake of 
one of the worst human environmental tragedies in history.
    It has been little more than three weeks since Hurricane Katrina's 
landfall in the Gulf region resulted in perhaps the most devastating 
natural disaster our nation has ever seen.
    The environmental toll of this tragedy, especially in New Orleans 
and the Mississippi Delta region, is no less serious. The flooding in 
New Orleans turned the city into a toxic, contaminated stew. The storm 
caused multiple oil spills, devastated wildlife refuges, and resulted 
in heavy damage to wetlands. Katrina also wiped virtually all of the 
fishing industry in the Gulf.
    The hurricane raised all sorts of questions that this Committee 
should be considering carefully. What should we be doing to rebuild the 
fishing industry and help those who lost their jobs? How should we 
reexamine our coastal policies to mitigate the effects of future 
disasters like this one? How have sensitive fish and wildlife 
populations been affected?
    That is what the Committee should be considering in the wake of one 
of the worst environmental disasters in our nation's history, not a 
special-interest bill that guts a critical environmental safety net.
    I want us to be clear what exactly we are talking about here today. 
We're not talking about trying to improve the rate at which we recover 
endangered species.
    Instead, we're talking about a bill that is written to gut many of 
the critical protections in the Endangered Species Act for the benefit 
of developers and other special interest groups.
    I am especially concerned that this bill contains a provision that 
would effectively result in a massive giveaway of taxpayer dollars to 
corporate developers whose projects may be affected by the Endangered 
Species Act.
    Under this legislation, if the Fish and Wildlife Service or the 
National Marine Fisheries Service determines that a developer's 
proposal would violate the Endangered Species Act and harm protected 
habitat, the Service would have to pay the developer for lost profits 
on any part of the proposed project that cannot be completed.
    This opens the door to incredible giveaways to developers coming 
straight out of taxpayers' pockets--especially since the affected party 
would determine the value of lost profits. Moreover, it would devastate 
the budgets of the very agencies that we are relying on to protect and 
recover species.
    The developer giveaway provision is just one example of how this 
bill does effectively the opposite of what it is intended to do and 
devastates not only the letter but also the spirit of the Endangered 
Species Act.
    Supporters of this bill like to point out the relatively small 
number of endangered species that have been recovered to healthy 
populations since the passage of the Act. It is more appropriate, 
however, to note that 99% of the species listed since 1973 are still 
with us today--a pretty good success rate.
    Mr. Chairman, in my district people are appalled to hear that 
Washington politicians are trying to give taxpayer money away to big 
developers at the expense of endangered species. I share their 
feelings, and I urge my colleagues not only to oppose this legislation 
but also to have the Committee examine the serious problems in the 
fishing industry and the environment in the Gulf region.

                                 
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