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23-837 PDF 2006

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

(II)

COMMITTEE ON RESOURCES

RICHARD W. POMBO, California, Chairman

NICK J. RAHALL II, West Virginia, Ranking Democrat Member

Don Young, Alaska

Jim Saxton, New Jersey

Elton Gallegly, California

John J. Duncan, Jr., Tennessee

Wayne T. Gilchrest, Maryland

Ken Calvert, California

Barbara Cubin, Wyoming

Vice Chair

George P. Radanovich, California

Walter B. Jones, Jr., North Carolina

Chris Cannon, Utah

John E. Peterson, Pennsylvania

Jim Gibbons, Nevada

Greg Walden, Oregon

Thomas G. Tancredo, Colorado

J.D. Hayworth, Arizona

Jeff Flake, Arizona

Rick Renzi, Arizona

Stevan Pearce, New Mexico

Henry Brown, Jr., South Carolina

Thelma Drake, Virginia

Luis G. Fortun ̃ o, Puerto Rico

Cathy McMorris, Washington

Bobby Jindal, Louisiana

Louie Gohmert, Texas

Marilyn N. Musgrave, Colorado

Vacancy

Dale E. Kildee, Michigan

Eni F.H. Faleomavaega, American Samoa

Neil Abercrombie, Hawaii

Solomon P. Ortiz, Texas

Frank Pallone, Jr., New Jersey

Donna M. Christensen, Virgin Islands

Ron Kind, Wisconsin

Grace F. Napolitano, California

Tom Udall, New Mexico

Rau ́l M. Grijalva, Arizona

Madeleine Z. Bordallo, Guam

Jim Costa, California

Charlie Melancon, Louisiana

Dan Boren, Oklahoma

George Miller, California

Edward J. Markey, Massachusetts

Peter A. DeFazio, Oregon

Jay Inslee, Washington

Mark Udall, Colorado

Dennis Cardoza, California

Stephanie Herseth, South Dakota

Steven J. Ding, Chief of Staff

Lisa Pittman, Chief Counsel

James H. Zoia, Democrat Staff Director

Jeffrey P. Petrich, Democrat Chief Counsel

(III)

CONTENTS

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. Rau ́l 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

(1)

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

2

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 threedecade-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

3

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

4

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.

5

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

6

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 nonregulatory, 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 ‘‘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 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.

7

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

8

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

9

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?

10

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 longrunning 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.

11

• 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 asso- ciated 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 with- out 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

12

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

13

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

14

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.

15

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

16

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

17

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

18

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—onethird 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

19

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 Endan- gered 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 mis- used? 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.

20

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.

21

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

22

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.

23

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

24

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.

25

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.

26

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.

27

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 steward- ship 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 Sec- retary 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.

28

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.

29

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

30

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

31

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—

32

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.

33

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.

34

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

35

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

36

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?

37

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.

38

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.

39

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

40

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

41

grants the Secretary a fair amount of flexibility in determining

within 1 year regulations to help determine what constitutes bestavailable 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

42

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.

43

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

44

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.

45

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

46

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

47

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.

48

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

49

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

50

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

51

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.

52

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

53

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.

54

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.

55

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 Asso- ciation 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

56

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

57

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 con- tinue 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 suc- cessfully 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

58

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

59

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 con- ducting 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-bystate 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

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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.

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1 Adopted by the Association at the March 1993 meeting in Washington, D.C.; revised, mod- ernized 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.

INTERNATIONAL ASSOCIATION OF FISH AND WILDLIFE AGENCIES

REAUTHORIZATION AND REFORM OF THE ENDANGERED SPECIES ACT: GENERAL

PRINCIPLES

SEPTEMBER 30, 2004 1

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 popu- lation 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 in- centives 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

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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 ap- plication 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 stillgrowing 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

63

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 be- tween 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-today 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, rulemaking 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

64

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, delisting 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

65

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 con- servation 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 agree- ment 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

66

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 con- servation 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

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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

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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

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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 dra- matically 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

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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

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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, estab- lished 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

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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

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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 ‘‘habitatbusting’’ 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

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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.

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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.

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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. § 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.

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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

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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. § 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

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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.

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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

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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

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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.

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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

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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

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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.

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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

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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

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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

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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?

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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.

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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,

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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

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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?

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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.

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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?

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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.

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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.

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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

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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

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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

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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

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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.

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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.’’

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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

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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.

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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;

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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 recommendaVerDate 11-MAY-2000 11:19 Jan 18, 2006 Jkt 000000 PO 00000 Frm 00111 Fmt 6633 Sfmt 6602 J:\DOCS\23837.TXT HRESOUR1 PsN: HRESOUR1
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tion 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

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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

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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.

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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

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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 Rau ́l 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.

113

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.

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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.

Æ