U.S. GOVERNMENT PRINTING OFFICE

47–603 CC u WASHINGTON : 1998

HEARING ON THE IMPLEMENTATION OF THE

ENDANGERED SPECIES ACT OF 1973

HEARING

BEFORE THE

COMMITTEE ON RESOURCES

HOUSE OF REPRESENTATIVES

ONE HUNDRED FIFTH CONGRESS

SECOND SESSION

MARCH 5, 1998, WASHINGTON, DC

Serial No. 105–80

Printed for the use of the Committee on Resources

(
(II)

COMMITTEE ON RESOURCES

DON YOUNG, Alaska, Chairman

W.J. (BILLY) TAUZIN, Louisiana

JAMES V. HANSEN, Utah

JIM SAXTON, New Jersey

ELTON GALLEGLY, California

JOHN J. DUNCAN, JR., Tennessee

JOEL HEFLEY, Colorado

JOHN T. DOOLITTLE, California

WAYNE T. GILCHREST, Maryland

KEN CALVERT, California

RICHARD W. POMBO, California

BARBARA CUBIN, Wyoming

HELEN CHENOWETH, Idaho

LINDA SMITH, Washington

GEORGE P. RADANOVICH, California

WALTER B. JONES, JR., North Carolina

WILLIAM M. (MAC) THORNBERRY, Texas

JOHN SHADEGG] Arizona

JOHN E. ENSIGN, Nevada

ROBERT F. SMITH, Oregon

CHRIS CANNON, Utah

KEVIN BRADY, Texas

JOHN PETERSON, Pennsylvania

RICK HILL, Montana

BOB SCHAFFER, Colorado

JIM GIBBONS, Nevada

MICHAEL D. CRAPO, Idaho

GEORGE MILLER, California

EDWARD J. MARKEY, Massachusetts

NICK J. RAHALL II, West Virginia

BRUCE F. VENTO, Minnesota

DALE E. KILDEE, Michigan

PETER A. DEFAZIO, Oregon

ENI F.H. FALEOMAVAEGA, American

Samoa

NEIL ABERCROMBIE, Hawaii

SOLOMON P. ORTIZ, Texas

OWEN B. PICKETT, Virginia

FRANK PALLONE, JR., New Jersey

CALVIN M. DOOLEY, California

CARLOS A. ROMERO-BARCELO ́ , Puerto

Rico

MAURICE D. HINCHEY, New York

ROBERT A. UNDERWOOD, Guam

SAM FARR, California

PATRICK J. KENNEDY, Rhode Island

ADAM SMITH, Washington

WILLIAM D. DELAHUNT, Massachusetts

CHRIS JOHN, Louisiana

DONNA CHRISTIAN-GREEN, Virgin Islands

RON KIND, Wisconsin

LLOYD DOGGETT, Texas

LLOYD A. JONES, Chief of Staff

ELIZABETH MEGGINSON, Chief Counsel

CHRISTINE KENNEDY, Chief Clerk/Administrator

JOHN LAWRENCE, Democratic Staff Director
(III)

C O N T E N T S

Page

Hearing held March 5, 1998 ................................................................................... 1

Statement of Members:

Chenoweth, Hon. Helen, a Representative in Congress from the State

of Idaho, prepared statement of ................................................................... 13

Cubin, Hon. Barbara, a Representative in Congress from the State of

Wyoming, prepared statement of ................................................................. 16

Farr, Hon. Sam, a Representative in Congress from the State of California .............................................................................................................. 6

Gilchrest, Hon. Wayne, a Representative in Congress from the State

of Maryland ................................................................................................... 5

Hansen, Hon. James V., a Representative in Congress from the State

of Utah ........................................................................................................... 3

Herger, Hon. Wally, a Representative in Congress from the State of

California ....................................................................................................... 12

Lewis, Hon. Jerry, a Representative in Congress from the State of California .............................................................................................................. 7

Prepared statement of ............................................................................... 8

Miller, Hon. George, a Representative in Congress from the State of

California ....................................................................................................... 2

Pallone, Hon. Frank, Jr., a Representative in Congress from the State

of New Jersey, prepared statement of ......................................................... 16

Radanovich, Hon. George P., a Representative in Congress from the State

of California ................................................................................................... 11

Saxton, Hon. Jim, a Representative in Congress from the State of New

Jersey ............................................................................................................. 3

Schaffer, Hon. Bob, a Representative in Congress from the State of Colorado ................................................................................................................ 4

Additional material submitted by ............................................................ 85

Shadegg, Hon. John B., a Representative in Congress from the State

of Arizona, prepared statement of ............................................................... 80

Smith, Hon. Robert F., a Representative in Congress from the State

of Oregon, prepared statement of ................................................................ 80

Thomas, Hon. Bill, a Representative in Congress from the State of California, prepared statement of ...................................................................... 14

Young, Hon. Don, a Representative in Congress from the State of Alaska,

letter to Mr. Schmitten ................................................................................. 200

Mr. Schmitten’s response .......................................................................... 201

Letter to Mr. Blankenship from ............................................................... 213

Letter to Mr. Nickerson from ................................................................... 215

Letter of response from Ms. Clark ........................................................... 221

Statement of Witnesses:

Clark, Hon. Jamie Rappaport, Director, Fish and Wildlife Service, U.S.

Department of the Interior, Washington, DC; accompanied by La Verne

Smith, Chief, Endangered Species Division, Arlington, Virginia; Michael Spear, Regional Director (Region 1), Portland, Oregon; Renne

Lohoefener, Assistant Regional Director for Ecological Services (Region

2), Albuquerque, New Mexico; John Blakenship, Assistant Regional

Director for Ecological Services (Region 3), Minneapolis, Minnesota;

David Fleming, Chief of the Regional Endangered Species Office (Region 4), Atlanta, Georgia; and Paul Nickerson, Endangered Species

Coordinator (Region 5), Hadley, Massachusetts ......................................... 18

Prepared statement of Ms. Clark ............................................................. 135

Kitzhaber, Hon. John A., M.D., letter to Hon. William Daley ...................... 196

Portland Press Herald, Maine Sunday Telegram, Friday July 18, 1997 ..... 217
Page

IV

Statement of Witnesses—Continued

Ross, Hon. Gordon, Commissioner, Coos County, Oregon, prepared statement of ........................................................................................................... 17

Schmitten, Hon. Rolland, Director, National Marine Fisheries Service,

U.S. Department of Commerce, Washington, DC, accompanied by William W. Steele, Jr., Regional Administrator for Northwest Region, Seattle, Washington; William Hogarth, Regional Administrator for Southwest Region, Long Beach, California; Steven Pennoyer, Regional Administrator for Alaska Region, Juneau, Alaska; Chris Mantzaris, Division Chief, Northeast Region, Gloucester, Massachusetts; and Andrew

J. Kemmerer, Regional Administrator for Southeast Region, St. Petersburg, Florida .................................................................................................. 56

Prepared statement of Mr. Schmitten ..................................................... 153

Hogarth, William T., Ph.D., Acting Regional Administrator, Southwest Region, response to a letter from David H. Dunn, Esq., Eureka, California ......................................................................................... 251

Additional material supplied:

Ament, Hon. Don, State Senator, and Hon. Lewis H. Entz, State Representative, Denver, Colorado, prepared statement of .............................. 81

Habitat Conservation Planning Handbook, U.S. Fish and Wildlife Service,

will be on file at the Committee Office, 1324 Longworth Bldg., Washington, DC
(1)

HEARING ON THE IMPLEMENTATION OF THE

ENDANGERED SPECIES ACT OF 1973

THURSDAY, MARCH 5, 1998

U.S. HOUSE OF REPRESENTATIVES, COMMITTEE ON RESOURCES, Washington, DC.

The Committee met, pursuant to notice, at 11:06 a.m., in room

1324, Longworth House Office Building, the Honorable Richard W.

Pombo presiding.

Members present: Representatives Young, Hansen, Saxton,

Gilchrest, Pombo, Cubin, Chenoweth, Radanovich, Shadegg, Schaffer, Miller, Farr, Delahunt, John, Green, Doggett, Herger and

Lewis.

Mr. POMBO. [presiding] Good morning. Today we have invited the

Honorable Jamie Clark, the new Director of the Fish and Wildlife

Service, to testify before the Committee on the national and regional implications of the enforcement of the Endangered Species

Act.

We welcome you for this first appearance before the Committee

as the new Director and wish you well in your new duties. We wish

you success in finding ways to bring back a common sense and people-friendly approach to protecting endangered species.

We have invited the Honorable Rolland Schmitten, the Director

of the National Marine Fisheries Services, to testify. Mr. Schmitten

has testified on many occasions in the past, and we welcome you

here once again.

The Chairman has asked both of you to bring with you members

of your staff from your regional offices who can answer specific

questions regarding the enforcement of the Endangered Species Act

within those regions.

During 1997 the Chairman requested that both the Fish and

Wildlife Service and National Marine Fisheries Service provide statistics on the distribution of your funds to each region, as well as

the numbers of incidental take permits and Section 7 consultants

by region.

The Chairman also asked for your employee staffing levels by region. The Chairman asked the staff to compile a staff report summarizing that information which is being distributing to the members of the Committee as a background memo. The information

which was provided, I found to be very disturbing.

I feel strongly that Congress must ensure that the Act is implemented the way it was intended to be implemented by those in

Congress who voted for it. I don’t believe that Congress intended

for the Endangered Species Act to be used as a tool by the govern-
2

ment, or by fringe groups, to stop all development in the West.

Your statistics confirm what many of us believed, that the ESA has

been enforced with a very heavy hand in the West and a very light

hand in the Northeast. Those statistics also lend support to the belief held by some people that your enforcement of the ESA has been

based on politics which favor those heavily populated areas of the

country.

My instincts and experience tell me that the approach taken in

the Northeast and upper Midwest is based on common sense and

a respect for private property. I don’t think the West has seen the

same courtesy or respect. I realize that most of the land in the

West is owned by the Federal Government and there are many who

believe that gives the government the right to control all of the

land in the West, but there is something fundamentally unfair

about that approach. It places all the burdens of protecting the environment on one area and on a limited number of people. We

should all bear the burdens and the responsibilities equally and

fairly.

I am not in favor of simply mistreating people in the East the

way Westerners have been mistreated. I think all of our people deserve fair and respectful treatment. I simply believe that it is time

to stop and take a good look at whether these policies are evenhandedly enforced and, if not, find a way to bring about a fairer

system.

Mr. Miller, did you have an opening statement?

STATEMENT OF HON. GEORGE MILLER, A REPRESENTATIVE

IN CONGRESS FROM THE STATE OF CALIFORNIA

Mr. MILLER. This is an East/West battle going on here, huh?

Well, Mr. Chairman, I look forward to these hearings. I am not

sure whether or not the Habitat Conservation Plans are in the

East or the West is really the crux of the problem that we have.

I think it is much more a problem that we have—we continue to

list species and not provide for their recovery and, in that respect,

the Endangered Species Act is probably not working very well for

the environment, for the landowners, for private business or government itself. But I am also deeply concerned that we see actions

taken after the listing of species that are inconsistent with the recovery of that species and, therefore, place additional burdens on

remaining landowners and people who seek to develop their property.

As I have stated before, when I introduced my legislation, and

will continue to state throughout this debate, I think the test

should be, for plans for recovery, is whether or not they provide for

the recovery of the species. In this morning’s hearing, I think we

will hear some evidence that we continue to take actions, and the

government continues to allow actions that are inconsistent with

the recovery of the various species that they have—they themselves

have listed.

If we want to get into some discussion of East versus West, that

is fine. I am not sure that will lead to the kind of examination that

is necessary for providing the reforming and the strengthening of

the Endangered Species Act, but I look forward to hearing from the

witnesses this morning.
3

Mr. POMBO. Mr. Hansen.

STATEMENT OF HON. JAMES V. HANSEN, A REPRESENTATIVE

IN CONGRESS FROM THE STATE OF UTAH

Mr. HANSEN. Thank you, Mr. Chairman. I think this is a very

important hearing that we are going to have. When this thing

passed in 1973, I think the intent of the Act has not been carried

out. I still remember the last conversation I had with ex-Speaker

Tom Foley, and he said I wish I had never voted for this Act. I

have sometimes reflected on that and wondered why he would say

that. However, in the state that I represent, in the State of Utah,

we put an awful lot of money in things like the desert tortoise, and

yet we find that in other—where it is doing very well, in other

places it is having problems.

I was yesterday hit by the State of Utah and a few people that want $120 million to save four fish in the Colorado River, and

when I was a young man, they were considered trash fish. It is interesting enough and that the Colorado squawfish is one of those,

which its cousin is in the Columbia River where it is a predator,

yet in the Colorado River, it is an endangered fish.

I would hope we could bring some sense to this Act. Mr. Chairman, in my humble opinion, there should be a peer review. The

way this listing has coming about is not really fair and it seems

to me that every state should, and if they would check how the

Park Service, we do have a peer review, and it would seem reasonable to me that we adopt the kind of thing we have in the Park

Service and apply it to the other areas.

Now, anyone can come along, and as you go back and check out

how many of these things were listed, you find out it was not listed

by science, it was listed more by emotion. I would hope we would

have a listing process that is refined, a peer review process that

works, and a de-listing process that works. The American alligator

is a classic example of something that should have been de-listed

and we had to go to court to get it off the list. So I honestly think

this is the time we should work at it.

There is nothing sacred about the 1973 law, and every piece of

legislation I have ever been part of for 38 years, from time to time,

they have to be changed. If I have ever seen a piece of legislation

that deserves and needs to be changed for the benefit, not only of

the things this was originally to take care of, the grizzly bear or

the bald eagle and things such as that, now that we are down to

the slimy slug and those kind of things, I think we should be very

careful on this Act, and possibly at a point where we should make

some definite changes in it.

I thank the Chair for recognizing me.

Mr. SAXTON. Mr. Chairman.

Mr. POMBO. Mr. Saxton.

STATEMENT OF HON. JIM SAXTON, A REPRESENTATIVE IN

CONGRESS FROM THE STATE OF NEW JERSEY

Mr. SAXTON. I thank the Chairman. Mr. Chairman, let me just

say a word, for the moment at least, not so much about the substance of the matter that we are dealing with, but about the—I

guess it is a political odyssey that we have been going through try-
4

ing to arrive at enough common ground that we could get a Bill

to agree on.

First of all, let me commend you, Mr. Chairman, for the most—

years of work that you have put into this. I know you traveled all

over the country. I know that you have communicated with Mr.

Miller and others on the Committee, including myself. During the

last 12 months or so, we have met more times than I can remember to discuss the situation, and today’s hearing is, hopefully, another step in trying to arrive at some kind of a consensus that we

can all agree on.

I don’t think it is any secret to anyone that we have been unable

to find that consensus. While today is certainly a good step in that

direction, I just want everybody to know that Mr. Dingle and I, and

perhaps some others, are preparing some legislation which will include many of the things that previous statements here this morning have mentioned, things like peer review and other issues that

are very important. Some of the Bill will be like the Kempthorne

Bill, which is much talked about and discussed. Some of it will certainly be issues that Mr. Young, Mr. Pombo can agree on, and

some of it will have to do with what Mr. Miller just focused on in

his statement, the issue of recovery. They are all important issues

and all things that we need to agree on.

So, fortunately, Mr. Dingle and I seem to have a lot of common

ground and, frankly, we are consulting with others all along the

way, trying to develop consensus language, and I hope that we,

once the Bill is drafted, I hope that we can focus on it to try to

make arrangements with everyone who is interested so that we can

perhaps use this as a vehicle inasmuch as other things have failed

to produce the consensus that we need.

So I look forward to hearing from this morning’s witnesses. I

hope that we will all become additionally enlightened so that we

can move the process forward.

Mr. POMBO. Thank you.

Does any other member have an opening statement?

Mr. Schaffer.

STATEMENT OF HON. BOB SCHAFFER, A REPRESENTATIVE IN

CONGRESS FROM THE STATE OF COLORADO

Mr. SCHAFFER. Thank you, Mr. Chairman. I would just merely

point out the Endangered Species Act is one of those sections of the

laws which I hear about perhaps most from state legislators, county commissioners, and constituents back in my State of Colorado.

In particular, the lack of clarity in the law presents, I believe, a

credible argument which would explain the inordinate amount of

lawsuits that we see filed, both on behalf of species that some believe ought to be listed and, conversely, by those who believe that

some species that have moved forward toward listing should not be

listed.

But even more egregious, I think, is when you take a look at the

amount of money that is being expended by states and regions in

order to comply with various Endangered Species Act related mandates and dictates, the Chairman’s concerns are borne out just by

that statistic alone, when you see the disproportionate amount of

funds that are spent in the West with respect to compliance.
5

I have not done the math on this, but I would guess that when

you take those dollar amounts and spread them out by the number

of people who actually live in those areas, it is very clear and apparent that the Endangered Species Act is not applied evenly and

managed in a way that takes into account any sense of fairness,

geographically or with respect to citizens and taxpayers throughout

the country.

This Act is one that many people have complained about for a

long time, and for one reason or another, we have not been able

to move any responsible reform through the Congress over the past

few years. I am hoping that with the expertise and sincerity of the

people who are here before us today, that we may be able to take

one large step in the right direction toward getting an Endangered

Species Act eventually that actually protects endangered species

and does so in the fairest and most efficient way possible.

Thank you, Mr. Chairman.

Mr. POMBO. Mr. Gilchrest.

STATEMENT OF HON. WAYNE GILCHREST, A REPRESENTATIVE

IN CONGRESS FROM THE STATE OF MARYLAND

Mr. GILCHREST. Mr. Pombo, thank you.

I hope we can work through this process.

Good morning, Mr. Lewis.

Mr. LEWIS. Hello, my friend.

Mr. GILCHREST. I think intelligent human beings, of which we all

are—we all are, can get together and create an equitable Endangered Species Act for the East and the West, all across this country. I think one of our goals is to create a law that is equitably applied everywhere. I also think we can create a law that will help

decentralize the total centralization of the Act as it now applies to

the country. The Federal Government cannot save biological diversity in the United States, we can’t do it alone. The law has to be

a partnership with state, local government, and so on.

I also think we can create a law where individuals across this

great country would want to participate in this Act, would want to

find a snaildarter on their property, would want to find some endangered plant or insect or animal so that they could participate

and that structure is an incentive approach. I think we can do all

of that.

All of this has to do with recovery plans, habitat plans, ecosystem approaches, watersheds, all of these things, we can get together and figure this out.

Now, two last quick comments. No. 1, the land lasts longer than

any one person’s lifetime. So what we do on it has an impact on

future generations, our children. And the last thing, I recently read

something that I found intriguing, sort of a perspective on all of

this. If you took a book of a thousand pages, each page represented

100 million years of human history, or of Earth’s history, the planet Earth, the history of planet Earth, you consolidated in a book

of a thousand pages, the last 10,000 years would be found on the

last line of the last page and that is the last word of the last page.

A lot happened prior to us coming. The last comment is we do

not have an option, I think, we have to understand the mechanics

of natural processes on this infinitesimal blue and white speck we
6

call Earth in the midst of an infinite, hostile Universe. We are responsible adults. We are charged with the responsibility of doing

the nation’s business, and part of that is figuring how we can reasonably, fairly, equitably protect biological diversity.

Thank you, Mr. Chairman.

Mr. POMBO. Mr. Farr.

STATEMENT OF HON. SAM FARR, A REPRESENTATIVE IN

CONGRESS FROM THE STATE OF CALIFORNIA

Mr. FARR. Thank you, Mr. Chairman.

I can’t help but look down and see my colleague, Jerry Lewis,

there, and I want to tell you a story about something that works,

that he had something to do with, because he sits on the Appropriations Committee.

One difficulty in trying to understand a lot of this stuff is in understanding the development of HCPs, Habitat Conservation Plans.

We had the largest military base in the United States in my District, Fort Ord, which is also the largest base closed, 28,000 acres,

and most of it is undeveloped land. The Army used it for maneuvers. In the assessment, there were something like 46 endangered

or threatened species of plants and animals listed on this base.

What happened at that point was that everybody sat down and

said, before we decide what we are going to do in reusing it, where

everything is going to go, let’s do a Habitat Conservation Plan.

Then everybody who comes in thereafter will be part of the responsibility for maintaining it.

This is a unique situation because you have all this real estate

and one ownership and, essentially, you can do the plan ahead of

time, rather than trying to go in backward. But, I’ll tell you, when

it is done that way, it works really well. Everybody comes to the

table knowing exactly what their responsibility is and it is a longterm management plan.

My experience in being in local government, where you have to

issue all these permits, is that essentially people come in with a

foregone conclusion of what they want to do. Then they find out

that they didn’t ask the right questions and a lot of things they

want to do end up going in the wrong place or doing the wrong

thing. It would have been far better to sit down ahead of time.

Obviously, there are some problems with this law and we can address them. I am pleased that Congressman Miller, who has the

only Endangered Species Recovery Bill that has been introduced in

the House this session, is here. But I am here to tell you that once

you get the rules on the table and let everybody who is going to

play know where they are, you can come to a reasonable, common

sense, workable solution.

A lot of what Mr. Gilchrest said is true. A lot of this endangered

species stuff is the canary in the mine shaft. I mean we may not

think they are very important, but they are an early warning system for things that may be going wrong. There are also incredible

plants out there which we are just learning from medical science,

may be beneficial to treatment of our illnesses.

The reason I brought up Congressman Lewis’ name is that that

plan at Fort Ord wouldn’t have worked without his support. So I

know you are here to talk about some things that don’t work, but
7

I want to tell you that you helped make that work and I appreciate

it.

Mr. POMBO. Thank you, Director Clark.

Let me ask at this time unanimous consent to allow our colleagues, Wally Herger and Mr. Lewis, to sit on the dais as part of

the Committee for this hearing.

Hearing no objection, welcome.

I would like at this time to ask Mr. Lewis if he had a statement

he would like to make.

STATEMENT OF HON. JERRY LEWIS, A REPRESENTATIVE IN

CONGRESS FROM THE STATE OF CALIFORNIA

Mr. LEWIS. Thank you very much, Mr. Chairman, I would ask

unanimous consent to have my entire statement included in the

record and I will be very brief in view of your schedule difficulty.

I appreciate this courtesy.

I must say as Sam Farr mentioned our working together I can’t

help but look and see your Ranking Member, George Miller. George

Miller and I first began working together in the early 1970 on

issues that relate to subjects like the ones that you are dealing

with today.

In the old days I had the privilege of chairing a committee dealing with the environment in California, and many of the questions

that we have before us today we discussed then. One of the major

issues facing our state that will hopefully be before your full Committee at least shortly involves the impact of the wrong kinds of

environmental activism and other decisions relative to the Salton

Sea and its ecosystem.

Today I have come to specifically express my concern about what

has happened with the Endangered Species Act, and maybe give

some specific illustrations of a problem that I hope the Committee

would be addressing as they go about trying to make sense out of

the Endangered Species Act.

In San Bernardino County we have a major project that involves

a huge flood control responsibility, the Santa Ana mainstream

project which involves the largest unprotected flood plain in the

country. We are in the process of constructing a $1.5 billion project

to try to deal with that.

At this point in time we are moving toward completing the Seven

Oaks dam and just recently we were in a position of having that

work stopped briefly, and potentially for the long term, because of

the questions that swirled around the emergency listing of the San

Bernardino Kangaroo Rat.

To say the least, that action by the Fish and Wildlife Service

raised a number of questions in my mind’s eye. As a result of this

listing, we see a prime example of the debate and discussion too

often being dominated by the fringes, the extremes of concern

about our environment.

Within this region is a small little critter known as the Delhi

Sands Flower Loving Fly. When it first came to our attention, the

flower loving fly was in the area where the county was going to put

a county hospital. As the process went forward to try to make

sense out of that territory—we could only find at best three or four

such flies around. In order to mitigate this gnat-like fly—the coun-
8

ty ended up spending about $3.5 million before we even were able

to break ground and build that county hospital. That is not the intention of the Endangered Species Act.

The Kangaroo Rat which I first heard about it when I was 4 or

5 years old. One of my friends moved from Oklahoma and he said

have you ever seen a Kangaroo Rat, and I had never heard of it

and here I am, all these years later, and we have got 19 subspecies

and many of them protected under endangered designation.

I have within the file for your review a press release from the

Secretary’s office of 2 years ago where he said the Kangaroo Rat,

the San Bernardino rat, would not be emergency listed, and yet

just recently because of an internal problem that relates to regulation, a small territory was designated or was the target—we created a new federally protected species which impacts the whole region that involves this Santa Ana Project I mentioned is put on

hold.

Presently, in my district there is a National Training Center for

the Army, a fabulous facility that involves training and retraining

of our troops, the strength of America’s defense system.

Today that facility needs to be expanded. Another endangered

species is involved—the Desert Tortoise—and yet just adjacent to

this territory, you can throw a stone and hit the East Mojave National Preserve—there is enough territory there that is public territory to entirely encompass easily Mr. Gilchrest’s and Mr. Saxton’s

states combined. With regard to the tortoise, you can take their

eggs and put them over in the East Mojave territory and it won’t

hurt it a bit, and yet that endangerment is impacting potentially

a very serious element of our ability to defend the country and freedom around the world.

It is time for us to rethink where we have been with regard to

the ESA. That is the fundamental thrust of my testimony. I think

I have credentials that suggest I care about the environment. I

know that you all do as well.

It is time that the fringes of the debate, those who want to do

nothing about endangered species in terms of protection and those

who would use the environment to close down our economy, to be

out of the debate and those of us in the center take over this discussion and make sense out of the Endangered Species Act, and I

appreciate both your patience and your time.

[The prepared statement of Mr. Lewis follows.]

STATEMENT OF HON. JERRY LEWIS, A REPRESENTATIVE IN CONGRESS FROM THE

STATE OF CALIFORNIA

I would like to thank the Chairman and the Ranking Member for allowing me

the opportunity to participate in this important hearing. I am here, in part, to express my concerns over what appears to be the arbitrary application of the Endangered Species Act in my Congressional District. I would also like to touch briefly

on regional Fish and Wildlife Service funding issues as well as the Fish and Wildlife

Service’s role with respect to the proposed expansion of the Army’s National Training Center at Fort Irwin.

My Congressional District includes nearly all of San Bernardino County’s 20,000

square miles and all of Inyo County’s 10,000 square miles. The 40th Congressional

District covers roughly one-fifth of California. Because I represent a territory that

covers such huge expanses of land, I am concerned over the proliferation of listings—primarily emergency listings under the Endangered Species Act. In the two

counties I represent there are over 40 species listed as threatened or endangered

and another 10 proposed and candidate species.
9

While many of these species do deserve Federal protection, the listing of species

like the Delhi Sands Flower Loving Fly, the San Bernardino Merriam’s Kangaroo

Rat, and the Cushenberry milk-vetch, buckwheat, and oxytheca have seriously disrupted potential water supplies, flood protection and economic development efforts

in San Bernardino County. In fact, the listing of the Delhi Sands Flower Loving Fly

caused an additional expense of $3.5 million for a County Hospital which was under

construction when this species was listed. The listing of this species also precluded

ongoing development of a groundwater aquifer by the West San Bernardino Water

District.

I have said, time and time again, that it was a positive step forward when we

began to focus on the word environment during the 1960’s. However, I truly believe

that the pendulum has moved far from center in recent years and it is now time

to rethink how we balance the needs of the environment with economic impacts and

the common-sense application of positive environmental steps. I must say that it

strikes me as odd when we place species like flies, rats, and weeds above health

care services for the poorest of the poor and clean, potable water sources for county

residents. I am hopeful that over the next several years my friend from California,

Mr. Miller, will work with Don Young, Richard Pombo, John Dingell, the Administration and other to make positive changes to the Endangered Species Act.

San Bernardino Kangaroo Rat

I want to call your attention to a press release issued by the Fish and Wildlife

Service’s Pacific Regional office and dated October 28, 1994 which states, ‘‘the Department of Interior has no plans to list the San Bernardino Kangaroo Rat on an

emergency basis as a federally designated or threatened species . . .’’ The statement

went on to say, ‘‘any proposed listing of the species would be made on the best available scientific information, which would be made available to the public, to other

Federal agencies, state and local agencies, and to interested organizations for thorough review and critique well before any final decision would be made.’’ The emergency listing of the San Bernardino Kangaroo Rat on January 27, 1998 seems to

contradict your earlier press statement. I have heard a lot about the Service’s ‘‘No

Surprises’’ initiative. I must say that this emergency listing was an unfortunate surprise to residents in my territory.

Would you please explain?

What was the urgent threat to K-Rat habitat that precluded listing this species

through the normal listing process? How has this changed since Oct. 1994?

It has been suggested that the emergency listing of the San Bernardino K-Rat

was nothing more than a lever to get the Fish and Wildlife Service involved in Section 7 Consultations on activities such as flood control, sand and gravel mining operations, and land development projects. When the emergency listing had the unexpected ramification of stopping construction on the Seven Oaks Dam—which is the

cornerstone of the $1.5 billion Santa Ana Mainstem flood control project which provides flood protection for millions of lives and billions in property in San

Bernardino, Riverside and Orange Counties—the FWS moved with record speed to

allow construction to resume.

If construction on this project truly has negative impacts K-Rat habitat, why did

the FWS allow work to continue so quickly?

Has the FWS stated that it intends to propose that the gates to regulate

outletting flows be omitted from the dam construction of the Seven Oaks Dam?

Why can’t the FWS be so responsive to average citizens and small business men

and women impacted by this and similar listings?

Did the FWS just try to defray public outcry by quickly allowing the contractor

to go back to work on this important flood control project?

Was there scientific data to back the decision to allow work to continue on the

Seven Oaks Dam project?

As a result of this emergency listing, what long-term impacts will this emergency

listing have on the operations and maintenance of the Santa Ana Mainstem project?

Ft. Irwin Expansion

As you know, the Army which operates the National Training Center at Ft. Irwin,

has identified a need for additional acreage (roughly 330,000 acres) to conduct modern day desert warfare maneuvers. I know that FWS has been working with the

Bureau of Land Management, the Army and other interested parties. Would you

please give me an idea as to what progress is taking place with regard to this necessary and important expansion?

Regional Funding Disparity

The Interior Appropriations Subcommittee provided the Fish and Wildlife Service

$63 million for their regional offices in fiscal year 1997. Region I, which covers the
10

Western United States, received over $34 million (over half of the entire regional

budget) for enforcement of the ESA while Region VII received only $717,000. Why

are we not doing more endangered species work in the Midwest, the South and the

Northeast. Over 35 percent of the species listed by the FWS are in California. Are

we not listing species in other regions because we aren’t providing adequate funding? Are we listing species such as rats and flies in the Pacific region because their

budget is so flush?

Fiscal Year 1997 Regional Allocations for FWS

Region I—$34,169,000 (Pacific)

Region II—$6,548,000 (Southwest)

Region III—$2,264,000 (Great Lakes States)

Region IV—$12,664,000 (Southeast)

Region V—$2,949,000 (Northeast)

Region VI—$4,902,000 (Rocky Mtn States)

Region VII—$717,000 (Alaska)

Questions for the Record

Would you support the listing of species only under the ESA, as compared to the

listing of subspecies or populations?

Why does the FWS need to review and list separately the Stephens Kangaroo Rat,

the San Bernardino Kangaroo Rat, and the Tipton Kangaroo Rat? If viewed collectively, would a listing still be appropriate?

In late January, the Service emergency listed the San Bernardino K-Rat as endangered. This was done on an emergency basis because a miner allegedly made

threats to disturb this species’ habitat in the short term. If it can be firmly established that there were no such threats that such actions will not be taken by that

operator during consideration of a permanent listing, would you support the withdrawal of that emergency listing? Are you aware that the Secretary, by law, is required to withdraw an emergency listing if there is no substantial evidence to support the finding of an emergency?

Would you support requiring that the ESA listings include an analysis of economic impacts?

The emergency listing of the the San Bernardino K-Rat has already, and will continue to create major economic disruptions in San Bernardino County, including

interfering with the completion or operation of major highway, water pipeline, flood

control and other public works projects. What is FWS’s role in finding a workable

solution to this situatuion? Will you provide funding to the County which will enable

them to undertake a conservation planning process? If the County had a Habitat

Conservation Plan in place, would the Service have moved forward with an emergency listing?

Would you please provide a list of species de-listed in Region I over the last 10

years?

Mr. POMBO. We have a vote going on on the floor. We are going

to break for just a minute.

Most of the members of the Committee went over and voted as

soon as the bells went off and as soon as they come back, we will

call the hearing back to order, but it should just take a minute.

Mr. LEWIS. You notice they left immediately as I sat down. I appreciate it.

[Laughter.]

Mr. POMBO. It is no reflection on you, but we—don’t go anywhere. We are just going to break for just a minute.

[Recess.]

Mr. HANSEN. [presiding] As is obvious to everyone here, we have

a vote going on. I would appreciate it if we could get the first panel

seated so we can move along. This is going to be a heavy hearing

today.

Our first panel is Jamie Rappaport Clark, Director of the Fish

and Wildlife Service, will be—the Honorable—will be the first one

we will have up, and she will be accompanied by LaVerne Smith,

Michael Spear, Renne Lohoefener—is that it? Lohoefener, well,
11

that’s pretty close, John Blakenship, Dave Fleming, and Paul Nickerson.

So if you folks would come up and be seated.

We really do not want to start until we get a few more members

here, so if you—we want you ready to go.

I imagine you have been told by the Committee that we follow

the 5-minute rule in here and I hope you can get your testimony

in in that length of time. Please keep in mind that any prepared

or written testimony that you may have we’ll take in its entirety,

and with that, if we could just hold for just a moment I am sure

that a lot of members will be coming back and they’ve asked me

to take the Chair until Mr. Pombo comes back.

Does the gentlelady from the Virgin Islands have a statement

she would like to make at this hearing?

Ms. CHRISTIAN-GREEN. No, Mr. Chairman.

Mr. POMBO. You would have our undivided attention.

Ms. CHRISTIAN-GREEN. I know. I was so busy yesterday I didn’t

have a chance to review some of the material, so I am sure I will

have questions as we go along. I am particularly interested in hearing from the Director, Fish and Wildlife, and the Marine Fisheries

Service because we have some issues at home, but I have no opening statement.

I would just like to welcome the panelists this morning.

Mr. HANSEN. Thank you.

Mr. Radanovich, by any chance do you have an opening statement that you would like to make?

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

Mr. RADANOVICH. Thank you, Mr. Chairman. Yes, just briefly I

did want to point out my appreciation to the Chairman for conducting a hearing on this specific issue, and just some general

thoughts on the current state of environmentalism and

environmentalism protection in this country.

I think the offer or the challenge, I think, of the environmental

community is to really begin to focus environmental protection at

the private property rights and private property incentives and

local control levels.

I think that right now the evidence that we are reviewing today

is kind of encouraging amongst people that are in control of resources in this country, an attitude of shoot, shovel, and shut-up,

which is basically the reaction to finding out that they have an endangered species on their property.

I think that the real challenge to the environmental community

is to begin to develop some environmental policy that is not an

enemy of probably the very best approach that we can take to the

environment, and that is of stewardship, which is a personal responsibility. It happens at the local level, and until you can identify

a policy that encourages people to want to provide habitat and

maintain and increase endangered species on their own property

then you really haven’t done your job and that is all I have to say.

Thank you.
12

Mr. HANSEN. Mr. Herger of California, who has been invited to

sit on the dais with us—we are kind of marking time—would you

have an opening statement that you would like to make?

STATEMENT OF HON. WALLY HERGER, A REPRESENTATIVE IN

CONGRESS FROM THE STATE OF CALIFORNIA

Mr. HERGER. Mr. Chairman, I would like to thank you for holding this very important hearing and I also appreciate the Committee’s indulgence in allowing me to sit on the dais.

This issue is of incredible importance to the 572,000 people who

I represent in Northern California, both in the way of jobs—the

some 36 mills that have closed because of Spotted Owls in areas

where we find more Spotted Owls in Northern California than they

thought they had in all of Washington, Oregon, and Northern California together to begin with, but even more tragically than the incredible unemployment, double digit in just about each of my 10

counties, is the loss of human life that we experienced a year ago,

January 2nd, in which a levee broke on the Feather River in which

it was determined in 1990 by the Corps of Engineers that there

would be a loss of life in this levee—loss of life and loss of property—if this levee were not repaired, and yet it took 6 years

through mitigation and hoops to jump through, through the Endangered Species Act, to finally come up with a plan that would have

allowed them to have repaired it in the summer of 1997.

Tragically the levee broke 6 months earlier and three people

were drowned right in front of that levee along with all the property and some 250 homes that were inundated, so this is an incredibly important issue.

I am absolutely certain that we can both protect and preserve endangered species and protect human life and property at the same

time. They are not mutually exclusive, but the way the way is

being interpreted at this time for all practical purposes they are

mutually exclusive and again I appreciate the Chairman’s holding

this hearing so that we can work to correct that.

Mr. HANSEN. Thank you. Director Clark, I don’t want to be unfair and ask you any unfair questions right now, and I would like

to have a few more members here to hear your opening statement.

If I may deviate, respectfully, for just a moment, while we are

waiting for Mr. Pombo and others to come back, I am constantly

asked a question about the cost of the mitigation and the work that

is done by Fish and Wildlife on our endangered species.

For example, the State of Utah wants me to put $120 million in

a bill for recovery of four fish in the Colorado River.

People in Washington County want me to get them more money

for the deal that has been worked out on the HCP and Washington

County on the Desert Tortoise.

People in Iron County want to do something on the Prairie Dog

and the list goes on and on.

Let me just ask you a quickie before we turn you on, if I could,

and I apologize.

Ms. CLARK. That’s all right.

Mr. HANSEN. Has anyone projected the cost of all the endangered

and threatened species in America if we went through the recovery

program, what that would be?
13

Ms. CLARK. Well, Mr. Chairman, I believe that there has been—

there have been studies that have been done in the past and there

have been all kinds of subjective determinations and evaluations of

the cost of species recovery.

There have also been the same kinds of studies and evaluations

on the, quote, costs of species extinction, and the cost to the American public of not having those species around.

All of our species don’t have recovery plans I am, you know, concerned to admit, but the ultimate cost of species recovery for all of

our almost 1,200 listed species hasn’t been evaluated.

Mr. HANSEN. Mr. Pombo and Mr. Miller, we have not started. I

am sure Director Clark is ready to start.

I’ll relinquish the chair to my friend from California.

Mr. POMBO. [presiding] Mrs. Chenoweth, did you have an opening statement that you wanted to give before we got started?

STATEMENT OF HON. HELEN CHENOWETH, A

REPRESENTATIVE IN CONGRESS FROM THE STATE OF IDAHO

Mrs. CHENOWETH. Mr. Chairman, I do have an opening statement, but I know you are anxious to move things along and so I

would like to just submit it for the record, thank you.

Mr. POMBO. Without objection, it will be included in the record.

[The prepared statement of Mrs. Chenoweth follows.]

STATEMENT OF HON. HELEN CHENOWETH, A REPRESENTATIVE IN CONGRESS FROM

THE STATE OF IDAHO

Mr. Chairman, thank you for holding this very important hearing. I thank you

for your very strong leadership; not only on the issue of Endangered Species Act

reform, but of all resource issues. I appreciate you.

We in the West have known for quite sometime that something was amiss. We

have struggled and struggled to recover species—to the tune of billions of dollars

and the loss of thousands of jobs. Some of the Western species have even become

national issues—the Spotted Owl, Grizzly Bear, Wolf and Pacific Salmon all come

to mind.

Through all of the controversy and costs, it has seemed that the West has been

the primary focus of ESA activity.

Some steps toward recovery have been made. On others, we have to engage in

new thinking; the current policies are not working. But whatever your view, since

enactment in 1973 of the Endangered Species Act, the west has paid a heavy, heavy

price. Just ask some of the thousands of loggers now out of work. Or ask the school

teachers whose school districts, once dependent on timber receipts for schools, can

no longer afford school books.

Yes, we in the West have paid a heavy, heavy price. Something is indeed amiss.

And now we know. . . .

In the East, enforcement of the Endangered Species Act has been done on a wink

and a nod. It would appear that politics and economics, rather than science, has

played the central role in determining whether to list a species as threatened or endangered.

Let me explain. In the Pacific Northwest, among the number of high profile (and

even emotional) species we are grappling with is the Pacific Salmon. The National

Marine Fisheries Service (NMFS) has decided to consider the Pacific Salmon by

stream segment. As a result, we have separate Federal listings for the Chinook

Salmon-Sacramento River Winter; Chinook Salmon-Snake River Fall; Chinook Salmon-Snake River Spring/Summer; Coho Salmon-Central California Coast; Coho Salmon-Southern Oregon/Northern California; and the Sockeye Salmon-Snake River.

Each of these species carries with it its own critical habitat designations, which

have wreaked havoc on various communities and families.

Yet, in the East, there is the Atlantic Salmon. In September, 1995, it was proposed for listing by both the Fish & Wildlife Service (FWS) and NMFS. Let me

quote from the September 29, 1995 Federal Register, ‘‘The NMFS and FWS have

completed a status review of U.S. Atlantic Salmon populations and identified a DIS-
14

TINCT POPULATION SEGMENT in seven Maine Rivers. Atlantic Salmon in

these rivers are likely to become endangered in the foreseeable future and therefore

are being proposed for listing . . .’’

But, interestingly enough, just last December, NMFS withdrew its proposed listing rule, citing Maine’s conservation efforts. It appears NMFS considered Atlantic

Salmon in the aggregate, and the Pacific Salmon by stream segments. Why?

I can’t help but draw comparisons to my state of Idaho. We have bent over backward to protect the Pacific Salmon; Idaho (we) provide water . . . at the cost of farmers; protect habitat . . . at a cost to the timber and cattle industry; and have spent

millions on hatcheries . . . at a cost to the Idaho taxpayer.

Yet, NMFS continued on its journey to list one of the Distinct Population Segments of Salmon in Idaho—despite all of our efforts!

Now, you can call me a cynic, but I believe in calling a spade a spade. And in

this case, I believe population and politics played a very large role in a listing of

the Pacific Salmon, and a refusal to list the Atlantic Salmon. To me, this demonstrates an agency (and administration) that is out of control. I would like not to

believe this, but the numbers prove my point.

Idaho is in NMFS’ Northwest district, and Region 1 of the FWS. I ask the Committee to note that more than half of NMFS’ budget goes to its Northwest district;

and more than half of the FWS budget goes to Region 1 . . . both which include

Idaho.

This has allowed the agencies to literally play god, and to dictate policy without

any input from the state.

Mr. Chairman, I could go on and on. But I won’t. But one thing is clear. The playing field is tilted against the West, and with all of the money and emotions, the

agencies are out of control.

The grizzly bear is one such instance. Over the clear objections of IDAHO’s ENTIRE CONGRESSIONAL DELEGATION and the GOVERNOR, the Fish & Wildlife

Service is attempting to introduce a Section 10(j) experimental population into

Idaho.

Yes, Mr. Chairman, the agencies are playing god . . . and playing on the emotions

of the public. Never mind the threat to families and workers the mighty grizzly presents. And further there is even a question whether the designated habitat can support a population. There is truly a political agenda here.

I am not advocating injuring the East like we in the West have been injured. But

what I am advocating is that we inject some sanity and FAIRNESS into the debate.

The West is not just one big National Park for Easterners to play in. We have communities, families and industries that have been hurt, seriously hurt, by out of control agencies.

Thank you, Mr. Chairman.

Mr. POMBO. At this point, I would also like to include in the

record the opening statements of several members who have requested that, including Bob Smith, Jerry Lewis, Bill Thomas, and

the Chairman, Don Young as well as statements from the public.

We have one from Gordon Ross, who is a Commissioner in Coos

County, Oregon. Without objection I would like to include those in

the record as well.

Without objection, statements of all members will be included in

the record at this point and as well the official hearing record will

be held open for 10 days to allow other people to enter their statements into the record.

[The prepared statement of Hon. Robert Smith follows:]

STATEMENT OF HON. BILL THOMAS, A REPRESENTATIVE IN CONGRESS FROM THE

STATE OF CALIFORNIA

Mr. Chairman, I appreciate the opportunity to give this statement to the Committee and to discuss the concerns of my constituents from Kern and Tulare Counties in California’s 21st District. I have two goals in addressing you today. First,

I want to remind you of the testimony of my constituents when the Resources Committee Task Force on Endangered Species Act met in Bakersfield. Their testimony

related many seemingly arbitrary decisions by Federal authorities. Second, I want

to suggest some ideas that may help the Committee build a broader coalition to create a fairer and more effective law to conserve endangered species.
15

Tales from the 21st District

My District has been deeply affected by the presence of over 20 Federal endangered and almost 100 candidate species. Kern County embraces more than 8,000

square miles of desert, mountain and valley terrain (equal to the size of Massachusetts) including two important military facilities, Edwards Air Force Base and the

Naval Air Warfare Center at China Lake. As you consider testimony on how Federal

authorities implement the Endangered Species Act, please remember that:

Farmers in Kern County saw their farm sales drop, in some cases to nothing,

within a few years after the Federal Government decided that fish in the San Joaquin Bay Delta in Northern California needed more water. Some farmers went

bankrupt when water costs increased six-fold within a few years in the early 1990’s.

There are many examples of people being saddled with costly but useless requirements. In one instance, Federal authorities made the Kern Water Agency survey for

the possible presence of the Tipton Kangaroo Rat, at a cost of over $27,000 even

though no rat was suspected to live on the property and none was ever found. In

another example, Federal authorities ordered a halt to construction of a highway

overpass until a pregnant Kit fox had the chance to give birth. Only after several

months did Federal bureaucrats allow the construction to continue when the fox

proved to be not pregnant after all and, in fact, not even female.

How does Kern County cope with this bureaucratic mire that threatens to stifle

its economy? Those who can afford to participate take part in the Kern County Valley Floor Habitat Conservation Plan which encompasses approximately 3200 square

miles—covering more land than 18 Congressional districts in New York. That is

more land subject to a habitat conservation plan than in all the land in all the conservation plans in the continental U.S. east of Nevada. I assume this is the reason

that many of my colleagues do not constantly hear from their constituents about the

enormous cost imposed on them by the presence of endangered species. Many states

have no land tied up in conservation plans and do not have to obtain complex permits from various Federal bureaucracies whenever seemingly common occurrences

take place—building a house, drilling a water well, putting up a highway overpass,

or farming a piece of land.

Real Conservation

The current system of endangered species protection simply is not working. If you

tell a farmer that he can not use his property when it is the ‘‘habitat’’ (real or potential) of some species, then that farmer is going to make certain he does not have

that ‘‘habitat.’’ Environmental activists may decry this ‘‘selfish’’ response, but you

might as well ask why people are not willing to bankrupt their families on behalf

of a jumping rat. Landowners, like anyone else, are going to look after their families

and their livelihoods before worrying about protecting obscure species that look like

simple weeds and rats.

Those who actually want to protect species should recognize this requires the co- operation of private landowners. Holding a bureaucratic gun to their heads will not

bring cooperation and will not help species recover. A landowner who must set aside

a portion of his land, often several times the portion he uses, is left making a living

with less. The land he has left to work with must produce enough to make up for

the several acres set aside for species conservation. So, to my colleagues, both Republican and Democrat, who have resisted reform of the Endangered Species Act,

I issue this challenge: stop using the stick on private landowners and try using the

carrot. Give landowner incentives a chance. Congress needs to make habitat affordable for these people who rely upon the land for their livelihood and who provide

basic necessities like food to people in our country.

The second suggestion I make is to pursue a fair process for implementing species

conservation. Just as centralized, closed, autocratic decision-making by Federal authorities has prevented the cooperation of landowners, it has also undermined the

legitimacy of conservation efforts. You have heard the stories about species being

listed with insufficient evidence, biased implementation by Federal authorities

against the West, spurious scientific studies, and people not being permitted equal

access to listing documentation. All of this boils down to an unfair process that

needs reforming. Consider our own experience in Congress. Even when a group loses

an issue, there is respect for the result if a fair process has been followed: notice

of the issue, careful study by both sides, unbiased expert evaluation of the evidence,

equal access to information, and equal impact on all regions of the country. As controversial a program as endangered species protection demands such a fair process.

Therefore, I strongly urge you to consider reforms that make this process fair, open,

and transparent for all affected parties.

Until such steps are taken, the Act will continue to fail to achieve its goal of Federal wildlife protection which reflects the will of the American people.
16

[The prepared statement of Mrs. Cubin follows.]

STATEMENT OF HON. BARBARA CUBIN, A REPRESENTATIVE IN CONGRESS FROM THE

STATE OF WYOMING

Mr. Chairman, thank you for holding this oversight hearing today on the Endangered Species Act. I appreciate having the opportunity to express some of my general concerns with the implementation of the Act and its impact on my State of Wyoming.

As some of my colleagues may be aware, in 1994 the U.S. Fish and Wildlife Service was petitioned by the Biodiversity Legal Foundation to list the Preble’s Meadow

Jumping Mouse as an endangered species. The Service subsequently published a 90-

day finding in December, 1994 that the requested action may be warranted. The

proposed rule for listing the mouse as endangered was published on March 25 last

year and I understand a final decision about the listing will be made later this

month. I have several concerns about the testing of the mouse as an endangered

species in Wyoming.

It is my understanding that the Wyoming Game and Fish Department conducted

over 7,000 trap-nights in potential habitat in southeast Wyoming between 1990 and

1993 without recording any evidence of the mouse. The Medicine Bow National Forest also channeled an extensive portion of its annual endangered Species funds into

surveys for the Preble’s meadow jumping mouse in 1995, but no present populations

were located. The Game and Fish Department further surveyed their habitat units

in southeastern Wyoming. NO Preble’s mice were found.

I am also told that extensive work in Colorado has confirmed the absence of this

species from many historical areas and, rightfully so, private landowners have refused to allow Fish and Wildlife Service employees on their land to do surveys.

Without this information, the listing decision will have to be made from available

data, which, in my view, and I might add the view of the Wyoming Game and Fish

Department is inadequate at best.

If the Preble’s meadow jumping mouse is listed as an endangered species, all public lands with suitable habitat will have to be surveyed for this species prior to any

activity which may affect the species or the habitat. Although such surveys are not

required for activities on private lands, any landowner requesting Federal funds or

requiring a Federal permit for work on their lands will likely be required to have

surveys for the mouse conducted if the proposed work will affect potential Preble’s

habitat.

Because the Preble’s habitat consists mainly of riparian grounds, including numerous areas with thick ground cover where grazing occurs, the ranchers in my

State are very concerned about the impact of listing the Preble’s mouse could have

on their industry. In fact a briefing paper provided to my office on the mouse and

its habitat states, ‘‘Reducing or eliminating livestock grazing in riparian areas, especially during the months that the mice are active, and discouraging road building

into riparian areas may be useful management tools.’’

Once again, we appear to be putting the cart before the horse with respect to the

listing of a species. We don’t have adequate data to support listing, we don’t really

know much about its population, we haven’t adequately assessed all possible impacts, yet we are moving ahead with listing. I’m beginning to wonder why we don’t

just list everything that moves, with the exception of people and then this problem

would be solved. But I don’t believe we want to do that. We don’t have the resources

to manage the species or protect their habitat or perform necessary services as it

is now. So why should we add to that burden? My guess is, this is just one more

avenue for the environmental community to stop what they perceive to be unnecessary development along the Front Range of Colorado and Wyoming. I think that is

a travesty and I hope that if this Committee considers legislation to reform the Endangered Species Act either now or in the future, we do something to alter the criteria for listing.

[The prepared statement of Mr. Pallone follows.]

STATEMENT OF HON. FRANK PALLONE, JR., A REPRESENTATIVE IN CONGRESS FROM

THE STATE OF NEW JERSEY

Mr. Chairman, I would like to thank you for holding this oversight hearing on

the Endangered Species Act. I am looking forward to the testimony today by Jamie

Rappaport Clark, the Director of the U.S. Fish and Wildlife Service, various regional

administrators, as well as Rolland Schmitten, Director of the National Marine Fisheries Service to discuss the various aspects of the Endangered Species Act.
17

While the current endangered species Act has fueled a debate between those who

want a clean environment and those who want a healthy economy, today’s hearing

will discuss the implementation of the Act by the two agencies with jurisdiction: the

U.S. Fish and Wildlife Service and the National Marine Fisheries Service.

We all are aware that the current law has limitations. Too many species get put

on the threatened or endangered list and not enough get taken off. Current practices have been criticized as ineffective and inefficient. Not enough attention has

been placed on recovery or preventing species from getting to the point where they

need to be listed. Half of all species on the endangered list do not have recovery

plans. The question I have for the agencies today is, how can we do better?

In closing Mr. Chairman, I would like to welcome the panel today and I look forward to hearing their testimony on this contentious topic.

[The prepared statement of Mr. Ross follows.]

STATEMENT OF HON. GORDON ROSS, COMMISSIONER, COOS COUNTY, OREGON

Mr. Chairman:

My name is Gordon Ross. I am a fourth generation resident of Coos County, Oregon, and at present one of three county commissioners for Coos County. I’m also

on the Board of Directors of the Association of Oregon and California Revested Railroad Grant Land Counties. (O & C Counties).

Coos County is located on the south coast of Oregon with an approximate population of 62,000. Our principal industries are lumber, fishing, agriculture and recreation. Coos County has two National Forests; the Siskiyou and the Siuslaw, the

Coos Bay BLM District that manages O & C, Coos Bay Wagon Road and Public Domain Lands managed under the President’s Northwest Forest Plan. The Elliott

State Forest and our County owned forest that is managed under the Oregon Forest

Practices Act are all within our boundaries. Our current unemployment rate is between 10 and 12 percent, almost three times Oregon’s urban area unemployment

rate. The Endangered Species Act is putting our industries and our County at risk.

Coos County and the West are being held hostage by the Endangered Species Act

and the whole nation is suffering for it. Since the listing of the Northern Spotted

Owl and the implementation of the Northwest Forest Plan the soft wood timber imported into the United States has risen from 12 billion board feet to 17 billion board

feet, an increase of imports of 5 billion board feet per year. The increase in imports

corresponds almost exactly with the decline in domestic harvest on Federal lands,

caused mostly by listings under the Endangered Species Act

Presently, as we work with the National Marine Fisheries Service to avoid a Coho

salmon listing in Oregon, we have on our table a draft letter from them that proposes changes to the Oregon Forest Practices Act that would further reduce the harvest of timber on private, state and county lands. As we try to understand NMFS’s

proposal, our estimates run between a 60 and 80 percent reduction in annual harvest

Coos County operates a 15,000-acre forest that generates revenues that fund public health and safety programs for the benefit of all county citizens. The County forest is harvested on a sustained yield basis under the regulatory requirements of the

Oregon Forest Practices Act. Our Winchester Creek timber sale, due to sell March

10, contains just short of a million and a half-dollars worth of timber. Under Oregon’s present statute we must leave $82,000 worth of timber along streams, under

the Governor’s voluntary stream side set back we will have to leave $167 000 on

the land; but if the National Marine Fisheries Service scenario were place] in Oregon law, around $1,000,000 or two thirds of the sale would be lost. This is not an

isolated or unique example. Most of our timber sales would be similarly impacted

if the National Marine Fisheries Service prevails. This would be a death blow to

programs now being supported by Coos County’s timber sales program including

Women’s Crises Center, kelp-line, homeless shelter, retired senior volunteer programs, wildlife service, natural resource conservation programs, extension service,

all health department programs from teen pregnancy prevention and water monitoring to immunization.

When we consider the entire annual harvest program, of 190 acres, we would experience a loss that would completely eliminate all County programs for public

health and safety. Because 37 percent of Coos County’s private sector agricultural

income is from wood lots the same reduction in revenue will be experienced in the

private sector so additional taxes to support these programs are not an option. In

short the Endangered Species Act is crippling us in the West. Eventually it will be

felt nation wide.
18

We have examined the ‘‘Statement of Cooperation’’ among the U.S. Fish and Wildlife Service, National Marine Fisheries Service and the State of Maine, which formally accepted the State of Maine Atlantic Salmon Conservation Plan. We note that

the forest practices requirements under plan are not nearly as strict as Oregon’s

current forest practices rules and we ask the question, why are the people of Coos

County specifically and the West in general being treated differently?

Mr. POMBO. Having said that, Ms. Clark, we are finally to that

point. If you are prepared, you may begin.

STATEMENT OF HON. JAMIE RAPPAPORT CLARK, DIRECTOR,

FISH AND WILDLIFE SERVICE, U.S. DEPARTMENT OF THE INTERIOR, WASHINGTON, DC; ACCOMPANIED BY LA VERNE

SMITH, CHIEF, ENDANGERED SPECIES DIVISION, ARLINGTON, VIRGINIA; MICHAEL SPEAR, REGIONAL DIRECTOR (REGION 1), PORTLAND, OREGON; RENNE LOHOEFENER, ASSISTANT REGIONAL DIRECTOR FOR ECOLOGICAL SERVICES (REGION 2), ALBUQUERQUE, NEW MEXICO; JOHN BLAKENSHIP,

ASSISTANT REGIONAL DIRECTOR FOR ECOLOGICAL SERVICES (REGION 3), MINNEAPOLIS, MINNESOTA; DAVID FLEMING, CHIEF OF THE REGIONAL ENDANGERED SPECIES OFFICE (REGION 4), ATLANTA, GEORGIA; AND PAUL NICKERSON, ENDANGERED SPECIES COORDINATOR (REGION 5),

HADLEY, MASSACHUSETTS

Ms. CLARK. Thank you, Mr. Chairman, and again thank you for

this opportunity this morning to discuss the Endangered Species

Act.

I am joined today by some of the most foremost experts in the

field of endangered species conservation from the Fish and Wildlife

Service. I hope to provide the Committee with direct responses to

any questions that the members might have, but if I cannot, I will

turn to these experts with me today.

Answers to the questions in your invitation letter are in my written testimony. Therefore, this morning I will outline some of the

challenges we have been facing and the opportunities we have discovered by taking new approaches to species conservation.

Over the past several years, the Clinton Administration has produced a remarkable record of success through a simple commitment to making the Endangered Species Act work. We are working

more closely than ever before with the National Marine Fisheries

Service to improve the efficiency and the effectiveness of the Endangered Species Act.

Since 1994 we have implemented a series of innovative policy reforms to improve the Act’s effectiveness while encouraging Americans to protect endangered and threatened species on their own

lands. As a result, we are now enjoying an endangered species program that works better than ever before for both species and for

people.

We strengthened the science that has been the foundation of species conservation by instituting improved and consistent peer review. We streamlined the Section 7 Federal agency consultation

process. We have increased the roles of states, tribes, landowners

and other conservation partners in recovery planning and implementation.

We have expanded the use of candidate conservation agreements

and plans to help conserve species before they need to be listed.
19

Through these agreements we have successfully kept species off the

endangered species list including the Copperbelly Water Snake and

the Atlantic Salmon, and in exchange for long-term species conservation commitments we have offered economic certainty to landowners through our no surprises policy, which has been a key tool

in revolutionizing the HCP process.

The record is clear. Prior to 1994 only 14 landowners successfully

developed HCPs in over 10 years. Today over 225 HCPs cover over

five million acres and another 200 are under development.

Finally, we are improving our monitoring programs and increasing the use of adaptive management to ensure the success of all of

our endangered species programs.

These reforms have bred a new generation of conservation successes. Some are small and simple, like Mary Presley’s HCP to protect the Florida Scrubjay on her one-half acre of land by leaving

30 percent of her lot uncleared. She says she likes it that way for

privacy as well as for the birds.

Other successes are large and complex, as in San Diego, where

the entire community has rallied around a plan to protect 172,000

acres of land for over 80 listed and candidate species while allowing for careful development.

Another example is a mosaic of protection provided by Safe Harbor agreements that span from Louisiana to North Carolina that

will contribute to the eventual recovery of the Red Cockaded Woodpecker in the foreseeable future.

Successes are also occurring between government agencies like

the Fish and Wildlife Service and the Forest Service. Through the

streamlining of Section 7 we expect that within 6 months we will

ensure that as many as 600 grazing allotments are in compliance

with the Endangered Species Act in the Southwest.

We are confident that this process will result in an appropriate

balance between traditional land uses and species conservation.

These types of successes are being duplicated all over the country, as people and communities are creating innovative ways to

protect endangered and threatened species while achieving economic goals. Over the next several years we will begin to turn the

page to a new era of success as we expect to process delistings and

reclassifications for as many as two dozen species. This is an exciting juncture for us because recovery is the ultimate Endangered

Species Act success story.

To conclude, Mr. Chairman, I don’t pretend to tell you that the

business of endangered species conservation is all sweetness and

light. It’s not. It’s hard work, and it’s often controversial. But I am

proud to tell you that we’re doing it better now, in close cooperation

with all the Federal agencies, with less need for regulation, and

more opportunities and incentives for cooperation from landowners

than ever before.

Reauthorization of the Endangered Species Act is long overdue,

and S. 1180 as reported from the Senate Environment and Public

Works Committee represents a constructive step in that direction.

The bill incorporates many of the reforms we’ve made, and will

yield a stronger and more user-friendly law.

I look forward to working cooperatively with your Committee and

other Members of the House to reauthorize an Endangered Species
20

Act that will continue to make America the world leaders in species

conservation as we enter the 21st century.

Thank you again for this invitation, and I’d be happy to answer

any questions you or other members may have.

[The prepared statement of Ms. Clark may be found at end of

hearing.]

Mr. POMBO. Thank you very much for your testimony.

One of the purposes of this hearing was to discuss some of the

differences between the different regions of the country in how the

Act was being implemented specifically in those different regions of

the country. Everybody’s been given a copy of the handouts that include these figures.

The first one, Ms. Kennedy, if you could put that one up that

shows—yes. On this particular slide what we’re seeing is the differences between full-time employee hours in the different regions

of the country, in particular to draw your attention to Region 1,

which has 368 positions, versus Region 5, which has 31 positions,

and Region 3, which has 24 positions.

Could you explain to me why there’s that disparity in the numbers of people that are employed?

Ms. CLARK. I’d be glad to. And if I didn’t feel like I was in the

center seat of an airplane, I could get up and maybe point out some

of the differences on our map.

I think what’s important to note is that we employ our forces and

we allocate our resources based on where the biological diversity of

the country is, and while there’s—why there’s a lot of discussion

about East versus West, in reality—and it might be easy to look

at this map for a moment—these maps—the issue is really North

versus South. As you get closer to the equator, it’s not a surprise

that biological richness, ecological—biological diversity is much

more apparent, and so it’s not a surprise to us that you’ll see

through the whole band of the southern tier a much more rich

area.

We send our forces and we employ our bodies, our full-time

equivalent positions, to the areas of the country where the species

occur. That’s not to say that we don’t have hot spots. We have hot

spots in California, southern California in particular, we have hot

spots in the islands due to the localized occurrences and local endemism of many of the species. And we have hot spots in the Southeast like Florida, Mississippi, Georgia, Alabama. So it is absolutely

untrue that—where we put our bodies and our resources is where

the activity is.

Mr. POMBO. Put up the second one, which does show the numbers of species that are listed in the different regions.

If you go throughout the southern tier, as you speak of, that is

where the majority of listings are, but if you look at the positions

in Region 2 and Region 4, you have about two-thirds the number

of positions in those two regions as you do in Region 1. So there

is—there is still a big disparity even if you put Region 2 and 4 together.

Ms. CLARK. Right.

Mr. POMBO. As contrasted with Region 1.

Ms. CLARK. Well, I’d be the first to admit that we don’t have

enough resources to provide adequate technical assistance and sup-
21

port to implement the Endangered Species Act nationwide. The endangered species budget in the Fish and Wildlife Service is without

a doubt the most carefully tracked budget that we have among all

of our allocations. It’s based on a formula. It’s based on some capability funding in each region. And then it’s a direct allocation based

on the demand of the resource need in each of the regions in the

country.

Mr. POMBO. If I could have you put up 11. I believe it’s No. 11.

You talk about the biodiversity within the southern regions, the

differences that we have in Region 1 and through the southern region. And yet one of the things that I think that we can all agree

on is one of the major problems with endangered species is the destruction of habitat.

1If you look at the eastern regions, the Northeast in particular,

the upper Midwest, if any part of the country has had a destruction

of habitat, I would say that it is much greater in that region of the

country versus the South and the West. And apparently those

States that are within that region that have their own State Endangered Species Act recognize that as well.

This particular chart shows the numbers of species that are listed under the State Endangered Species Act in those respective

States versus the numbers that were federally listed under the

Federal ESA. You contrast the difference say between New Jersey,

which has 393 different species that are listed under their State

Endangered Species Act; 15 are listed under the Federal Endangered Species Act. You contrast that with California, which has 292

on their State list; 214 are listed on the Federal ESA with 65 proposed and 26 candidate species.

So looking at that I would say that there’s an obvious difference

between the effort that has been put in to list under the Federal

ESA versus one region of the country and in this case California

in particular.

Ms. CLARK. Well, Mr. Chairman, it actually doesn’t have anything to do with the level of effort. It has a lot to do with the

uniqueness of the lands. And in fact it really depends on the lens

you look through.

Many of the States in the New England area are about the size

of a few counties out west. And when the State’s looking through

a lens, they’re looking at their own political boundary. And to give

you a classic example, the purple martin is listed as threatened in

New Hampshire, and the flowering dogwood is listed as endangered in the State of Maine. That’s fine. That’s because the lens

that they’re looking at is their own State boundaries.

The Federal Endangered Species Act causes us to evaluate the

status of the species throughout its range. Many of the species in

the northern climes have wide-ranging activity, and so the flowering dogwood, while it might be endangered in the State of Maine,

is certainly not endangered throughout its range. So it would never

qualify for the Federal Endangered Species Act listing.

Mr. POMBO. Let me ask you specifically about a species that’s

listed under the Federal ESA, the American burying beetle, and

there have been a number of activities to try to recover that in particular. Connecticut has it listed as a historic species on their endangered species list. They say that it was part of its historic habi-
22

tat, and they have seen fit to list it as a historic species. What efforts are being made by your Agency to reintroduce the American

burying beetle into its historic habitat in the Northeast?

Ms. CLARK. Mr. Chairman, I do know that we have a lot of efforts under way to recover the American burying beetle, but I’ll

turn to Paul Nickerson, who’s chief of our Endangered Species Office in Hadley, Massachusetts, to let him respond.

Mr. NICKERSON. Mr. Chairman, at this point no efforts in Connecticut. However, we have a very aggressive effort to reintroduce

the burying beetle on Penikese Island in Massachusetts, which to

this point has been successful. We have several years of carryover

populations, and we feel we’re well under way to furthering our recovery goal there.

Whether we’ll get to Connecticut or not remains to be seen. But

one step at a time, and the feeling was Massachusetts, Penikese Island and Martha’s Vineyard is another place we’ve successfully reintroduced. So we’re moving toward recovery for that species, but

not Connecticut yet.

Mr. POMBO. Are there takes of the American burying beetle occurring within the Northeast or are you issuing permits?

Mr. NICKERSON. No, sir. We’ve had one Section 7 consultation on

the American burying beetle on Block Island. There has been no

need for us to issue any permits with the exception of recovery-type

permits for scientific study.

Mr. POMBO. May I ask on another specific species, the Karner

blue butterfly, which is federally listed? It is found in portions of

New Hampshire, New York, Michigan, Wisconsin, Indiana, and

Minnesota. But I can find no permits issues for that—for the

Karner blue butterfly.

Are takes occurring without permits?

Mr. NICKERSON. No, sir. There’s two reasons for that. Its distribution in New Hampshire is very limited. We’ve got an easement

on the last site. It’s managed under our Great Bay National Wildlife Refuge. So there’s no need to worry about take permits there.

We’ve already worked it out with the landowners so that the management regime is in place.

Insofar as New York is concerned, the State of New York has a

very aggressive endangered species program, and they take care of

any takes that they either anticipate or that they know occur. In

the event they need help from our law enforcement folks, they

bring us to the table. But normally they negotiate these things out

with the landowners or the town officials ahead of time. An example is mosquito spraying in one of the counties, and they identify

particular areas where the Karner blue occurs, and no spraying is

allowed in those areas. So it’s being taken care of by our State

partners, and we like it that way.

Mr. POMBO. California also has an aggressive Endangered Species Act, and we don’t seem to have that same level of cooperation,

and that does concern me. There are distinct populations on the

Karner blue butterfly, distinct population segments that you have

identified. Are you requiring a migration corridor between those

distinct populations?

Mr. NICKERSON. The recovery plan is still in preparation, so

we’ve not gotten to that point yet. Our goal now in conjunction
23

with the State and the Nature Conservancy is to continue to identify the sites where the Karner blue occurs and protect those sites.

One more thing we’ve done, in conjunction with Niagara Mohawk, they maintain power line corridors and they have to spray.

What that can do if it’s done correctly is promote the growth of

lupin, which is a host plant for the Karner blue. We’ve issued them

a recovery permit knowing that under certain circumstances there

will be take, but that in the long run we’ll be able to preserve the

habitat, and those power line corridors can get at part of what

you’re saying. We’ve not done it in total because of the nature of

the Karner blue.

When fire was prevalent, fire used to do what you say for us. The

habitat would succeed, and yet there would be a fire somewhere

else, and the early succession plants such as lupin would come up.

Now we’ve eliminated fire, so now lawn mowers and sometimes

herbicides and other means of ecological suppression—in other

words, retarding the logical succession of plants, is doing that for

us.

Mr. POMBO. You are adopting a recovery plan for that particular

species. It’s not complete. Am I to understand that?

Mr. NICKERSON. Yes, that’s correct. It’s in preparation.

Now another interesting thing, the State of New York has written their own, so this is another case where our State partners are

a little bit ahead of us, because they can focus solely on activities

within New York.

Mr. POMBO. My time has expired, but I’m sure I’ll have an opportunity to continue questioning.

Mr. Miller.

Mr. MILLER. Thank you, Mr. Chairman.

Again, I’m not quite sure what we’re getting at in this hearing,

but going back to your—this original map that was up on the wall

that deals with listings of critical habitat by region and other aspects of activity in the region, I think that the Director has responded quite correctly that the deployment of resources are driven

by the activity that’s taking place and the biodiversity of those regions.

But if we also look at this map, I think if you look at that area

west of the Mississippi you’re talking about 71 percent of the land

mass in the United States, and if you take the HCPs in the West

and the HCPs in the East, you have 129 HCPs or one for every

16,000 roughly square miles, and in the East you have 50, one for

roughly every 17,000 square miles in those two regions.

The Director has already pointed out the issue of biodiversity.

The West and South have a greater abundance of species than the

Midwest and the Northeast, where there are fewer HCPs. California has 6,205 species of vertebrates and vascular plants; Florida,

3,745; Texas, 5,473. By contrast, Wyoming has 2,758; Iowa; 2,129;

Maine has 2,058.

Then if you want to put another overlay on this map, you could

put the overlay of growth. You’re deploying your resources where

we’re having the greatest interaction between open space and

urban populations. In the high-growth area of Texas where about

6 million people a decade are moving to Texas are increasing their

population. In California, 10 million new people a decade. The Pa-
24

cific Northwest is currently a hot spot in-migration of individuals.

Florida is legendary in terms of its in-migration of individuals. And

the Carolinas have been the hot area in the Southeast.

So now we have—we’ve put an overlay of land mass, we’ve put

an overlay of HCPs, we’ve put an overlay of biodiversity, and now

let’s overlay population on top of that.

Then with that population let’s overlay economic activity. The

hottest regions in the country right now are not the Northeast.

People are leaving. That’s why their Congressmen are worried

about reapportionment. They’re not going to have a seat because

they don’t have people. Maybe we can do an HCP for them.

[Laughter.]

Mr. MILLER. We can combine the reason the Minnesota—many

of the Minnesota and Wisconsin delegations voted against Puerto

Rico last night. They couldn’t figure out where the six seats were

going to come if they didn’t come out of Minnesota, Wisconsin, and

the Northeast. So maybe we can do a big HCP of the Northeast and

Minnesota and they’ll all get along fine.

So let’s go to economic activity. The average housing starts in the

Northeast were 132,000 a month. In the Midwest, 320,000 a

month. In the South, 661,000. In the West, 361,000. So you start

to see now we’re bulldozing the land. We’re trying to make room

for people who are moving to these areas because of the economic

activity, apparently economic activity not threatened by the Endangered Species Act at this point, because we’re still creating those

numbers of new housing in those regions where the greatest number of people are being deployed to monitor and enforce the law.

Somehow the economic activity is beating the pants off the rest of

the Nation.

Then we can overlay the question of what have we been doing

in these regions that might have caused the problem. We can go

to hydroelectric rates. And we can start to see that in the West

we’ve been the beneficiaries of the Federal Treasury building large

dams on complex river systems that have completely screwed up

the fisheries of that region. So I suspect there’s a reason why

NMFS is out west, because of the complex decisions we’ve made

about damming some of the great rivers of the West when we with

all due respect knew much less than we know now. And there’s an

awful lot of people.

I notice with the announcing of the listing in the Northwest last

week or the week before, Boeing, Microsoft, Republican State legislators, the mayor of Seattle and others were saying this is a problem we’ve got to work out. This is vital to our region. And we support the listing and we support engaging in how to solve the problem. So apparently they think this is rational. They’re getting the

economic activity, they’re getting the in-migration, and they’re getting the cheap hydroelectric rates.

Now maybe they won’t need them, because I see that British Columbia’s offering cheaper hydroelectric rates, so the aluminum

companies are thinking about going to British Columbia as opposed

to staying in the Northwest. But we’ve benefited from some of the

lowest electrical rates. But we got there by damming some of the

more complex river systems in the country. And we’re paying the

price. And a big part of this workload is about fisheries, it’s about
25

salmon, and it’s about the problems in the Northwest and in California which are dramatically supported by the population.

Then we can overlay public lands, where we’re more likely to encounter these problems and monitor these problems because in

those public lands we also have a great number of wilderness

areas, we have a number of national parks, we have great economic

activity, people come visit those, and they’re candidates for the protection of the species. And the fact is the West enjoys those benefits, again at the behest of the rest of the country.

I suspect if we’re starting to ask about the allocation of resources, the East might say why are there so many National Park

Service out west. Well, it’s because where the parks are. And so,

you know, this map doesn’t tell a story and the charges for the moment don’t seem to tell the story either.

Would you like to think about the West? Would you like to think

about the Southeast or the South or the Florida Panhandle or

Texas or the Southwest, Arizona and others, that are growing at

this rate without the monitoring and enforcement? Would you just

like to show up in court at some particular time?

So those are the choices. Or you can try to get ahead of the

curve, you can try to get ahead of the curve, and deal with the

issues of habitat conservation plans and prelisting activities and

avoidance systems and all the things that these people at this table

are doing so that we can continue to build those 600,000 homes in

the South and the 300,000 homes out in California and we can continue to have a thriving economy. Or we can just wait and meet

at the courthouse door when the judge says shut it down.

And so this is an interesting argument. I think this is War on

the West, Part 2. I don’t think you’re going to make it meet the

burden of proof. Because it just doesn’t add up. There are reasons

why these agencies are deploying their people. There are reasons

why they’re welcomed by local government and developers and others so we can solve these problems and we can get on with the activity.

And there’s reasons why they’re welcome there by the people who

live in these regions because they want to continue to see the salmon thrive, they want to be able to continue to take their kids fishing, those of us in the Delta realize the millions and millions of dollars that are generated through fishing days and activities and

recreation, as do other people in the local communities, whether it’s

West Yellowstone or the Seattle Sound or the Delta or wherever

else we’ve come to understand the engine, the economic engine that

the West is. There’s a reason people pack up and leave San Jose,

California and Palo Alto and go to Boise, Idaho.

Screw around with the Endangered Species Act and there will be

a reason—there will be no reason to leave, because they’ll look the

same, and the benefits will be the same. In Money magazine—what

is it, Money magazine, the most livable places in America, schools

and then environment are the two foremost reasons why people decide it’s a good community. There’s a reason people are moving to

the Northwest—economic opportunity and a wonderful environment. There’s a reason we lost many people to California to Boise

or Salt Lake City—economic opportunity and a wonderful environment. OK?
26

So the West isn’t doing—this isn’t about a war on the West, this

is about an area, whether it’s the West or the Southeast, or the

Southwest, Florida, that’s doing extremely well, extremely well economically, and accommodating a massive inflow of population of

both businesses and families and residents and somehow staying

way ahead of the curve, and has benefited from an awful lot of public money being spent there to develop inexpensive energy with the

attendant cost. And obviously a sophisticated population that understands the struggle to preserve the reasons why a lot of people

went to the West and what they hope to preserve for their families

in terms of their communities.

Finally, it needs to be said that I find nothing wrong with the

Endangered Species Act—I find a great deal wrong with the Endangered Species Act. Hopefully we’ll get into some of that in

round 2 of our questioning.

Mr. POMBO. Mr. Young.

Chairman YOUNG. [presiding]. I have to go to another meeting,

but my understanding of ESA is that the take of listed species is

prohibited even if the take is accidental or incidental to some lawful activity. The term ‘‘take’’ includes modification or destruction of

habitat. So if I clear land to build a house or cut down trees that

are the home of an endangered species, that is a violation of the

ESA unless I get a Section 10 incidental take permit. Now, this is

a question. Is an incidental take permit mandatory if you are impacting species on the habitat?

Ms. CLARK. Let me see if I can repeat the answer back in the

form of both a question and an answer.

Take of listed species has its strict definition in the regulations.

Where there’s significant habitat destruction that significantly impairs the breeding, feeding requirements of a species, then yes, Mr.

Young, it does constitute a take under the Endangered Species Act.

Chairman YOUNG. All right. An incidental take permit is mandatory. And as I said, now, the question is, you have never issued a

Section 10 incidental take permit in Region 3 and only one in Region 5. Does that mean there are no takes of species occurring in

those regions?

Ms. CLARK. Well, there are also other ways to issue take authority, and certainly Section 7 of the Endangered Species Act, working

with other Federal agencies, is one of those ways.

Chairman YOUNG. But the question is now, there has been an

awful lot of violation issues on taking in the western region. A lot.

It is my understanding you never issued in Section 10 take permit

in region 3 and only one in region 5. Do you mean there’s no negative impact on species—and that’s one of the most heavily impacted

areas—has anybody ever looked at what’s happened around here,

how many houses are being built and how many trees are being

cut down and how many species are being impacted upon? And I

don’t hear a peep, not federally or locally.

I mean, I’ve got great big maple trees every day being cut down,

a habitat for all kinds of species, and that’s what concerns me the

most. It seems like—and by the way, I heard the term law enforcement officers Fish & Wildlife. That’s one of your biggest problems:

attitude. We are going to call them the law enforcement officers.

There is no real cooperation between the individual land owner—
27

we’re talking about private land—and by the way, and this hasn’t

changed now, ma’am, is that in Alaska, with all the land we had

that’s federally owned, it was never looked at by Fish & Wildlife

on the Federal lands. It was only looked at on private lands and

those lands that had been leased for endangered species. Now, are

we cataloguing all the species on the Federal land today?

Ms. CLARK. We’re working very hard to conduct biological evaluations of all of our national wildlife refuge lands.

Chairman YOUNG. Well, that’s a good answer, but are you doing

it?

Ms. CLARK. Are we doing it?

Chairman YOUNG. Or are you just concentrating on private land?

Ms. CLARK. We are absolutely doing it given our available resources.

Chairman YOUNG. OK. Now, the second question. This is probably why the Act has to be changed. I had a group come in from

California today—the other day talking about a water project, $4

billion. One billion was supposedly to rehabilitate the salmon run

in California, one billion dollars. How many hot lunch programs,

how many social programs, how many housing for the elderly and

the poor could that one billion dollars cost?

Thirdly, it’s my understanding that the Fish & Wildlife has told

those people that they cannot try to rehabilitate the species; it has

to come from the natural stock. Now, is that the attitude of the

Fish & Wildlife, that you’re only going to use the natural species

and none of the other proposed methods that could be done?

Ms. CLARK. The attitude of the Fish & Wildlife Service is to work

cooperatively with all of our partners to recover endangered species

as quickly and efficiently as possible.

Chairman YOUNG. Does that include the artificial propagation of

fish, et cetera, et cetera, so we get more fish?

Ms. CLARK. The artificial insemination or the artificial stocking?

Chairman YOUNG. Yes. Can you do that?

Ms. CLARK. It really——

Chairman YOUNG. The reason I say this is—I was going to save

it until Rolland’s questions, but on the Willamette River, I believe—let’s think about this a moment—now they’re going to save

the endangered species of nady chinook salmon, but there have

been, to my knowledge, for 50 years five hatcheries on that river.

Now, how in the world are you going to save the nady—is there

going to be a litmus test for the fish? You come from the hatchery

and you’re a natural fish, but the river has been listed as endangered habitat for all fish.

Ms. CLARK. Mr. Young, as much as I would like to respond to

your question, and I wish I had the information, I’m going to have

to punt it to my colleague, Rolland Schmitten. This is an issue——

Chairman YOUNG. Well, Rolland Schmitten right now is on my

list, if you want to know the truth.

Ms. CLARK. OK. Well, then, I will try to continue to answer the

question.

Chairman YOUNG. But you’re part of the Fish & Wildlife group

that actually backs this up. But I’m just suggesting there has to

be some logic to the actions of the agencies to make this thing
28

work. One of my pet peeves is, very frankly, is I’ve been told that

the answer is they’re not the same DNA.

Ms. CLARK. Control propagation and reintroduction are important tools supporting recovery of endangered species, specie-specific

activities and whether or not it works for specific stocks of salmon

is an individualized evaluation that’s conducted by the——

Chairman YOUNG. Again, I’m not particularly picking on you; I’m

just suggesting somewhere along, this government better wake up

and you better wake up, because the public is going to start hearing about these billion-dollar projects to protect a species that can’t

be protected.

A billion dollars, like I say, is a tremendous amount of money.

It could be spent for other purposes other than that one fish when

it can be rehabilitated by, frankly, bringing in the smelt or some

fish from some other area, from a hatchery, and reestablishing the

fishery, just like the sockeye salmon on the Columbia River. That’s

what Rolland has told me has got to be protected.

Did you see the project on the Columbia River, how much that

is going to cost? A tremendous amount of money. And not only

that, when they get done, they won’t be able to achieve the goal.

And here’s where your credibility starts getting very weak.

The Endangered Species Act, like I say, I’m the only person in

this room that has ever voted for it, probably the worst vote I ever

made in my life because it wasn’t done as we were told it was going

to be done. Now we have vertebrae and all these other good things

involved and no logic applied to it.

So I just—I’m just very concerned, but I’m also going to suggest

agencies better start coming up with some ideas as to how they can

best approach to reestablish some of the species or you’re going to

get hurt and so are the species, and that ought to be your main

goal.

Ms. CLARK. Our main goal is recovery of endangered species, Mr.

Young.

Mr. POMBO. [presiding] Mr. Farr.

Mr. FARR. In light of the previous discussions, let me get more

specific. All politics is local. The politics I would like to ask you

about is the creation of a Fish & Wildlife Service office in Sacramento. I think your explanation of what’s happening and where

the workload is and where the issues are and the incredible seminar we just got from George Miller on economic development and

prosperity in America relative to the Endangered Species Act—all

these indicate that we ought to have an office. Because your regional office is in Portland while an awful lot of the workload, particularly with the CalFed, is in California, it requires that people

travel all the way from Portland to northern California do that

work.

Is there going to be an opening of an office in Sacramento?

Ms. CLARK. Mr. Farr, we have a reprogramming letter that is before this body awaiting response on the establishment of a regional

office in Sacramento. It is my wish and it is the wish of the department that we have middle and senior level management in California to provide that technical assistance and policy oversight.

We’re awaiting a response from both the House and Senate Appropriations Committee on a reprogramming for fiscal year 1998, and
29

the President, in support of this regional office, submitted a $3 million budget initiative in fiscal year 1999 to support the completion

of the regional office.

Mr. FARR. Thank you. So we have to deliver the money?

Ms. CLARK. You have to deliver the response that it’s OK to reprogram 1998 dollars.

Mr. FARR. OK. With regard to the steelhead and other salmon

species, can you comment on the status of the development of the

California State Management Plan and whether that plan, the

California plan, would be acceptable to the National Marine Fisheries Service?

Ms. CLARK. Mr. Farr, I’ll have again to defer that to my colleagues in the National Marine Fisheries Service. The next panel—

I mean, we’re happy to squeeze more in, but——

Mr. FARR. Oh, the next panel. All right.

Ms. CLARK. Excuse me?

Mr. FARR. That’s the next panel?

Well, I think what’s important, though, is that we have in California been developing state management plans, and sometimes

these plans were ahead of the Federal listings. So what happens

is when the Federal listing, particularly with salmon, comes along,

it preempts essentially the deals that have been made and people

they have in place, and there’s big confusion about that. If the

state plan is working, why upset it? I just want to leave that message out there.

Ms. CLARK. Mr. Farr, if I could respond in a general fashion, the

Fish & Wildlife Service is absolutely, as I certainly believe the National Marine Fisheries Service is, supportive of state management

plans and we have certainly shown that in areas like the Atlantic

Salmon and Coho, where we have deferred to state management in

lieu of listing.

Mr. FARR. The last question is, what steps is the Fish & Wildlife

Service taking to investigate and address the causes of the sea

otter decline, a federally listed threatened species, and will additional funds be made available in fiscal year 1999 for this purpose?

Ms. CLARK. We are working with the Friends of the Sea Otter,

a public-private partnership group, to evaluate the otter. I know

that we have had some declines due possibly to disease and certainly possibly to the effects of El Nin ̃ o. I would be glad to get back

to you with more specifics, but I don’t have a specific response on

available allocations or appropriations at this time.

Mr. FARR. Could you get back to me?

Ms. CLARK. I would be happy to.

Mr. FARR. Thank you.

Thank you, Mr. Chairman.

Mr. POMBO. Mr. Schaffer.

Mr. SCHAFFER. Thank you, Mr. Chairman.

Ms. Clark, your earlier comments in response to the Chairman,

you mentioned that the Fish & Wildlife Service does not look at political boundaries but only looks—considers biological ranges of certain species, and I want to talk about the cactus ferrugineous

pygmy owl in that respect because it is a species that you have

moved to protect, and yet I’m told that this is a very bountiful species in Mexico.
30

Do you consider the biologic range of species when they happen

to—when that range crosses the United States border, including

Mexico, Canada, other ranges that may occur?

Ms. CLARK. Yes, Congressman, we absolutely do evaluate and

consider the status of the species throughout its range, but we also

put our own joint policy with National Marine Fisheries Service,

consider independently the range in the United States, and we

have the ability to evaluate the status and add to the list distinct

population segments in the United States that are threatened with

extinction, and so we have listed the U.S. population of the cactus

ferrugineous pygmy owl in Arizona because of its status in the

United States.

Mr. SCHAFFER. What is the origin of that policy? Is that based

in statute? Is that based on a regulatory level, agency level? Where

did you come up with that?

Ms. CLARK. It’s joint inner-agency policy that was done—it’s

not—wait a second. Let me back up. The law gives us—in the definition of species, species are defined as species, sub-species or any

distinct vertebrate population segment which—and then it goes on

in the definition. We have defined——

Mr. SCHAFFER. But does the definition include within a range or

within a political boundary?

Ms. CLARK. The definition is very straightforward, and as I said,

it just says distinct vertebrate segment or distinct vertebrate population segment. We defined in policy that was submitted for public

notice and comment what distinct population segment means, and

part of it was discreteness—the discreteness, which is where it occurs, and if there’s a physical separation, then discreteness is

also—can be determined by international borders, significance, significance of that population to the species as a whole, and whether

or not that population is threatened or endangered.

Mr. SCHAFFER. When you mention that your primary objective as

an agency is to preserve species and to help them reestablish themselves if they’re deemed to be threatened in some way, how does

that square with the plentiful nature of this owl in this case that

just happens to be on the other side of the border but maybe not

so plentiful in the northern portion of its range in the United

States? It seems that the focus is the quantity of owls within a political boundary rather than the strength and health of the species

overall.

Ms. CLARK. Well, we have used the United States borders in our

policy determinations because that’s also where we control recovery. I guess you could make an analogy to the——

Mr. SCHAFFER. Let me ask, with respect to applying sound

science to the strength and integrity of that species, what relevance

does a political border have to play in the scientific assessment of

the strength of the species?

Ms. CLARK. I have two answers to that question. First, just to

kind of clarify our belief of the population status, I’m not so sure

it’s as plentiful as the suggestion is in Mexico.

Mr. SCHAFFER. If you’re not sure, why is it listed?

Ms. CLARK. Because it is endangered with extinction in the

United States.

Mr. SCHAFFER. You just said you’re not sure about that.
31

Ms. CLARK. No, I was referring to your status evaluation of being

plentiful in Mexico, and we don’t believe it’s plentiful in Mexico either, but we have listed it in the United States based on our policy.

You could analogize it with state listings. States are looking

through the lens of their state borders and the Federal Endangered

Species Act is charged with protecting and preventing species’ extinction in the United States, and that’s what we have done with

the pygmy owl.

Mr. SCHAFFER. So your comment that you look at biologic ranges

is not accurate, then; it is political borders that you look at?

Ms. CLARK. No.

Mr. SCHAFFER. The United States.

Ms. CLARK. No. We look at the entire range of the species and

we have listed many cross-border species, but we also have the opportunity and the authority, we believe, to use the international

borders as a border when listing distinct population segments.

Mr. SCHAFFER. I’m curious about the legality of these cross-border listings and the lack of information, particularly that you’re unsure as to the extent of the strength of the species. I don’t want

to take a lot of time here, but that’s something I can tell you I’m

interested in, first on the legal side of listing species that share two

different political jurisdictions, international jurisdictions within

their biologic range, but also in the case of owl here, whether we

have any idea of whether it’s really endangered or threatened or

not when we consider the full range.

Mr. Chairman, is there going to be another round of questioning

of these witnesses?

Mr. POMBO. Yes.

Mr. SCHAFFER. OK. I’ve got more comments, and I’ll wait. Thank

you.

Mr. POMBO. Ms. Christian-Green, do you have any questions.

Ms. CHRISTIAN-GREEN. I have no questions.

Mr. POMBO. Mr. Gilchrest.

Mr. GILCHREST. Thank you, Mr. Chairman.

Just a couple of questions relative to the number of positions

based on employee hours of enforcing ESA. Region 1 is bigger than

Region 5, but if you looked at 368 positions in Region 1 and 31 positions in Region 5, I would assume the explanation for that is

that, if you looked at Region 5 and the amount of open space left

there is small compared to the amount of open space left in Region

1, so there is potentially more ground to cover and more species

that have been dislocated or fragmented, but are still surviving out

there, that you want to save. Is that a fair assumption?

Ms. CLARK. Well, first, Mr. Gilchrest, is I could make one clarification. These, our charts, or my charts, those positions are not

hours enforcing the ESA. Those are positions——

Mr. GILCHREST. Those are people.

Ms. CLARK. Those are bodies.

Mr. GILCHREST. Those are humans.

Ms. CLARK. So it is not an hours issue.

Mr. GILCHREST. I understand.

Ms. CLARK. So those are positions that are implementing that

the Endangered Species Act.
32

Mr. GILCHREST. So you have 368 people in Region 1, 31 people

in Region 5.

Ms. CLARK. Implementing the Endangered Species Act in Region

1, right. That’s how I read this chart.

In Region 5, as we discussed a little bit earlier, regardless of the

splendor of New England, the ecological and biological diversity is

not as rich as it is in the Southern parts of the United States. So

we deploy our resources and allocate our dollars based on the——

Mr. GILCHREST. Is that because of climate or——

Ms. CLARK. Climate, soil types. Just the differences in the geography. As you get closer—like the tropical Rain Forest, as you get

closer to the equator, biological richness increases exponentially.

Mr. GILCHREST. So biological richness, there is more biological

diversity——

Ms. CLARK. As you go toward the equator.

Mr. GILCHREST. [continuing] in Region 1 as opposed to Region 5?

Ms. CLARK. Well, it is easier to look at this map. As you go

from—if you kind of cut, if you bisect laterally the United States,

you can see, and California is a big long state, but it is really the

Southern part of California, across the arid desert Southwest,

Texas and then kind of the richness of the Southeast. You have

Hawaii, and Puerto Rico and the Virgin Islands that are in that

same category, closer to the equator.

Mr. GILCHREST. So because of the sheer diversity, that is how

you base——

Ms. CLARK. That is what dictates where our resources go. It is

very, very oriented. We maintain capability funding and capability

personnel in each region of the country, but then the rest of the

allocation is based on the resource demands and the resource needs

and it is driven by the biological resource issues.

Mr. GILCHREST. Does the Fish and Wildlife service have a specific policy as far as when something is either listed or getting

ready to be listed, so that the community in the area potentially

impacted is educated and communicated to to understand the nature of this proposed listing? Is there a method of communication,

either inter-agency communication to the community, Fish and

Wildlife Communication to the community?

Ms. CLARK. Our regions spend a lot of time on information and

education. That is one of the sole purposes of the candidate list,

which is that the list of species that are awaiting proposal, those

are the species of concern that we believe are in trouble.

Mr. GILCHREST. Do you communicate that via the planning commission for a county, the local county government, or the city

mayor, in some continuing effort?

Ms. CLARK. We spent a lot of time communicating and coordinating. Could we do better? Absolutely. Could we communicate

kind of what is in the hopper and what is on the horizon? Absolutely. We are kind of expanding our opportunities and capabilities

to do that, given our available resources. But, absolutely, the desire

to inform and keep everyone on the same sheet of music with declining species issues is very——

Mr. GILCHREST. Is it done in any official regular format where

local government, like the county commissioners or the planning

commission will know that three times this year, twice this year,
33

someone from the Fish and Wildlife Service is going to come in, because these are the people that plan the activity, where the industry sites will go and where the housing will go, all of those things,

to discuss this issue of biological diversity, what keeps a species

alive, what is a Habitat Conservation Plan, those kinds of things?

Ms. CLARK. Well, certainly, and I will be happy to pass to some

of my colleagues, but at the local levels, our folks are communicating within the local environment frequently. Is it done on a

structured or regular basis? I can’t answer that. We annually publish candidate lists. We routinely communicate with local planning

commissions and local landowners, and certainly have a tremendously close relationship with the states, the tribes, landowners,

and we continue to try to improve our effectiveness in that area.

Mr. GILCHREST. I almost think the structured approach, having

had some experiences with these kinds of problems in Maryland,

in the long run would pay big dividends.

Thank you, Mr. Chairman.

Mr. POMBO. Mr. Herger.

Mr. HERGER. Thank you very much, Mr. Chairman.

I would just like to just briefly followup on that, Ms. Clark. I am

very concerned, very concerned on the way you are administrating

the law, and I am certainly very concerned the way Mr. Spear, who

is over our area, is administrating the law of Region 1. I feel it is

incredibly discriminatory. It seems to me that you are discriminating against some species over others.

I guess my question would be, a couple, this is more in the way

of a comment, because I do have a more specific question I want

to direct to Mr. Spear. But, again, we have nine states in Region

5, we have endangered species in that area, and yet you only have

31 people who are somehow protecting those endangered species.

We had reference on a declared war in the West earlier by a statement of one of my colleagues.

We look at, right in the region right next to Region 5, around the

Great Lakes, Region 3, 24 positions. Do we not have endangered

species in those areas? It seems to me that you are discriminating

against some species over other species. I would be very unhappy

if I lived in those regions and to see what lack of attention that

you are giving to those species that are there.

And yet we go over to Region 1, the region that I live in, including Northern California, not 31 positions, Region 5, nine states; not

24 positions, Region 3, eight states; we have five states that are a

larger area, five states, 368 positions that you have out

harassing—harassing the people, my constituents.

You also made a statement, Ms. Clark, as I understood it, that

where and when there is a regional plan, that you try to respect

those regional plans. Now, this is where I want to bring, direct my

fire to Mr. Spear, the Director of our area. We are very unhappy

with the job you do in our area, Mr. Spear. We are very happy to

hear one thing, at least we are trying to bring an office closer to

us so we don’t have to try to communicate with you way up in Portland, to where we feel so incredibly discriminated against down in

our area in the way you are managing.

But I would like to ask you now the question, under the current

Administration’s Northwest Forest Plan, approximately 4 million of
34

the program’s 24 million acres were supposed to be managed to

allow continued timber harvests. Now, again, we have discovered

more spotted owls in just Northern California, more pairs, than

they thought they had in all of Washington, all of Oregon, all of

California put together, just in our area. So 4 million out of 24 million, we were supposed to allow for our people to be able to survive,

allow our economy to survive in that area in which 36 mills in my

District alone have closed in just several years, pretty much because of your policies and the way you have run those misdirected

policies.

But in the formulation of the plan, all threatened and endangered species found in these matrix lands were reviewed and considered in the final plan. At the same time, the Fish and Wildlife

Service also granted a no-take provision for the entire Northwest

Forest Plan. However, according to local officials, Fish and Wildlife

Service has assumed control over all activities on the matrix lands,

and through the ESA’s consultation requirements, the agency is

imposing additional review and mitigations requirements on top of

those already agreed to under the Northwest Forest Plan.

In the words of one local official, ‘‘The Fish and Wildlife Service

in nickel-and-diming those forests to death with added regulations

at the project level.’’

My question, how does your agency, Mr. Spear, justify these

added requirements in light of its previous agreements and, as

things now stand, the Forest Service’s and BLM’s hands are tied

and these other agencies have to follow your recommendations

from the Fish and Wildlife Service, an agency that has no real ownership in the affected lands, again, how does your agency justify

these added requirements in light of its previous agreements?

Ms. CLARK. Mr. Herger, if I could respond for a moment to the

discrimination issue, and then I will pass it to Mr. Spear to talk

about the Northwest Forest Plan. I will continue to respectfully disagree that we are discriminating anywhere in the country to address species’ needs.

Mr. HERGER. Why don’t you put personnel there to show that

what you are saying is indeed correct then?

Ms. CLARK. Again, I will respectfully disagree. We employ our

personnel where the species and the biological resources are most

in need of technical assistance.

Mr. HERGER. How can you find them if you have nobody there?

Ms. CLARK. Well, also contrary to popular belief, Congressman,

we don’t find these by ourselves. We work very closely with the

states. We work very closely with the university system. We work

very closely with our partners like the Nature Conservancy to identify those species that are either locally or globally in danger of

being threatened or becoming extinct.

We talked about the differences in vegetation climes and the differences in biological richness as you get closer to the equator. So,

again, I suppose we could have a debate, and it is a debate I would

welcome, on whether or not the Fish and Wildlife Service has

enough resources to deploy across the country. But, certainly, we

use our available resources to the best of our ability to put them

where the biological resources are most in need of support.

With that, I will pass it to Mike to talk about the Northwest.
35

Mr. SPEAR. Mr. Herger, the issue of our impact on the matrix

lands of the Northwest Forest Plan is something I am familiar

with. Of course, I don’t know the details of every timber sale that

have come before our people, et cetera. But I know of the situation

you are talking of. I can say a couple of things for sure, we are not

intimidating or harassing, or tieing the hands of the BLM and the

Forest Service officials. Matter of fact, there is—throughout the

Forest Plan area, I think is one of the most cooperative relationships that developed as a result of the Forest Plan, and we are a

partner, along with the BLM and the Forest Service, in implementing that plan.

Specifically, on the matrix lands, when the biological opinion was

written for the overall Forest Plans, it was not written to say that

there would never be any further review of the matrix lands. It was

written in a programmatic nature across the landscape, to indicate

that the layout of the Forest Plan, with the late successional reserves, and the matrix lands and the other features, as a whole,

should bring about, through the life of the plan, the recovery, the

support and recovery for the spotted owl, as well as the other endangered species.

One of the things we have learned since this plan went into effect, as any plan, you learn down at the local level some of the specifics, that much of the late successional reserves that were set

aside under the Forest Plan, in the terminology of our people, were

stumps. There were not—we knew that there was not a lot of late

successional reserves, but we also, at the time it was done, didn’t

realize the extent to which those lands are currently cut over and

it will take a long time to truly support the owl as was intended

under that plan.

As a result of that, our people do examine the matrix lands in

those areas where the late successional reserves are weak and try

to develop opinions so that we can carry the owl through in those

areas where, for all intents and purposes, that which the Forest

Plan said was there, in that late successional habitat, really isn’t

there.

Now, I will also add something here that—you have used the

same term I used, nickel-diming of folks out in the field. I have

given very specific direction to the field. We are not going to get

into the nickel-diming, that there was a generic approach taken to

these matrix lands. But it is a very difficult job our people have to

do in the field to try to come up with a prescription that allows,

in those areas where the late successional reserves are weak, or almost non-existent, allows the species to even exist in the interim

while those reserves are growing back. But we are not to get into

nickel-diming and I would be happy to look into any circumstances,

specifics that you consider in that way, because that obviously is

not to the benefit, in the long run, of the species or the people or

the plan.

Mr. HERGER. Well, I appreciate your comment. What you are

saying sounds very nice, but it has nothing—it doesn’t seem to relate at all with the people I talk to, the Forest Service people that

I am talking with. I wish I had more time, obviously, I don’t. I appreciate the consideration, the Chairman letting us go more.
36

But, again, I would like to get in the fact that we have more owls

there just in our Northern California than we have had in all the

other states. We can go on and on and on, it is just incredible what

the Fish and Wildlife Service is doing to our area, what it is doing

to our economy and what is doing to forest health, where we have

forests that are burning down because we are unable to be able to

go in and begin to thin and begin restoring at the historic level.

Anyway, it is quite involved. Hopefully, we can get your office

closer to our area. Hopefully, we can get you down a little more

often where we can look at this area. But it is really a disgrace to

management. Thank you.

Mr. POMBO. The good news and the bad news. The bad news is

we have another vote on the floor. The good news is it is supposed

to be the last vote of the day. So we are going to break. I am going

to go ahead and recess the hearing temporarily. We will be back

as soon as we can to finish the members who have not had an opportunity to ask questions, and there will be another round of questioning. But we will return as quickly as we can, and I would encourage my colleagues to hurry and vote and come back so that we

can keep this going.

I apologize to the panel for the delay, but this is something we

can’t avoid.

[Recess.]

Mr. POMBO. We’re going to go ahead and call the hearing back

to order. Take your seats, please.

At this point, I’ll turn to Ms. Cubin.

Mrs. CUBIN. Thank you, Mr. Chairman.

Ms. Smith, I’m going to ask these first questions and hopefully

we can cover them with the questioning and the answering as

briefly as possible because there are some state issues that I really

want to cover as well.

But I want to get some information straight. It is correct, did I

understand correctly that there have been no takings of endangered species in Regions 3 and 5, no incidental permits granted; is

that right?

Ms. CLARK. To my knowledge, there have been no Section 10 incidental take—oh, excuse me, there has been one in New England.

That doesn’t mean, though, that we haven’t granted incidental take

authority through Section 7 of the Endangered Species Act.

Mrs. CUBIN. Do you have any idea how many Section 10’s there

have been in Region 6?

Ms. CLARK.I don’t, but I believe Chairman Pombo’s charts lay it

out. There have been seven habitat conservation plans.

Mrs. CUBIN. No, I’m talking about takings. I’m talking about

takings in Section 6, where people have been prosecuted or

whether——

Ms. CLARK. OK. Let me see if I can separate it so I make sure

I answer your question correctly. When we grant take authority

under either Section 7 or Section 10, that is an incidental take—

granting incidental take or take that’s incidental to otherwise lawful activities. I’m not sure that the take that you’re asking about

or referring to is the level of, quote, prosecutorial activity that

we’ve engaged in for illegal takings.

Mrs. CUBIN. OK. That is what I’m trying to get at.
37

Ms. CLARK. I’m trying to figure out

Mrs. CUBIN. OK. That’s what I’m trying to get at.

Ms. CLARK. OK.

Mrs. CUBIN. If you combine Section 3 and Section 5, there are,

according to these figures, 73 listed species. The geographic region,

certainly Section 3 and Section 5, would be larger than Section 6.

There are 102 employees trying to protect the endangered species

in Section 6 and 55 in Regions 3 and 5.

What I’m getting to, what I’m trying to point to, do you honestly

think or is there a little room for doubt in your mind that there

are enough personnel in Section 3 and Section—excuse me—Region

3 and Region 5 to protect the species that are in need of biological

support? Don’t you see any incongruity there at all?

Ms. CLARK. I would answer that in a much more nationwide way.

I believe that——

Mrs. CUBIN. Well, I don’t want you to answer it in a nationwide

way. I want you to answer the question I asked.

Ms. CLARK. OK. The question that you asked, do we have enough

personnel in regions——

Mrs. CUBIN. No, no, no. The question is, is there any room for

doubt or any room in your mind that maybe you need to reexamine

the status quo, because can you not understand why people like

Mr. Herger felt that there is discrimination against protecting species in the east and against people who live on the land and make

their living off the resources in the west?

Ms. CLARK. There is absolutely no doubt in my mind that our

available resources are deployed based on the biological diversity.

Mrs. CUBIN. And you don’t think you need to look in—you don’t

think you need to review that at all?

Ms. CLARK. No, Mrs. Cubin, I don’t. I do believe there is—there

is definitely doubt in my mind whether we have enough resources

to implement the Endangered Species Act nationwide, but given

our available resources, I believe they are the same——

Mrs. CUBIN. But even though there are 60 or 72 endangered species in Sections 3 and 5, there are 45 in Section 6—or Region 6—

excuse me for saying that—there are twice as many people to protect half as many species in Region 6.

Now, come on. You know as well as I do that private property

owners that—like you said, nature conservancy, they don’t just

help in the east, they help in the west as well.

Ms. CLARK. I agree.

Mrs. CUBIN. You have the same resources in the west as you do

in the east to supplement your budgets and to supplement your job.

I just don’t see how you can with a good conscience sit there and

say that there is no lopsided or that you won’t even look into the

possibility that the ESA is administered differently in the west

than it is in the east.

Ms. CLARK. We are constantly evaluating implementation of the

Endangered Species Act to ensure that it’s implemented in as fair,

flexible manner as we can make possible. As I suggested before and

submitted as part of the record for my official testimony, we have

an allocation methodology that puts our resources where the species are in most need of biological support.

Mrs. CUBIN. That rote answer is getting a little tedious.
38

As you know and as a lot of my colleagues know—well, I see my

time is up, Mr. Chairman, and we’re going to do a second round,

so I can do that later. I want to do a state issue, but I’ll do it later.

Mr. POMBO. OK.

If I could have you put up No. 8, it was earlier stated that the

differences between HCP’s Section 10 take permits in different

parts of the country—on this particular slide, you can see that in

Region 3 and Region 5, there has been one HCP that has been put

together, and I believe the one is on the piping plover.

I had a gentleman in my office—it’s been several months ago

now—who had a problem with a development that involved the

piping plover. I could not find any issuance of a Section 10 take

permit on that particular project, that it had ever occurred. Have

you issued Section 10 take permits, incidental take permits on piping plover?

Ms. CLARK. Mr. Chairman, do you know where this development

was?

Mr. POMBO. I believe it was in Long Island.

Ms. CLARK. OK.

Mr. POMBO. But have you issued any at all in Region 5?

Mr. NICKERSON. No. The piping plover is a small shore bird that

literally relies on about 100-foot-wide strip of beach just above the

high tide line. Virtually all the development that has done damage

to the bird has taken place. We are not aware of any additional development. The biggest problem the plover faces now is disturbance

from vehicles, predation, to some degree vandalism. We feel that

working with both the state agencies, the county agencies, the Federal agencies that run beaches, we are able to keep on top of that

to the point where plover numbers are increasing. We have not

issued any sort of permit such as you say on Long Island.

We have done Section 7 consultations. We have done a number

of those but no incidental take permits pursuant to Section 10 on

Long Island have been issued.

Mr. POMBO. It’s my understanding from reading the press reports that you have what you refer to as symbolic fencing to fence

off the piping plover area, that an effort is made to put up signs

to tell people to stay out of that particular area. But you at no time

have found it necessary to issue a Section 10 incidental take permit?

Mr. NICKERSON. Only for the State of Massachusetts. We have

not. The other thing we do for plovers is we erect predatory ex-closures around the nest because we have a problem with foxes and

certain Avian predators. Symbolic fencing and education done both

at the state, Federal and town level seems to work well enough.

We’re able to continually increase the numbers of nesting pairs

without anything additional, any additional measures.

Mr. POMBO. How much habitat has been set aside as habitat for

recovery of the piping plover? Have you set aside a considerable

amount of habitat? Has there been a requirement as mitigation on

new developments? Have you done any of that?

Mr. NICKERSON. No, sir. We haven’t set aside any. There is—a

fair percentage of the beachfront habitat is already federally

owned, and what’s left really isn’t up for sale because of a number

of——
39

Mr. POMBO. Excuse me, what did you——

Mr. NICKERSON. I said, what’s left really isn’t up for sale. Remember, I said this species is——

Mr. POMBO. Is not up for sale?

Mr. NICKERSON. No. No one sells beaches anymore, and no one

builds on them. We’ve learned our lesson about that. So development with this species is not a problem, sir. The thing that we

have to do and do carefully is work with the Corps on Long Island

as they embark on various beachfront stabilization projects to ensure, through Section 7, that those things can go forward in such

a way that the plover habitat can remain protected. But development for this species now is not a problem, sir.

Mr. POMBO. Just to stay with you for a minute, just to ask a

question on the burying beetle again, is the land where you are trying to reintroduce the beetle, is that currently inhabited? I forget

the name of the island that you cited.

Mr. NICKERSON. There are two places, sir, Penikese Island,

which is owned by the State of Massachusetts, and it’s inherited

seasonally by a—I need to put this nicely—kind of a place for troubled young men for rehabilitation sort of thing. Martha’s Vineyard,

of course you’ve heard of, that is inhabited both by people and now

by American burying beetles and the reintroductions there so far

have been successful.

Mr. POMBO. Do you have an estimated cost on the reintroduction

of that species?

Mr. NICKERSON. Based on the ease with which we’re able to do

it, it would be minimal, sir. No, not precisely. It would be less than

$5,000.

Mr. POMBO. Total?

Mr. NICKERSON. Yes, sir.

Mr. POMBO. And how many have you reestablished in that area?

How many beetles have you reestablished in that area?

Mr. NICKERSON. We do annual censuses. What we try to do is—

it’s a complex process because the burying beetle feeds on carrient.

So what we have to do is place carrient and let the beetle eat

cloves, and we try to have 100 to 200 pairs on each site, and we

have to reassess that every year because depending upon prey

availability, those numbers do go up and down.

Mr. POMBO. Could you for the record provide the total cost and

the numbers of species that you have reintroduced to that area?

Could you do that for me?

Mr. NICKERSON.Number of burying beetles, you mean?

Mr. POMBO. Yes.

Mr. NICKERSON. Yes, sir, I could. Sure.

Mr. POMBO. I would appreciate that.

In the—I’ve got to get the name of this report right—the fiscal

year 1997 allocation of endangered species funding white paper,

Ms. Clark, you state in there on page 5 that regions with the

smallest numbers of listed and candidate species may have fallen

below the level of having a minimum endangered species program

capability.

That kind of sends the message to me that a decision is being

made that you will maintain a skeleton crew to keep the endangered species program in place within those regions, but you’re be-
40

ginning to rely more and more upon the state and other outside

agencies for enforcement of the Act. In fact, I believe you said that

you considered the nature conservancy your partners in this venture earlier in response to a question.

Would that be accurate?

Ms. CLARK. Mr. Chairman, not entirely. That statement that you

read that suggests that—was an acknowledgement that regions

with smaller numbers of endangered species or listed species have

fallen below minimum capability was a correct statement, which is

why this kind of elaborate allocation methodology has been refined,

and going on in the white paper is—that was the beginning of the

rationale for why we have capability funding in each region, to

maintain at least a base level of endangered species’ expertise.

Again, I would be happy to go back and have the discussion on

whether or not we have enough money nationwide to implement

the law, but we have capability funding in each region, and then

we deploy the allocation and the bodies to where the biological

needs are.

I would make one note, however. While your charts have the

numbers of positions, that doesn’t necessarily compute with the notion that all of those positions are filed. We haven’t moved bodies

around the country to align directly, but there is enough money in

the program to fill all those positions today anyway.

Mr. POMBO. I realize that those are the maximum positions and

that’s what was provided to the Committee by——

Ms. CLARK. Correct.

Mr. POMBO. [continuing] your agency.

Ms. CLARK. I was just clarifying.

Mr. POMBO. In Region 5, for example, you have—I believe it’s 25

people currently, but you have, you told us, an FTE of 31 positions.

Ms. CLARK. That’s correct. I was just clarifying——

Mr. POMBO. So you have less in Region 5 than what we have portrayed on this.

Ms. CLARK. I was just clarifying the difference between FTEs authorized and FTEs filled based on available appropriations.

Mr. POMBO. And maybe we should have also include the numbers

of people you actually have, because I do know that in Region 5,

you have less than—less numbers than we actually stated that you

did.

Ms. CLARK. That’s correct.

Mr. POMBO. So the disparity is actually larger than this slide

shows.

Ms. CLARK. The disparity may or may not be larger, but there

is a disparity nationwide.

Mr. POMBO. Just to followup on the HCPs, it was stated earlier

that there is a difference between the different regions in the numbers of HCPs that have been put together. It’s obvious from the

slide that the majority of the work that has been done has been

done in the west and in the southwest, and next to nothing has

been done in Regions 3 and 5 in terms of putting together HCPs.

But you also, I believe, stated that a lot of the activity that is

occurring in Region 3 and Region 5 is occurring on publicly owned

lands. For example, the reintroduction in Massachusetts, some of

the public beaches are being used for recovery areas, a lot of the
41

recovery plans that are being put together and recovery efforts are

being done on public lands.

Chris, if you could put up I believe it’s the final slide on the percentage of federally managed land by state.

In terms of the ability of your Fish and Wildlife managers to use

public lands as a means of recovery, as a means of lessening the

impact on privately owned lands, we’ve had testimony in the past

that the vast majority of endangered species that are found in California are found on private property. People have testified to that

before the Committee in the past.

It appears from this slide here that if the same kind of effort was

put into using public lands as a means of recovering species, as a

means of providing habitat for endangered and threatened species,

for species that are on the candidate list, that it would be much

easier to do that in the West than it would be in the East, and yet

in the East we find an effort, a very serious effort being made to

use publicly owned lands to lessen the impact on people, to lessen

the impact on economy, and it appears from testimony that we’ve

received here today and previously that a real effort is being made

in the West to go after the privately owned lands. And I think that

there is a disparity, and it may be a philosophy between the different regional managers, it may be a court-ordered philosophy

that is being imposed upon Region 1. I don’t know, but I’d like you

to comment on that.

Ms. CLARK. Sure, I’d be happy to. First of all, the species themselves don’t care whose land they’re on. I mean, they don’t recognize land ownership or political boundaries. That’s a fact.

Secondly, we were discussing kind of the Federal connectivity.

There are multiple Federal connectivities. First you have the Federal land base. And nationwide we work very diligently with our

Federal partners to recover species on Federal lands. And we have

in essence, quote, shifted the burden to the Federal land base. But

there are other Federal activities that are subject to the consultation requirement of the Endangered Species Act, and that consultation workload is growing all the time. There are other agencies that

either authorize or undergo activities that aren’t tied to the land

base, and we work with them in their kind of affirmative obligations to conserve and recovery endangered species. We have, you

know, continued——

Mr. POMBO. If I can interrupt you. Everybody from the West is

very familiar with Section 7 consultations and that process. You

know, California is nearly half owned by the Federal Government.

A lot of activity that occurs occurs on Federal lands. We all realize

that. But if you contrast that with the Section 10 permits, incidental-take permits, the HCP that’s occurred in California, even

though the government owns over half of California, the HCP activity, the, you know, the conflicts that occur between private landowners and Fish and Wildlife Service over the management of

those lands, it is by far much higher in the West in California than

it is in the Northeast.

And from what I’m hearing, it appears that there’s a real effort

to try to avoid those kind of conflicts from the regional manager

out of the Northeast versus what we live through every day in the
42

West. I think there’s a very different philosophy that’s occurring

because of that.

Unfortunately my time has expired.

Mr. Schaffer, were you prepared to ask a second round?

Mrs. CHENOWETH. Mr. Chairman, point of order.

Mr. Chairman, point of order.

Mr. POMBO. Oh, excuse me.

Mrs. CHENOWETH. If you don’t mind, I haven’t had my first

round of questioning, and I have a hearing that I have to chair.

Mr. POMBO. I’m sure Mr. Schaffer will yield. I’m sorry. I did not

realize. I didn’t go to you.

Mrs. Chenoweth.

Mrs. CHENOWETH. Thank you very much.

Director Clark, in the East I think that it’s pretty clear to us

that the enforcement of the Endangered Species Act has really

been done on a wink and a nod, and I think that it’s been made

clear to us, not only by the actions but by the information that is

coming out of this hearing. I don’t think it’s any surprise to you

to know that your answers are not satisfying the Committee, and

it would appear that in large part politics and economics rather

than science has played the central role in determining whether

species are listed, whether there has been a partnership formed

with States. Because in Idaho, for instance, the bull trout was listed or considered for listing by the State and the habitat was in the

process of being protected by the State, and that is a State species,

and yet the Fish and Wildlife Service came in and without regard

to the fact that the State said no, thank you, we can handle the

species ourselves, it is a State species, Fish and Wildlife Service

went ahead and listed it.

Also in the Pacific Northwest among the number of very high

profile and emotional species that we’re grappling with is the Pacific salmon, and the National Marine Fisheries Service as well as

your agency decided to consider the Pacific salmon by stream segment, and in fact we have separate Federal listings. For instance

the winter chinook salmon is on the Sacramento River in California. We have the fall chinook salmon in the Snake River. We

have the spring and summer chinook salmon in the Snake River,

the coho salmon in the central California coast, the coho salmon in

the southern Oregon, northern California, and the sockeye salmon

in the Snake River. Each of these species carries with it its own

critical habitats and designations, which have wreaked havoc on

various communities and families in the Northwest.

Yet in the East there is the Atlantic salmon. And in fact in September 1995 the Fish and Wildlife Service and National Marine

Fisheries Service proposed the Atlantic salmon for listing. And on

September 29, 1995, in the Federal Register, it states the National

Marine Fisheries Service and the Fish and Wildlife Service have

completed a status review of the U.S. Atlantic salmon population

and identified it as a distinct population segment in seven Maine

rivers. Atlantic salmon in these rivers are likely—likely to become

endangered in the foreseeable future and therefore are being proposed for listing.

Interestingly for some reason the East was not subjected indeed

to what the West has been subjected to in the issue of the salmon,
43

but just last December I know that National Marine Fisheries

Service and your Agency withdrew its proposed listing, citing the

Maine conservation efforts.

Well, I can tell you that in the West we have bent over backward

in order to protect the Pacific salmon, and indeed the Pacific salmon of course through chemical imprinting was the species that was

used to populate the Great Lakes. So it is a hearty species, but

nevertheless its listing has created great distress to the West, and

yet the Atlantic salmon in spite of your proposal in September 1995

was not listed.

Now that compared to what you see that the Chairman has

thrown up there on the wall in terms of the overheads and the

charts, it’s eminently clear to us that there really has been more

pressure put on the West than on the East, and I for one do not

want to see the Eastern States subjected to what the Western

States have been subjected to.

But I do think that as we saw the other night in a report from

the Charleton Research Company by far and away the American

population would much prefer that the States and local units of

government handle endangered species. And looking at the number

of species that were listed as threatened or endangered by the

States as compared to those that were listed by the Federal Government and the success of the States in working in partnerships

with private property owners and various other organizations, I

just can’t help but conclude that the Federal effort has been a dismal failure, that we should look in the future to having the States

manage populations of threatened or endangered species, and then

States like Wyoming and Idaho would not have to deal with over

the objections of their Governor, their State legislature, every single one of their county commissioners, the imposition of the grizzly

bear being transpopulated into Idaho over the objections of the

State. And that we could see Idaho manage species like the bull

trout to a full recovery.

So I hope that in the future, and I didn’t have an opening statement, Mr. Chairman, and I see my time is up, but I do hope that

in the future this body will look more closely at seeing the States

take a firmer role and seeing the Federal Government back out of

this position.

Thank you.

Ms. CLARK. If I could respond, Mr. Chairman

Mrs. Chenoweth, I could not agree with you more about the

States’ role in species conservation, and in fact I stood along with

Secretary Babbitt and our partners at NOAA, NMFS, and the Governor of Maine and the Maine delegation, and celebrated the removal—the withdrawal of the Atlantic salmon proposed rule based

on the State of Maine conservation plan. I’ve met with the States

in the Northwest about the bull trout, and we have said all along

standards are the same. The standards are the elimination of the

threats. And we believe in the Atlantic salmon case the State of

Maine stepped forward, addressed the threats to those species just

as the State of Oregon did with the coho such that the Federal

Government did not step in.

Contrary to popular belief, adding species to the list is not success for the Federal Government. I think it’s very symptomatic of
44

the collapse of biological diversity in the country. We don’t consider

adding species to the list something that we celebrate. It is clearly

a failure in that area. We have been working with the States on

the bull trout. I would be thrilled if we could collaboratively pull

off a conservation plan that would address all the threats to the

bull trout so that we were faced with yet again another announcement of success come this June when the statutory deadline is up

and is obliging us to make a decision.

Fairness East to West, fairness North to South, you know, I

apologize if we’re not communicating it clearly to this Committee,

but again we have continued to deploy our limited resources where

the biological needs are and, you know, whether we are doing it to

the satisfaction of the Committee or to the public I guess remains

to be seen.

On the conservation plan front, we’ve worked really hard in this

administration to use the flexibilities of the Endangered Species

Act while ensuring that our policies are fair and flexible.

I firmly believe we use the best available science. I firmly stand

behind the collaborative nature of our work. Conservation plans

are drafted by the landowner. We’ve put a tremendous amount of

resources into providing technical assistance to those landowners

and the development of those plans to ease the conflict between

economic development and species conservation. We stand behind

that goal, and I think we’ve been very successful.

Is there a lot of work to be done? Absolutely. Can we get better

at this? Sure, and we’re continuing to try to get better, providing

incentives, providing the commitment. The American public also

wants to preserve their natural heritage, and we’re struggling as

members of the American public to ensure that our natural heritage is in fact conserved.

Mrs. CHENOWETH. Mr. Chairman, I’d like to respond to that.

Indeed, the listing of the Atlantic salmon and the Pacific salmon

was not equal. It was not fair. You employed different standards

to the Pacific salmon than you did to the Atlantic salmon. The National Marine Fisheries Service further defined distinct population

segments, as is required by Congress, and formed another requirement called evolutionarily significant units. This happened in a

Federal Register listing dated February 7, 1996.

So you see, you didn’t nor did National Marine Fisheries Service,

neither agency employed the same standard or the same—for a

population of salmon on the east coast than you did on the west

coast. And that’s what we’re blanching at. That is unfair. The Federal Register speaks for itself. And it’s unfair to employ different

criteria in different regions, and I think that’s why we’re seeing the

disparity in the numbers on these charts.

Thank you very much.

Mr. POMBO. Mr. Schaffer.

Mr. SCHAFFER. Thank you, Mr. Chairman.

Soon the Secretary of the Interior through your Agency will be

making an important decision concerning whether to list the Preble

Meadows jumping mouse in Colorado as threatened or endangered

under the Endangered Species Act. I’m going to present you here

in a minute a request on behalf of me, Senator Wayne Allard, Congressmen Joel Hefley and Scott McInnis that you extend the period
45

for considering whether to list or that you conclude listing as warranted but precluded. I also present a letter from the chairman of

the Colorado State—chairman of the Senate and House Agriculture

and Resources Committees.

Their letters cite the importance of individuals and local and

State governments in light of existing and developing efforts to promote the Preble Meadows jumping mouse the need to solicit additional data and profound impacts that listing would have on Colorado’s Front Range. We strongly urge the Service to extend the period for evaluating its proposed listing for 6 months or to conclude

that listing as warranted but precluded under the Act.

The State of Colorado has taken steps to ensure that we fulfill

our obligations without the need for Federal involvement. Colorado’s General Assembly is considering a State law to address the

issue, and a broad-based coalition of landowners, State, and local

government officials and conservationists has been convened to protect the mouse and its habitat in a way that respects property interests and accommodates economic and social development along

the Front Range.

Recent studies have called into question the classification of the

mouse and demonstrated that its habitat may be more extensive

than previously thought. In addition, there are serious disagreements as to the effect of water diversions, grazing, and agricultural

activities, and moreover the largest known populations of the

Preble Meadows jumping mouse exist on Rocky Flats and the Air

Force Academy and other Federal lands. The action or inaction of

those Federal agencies with mouse populations onsite will play a

decisive role in the fate of the species.

It’s vitally important to the people of Colorado that additional

data is gathered and that the State be given the full opportunity

to deal with the situation without listing under the Act. A 6-month

extension is best for the species and for the people of Colorado’s

Front Range, and I strongly urge that the extension be granted,

that the Service make a warranted but precluded finding under the

Endangered Species Act.

And the letter is here signed by those that I mentioned, and also

for the record without——

Mr. POMBO. Without objection.

Mr. SCHAFFER. I submit this for the Committee’s consideration.

Thank you, Mr. Chairman.

[The information referred to may be found at the end of the hearing.]

Mr. POMBO. Mr. Farr.

Mr. FARR. Thank you, Mr. Chairman.

I’m just sitting here listening. I am really interested in the contrasting views in this Committee. I think it reflects the politics of

the Nation and now when one side sees evil, the other side sees

good.

In California we have over our state library the slogan that says,

‘‘Bring me men to match my mountains.’’ California now reflects

that. Thirty two million people, one out of every nine Americans,

now lives in California. I am really shocked at what I am hearing

today. I am hearing that the War on the West is an argument that

there is too much government in California. Yet our delegation is
46

constantly writing letters and trying to get more government related to highways and more money, more hospitals, more harbors,

certainly more water money, certainly more Corps of Engineers

money.

What we seem to be saying is that if there is a War on the West,

let FEMA begin the war because we want more Federal involvement in the West, particularly when it comes to natural disasters.

But my question is really one more generic to this country. It appears to me from the testimony that you have given today, that the

viewpoint depends on where you stand.

Often Washington forgets that there are state governments out

there as well trying to do in some cases what the Federal Government is doing and hopefully in most cases bragging that they are

doing a better job.

The Staff writeup addresses the way the states have responded

to the listing of the salmon. It seems to me that where there are

strong, really strong state plans, and there is state money to enforce those plans, there is less Federal help, less Federal governance, less Federal bureaucracy, to put it in their terms. I have

heard that, for example, New Jersey has a very strong endangered

species state plan. There are probably less resources that the Federal Government has to give there.

Regarding your observation and the plan on the salmon, I think

the Staff report mentioned that two different scenarios. On the one

hand, Oregon and Washington embrace, so to speak, the listing

with the idea that they will get in and work to save the species because they have strong resource concerns expressed politically in

their states. California, on the other hand, has taken ‘‘How could

you do this to us? You are not collaborating’’ position. So the question is, is it indeed true that where the states are strong you need

less Federal involvement?

And then after you have answered that question, I want to get

specific on El Nin ̃ o and California. Specifically, can you update me,

because I am catching a plane out of here to go back and report

this, on whether ESA requirements can be modified to facilitate the

disaster response.

Ms. CLARK. In response to the first part of your question, Mr.

Farr, absolutely where the states step up it lessens the need for the

Federal involvement.

We work very closely with the states to leverage not only our expertise but our resources to ensure for long-term species conservation. I think the Atlantic Salmon is a classic example of that. That

is being repeated in many parts of the country.

We are not looking to duplicate state activities. We are looking

to complement state activities. I wholeheartedly agree with you on

the importance and the capabilities of the states’ involvement in

long-term species conservation.

As for El Nin ̃ o, the Fish and Wildlife Service, and I will pass the

baton to Mike Spear in a minute, we have been working hand in

hand with all of the kind of emergency teams in the state of California. The emergency provisions of the Endangered Species Act remain in effect and I really have been collaborating and coordinating not only in the information sharing but in the response to

the disaster activity in California.
47

Mr. FARR. Do the emergency provisions allow for discretionary

waivers or discretionary judgments to be made?

Ms. CLARK. The emergency provisions of the Endangered Species

Act allow for the safety and the health of the populations to be addressed first. Absolutely.

The health and safety of Californians are top priority. We work

along-side of the disaster relief agencies to provide guidance to try

to minimize impacts on species, but certainly safety of the human

population is top priority.

Mr. FARR. There are those that are concerned that the incident,

which started I think February 2nd, is ongoing. We are having

road problems every day now as the saturated land adjusts. Because this is a federally declared disaster, a continuing disaster in

Federal terms, then throughout the period you can use this discretion?

Ms. CLARK. We are continuing the emergency provisions of the

Endangered Species Act.

Mr. FARR. Which allows us then to get in to do the repairs with

out——

Ms. CLARK. Protection of human life and limb is top priority and

we are just—we are there supporting the disaster agencies in ensuring that that occurs.

Mr. FARR. Well, I hope the record will reflect what we just heard,

so that we don’t hear these kneejerk reactions that the Federal

Government isn’t in a position to be able to waive or care about the

concerns of disaster cleanup and response. Thank you.

Thank you, Mr. Chairman.

Mr. POMBO. Mr. Spear, did you wish to respond?

Mr. SPEAR. I wanted to add to Mr. Farr that, you know, not only

are we responding in the emergency and allowing the emergency

provisions to take place but because this was an anticipated event,

last Fall there was a lot of effort and coordination between state

and Federal agencies, very close relationships between our people,

the Corps of Engineers, a lot of clearing of flood channels was done.

The Corps of Engineers put out regional general permits.

In other words there was a lot of anticipatory efforts to ensure

that flood waters would move as smoothly as possible off of the

lands so, you know, we always look back and we learn lessons, and

we learned some very valuable lessons in January 1997 when this

faced us head-on very quickly.

So this year has gone quite smoothly, partly because obviously

there has been a day of respite between some of the storms and

it’s not quite as bad a flooding as last year, but there was a lot of

anticipation. The relationships have been established between

agencies. All the rules are clear now I think, and so I would say

we have—considering the amount of damage that has gone on—

there’s been minimal, minimal trouble so far, and I anticipate that

we won’t have any throughout the rest of the year in terms of how

to deal with these flooding problems.

Mr. FARR. What a difference a year makes.

Mr. POMBO. Before I go back to Mrs. Cubin, just to followup on

Mr. Farr’s question about disaster activities, in order for us to do

activity in California, there is often a mitigation rate of 5 to 1. If

you want to fix something on a particular levee bank, Fish and
48

Wildlife puts in a 5 to 1 mitigation rate where if you are destroying

one acre of habitat for an endangered species you have to replace

that with five acres.

Is that similar throughout the rest of the country? For example,

in the Northeast with the Piping Plover habitat, when you want to

come in and repair erosion on beaches, do you require the local city

to create five new acres of Piping Plover habitat for every acre that

they are repairing?

Mr. NICKERSON. No, because the beach is the beach. The amount

of beach doesn’t change. What may happen is the shape of the

beach or the configuration of the dunes behind the beach may to

a greater or lesser degree influence the effectiveness of the habitat

to support Piping Plovers, so there is no need for that kind of a requirement.

Mr. POMBO. Well, let me just follow what you just said. Many

people in my area would argue that the levee is the levee and you

repair it the elderberry bushes, for example, will regrow where you

repaired the levee, where you fixed the levee, but the requirement

in Region 1 is that you plant five acres of elderberry bushes some

where else and they require you to produce so many branches on

each elderberry bush that you grow and to maintain those over a

period of time, so that we are increasing the amount of habitat that

is available for the beetle.

Now it would seem that if the exact same standard was applied

that you would require that city, that whatever agency is responsible for that beach to produce more I believe it is fine grasses and

low-lying sand dunes for the Piping Plover as a mitigation rate of

repairing that activity.

Mr. NICKERSON. No, it doesn’t work that way, because we are not

really losing habitat. Storm damage affects temporary habitat loss

or modification and which may or may not render a particular

beach better or worse for Plovers. Most of the repair work involves

sand deposition, and we work with the Corps——

Mr. POMBO. I understand what you are saying but, see, our guys

would argue exactly what you are saying that they are not losing

any levee bank—the levee bank is still there——

Mr. NICKERSON. It’s difficult for me to draw a parallel. I am not

familiar with the——

Mr. POMBO. I just think that there it is——

Mr. NICKERSON. [continuing] the physical description——

Mr. POMBO. [continuing] is being done. Mrs. Cubin.

Mrs. CUBIN. Question for you, Mr. Chairman. Some of those levees failed in the past and there was loss to human life.

How many lives were lost when those levees were not allowed to

be repaired?

Mr. POMBO. I believe that there were nine——

Mrs. CUBIN. Nine lives?

Mr. POMBO. [continuing] nine lives that were lost.

Mrs. CUBIN. Thank you.

I have been informed by the Wyoming Game and Fish Department that they conducted over 7,000 trap nights in potential habitat in southeast Wyoming between 1990 and 1993 without recording any evidence of the——

Mr. POMBO. Black Footed Ferret?
49

Mrs. CUBIN. No, a mouse——

Mr. POMBO. The Prebble Meadow——

Mrs. CUBIN. The Prebble Meadow Jumping Mouse, right, and the

Medicine Bow National Forest also channeled an extensive portion

of its annual endangered species fund into surveys for the Prebble

Meadow Jumping Mouse in 1995, but no present populations were

located.

The Game and Fish Department further surveyed their habitat

units in southeastern Wyoming and again said that no mice were

found to be present.

I am told that extensive work in Colorado has confirmed the absence of this species from many historical areas and rightfully so,

because private landowners have refused to allow the Fish and

Game—or the Fish and Wildlife employees on their land to do surveys, so without this information about the private land, the listing

decision will have to come from available data, which in my view,

and I might add in the view of the Wyoming Game and Fish Department, is at the very best inadequate.

If the Prebble Meadow Jumping Mouse is listed as an endangered species, all public lands with suitable habitat will have to be

surveyed for the species prior to any activity which may affect the

species or the habitat.

Although those surveys are not required on private land, in order

for anyone who is requesting Federal funds or a Federal permit for

work on their lands, they would likely be required to allow those

surveys on their lands as well—and then, just to finish this up—

the Jumping Mouse’s habitat seems to be riparian areas. The

grazers in my state are very, very concerned that they are going

to lose the use of their private land based on inadequate information, incomplete information, and yet you intend to move forward

and list the mouse.

Do you really think that your information is adequate, that the

data that you have is adequate, since you don’t have any idea what

exists on the private lands?

Ms. CLARK. Well, first, Mrs. Cubin, we haven’t made a decision

of whether or not to list the mouse. We have proposed it and I certainly hope that the Wyoming data have been submitted for the

record because that is going to be very important data in our consideration.

We make decisions on whether or not a species should be added

to the list based on the best available science, and what we attempt

to do is complete a status review as possible when we are evaluating the status of that species.

I am not in a position to give you an endpoint for this decision

yet. I do know that Colorado has been working very closely with

us on the development of conservation measures. I don’t believe

Wyoming has been as assertive or aggressive in that arena but certainly the data that had been developed or evaluated by the state

of Wyoming will be very helpful in our decisionmaking.

Mrs. CUBIN. What is puzzling to me is that you mentioned earlier the problem with resources and that you need more money, you

need more resources, and so even considering listing another species where you can’t have the data because you haven’t been on the
50

land for the surveys or for counting, it doesn’t seem, you know,

very wise to me.

The other thing that I want to tie this into—are you aware that

the population targets for Grizzly Bears have changed two or three

times?

Ms. CLARK. I am aware that there is ongoing evaluation of the

kind of recovery plan and we are re-evaluating the mortality requirements for female cub ratios.

Mrs. CUBIN. No, the question is that they have changed two or

three——

Ms. CLARK. I don’t know how many times they have changed.

Mrs. CUBIN. But they have changed. You are aware of that?

Ms. CLARK. Yes.

Mrs. CUBIN. They have changed two or three times and the Wyoming Game and Fish Department tells me that the reason that the

population targets for the bear have changed two to three times is

that when the recovery plan for the bear was first put together,

they didn’t have adequate knowledge about the bear’s population

and habitats, breeding habits, and so on, but now, 10 years later,

they do.

They have better modeling and I am not at this point in time arguing that the number is such that it should be considered recovered but my point is I am hopeful that you will take into consideration the situation with the Grizzly Bear before listing something

like the Jumping Mouse where you plain don’t have the information.

My time is up. Are you going to have a third round of questions?

Ms. CLARK. If I could just respond——

Mrs. CUBIN. I’ll just submit my questions in writing, but please

do respond.

Ms. CLARK. To be very frank, we could always have more science

and better science. Again, we make the decisions at the required

timeframe based on the best available science we have.

With the Prebble Meadow Jumping Mouse, we have conducted

some survey, you’re right. The fact that private landowners have

not granted the Fish and Wildlife Service access to their private

lands doesn’t give us the right to trespass to survey.

We absolutely do not do that, so we have surveyed as much as

we can working with the states and other folks to get the best evaluation of the status of the species, so I just wanted to make sure

and clear that our lack of information on private lands is not because we didn’t want to survey but we are absolutely not going to

trespass against private landowners’ desires.

Mrs. CUBIN. Yes, and I know that that is in fact the case, and

do appreciate your respect for private property rights, but my point

is that, you know, there is so much private land there that I don’t

know how you can determine that a species is endangered when

you can’t make a survey of the private land, which if people weren’t

so terrified that they would lose their livelihood, that they would

lose the right to use the property that they rightfully own because

a species might be identified on their property.

If it were easier for a rancher for example to—if they had a higher level of assurance that they could work with the Fish and Wild

life Service instead of being at odds all the time, then I think—I
51

don’t think there are better stewards of the land than the people

that live on it——

Ms. CLARK. I agree.

Mrs. CUBIN. [continuing] and I think that, you know, if you could

make inroads anywhere it would be to help with that trust level

and by not making arbitrary decisions, as Mrs. Chenoweth or what

appeared to be as Mrs. Chenoweth suggested with the salmon in

the Atlantic and the Pacific.

Thank you, Mr. Chairman.

Mr. POMBO. Mr. Herger.

Mr. HERGER. Thank you, Mr. Chairman.

Ms. Clark, if I could ask, in what way are economic impacts considered in the ESA?

Ms. CLARK. The decision on whether or not to add a species to

the list is based solely on science and the biological status of the

species. Certainly, economics factor in when we are determining

pathways to recovery and trying to determine the most efficient

way to recover a listed species, and we do factor in the economic

realities of different recovery regimes.

Mr. HERGER. Are they considered in the designation of the critical habitat?

Ms. CLARK. Oh, yes, absolutely. I forgot that. When we designate

critical habitat, we do consider economics and other relevant factors when determining those areas essential to the conservation.

Mr. HERGER. So then would you agree that the critical habitat

designations and its economic analysis, which can exclude areas,

offers a counterpoint to the listing of a species that is a balance between science and economics through the exclusion process?

Ms. CLARK. That is an interesting question. I am trying to formulate it in my own mind. Whether or not a species deserves Endangered Species Act protection is a science question and a biological

matter. When we are determining the critical habitat, economics

does factor in, but there isn’t necessarily a 1 to 1 ratio for those

two pieces of the Endangered Species Act.

Mr. HERGER. Well, just looking at the law and reading from the

law——

Ms. CLARK. Right.

Mr. HERGER. [continuing] of 1982, and the report language, it

says here, ‘‘The balancing between science and economics should

occur consequent to listing through the exemption process.’’

Ms. CLARK. Through the exemption—in determining critical

habitat, that is absolutely correct.

Mr. HERGER. Right.

Ms. CLARK. And I agree with that.

Mr. HERGER. Of all the species listed, could you tell me how

many critical habitats have been designated with them? And I

might mention again, this is included in the law, that when we

designate a species as being endangered, the law says we are supposed to list with it critical habitat in order to save that species.

My question is, at the time that we are listing these species, how

many times when we are listing these species are we, along with

it, designating these critical habitats for them?

Ms. CLARK. I believe, and we are all sitting here looking at numbers, there are about—around 100.
52

Mr. HERGER. By law, by the way.

Ms. CLARK. Unless it is determined not to be prudent or it isn’t

determinable. We are obliged to designate critical habitat unless

not prudent or not determinable.

For many of our species and, obviously, the majority of our species, we believe the strict designation of critical habitat are those

areas essential to the conservation of the species.

Is it necessary? Working with other Federal agencies, working

with the states and other landowners, we can achieve habitat protection and species conservation without legal designation of critical habitat.

Mr. HERGER. Now, is this a choice on the Department on Fish

and Wildlife to ignore the law which states that you will designate

a critical habitat?

Ms. CLARK. No, it is absolutely not a choice to ignore——

Mr. HERGER. But why are you not doing that? Because my understanding of the law is that, at the time you list, the law says

you will designate critical habitat. You are indicating you are not.

The statistics I have indeed show that you are not, and have not

been. As a matter of fact, the numbers I have, November 1997,

there were 1,119 species listed in the United States, and only 139

or 12 percent have critical habitat designation. Could you tell me

why this is the case? And as such, would you agree that in the vast

majority of these cases, no economic benefits, therefore, because of

your choice to ignore the law, no economic benefits were weighed,

so that there really is no balance between science and economics,

as was intended by the law?

Ms. CLARK. Let me see if I can try this. We are absolutely required to designate critical habitat for species when we list them,

unless we determine that they are not prudent, or that critical

habitat is not determinable. It is not prudent if we make the administrative case that it is either—provides no conservation benefit

to the species by designating critical habitat, or it would increase

the threat of vandalism to the species.

Way over half of our endangered species, our listed species today

are plants. Many of them are found on private lands. Critical habitat has virtually no effect on private land. The balancing of economics comes only with the habitat designation. It doesn’t affect

the science of the listing of the species.

Mr. HERGER. I would like to read from the law.

Ms. CLARK. OK.

Mr. HERGER. The law which, obviously, it is very apparent that

you have chose to ignore, and almost 90 percent of the time. As a

matter of fact, precisely 88 percent of the time, your department

has chosen to ignore. Let me read from the law.

By not more than one additional year should you be coming up

with a critical habitat and I just wonder, could it be the reason

why you have chosen to ignore this law, not implement it, except

for only 12 percent of the time, is because you purposely do not

want to weigh, as it says here, an economic balance between

science and economics? Could that be the reason why you are not

implementing this part of the stated law?

Ms. CLARK. No, it is not, Congressman.
53

Mr. HERGER. Can you see where that is the end result? And,

again, I am talking from experience. Nine national forests are in

the area I represent, parts of or all of nine national forests. The

unemployment rate is in excess of 10 percent in virtually each of

my counties, has been as high as 20 percent or more in some of

my counties. Thirty-six mills shut down. Forests that are two and

three times denser than they have been historically. More Northern Spotted Owl found there in just Northern California than all

the other three states put together. Again, we go on and on.

I just wonder is there a political agenda by the Clinton/Gore Administration to ignore this law?

Ms. CLARK. No, there is not any political agenda. As I said before, species are added to the list based on biology. Whether or not

we designate critical habitat, which is just the habitat overlay, it

has—I mean the species and all the protections of the Endangered

Species Act are already afforded to the species, if and when we designate critical habitat, we can balance out geographic areas only

from critical habitat designation, not for the protection of the species by itself, by weighing in economic and other relevant factors.

Mr. HERGER. I believe the results and the facts speak for themselves, Mrs. Clark, despite what seems to be not a very adequate

explanation of the law and how it is not being obeyed. But I might

also mention, I might ask a question, just in reference to what you

are saying, in balance, why is it that we have so many owls in

Northern California? Some have reasoned that as you move south

out of Washington and Oregon, you get into more climates that are

easier to live in and, obviously, we have far more owls than we do

up in Northern Washington, but yet it is still listed in my area

even though there’s owls virtually every place. Why has this balance not been, then, as you have just spoken of, why is it not being

practiced in Northern California with respect to the Northern Spotted Owl?

Ms. CLARK. Whether or not a species should be listed under the

Endangered Species Act is based on a consideration of the status

throughout its range, and we are evaluating the status of the spotted owl throughout the range of Washington, Oregon and California, and believe it is threatened at this time.

The balance that you are referring to is tied to whether——

Mr. HERGER. You referred to it. You are the one who mentioned

balance in your statement.

Ms. CLARK. OK. The balance that I referred to is tied to whether

or not we designate by statute critical habitat for the Northern

Spotted Owl, not whether we protect the species itself throughout

its range.

Mr. HERGER. My time is up. I have no idea what you have been

saying, but, in any event, I wish you would read the law.

Ms. CLARK. I think we have been competing with each other.

Mr. HERGER. I wish you would look at the law, Ms. Clark, and

Mr. Spear, who is your designee for our area. You are not doing

that at this time, and many, many lives are suffering, as well as

the environment, directly because of that. Thank you.

Mr. POMBO. Mr. Herger, if I may—Ms. Clark, if you could try to

answer that question in writing for the record, it would be appreciated by the Committee, and I am sure by Mr. Herger as well.
54

Ms. CLARK. I would be happy to. Thank you.

Mr. POMBO. I think that there was a little bit of confusion as to

exactly what the question was in terms of what the answer was,

so if you could answer that for the record, I would appreciate it.

I just had one final question, and then I will dismiss this panel.

Mr. Spear, with the recent proposal that lists the Chinook salmon

in the Pacific States, everybody is kind of under the impression

that there will be a need for increased water flows from that area.

With everything we have gone through with CalFed over the past

several years, and I know you have participated in that process, do

you feel that this endangers that process, the increased water and

will it force us to go back to the drawing board in terms of the impact on urban and agricultural interests?

Mr. SPEAR. Mr. Chairman, I will answer this carefully, because

this is really a question for National Marine Fisheries Service.

Mr. POMBO. I am going to ask them, too, but I want to——

Mr. SPEAR. OK. But I have been close to it, so I will provide some

answer. I believe that the process as a whole, the contributions by

ourselves, National Marine Fisheries Services, State Fish and

Game, have taken into account a great extent the status of these

fish in the development of alternatives. As you know, we are getting ready to come out with the draft documents. So, I would say

as a general matter, that this is something that has been generally

brought into the process, and I don’t think we will see a situation

where everything has to stop and start over again.

Mr. POMBO. This is where we run into a problem. We think a

deal is a deal. Urban interests give up, environmental interests

give up, agricultural interests give up, for the sake of coming up

with a water policy that we can deal with in the Delta, and then

you have a new listing that comes in and most of the people that

are looking at this process are now saying, wait a minute, how is

a deal a deal if all of sudden we are going to have to increase here,

or we are going to have to change that.

I think that, as you look at this, there is going to be continued

concern on the part of the stakeholders who thought they had

signed off on something, going into this process. I am already hearing from my constituents on this one.

Mr. SPEAR. I think I can take it in a more general note now because you have gotten into the realm of what we call in the CalFed,

the assurances package. Unlike in 1994, where the accord was

signed and everybody had a pretty clear understanding in their

mind about what they thought it meant, there was obviously some

things that were—that didn’t fit exactly.

The one that we are talking about now is very rigorous assurance packages which will include the species, even whether or not

there had been a listing that would have included consideration for

the Spring Chinook, Fall Chinook and all of those fish of the Sacramento system——

Mr. POMBO. So you are saying that that was already taken into

account?

Mr. SPEAR. In other words, the insurance package had been intended to deal with those species regardless of a listing. Now, we

all know that we are not there yet. We don’t have a deal. We don’t

have a package. But the plan was to specifically include them, and
55

a lot of other unlisted species, basically, every species that we can

think might be affected, were going to be rigorously dealt with in

what is the biggest HCP that has been or ever will be developed,

more likely, if we ever get through CalFed. So that we would provide the——

Mr. POMBO. If it will ever happen.

Mr. SPEAR. [continuing] provide the certainty for the future. But

that—that is what everybody wanted. Whether it was the environmental side or the water side, they want to know what are we getting with this, so that we write it down.

Mr. POMBO. Well, thank you. I want to thank the panel for your

testimony, Ms. Clark. I appreciate you coming in. I know it has

been a long afternoon. I greatly appreciate it. All of the people from

the different regions, thank you as well.

I will tell you that I know a number of members had additional

questions, and they will submit those to you in writing. If you could

please answer those in a timely manner and have those back to the

Committee as quickly as possible, it would be of great benefit to all

of us to complete that hearing.

So thank you very much.

Ms. CLARK. Thank you, Mr. Chairman.

Mr. POMBO. I would like to call up the second panel.

Well, to start off with this panel, I apologize to you. I realize that

it’s been a long afternoon and you’ve been waiting patiently for us

to get to you. You’re probably wishing that we wouldn’t.

[Laughter.]

Mr. POMBO. But I appreciate you hanging around. Mr.

Schmitten, if you want to give your testimony, we’re prepared.

STATEMENT OF HON. ROLLAND SCHMITTEN, DIRECTOR, NATIONAL MARINE FISHERIES SERVICE, U.S. DEPARTMENT OF

COMMERCE, WASHINGTON, DC, ACCOMPANIED BY WILLIAM

W. STELLE, JR., REGIONAL ADMINISTRATOR FOR NORTHWEST REGION, SEATTLE, WASHINGTON; WILLIAM HOGARTH,

REGIONAL ADMINISTRATOR FOR SOUTHWEST REGION,

LONG BEACH, CALIFORNIA; CHRIS MANTZARIS, DIVISION

CHIEF, NORTHEAST REGION, GLOUCESTER, MASSACHUSETTS; AND ANDREW J. KEMMERER, REGIONAL ADMINISTRATOR FOR SOUTHEAST REGION, ST. PETERSBURG, FLORIDA

Mr. SCHMTTTEN. Well, thank you very much, Mr. Chairman and

members of the Committee. I am very pleased to be here on behalf

of my agency, the National Marine Fisheries Service. We are a part

of NOAA; that’s the National Oceanic and Atmospheric Administration. With me today are regional administrators from the Northwest, Mr. Will Stelle; from the Southwest, Dr. Bill Hogarth; from

the Southeast, Dr. Andy Kemmerer; and from the Northeast, Mr.

Chris Mantzaris.

I’d like to begin by saying that the agency is a full partner with

the U.S. Fish and Wildlife Service in administrating the Endangered Species Act. And we work with other agencies. In fact, we do

seek those partnerships and to decentralize as mentioned by Congressman Gilcrest with our states, our industries, tribes out West

and private landowners.
56

Our responsibility is different under the ESA, but it is to recover

threatened and endangered marine species that live in the oceans

and coastal waters, and it’s that distinction that differentiates us

from the U.S. Fish and Wildlife Service. Mr. Chairman, we’re responsible for 38 listed species. We also have 19 species that have

been proposed for listing.

Some of the more familiar species are all the great whales, with

the exception of the gray whale which we have delisted; Pacific and

Atlantic salmon; sea turtles; Hawaiian monk seals; and stellar sea

lions. I truly welcome this opportunity to discuss with you today

how we implement the Endangered Species Act in all five regions.

Mr. Chairman, I think that several on the Committee know my

background. Prior to coming in to my current position, I spent 4

years as a state director of fisheries in the West, followed by 10

years as a regional director for the National Marine Fisheries Service in the Northwest. And it was actually during that period that

my agency listed the first salmon species.

Then, we utilized the standard approach to ESA listing that the

Federal Government had employed for many years. And, in general, that approach was to view the Act as solely a Federal responsibility and to unilaterally conduct the biological reviews, to make

the proposals in the final listing and then to develop and promulgate the recovery plans.

One could read that approach into the Act. It flew in the face of

the years of working with and seeking partnerships with the states

and tribes on nearly all resource issues. Further, in the case of

West Coast salmon, it was the states and the tribes that had collected the necessary data from which a decision could be made.

And they had competent scientists that could and should be used

as part of the process.

Since coming to the other Washington, I have supported identifying and using the flexibility that exists in the Act to allow

partnering in making critical decisions in the ESA process. Frankly, if we ever expect to get support for our listing decisions, we

must include states and tribes in our process. During the past 4

years, I’m pleased with the progress that we have made.

We set out to make the ESA more accessible, more flexible, and

I think we’ve done so. On February 23rd, our two agencies published the final ‘‘No Surprises’’ policy and regulations. And it’s this

rule that’s the cornerstone of reforms that have been made to encourage the landowner to participate in protection and recovery of

species.

In effect, it is the answer that industry wants for consistency in

making business decisions and how much protection is really necessary. Another goal of this Administration and the agency is to encourage states to participate in the recovery of species. And we

have two landmark state conservation plans that are partially responsible for the agency not going forward with a final listing determination.

Two state conservation plans—one in Maine, one in Oregon—

demonstrate our commitment to work with states and that we

want them to be a partner in the ESA decisionmaking process.

Also, through habitat conservation plans, HCPs, the two agencies

have expanded species protection to over five million acres of land.
57

The agency is currently working on 50 large-scale HCPs from

California to the Pacific Northwest. I think it really illustrates the

collaboration of our agencies. In fact, of all the salmon listings to

date and all the HCPs, the Fish and Wildlife Service has been

jointly a part of the process through its entirety.

Just last week, you’re probably aware that the two agencies, the

State of California and the Pacific Lumber Company reached an

agreement on the principles related to the company’s submission of

an HCP. This is for 207,000 acres. Mr. Chairman, I see I have a

red light, so let me just summarize for you and attempt to handle

the Committee’s questions.

In summary, we are working in partnership with the Fish and

Wildlife Service and are sure that we are consistent in our treatment of activities that may affect listed species. We have provided

guidance to our regions to ensure that they are fair and provide

consistent advice to the Federal, private, state and tribal landowners.

And just finally, I would like to emphasize that this Administration has truly taken some unprecedented actions in the past 5

years to use and show the flexibility that is inherent in the ESA

and to make it work for everyone—Federal agencies, states, industries, tribes, et cetera. It’s only through partnerships with industries and others that the species have the best chance for survival.

Mr. Chairman, I thank you very much.

[The prepared statement of Mr. Schmitten may be found at the

end of the hearing.]

Mr. POMBO. Thank you.

Just to pick up on the last point you made, in terms of the flexibility in the Act—and I’ve always pushed to give the agencies

greater flexibility. And I’m beginning to wonder if that’s really the

right thing to do. You recently withdrew a listing proposal for the

Atlantic salmon and turned over the conservation efforts to the

State of Maine. Which type of activities has the State of Maine

agreed to undertake as part of that agreement?

Mr. SCHMITTEN. Mr. Chairman, that’s a good question because

many are asking it. Let me just take you through, first of all, the

similarities because people say what are the similarities, what are

the consistencies between what your agency has done and Fish and

Wildlife with Maine and Oregon showing the components of the

plan and also compare the two state conservation plans.

First of all, the similarity, the key point, is that the plans that

the states submit must address the threats to the species. And the

plan must provide how those threats will be removed before the

agency can accept the plan. The factors to be considered are the

same factors in 4 (a) of the Act, and those are the factors that are

for listing criteria.

Also, in any plan we look for the sufficiency funding, not necessarily how much anyone gives, but if it is sufficient to get the job

done, as well as the ability to promulgate the regulatory requirements. We look for the ability to monitor what the states have put

forward, and we never lose sight of the fact that the agencies retain the ability to go back and list if the plans aren’t working.

Now, let’s look at the State of Maine and the threats. First of all,

on forestry there were no major threats. On agriculture, there were
58

no major threats. For agriculture, at most, there were some cranberry bogs that had some water issues, and those have been corrected. For fish, which is a big issue for the State of Oregon and

the coho listing, commercial fishing has been banned for over a decade.

Recreational fishing is catch and release. On hydro, the State of

Maine has no hydro facilities in the seven rivers. So what are the

threats? The key threat for the State of Maine was the agriculture

industry, the potential for strain as fish leave or break out of the

facilities. In addition, hatcheries are not an issue in the State of

Maine.

If you were to look at the flip side for the State of Oregon, the

critical issue was habitat. In fact, in our initial review of the

State’s plan, we actually went back for a specific MOA to bolster

or give us assurances for the needs of habitat before we could accept that plan. Harvest was a major component that the State put

forward that we could accept as that reduces the overall harvest

impact.

On hatcheries, there was a realization that hatcheries do have an

impact on wild stocks and they took some dramatic steps to ease

those. There is some hydropower, but not a lot of hydropower. The

key difference is that nearly half of the State of Oregon is affected

in the habitat, and I think that’s where you see the key differences

between the two plans.

Mr. POMBO. So you determined that forestry, grazing, agriculture

were not factors in Maine? You determined that commercial fishing

was not a factor? You determined that the dams they had were not

a factor and that they were, in your example of Oregon, they were

in that case? And you stated that the agency retained the ability

to list at a future date in Maine, but did list in Oregon?

Mr. SCHMITTEN. Mr. Chairman, may I correct that?

Mr. POMBO. Yeah.

Mr. SCHMITTEN. Mr. Chairman, no, we accepted both states’ conservation plans. I was illustrating the differences. I think if you

were to sum it up, the standards are the same, the threats were

different.

Mr. POMBO. The standards were the same and I just—I don’t

know. And if they were, I’ll followup on that but in terms of this

overall plan, you looked at what Maine was doing and you said

that it was—that that would fit, that that would do what you wanted to recover the species in Maine, and made that decision.

You just heard Mr. Spear testify that the CALFED process that

we’re going through is taking into account the impact on all of the

listed species, as well as those that—all of them that they could determine—any candidate species and anything, that that process

was taken into account, all of those.

We are spending hundreds of millions of dollars in this process.

The economic impact on California, the CALFED process is going

to be substantial. You have all of the major stakeholders that are

involved with that particular process. Now, what are we missing in

terms of telling us, OK, take care of your species. We will retain

the right to list in the future, but, you know I don’t understand

what the difference is. What are we not doing in California that

they did in Maine?
59

Mr. SCHMITTEN. California has not submitted a specific state conservation plan, for instance, for the winter-run Sacramento chinook. The CALFED plan is an excellent plan. It’s——

Mr. POMBO. If I could interrupt you just for a second, we have

not submitted a specific plan on that, but the entire CALFED process that involves the Delta and its—the tributaries leading into the

Delta, as has already been testified to, that they have taken into

account all of that, and it’s my understanding that March 16th,

their proposal is going to be ready by the end of this year.

They should have a proposal enacted that everybody’s signed off

on. I believe they are going as fast as they possibly can in putting

this process together, and yet, that does not seem to carry the same

weight with your agency as what they did in—Maine did.

Mr. SCHMITTEN. Mr. Chairman, it’s difficult to compare the two.

They are both good plans. First, let me say the pieces that are currently missing in the CALFED plan. First, it does not address coho.

It was built around the Delta Smelt, as well as the winter run Sacramento Chinook. The issue of water, I think, is resolved for all intent and purposes. You asked that question to Director Clark.

We don’t look at additional water needs. If we do, we have indicated it would come from voluntary sources. What we will be looking to add to the CALFED plan will be aspects of both hatchery

and harvest that are currently not there. We’re working very closely with the State, and I give the State a lot of credit. This is a good

plan and I see no reason that this plan won’t be adopted.

Mr. POMBO. And just so I understand what you just said, any additional water will come from voluntary sources?

Mr. SCHMITTEN. That’s correct.

Mr. POMBO. You hear that?

Mr. SCHMITTEN. And I additionally said where the shortfalls are

in the plan that we need to work with the states right now, and

we’ve indicated this with the hatchery and harvest.

Mr. POMBO. I’m going to relinquish for the moment, but I will get

back.

Mr. MILLER. What’s with the implication of doing hatcheries and

harvest with the fishermen?

Mr. SCHMITTEN. First of all, the key implication is that they need

to be at the table with us, and that’s important and that may be

different than from the past, Mr. Miller. Second, there’s a big potential on harvest. I’m now going to shift to our proposal to list fall

chinook, which I suspect you’re probably talking about. About 60

to 70 percent of the harvest currently is on fall chinook.

I think what we need to do is look for ways of mitigating that,

for instance, marking hatchery fish so you can separate and identify hatchery fish from wild fish.

Mr. MILLER. OK. Let me ask you a question with respect to

Headwaters. My quick look at Headwaters suggests that somehow

this—the suggestions for, at least for buffers; I’m not quite clear on

slope management yet—but the suggestions on buffers are somewhat less than what we saw in the Northwest proposals on Option

9. Why is that?

Mr. SCHMITTEN. Mr. Miller, some have asked that the FEMAT

standards were not applied as they were in the Northwest. The answer there is that FEMAT was not intended to be applied to pri-
60

vate lands. FEMAT was intended to be applied in the Federal

lands initially coming from the spotted owl, but ultimately going to

the Forest Plan.

FEMAT is intended to put the burden, the majority of recovery

on Federal lands and not on private lands. So it’s a case of apples

and oranges. Those standards were never meant to be put on to

PALCO.

Mr. MILLER. I guess I’m not following you. If the rivers and the

streams run through private lands, how do you protect that particular stream, those particular buffer zones? Isn’t the mission to

recover the species——

Mr. SCHMITTEN. Oh, absolutely.

Mr. MILLER. [continuing] and that habitat?

Mr. SCHMITTEN. I was just going to now go into how we did approach this, and we approached it scientifically. We established the

necessary and functioning aquatic habitats that we felt were necessary for the long-term survival of these species.

We think that we’ve got an excellent plan, especially over the

long-term, of a suite of many species, not just anadromous species,

but for the many species in the agreement. I’m going to ask Dr. Hogarth if he has additions or comments on that.

Mr. HOGARTH. Just briefly, I think the one thing you have to look

at is the degree of flexibility. Also we looked at the risks involved.

There is a risk assessment that goes with it. In the Federal lands,

we have a higher degree of certainty than we would probably have

on private ownership. And that’s because of the idea of recovery or

properly functioning habitat.

Mr. MILLER. Wait a minute. Just back up. Do that all again for

me.

Mr. HOGARTH. What we’re looking for in any of these habitat conservation plans is properly functioning aquatic habitat.

Mr. MILLER. OK.

Mr. HOGARTH. And that means we want to make sure that the

conditions (prescriptions) that we put on will provide for sediment

control, temperature, and to a large degree, the protection that the

salmon need, the conditions that will provide for their long-term

survival.

You look at it, there is a difference in the risk factor. They probably have a higher degree of certainty on Federal land or public

land, than we would on private land. We try to accomplish—we feel

like we’ve accomplished the same thing and maybe with a little difference in risk. We look at the site as a whole.

In the Pacific Lumber Company, we do have in Class 1s, for example, a 170-foot buffer. We feel like that will provide the canopy

cover we need and will provide the large woody debris that we

need. We have a prescription for the number of trees they have to

leave per acre, greater than 40-inch diameter. We have prescriptions for Class 2; we have prescriptions for Class 3.

We’ve got road work. You take it as a package, and we look at

it site-specific is what we’ve had to do. And we feel very comfortable that the salmon will have the protection they need on the

Palco property.

Mr. MILLER. The FEMAT standards you suggest are for Federal

lands. What about the MANTAC standards? Weren’t those——
61

Mr. HOGARTH. The MANTECH is also science. To be honest with

you, we looked all the science. We looked at MANTECH. The

science was ultimate, including the FEMAT science, but still went

to the site and we tried to develop site-specific. One thing we are

doing with Pacific Lumber Company over the next three and a half

years, is that we will have a geophysicist onsite doing water sewer

analysis.

And we will look at those mass waste analysis to determine what

should the prescriptions be.

Mr. MILLER. Is MANTAC good science?

Mr. HOGARTH. I think it’s good science. I think all of it’s good

science. We looked into all science.

Mr. MILLER. All science is good science?

Mr. HOGARTH. No, we feel like——

Mr. MILLER. I’m asking——

Mr. HOGARTH. Not all science is good science.

Mr. MILLER. [continuing] MANTAC’s relied upon; right?

Fairly heavily?

Mr. HOGARTH. It’s hard to say we’ve relied on any one—we didn’t

rely on any one body of science.

Mr. MILLER. So we have lands where you claim there’s a higher

degree of risk, in terms of management as opposed to Federal

lands, and yet we have lesser standards on those lands?

Mr. HOGARTH. No. We said that there’s a risk and that we accepted as probably higher risks on private lands than the risk that

we accept on Federal lands.

Mr. MILLER. Why are we accepting that? Isn’t the test whether

or not the fisheries and riparian areas are taken care of or not?

Mr. HOGARTH. Congressman——

Mr. MILLER. Why are we——

Mr. HOGARTH. I think if we—you know, we have developed the

prescriptions on this site for what we think provides for properly

functioning aquatic habitat. Now, we do not feel it takes a 300-foot

buffer, for example, with a 50-foot no-cut. We have an 170-foot

buffer with a 30-foot no-cut and with prescriptions of entry, and

this type of thing, within the—up to 100 foot.

And we are willing to look at, you know, each one of these HCPs

and probably will have a different prescription based on conditions

onsite and what we know about streams, the conditions onsite and

the length of time for the permit, and this type of thing.

Mr. MILLER. Well, I appreciate your answer, but I’m a little troubled by it. And I realize this is in the preliminary stage, but you

know, it would be a tragedy if we put out this kind of public money

to preserve the head water groves and in the process destroyed the

fisheries.

And, you know, this is some fairly difficult terrain. That’s why

some people suggest we shouldn’t be, you know, we shouldn’t be

buying it. But the fact is that it has what others believe is obviously very valuable assets. And, you know, we don’t get many opportunities to get in there at this stage of the game.

If we do, we ought to be doing it right, and I don’t think the test

is whether it’s public or private land. We’re negotiating a deal here

where we’re paying for everything we’re taking. And the question
62

is whether the results of that action and the question is, that’s got

to be measured against the protection of this fisheries.

Mr. HOGARTH. If I may, Mr. Chairman——

Mr. MILLER. And I don’t know why when, you know, when you’re

negotiating this deal and we’re putting up the money and we’re

dealing with it in this fashion why I’m accepting a higher degree

of risk with respect to this than I would be willing to accept on the

public’s lands.

Mr. HOGARTH. It’s my opinion based on the team of biologists

that we had working—and we had a local group consisting the National Marine Fisheries Service, Fish and Wildlife Service, state of

California, and EPA. We had our prescriptions reviewed by outside

scientists from the Northwest region and the Southwest region at

the Alaska Center. We had our prescriptions reviewed.

The bottom line is if we had felt we needed a 300-foot buffer on

Class 1s, we would have recommended a 300-foot buffer. The team

felt like based on the conditions on PALCO’s site and the length

for the permit that the prescriptions we put forward will protect

salmon over the life of that permit.

And we did not look at any one group—say that FEMAT is a

standard you’ve got to accept; MANTECH has a study you’ve got

to accept. We looked at what was necessary and what we felt like

would do the job.

Mr. MILLER. But this is the negotiations, and I have great respect for you and I have great respect for the people sitting on the

side of the table. But I think the bottom line is whether or not

these are the best standards for this situation or are these the best

standards that we can get in these negotiations. And there’s a

world of difference between those two.

Because if the standards aren’t sufficient, somebody ought to say

so, and then we can deal with the negotiations on that basis. My

concern is that we may be accepting here something that is less

than necessary to provide the level of protection that is needed because this is the best we can do in this negotiation.

And I want to say again, it’ll be a tragedy if people believe that

somehow the saving the headwaters or putting out all of this

money and in the process we look back here a decade and we’ve

blown the opportunity on the fisheries. This is a package. This is

a package.

And, you know, I appreciate the context it’s a grove, the ancient

forest, and all the rest of that, but part of that package is the impasse of this Federal action purchasing this lands and allowing

these cuts to take place, all of which are rather dubious outside of

these negotiations that, in fact, we end up with the right package

in terms of protections of these fisheries.

And I’m a little concerned when I see, you know, these buffers

and no-cuts being adopted that are unlike what we’ve seen on life

forced elsewhere. I’ll give you the benefit of the doubt for a minute,

but I just want to tell you looking at the preliminary information,

I’m a little worried that what we’ve got here is a bit of a political

compromise in terms of this long-term protection.

And I appreciate these are tough negotiations. There’s a lot of

pressure on people here. Everybody wants this done, and they want
63

it done right away. And there’s—people have got reputations riding

on this politically, but it ought to be done right.

And I just send up a bit of a warning here—concern that we not

get into a position where we haven’t done it that way and to come

back and revisit this—this is a major—as all of my colleagues in

Congress will tell you, this is a major Federal action with respect

to the allocation of resources. You know, this delegation is paying

dearly for this decision, and it ought to come out right.

Mr. POMBO. Mr. Herger.

Mr. HERGER. Thank you, Mr. Chairman. Mr. Hogarth, your agency recently announced a propose endangered listing for the spring

run Chinook salmon in California Central and Sacramento Valley.

This listing has the potential of closing down one of the world’s

most rich agricultural regions and to derail important water use

agreements throughout California. What is most confusing about

this proposed listing, however, has to do with its timing.

Not only is the EIS for California’s CALFED Program due next

week, but California’s experiencing its most abundant salmon returns ever counted. My question—my first question is, how are you

going to integrate the EIS in the listing process?

Mr. SCHMITTEN. Mr. Chairman, I’ll start and then I’ll pass over

the mike to Dr. Hogarth. First, on the timing issue, the timing is

set by law for the proposals to list. We’ve been a party to CALFED.

We had shared our biological review team findings with the State

so there are no surprises here. The State was fully aware of the

directions that we were going.

The issue on numbers of fish, the biological review team is established to simply look at the science and does include other Federal

agencies’ scientists on that team. They do acknowledge the large

number of fish, but when they did a very careful and close examination, it showed that there was a strong reliance of hatchery fish

and that it certainly has been shown elsewhere that a major dependence on hatchery fish to wild fish puts the wild fish at risk.

Further, it was shown that in the ocean harvest, the takes are

around 70 percent which, again, exacerbates if you have a weak

run of natural fish, and you have a strong run of hatchery fish and

you’re harvesting. Though, at 70 percent on both you can see what

that does to the lesser run.

These are lessons that have been learned out of the Northwest,

so where are we? We have a year to look at these issues. There are

solutions that we can examine. One would be a possible mass

marking of all hatchery fish which would resolve the issue, I think,

of harvest. We could look at ways of preventing strain. By doing

that, we can keep our genetic integrity, which we want to do to bolster the weak runs until we can get a balance between the two.

And I think that we certainly will continue to be a part of the

CALFED process, which is separate, and we’ve identified that it is

not a water issue in that regime; it’s an issue of hatchery and harvest.

Mr. HOGARTH. Just quickly to respond to this, you know, the

spring run is really by all standards, as you mentioned, in danger.

And I think everyone that looks at it from a state’s perspective will

agree with that. The fall run is the one that supports the fishery.

And it’s the one that we’re concerned with the fact that the San
64

Joaquin Valley is pretty much land of less than 4,000 fish, while

the Sacramento River has the larger runs of 200,000 to 300,000

fish.

They said they are natural, but we don’t know if they are natural. We just know they don’t go back to the hatchery. So over the

next year, we’ll be working with the state of California. We’ve already initiated looking at the hatchery practices, the marking of

the fish and try to get a better hold.

And in the spring run that you mentioned in Central Valley, we

know it’s the fact that they’ve lost a great deal of their habitat. The

upper reaches of the habitat for spring run had been taken away

by the construction of dams. And there’s one dam that seems to be

obsolete that we’ll be looking at so we get it removed to help restore some of the habitat.

So there are two issues—spring run and fall run—and fall run

is more connected with the hatchery harvest than San Joaquin

versus Sacramento. There are just questions that we have to resolve over the next year. And we realize that the CalFed process

has put over $80 million in restoration budgets and working. And

we’re very much working through the CalFed project, and we’ll continue to work with it.

Mr. HERGER. Let me just state my—again, my major concern is

one of—is what we’re doing justifying the need? And I want to get

back again referring to we’re having the largest run perhaps recorded in recent times. I would also ask you could you explain what

definitive science that we have that justifies the listing and what

the difference is between what comes out of the hatchery and what

is the wild run.

Mr. SCHMITTEN. Let me indicate that——

Mr. HERGER. And keep in mind the backdrop here. We’re looking

at a—we’re looking at people’s lives; we’re looking at people that

are some of families that are five- and six-generation ranching,

farming families here that are being affected. We have maybe more

fish than we’ve seen in recent times. I could go on and say a quote

Mr. Hogarth where he mentioned that, ‘‘Whether these populations

recover due to listing action or implementation of a viable state

restoration plan is no concern to the fish,’’ end of quote.

And I can list a half a dozen or more different projects that the

state of California has done—Shasta Dam water temperature control, control of pollution from Iron Mountain; Bureau of Reclamation installed a temperature control at Lewiston and Whiskey

Town Reservoir. It goes on and on on what we’re doing. We have

more fish than we’ve seen before.

We have farmers than we’re probably going to bankrupt here,

and I don’t know if we can show a difference between what is coming out of hatcheries and what is—what you would call wild, and

yet, they are being listed. The people that I represent can see no

rhyme or reason to what you’re doing.

Mr. SCHMITTEN. Well, Congressman, I think there are three

questions here. First the background. I am aware of the background. I grew up in the related background. I know the small

communities; I know the dependencies. So I understand that. This

is not an issue of the environment or the economy.
65

It’s an issue where we need both. It’s simply the Act has indicated that for wild species—and that’s what we’re looking at here—

it requires that we do——

Mr. HERGER. Can you tell the difference? Do you know the difference?

Mr. SCHMITTEN. Absolutely.

Mr. HERGER. We can tell the difference? In what way? How do

you tell the difference?

Mr. SCHMITTEN. It’s genetics through DNA. It’s the same type of

thing they do for human fingerprinting today. They use tissue samples, and, I mean, for the human sector, you can do it to the individual. We can do it for at least the distinct population segments

that the Act requires. And, yes, specifically we can tell the difference.

Mr. POMBO. Mr. Schmitten, in the Pacific Northwest you’ve listed

endangered species, sub-species, distinct population segments as

being endangered down to being able to tell a population from a

specific stream. With declining numbers, that population will be

listed as threatened or endangered.

Are you doing—are you breaking it down to the exact same level

in all the regions of the country? For example, with the Atlantic

salmon, did we look at species, sub-species, distinct population segments. Did we break it down to that level?

Mr. SCHMITTEN. Mr. Chairman, these are excellent questions.

First, back to our process of ESUs and distinct population segments, we have vetted those through the National Academy of

Science and peer reviewed them. The agency used our joint policy—

and that’s Fish and Wildlife and NMFS’s policy—on a distinct population segments, as well as the ESU policy for Pacific and Atlantic

salmon. So the answer is, yes, we did.

Mr. POMBO. I’m a little bit confused by your answer because according to the Federal Register, what was put into the Federal

Register, the policy applies only to species of salmon native to the

Pacific. Under this policy, a stock of Pacific salmon is considered

a DPS if it represents an evolutionarly-significant unit, or ESU, of

a biological species.

The stock must satisfy two criteria to be considered an ESU, and

then it goes on from there. But it specifically says in here, this only

applies to Pacific salmon.

Mr. SCHMITTEN. Mr. Chairman, I carefully used the phrase or

the sentence that said NMFS used our joint Fish and Wildlife Service and National Marine Fisheries Service policy on distinct population segments. And I said, as well as the ESU, it is one in the

same. We used the distinct population segment process. It is the

same as the ESU process.

Mr. POMBO. So you’re telling me there’s no difference between a

distinct population segment and an ESU?

Mr. SCHMITTEN. The director wants to speak on this.

Mr. HERGER. Mr. Chairman, let me just focus a little bit on this

concept of the evolutionarily significant units, which was the scientific method developed in the Northwest for purposes of trying to

apply the distinct population segment definition on the Endangered

Species Act to Pacific salmonids.
66

And the ESU policy which as the director said has been reviewed

and basically endorsed by the academy twice is directed to the application of the distinct population segment definition to Pacific

salmonids. So it is consistent with—it is simply the application of

it to Pacific salmon.

Mr. POMBO. Is it done in——

Mr. HERGER. The agency used the basic distinct population segment concept. We didn’t develop a separate ESU policy for Atlantic

salmon.

Mr. POMBO. Have you listed under ESUs in the Pacific Northwest? Are there species listed under that criteria as a evolutionary

significant unit?

Mr. HERGER. Yes, ESUs. The answer is, yes, sir. The ESU policy,

which is basically a scientific methodology to relate neighboring

run is the application of the distinct population segment concept of

statute to Pacific salmonids.

It is the basis by which we identify distinct population segments

of Pacific salmon for purposes of making judgments about whether

or not those population segments are at risk of extinction or not,

so, yes, all of our Pacific salmon listings are governed by the ESU

scientific methodology.

Mr. POMBO. And that’s broken down to specific rivers, specific

streams——

Mr. HERGER. It’s——

Mr. POMBO. [continuing] population segments that are coming

out of a specific stream or specific area?

Mr. HERGER. Mr. Chairman, again the application of this—the

identification of what runs, neighboring runs should be clustered

together into a unit for the purposes of judging whether or not that

unit is at risk of extinction or not is the technique governed by the

ESU protocol.

Mr. POMBO. So, all of your species that you have listed in the Pacific Northwest fall under this criteria——

Mr. HERGER. Protocol.

Mr. POMBO. [continuing] under this protocol.

Mr. HERGER. Yes, it has resulted——

Mr. POMBO. What about the Northeast? Are all of the species

that are listed in the Northeast under the same?

Mr. HERGER. The ESU protocol was designed specifically for Pacific salmonids. It was not designed for Atlantic salmon and it did

not govern the listing decision—the identification of Atlantic salmon as a distinct population segment. That was done on general

statutory distinct population segment grounds.

We have not developed a separate scientific protocol for Atlantic

salmon as we did and have done for Pacific salmon.

Mr. POMBO. Why is there a difference? Why did you develop it

for the Northwest? And, Chris, if you could put up slide number

6. Why did you develop a separate listing procedure or separate

protocol for the Pacific versus the Atlantic?

Mr. HERGER. Mr. Chairman, we used the same principles. I think

the confusion is the terminology. When we first looked at distinct

population segments, we asked our sign tests how does that apply

to salmon? Are they all one in the same? The Act says you can go
67

down to a distinct population segment, so we had to come up with

the confines of that.

The scientists broke it down, gave it a term, evolutionary significant units; a couple of components in it—one, genetic integrity

which we can now determine; two, uniqueness and succinctness,

the most southern run, the timing of the run—spring versus fall

that really separates them. Those features together blend into

meeting the Act distinct population segments, so we use the same

process. You shouldn’t be concerned with ESU.

Mr. POMBO. Well, I am concerned, really, and I’ll tell you why is

that over the past—between 1993 and 1997, 71 percent of your listing program dollars went into the Pacific Northwest. A huge

amount of effort and listing has gone into the Pacific Northwest.

And you contrast that with any other region of the country,

there’s a huge difference, and it’s obvious that with this different

policies that’s in place for the Pacific versus the Northeast or the

Southeast, or anywhere else, that a huge amount of effort has been

put into listing on the Northwest down to the point where we’re

doing DNA testing to tell the differences, and everything else.

And one of the questions we get back is, if they spent just as

much money finding things to list in the Northeast, would they not

have the same kind of impact that we’re having on—out in the

Northwest? And don’t misunderstand me. I’m not saying that we

should not know what endangered species we have in the Northwest. That’s not what I’m saying.

What I am saying is that there are two regions of the country

that did not receive any funding under the listing program—sow

row funding under the listing program, and the Northwest received

almost three-quarters of the listing money. That just inherently

will make a difference between the number of species that you

have listed in one particular area over the other areas.

And that causes people to say, you are implementing this law differently in the Pacific Northwest than you are in the Northeast or

the Southeast, or anywhere else. Just the simple fact of the way

that you appropriate funds, where you put your efforts into and

when you come in and testify and say that we can tell the difference between a hatchery fish and a wild fish because we do DNA

testing on them and we can tell down to doing DNA testing the difference.

A lot of people begin to ask, why in this region of the country

are we doing DNA testing on the fish to tell if they came from a

hatchery or if they are wild where in another area of the country

they are withdrawing a listing on the Atlantic salmon.

I mean, these are the questions that we get all the time, and you

guys, you biologists, all you guys can get together and talk and you

all understand what you’re saying. Well, you know, 99.9 percent of

the people in the world say, there’s something wrong here. And,

you know, so that’s what we have to deal with.

Mr. SCHMITTEN. Mr. Chairman, if I may. First, until today I had

never heard that there may be discrimination between the East

and West. When I saw this chart I guess three things popped into

my mind—first, that our dollars are directed to where the problems

are, and obviously you can tell the Northwest is exactly where we
68

have had salmon problems, also where the petitions are—we don’t

generate all the examination.

The public submits petitions, and that’s where they are coming

from. Second, I think that it’s illustrative of where some of the

healthy ecosystems are, and it’s a good example of why Alaska and

the region is not there. They have three listed species in Alaska,

so they are not exempt, but there are two whales and a stellar sea

lion.

And then third, that while we show the listings and we show the

funding, if you were to show, then, the recovery elements of ESA,

I would find that there is staff in every single region around the

country. Going back to Alaska recovery, we have the third largest

volume of dollars, $4 million and 12 FTEs. So, I read that as simply showing exactly the conditions that we’re in today.

Mr. POMBO. Two-thirds of your staff are in the Northwest region?

Mr. SCHMITTEN. Yes. And I don’t know—the 71 percent I’ll agree

to. Two-thirds of our listings are in the Northwest region.

Mr. POMBO. Did you do DNA testing in——

Mr. SCHMITTEN. In the Atlantic salmon, as well as the Pacific

salmon, yes.

Mr. POMBO. And how many different distinct population segments did you identify there?

Mr. SCHMITTEN. Let me ask the regional representative.

Mr. MANTZARIS. Thank you. What we found is that initially when

we proposed this species to be listed, the seven rivers that had specific genetic markings, that showed similarity in each of those

seven rivers.

However, on increased genetic testing, we found that some of the

allelle or genetic markings within those fish extended beyond those

seven rivers and were similar to fish in rivers to the South. So in

the final proposal, we expanded the DPS to include those other rivers to the South.

But our focus right now is on those seven rivers and as we get

more information, we’ll determine whether we should include those

southern Maine rivers in one DPS. So right now, instead of having

one DPS that includes seven rivers, we have one DPS which we

call the Gulf of Maine DPS.

Mr. POMBO. You have one DPS that includes seven rivers?

Mr. Mantzaris. Initially, we started that way, but now what

we’ve done, we’ve expanded it to call it the Gulf of Maine DPS

which we have——

Mr. POMBO. So that includes the DPSs for the entire Gulf of

Maine?

Mr. MANTZARIS. Yes, the entire Gulf of Maine, but there are rivers that we haven’t fully investigated. But as we investigate those

additional rivers——

Mr. POMBO. Does that DPS make it bigger?

Mr. MANTZARIS. It could be made bigger, yes. It could be, but we

don’t have sufficient information to determine whether it can be

made bigger or not, at this time.

Mr. POMBO. So to me, that doesn’t sound like the same thing

where we have distinct population segments from individual rivers,

individual streams, different times of the year. I mean, we’ve broken this down——
69

Mr. SCHMITTEN. I think because the genetics has turned out to

be different on the Northwest as it has in the Northeast. What we

found in the Northeast is that the genetic testing has shown that

there are specific differences—there’s great differences——

Mr. POMBO. There’s no differences between the rivers?

Mr. SCHMITTEN. Wait; there’s great differences between North

America and Europe. There’s a very distinct difference there.

Mr. POMBO. Just specifically with what you’re dealing with, is

there differences between the rivers?

Mr. SCHMITTEN. Yes, there are differences between the rivers,

but there are also similarities.

Mr. POMBO. Are there similarities between the rivers, between

the different population segments that you’ve got in the Northwest?

Mr. MANTZARIS. If I understand the question, yes, there are similarities. The question is——

Mr. POMBO. So you both have similarities. He’s put the entire

gulf together. We’ve split it up into different streams, so——

Mr. STELLE. Mr. Chairman, I would entreat you to understand

the issue of scale here. For instance, in the Pacific Northwest, the

clusterings that we have used for the listing process encompass one

cluster as the entire Snake Basin drainage, which is a huge geographic area. It is not just one simple, small river.

Another cluster is the entire upper Columbia River. A third cluster runs from Southwest Oregon down to San Francisco so these

are large clusters. We are not splitting hairs here. We’re trying to

cluster into related units on a good solid scientific foundation.

There are similarities between the clusters. There are also very

distinct differences between those clusters—warrant us as treating

different purposes.

Mr. POMBO. I’m not questioning the—that you can find differences—the sciences that you’ve used at this point. I’ll just leave

it at that. Mr. Miller.

Mr. MILLER. Speaking of some of these clusters, on the—my understanding is on the coho that we don’t have in place yet the

avoidance guidelines in Northern California; is that correct?

Mr. HOGARTH. That we do not have a 4 (d) Rule in place; that’s

correct.

Mr. MILLER. Why and when?

Mr. HOGARTH. I don’t know what the schedule for it is. We can

get back to you.

—————

Status of the Guidelines

The NMFS Take Avoidance Guidelines for Coho Salmon will be released when

they have had the benefit of outside technical and peer review. Under the terms of

the MOA NMFS recently signed with California, NMFS and the State will be conducting a joint review of the California Forest Practice Rules. NMFS and the State

intend to utilize the expertise of the Governor’s Watershed Protection and Restoration Council’s (WPRC) Science Panel to review both the Guidelines and proposed

changes in the State forest practice rules agreed to by NMFS, the California Department of Forestry, the California Department of Fish and Game, and the State Regional Water Quality Control Board.

Considering that adoption of Guidelines and changes in the forest practice rules

will have long-term benefits for the resource and potential economic impacts on the

industry and private landowners, we believe it is imperative that the process and

agreement with the State be allowed to be implemented. It is essential that the best

possible standards be produced as an outcome of the WPRC process.
70

Challenges

The NMFS Take Avoidance Guidelines for Coho Salmon have been difficult to develop because of the complexity of dealing with a species that has an extensive geographic range and where various stages of the coho life cycle occupy coastal streams

at all times. Specifically, juvenile coho reside in freshwater for up to 18-months before returning to the ocean. At any point in time, the fry, juveniles and adults will

be in the stream system.

Guidelines cannot be selective with regard to how they are applied to the land

yet ‘‘one size fits all’’ Guidelines have the potential to have a tremendous economic

impact if not carefully considered in their development. Large industrial timber

companies have the land base to provide certain levels of protection and conservation while maintaining the economic viability of their companies. Small forest landowners, and ranchers that rely on selective timber harvest to augment their income

do not have this flexibility.

NMFS intent is to utilize the Endangered Species Act to recover coho salmon, and

not to create an economic hardship for small landowners. Within the range of coho

salmon in Northern California, approximately 8 million acres of timber land is divided in ownership between the industrial timber companies and small landowners.

Presently, NMFS is engaged in the development of Habitat Conservation Plans

(HCPs) with every large industrial timber owner in Northern California to permit

incidental take of coho. Small landowners do not have the resources to engage in

this level of conservation planning. With this in mind, NMFS is and continues to

be aware of the importance of instituting Guidelines that do not discriminate based

on the size of the landowner.

To meet this shortcoming of the Guidelines approach, NMFS is seeking to develop

alternatives for small landowners through either low effect HCPs, enhanced non-industrial timber management plans, or through the State WPRC process. This effort

takes time to develop to assure that we have a scientifically and technically sound

approach. The premature implementation of Guidelines has the potential to seriously undermine the cooperation of landowners who ultimately are the only stakeholders that can assist in recovering coho salmon.

Mr. MILLER. I mean, because——

Mr. HOGARTH. Wait a minute.

Mr. SCHMITTEN. Mr. Miller, are you talking about take avoidance

or——

Mr. MILLER. Yeah.

Mr. SCHMITTEN. [continuing] or the 4 (d)? There is a difference.

Mr. MILLER. [continuing] because you have the 4 (d)——

Mr. SCHMITTEN. OK.

Mr. MILLER. [continuing] and right now that’s being borne by

people not fishing, but there’s other activities taking place in the

area that have an impact, and we’re supposed to make some decisions about how to avoid some of those, are we not?

Mr. HOGARTH. That’s——

Mr. MILLER. Isn’t that what the avoidance guidelines do?

Mr. HOGARTH. That’s underway already as far as when we listed,

then the Section 7 consultation started with the Corps of Engineers, with the Federal highways. That is underway, yes, sir.

Mr. MILLER. When is that going to happen?

Mr. HOGARTH. It’s already happening.

Mr. MILLER. When are they going to be done, though? I mean,

when are people going to have——

Mr. HOGARTH. Well, we go——

Mr. MILLER. [continuing] to alter their activities in I mean, we’re

going forward—we’re going forward with force activities. We’re

going to continue in the highway activities. When are——

Mr. HOGARTH. Each one of those projects comes to us for Section

7 consultation. You do it project by project.

Mr. MILLER. Right.
71

Mr. HOGARTH. The state has—on Coho, the state did not come

forward with any plan.

Mr. MILLER. I’m sorry.

Mr. HOGARTH. On Coho, we do not have any agreement with the

state of California. But what we’re having to do is we do these all

from a Federal perspective.

Mr. MILLER. Are those going to start to fall into place?

Mr. HOGARTH. What I’m trying to say, they’ve already started.

Any activities since Coho has been listed has to come to us for a

Section 7 consultation. And we determine whether it’ll have an impact in what we do from that point.

Mr. MILLER. And where are we in that process? Are there activities that——

Mr. HOGARTH. The activity’s ongoing. There are ongoing activities.

Mr. MILLER. Those cover what areas, highways——

Mr. HOGARTH. Highways, Corps of Engineers, Forest, and the

council meeting sets—the council sets the harvest regulations

based on the listings.

Mr. MILLER. Those activities cover on private land also?

Mr. HOGARTH. Yes, sir.

Mr. MILLER. So if I—I don’t—I guess I’m missing something here

in terms of what comes first here, the chicken or the egg. You have

an engaged activity. If they’ve got to count any activities in these

areas and these watersheds now, you’ve got to come to you; right?

Mr. HOGARTH. That’s correct; yes, sir.

Mr. MILLER. Whether it’s on private land and each one’s judged

independently——

Mr. HOGARTH. That’s correct.

Mr. MILLER. [continuing] and the decision’s made about those activities?

Mr. HOGARTH. That’s correct.

Mr. Miller. Is anybody taking action on private land and/or public land, a public agency all got to go through this process?

Mr. HOGARTH. That’s correct with the emphasis right now kicked

in first on Federal land.

Mr. MILLER. It’s—we’re back again.

Mr. HOGARTH. (Laughter.)

Mr. MILLER. I mean, I appreciate, you know—I mean, appreciate

what’s going on here. I mean the Federal lands are becoming the

sink for all of these activities and maybe that’s fine and then people—but then people shouldn’t come just about cutting on the Federal forest, and what have you.

But the emphasis on—so other people are just going along merrily their way?

Mr. HOGARTH. No, sir, they don’t go merrily their way, but

the——

Mr. MILLER. I mean, that’s just puts a burden on the Federal

lands then people tell you they don’t like what you’re doing on the

Federal lands, but the private people are benefiting by what you’re

doing on Federal lands.

Mr. HOGARTH. Part of what you say is correct, yes, sir. But, you

know, the process——

Mr. MILLER. Where’s the gatekeeper on this?
72

Mr. HOGARTH. It’s us and we do our best with what we have to

get the total job done. I mean, it’s not that we could go into every

project because we couldn’t cover it.

Mr. MILLER. I hate to break the news to Mr. Pombo, but I think

we need more of your people in the West and—[laughter]—and in

the Pacific Northwest.

Mr. HOGARTH. Well, for example, in timber harvest plans—what

we do with timber harvest plans right now is that we rely on the

state fish and game, and they have a problem with those timber

harvest plans, they come to us. But we have a stack now that’s as

tall as I am.

Mr. MILLER. But what do you mean, they have a problem? You’re

the people that are there now there are looking at a listing and

aren’t you the gatekeeper as whether or not these activities are in

consistence with the recovery or not?

Mr. HOGARTH. Congressman Miller, you made a statement earlier today, which I’ll agree with, about the size of California and

activities in California. With the staff I have in the Southwest region, we have to set priorities. And when we feel like that timber

harvest plans, for example, that fish and game is looking at those

timber harvest plans and if they feel one is controversial or we get

word that one is controversial, then we will review it.

And we just did that on several. One company, we went in to

them and said that we’ve made a petition to the Board of Forestry.

We feel like those timber harvest plans were not sufficient to protect—the protection we needed. But we do not review every one of

them and what I’m saying, we set priorities on where we think we

get the most for the people we have. That’s why we need more

cooperation——

Mr. MILLER. Well, it’s obviously a war in the West because we’re

being deprived of our resources.

Mr. HOGARTH. We’ve got to have more resources or we’ve got to

have a better working relationship with state of California.

Mr. MILLER. Well, you know, to take the scenario that you just

outlined this thing’s going to spiral downhill, and the restrictions

are going to get more and more difficult on the fishing industry or

on the timber industry or on private—because you’re not going to

get recovery.

I mean, if you can’t monitor it and you can’t enforce it adequately—and I appreciate—you know, listen, I have great respect

for trying to allocate the resources around to all these problems

but, I mean, that’s kind of where we’re falling down here in terms

of recovery.

I mean, we have made a listing; we’ve made a listing, determined

that the call of these watersheds are in trouble. There’s action

should be avoided. It’s easier to tell a fisherman, OK, you stop fishing; OK. That one’s kind of clear. But the burden’s on them, and

this is supposed to be about trying to lighten the touch on various

aspects of our economy, whether it’s recreation or commercial fishing or logging or farming, or what have you so you can kind of

lighten the touch and still bring about recovery.

But what you’re saying because of inadequate resources, you just

kind of—you’re going to end up clamping down on Federal forest

lands because you don’t—because the plans on state lands may or
73

may not be adequate. Now, if that doesn’t work out, we’re going to

clamp down tougher on the fisherman or for a longer period of

time, or what have you, because we weren’t able to bring these

other parties to the table.

Mr. HOGARTH. Well——

Mr. MILLER. I’m not asking you to agree with that; I’m just saying this sounds like a downward spiral where we just end up with

more and more difficulty with respect to trying to get these species

recovered and off the list, and we can get on with other activities.

Mr. SCHMITTEN. Mr. Miller, maybe I can turn the spiral upward.

We made a listing. The first thing we do is engage in Section 7 consultation with all Federal actions that may affect. We also have

promulgated the 4 (d) rule which applies—take (ph). Now the next

process, a piece in this, will be the recovery plan.

Once the recovery plan is in place, then I think that’s the holistic

plan for where we go. And we simply—do you want us there—we

want to get there and we’re just not quite there. We’ve just listed

Coho.

Mr. MILLER. I’m just concerned that in the——

Mr. HOGARTH. In the interim, we may lose——

Mr. MILLER. People are rushing—logging private lands or rushing to get activities done before—before you have your recovery

plan, and they are making the problem worse because we don’t

have the gatekeeper to avoid these actions that should be avoided

so that we have a better chance of recovery and maybe a chance

at sooner recovering.

Mr. SCHMITTEN. And I think we’re in agreement that’s a concern.

I hear Dr. Hogarth saying that he’s being the best gatekeeper in

this interim period as he possibly can. We share your concern.

Mr. MILLER. One last on just—on one of the other—the other one

was on the steel head. What’s with these negotiations with the

state? Is that going to come to fruition or is that going to avoid the

problems or—I mean, it took you a long time to hammer this thing

out in Oregon and Maine or—Maine.

Mr. SCHMITTEN. It took us about a year and a half with Oregon.

We have been working since last March with the state of California, not making good progress until recently. First, can we get

there? Let me absolutely guarantee you by March 13th, which I

think is next week, we will have an announcement to make on

whether we’re there or not, whether we list or not.

We will meet that deadline. The court has given us the ability

to go to March 13th, and we’ve made good progress with both Oregon and California during this time.

Mr. MILLER. Well, I just—I mean, not to put this in the same

context as the headwaters, but you know, the law has—puts obligations on you with you know, with your decision with respect to

steel head.

And, you know, I appreciate you’ve been working since last

March, but if most of that time from last March has been unproductive—you’ve been working the last few weeks because the court

has put a deadline on us, I would hope that we not—we don’t accept in lieu of listing an inadequate plan for the state to take this

over because the state would rather take it over than have the Federal Government tell them what to do or have a listing that, you
74

know—I just think that you ought not to get out of the driver’s seat

here because the state dragged its feet for 9 months and now perceives that you’re serious and the date is serious about the jeopardy here.

And action has to be taken, and so now we’re in a hurry-up slam

bang deal to make this look like the state can handle its affairs

when the state wasn’t participating up until the eleventh hour here

and that we not get—we not buy ourselves an agreement in lieu

of listing—when that is not satisfactory. And I’m not casting dispersions on your judgment; I’m just saying that know, you know,

the state has try today avoid this, you know, in any kind of meaningful discussion.

And then, now all of a sudden, we’re running because the court’s

going to say on March 13th whether you’re in contempt or whether

this is adequate or not when we ought to keep the focus here. This

is, again, about whether listing is necessary to provide for the recovery of this species.

Mr. SCHMITTEN. I agree. A fair amount of the decision will be the

piece—the fact that the species needs come first. Second, science

will drive the process; third, I can assure you that the agency will

not accept an inadequate plan, and that’s exactly the tenets that

we’ve set forward to the state in our negotiations.

Mr. MILLER. You know, I’m just concerned and, again, I go back

to headwaters but I’m concerned that, you know, we have tough requirements under the law, but there’s the law. And I think there’s,

you know, there’s a perception somehow that this law is so terribly

unpopular that you would rather avoid a listing or avoid this because what would the public say, you know, as opposed to the

headwater deals collapsing?

Mr. SCHMITTEN. Well, that’s not necessarily your choice, because

the law puts requirements upon you; and either we have an agreement that will provide for the—for those protections of that habitat

and the fisheries or we don’t. And if the headwaters is going to collapse because of that, the public ought to know that. And then we

can decide where the chips fall because I suspect that the people

on the other side of the table wouldn’t want that either.

But we ought not to make a secret little deal that’s inadequate.

We ought to make a deal that publicly we can assure people will

bring about the results that are part of this package in terms of

saving the headwaters, because it’s not just about keeping trees

vertical. It’s about an ecosystem that people think is important and

these riparian areas are part of that.

And we have enough history to know how quickly we can get into

trouble on these riparian areas and how long it takes to recover

them. That’s why you’ve got all these people deployed in the Northwest. It was real easy to screw them up. Now, we’ve got a fire and

boat drill going up there trying to figure out how to save these

huge and complex watersheds.

And in this case, we ought not to repeat that for the sake of getting some dammed deal. You know, if everybody bows down when

they say headwaters, but it ought not to be the instrument by

which we destroy riparian areas.

I think we can’t lose sight of the goal. Certainly, what we’re looking for is an opportunity for a better result. If we can do better for
75

the resource, a partner—and I’ve heard the Committee over the

last 2 or 3 years ask us to work closer with the states—if we can

get a better deal, why shouldn’t we?

And if you look, we are not out to avoid listings. If you look at

the record across the country, there’s over a thousand listed species. There’s less than a dozen accepted state conservation plans.

We’re very frugal. They have to meet the tenets that we laid out,

and we discussed this a little bit ago. We will not accept a bad

deal.

Mr. MILLER. Thank you.

Mr. POMBO. Mr. Herger.

Mr. HERGER. Well, thank you, Mr. Chairman. Mr. Inspector

Schmitten, I appreciate the last comment that you made, and I’d

like to emphasize that on working for a better deal and better results. I have to believe without any shadow of a doubt that that’s

what the American public—certainly all those that I represent in

my area are looking for. They are looking for better results.

I firmly believe with no doubt in my mind whatsoever that we

can both manage for our environment and protect our endangered

species and not destroy our economy simultaneously, but yet, that

is what’s happening. That is certainly what’s happening in the area

that I represent.

And I’d like to address another concern that we have in our area.

In California in the Pacific Northwest, there’s a substantial overlap

of jurisdiction between NMFS and the Fish and Wildlife Service,

particularly in the issuance of Section 10, Incidental Take (ph) Permits and Section 7, consultations.

For example, in Northern California if a timber company wants

to obtain a Section 10 Incidental Take Permit, it must get one from

both agencies because the presence of spotted owls and marbled

marriates, which are under the jurisdiction of the Fish and Wildlife

Service, and also from the NMFS because of the presence of salmon

streams. I’m aware of examples of forestry practices which must be

approved not only by the Forest Service, but also by NMFS and the

Fish and Wildlife Service.

In issuing a Section 10 permit, the law requires that the secretary issue the permit if the take will not appreciably reduce the

likelihood of the survival and recovery of the species in the wild,

however NMFS is requiring that incidental take permits actually

contribute to recovery versus simply not reducing the likelihood of

recovery.

Isn’t this beyond the statutory authority of the agency to require

the private landowner to actually contribute to recovery?

Mr. SCHMITTEN. Congressman, first on the overlap, there is not

overlap. In fact, to avoid duplication we assigned teams in which

both agencies are on so the private landowner, then, doesn’t have

to go to NMFS and have to go to the Fish and Wildlife or together.

Earlier in my sworn—in my testimony, I indicated that every single salmon ACP that we have done, we’ve done with the Fish and

Wildlife on the team. So there is a team.

As far as the standard, the administration is not using different

standards. We’re very carefully applying the Section 10 (a) 2 (p) 4

of the Act where it says that we’re not to appreciably reduce the

likely hid of survival and recovery of the species in the wild. We’re
76

diligent about that, and we are not inconsistent with our application on private lands.

Mr. HERGER. Well, I would—I’d like to give you some examples

not here but afterwards——

Mr. SCHMITTEN. I’d appreciate that.

Mr. HERGER. I certainly—I can tell you this is a problem, not

only in the private sector, but——

Mr. POMBO. If the gentleman would yield for just a second, I

didn’t understand your answer to the question he asked about

whether or not this was above and beyond the scope that a Section

10 permit requires to contribute to the recovery of a species versus

that it doesn’t lead to the endangerment of the species. I forget the

exact term, but I didn’t understand exactly how you answered that.

Mr. SCHMITTEN. I said a couple of things; one that we’re not

using inconsistent standards. And by that I mean our agencies,

both Fish and Wildlife and the National Marine Fishery Service, at

the fundamental principle that guides us is the Section 10 (a) 2 (b)

4 of the Act in that that indicates both survival and recovery. It’s

a two-prong approach, and it’s not a conjunction nor—it’s an end.

I guess an example, Mr. Chairman, might be where the ACPs are

lengthy in duration, say 50 to 100 years. The difference between

survival and recovery is just not very well-defined scientifically. So

in our approach in the long-term ACPs is we simply seem to continue the long-term survival of the species, and we do that by seeking proper-functioning habitat. This is a difficult one to get, so——

Mr. POMBO. If the gentleman would continue to yield on that

point, in the Act the taking will not appreciably reduce the likelihood of the survival and recovery of the species. It seems like what

you’re saying is different than what the Act says; that it’s a different standard than what the Act says. If it wasn’t, then why

didn’t you just stick to the—what the Act says?

Mr. SCHMITTEN. We believe we are sticking to what the Act says;

it says not appreciably reduce the likelihood of the survival and recovery of the species. And I tried to cite an illustration where it’s

difficult to grasp, and that would be, say, a long-term ACP of 50

or 70 years where you can’t—that area’s great. Science can’t tell

you what’s recovery, what’s survival.

Mr. POMBO. But isn’t——

Mr. SCHMITTEN. So——

Mr. POMBO. Doesn’t your standard contribute to the recovery of

the species? Isn’t that what you’re saying?

Mr. SCHMITTEN. Yes. And what we’re saying is that to seek——

Mr. POMBO. That’s not in the Act, though.

Mr. SCHMITTEN. To seek that standard in the Act, we’re saying

if we can get proper-functioning habitat, that satisfies whether it’s

survival or recovery. That will get you there.

Mr. POMBO. I just think it’s a different standard. If it was the

same standard, you would use what it says here; you wouldn’t say

‘‘contribute to the recovery of’’——

Mr. SCHMITTEN. We believe——

Mr. POMBO. [continuing] because that’s not what—I have the Act,

I can show you the language that’s in the Act. It doesn’t say that

a Section 10 permit must contribute to the recovery of the Act—

to the species. It doesn’t say it. It must contribute to the recovery
77

of the species. That’s not what it says. And if you’re trying to tell

me that it’s the same thing—if it was the same thing, you wouldn’t

use different words.

Mr. SCHMITTEN. Mr. Chairman, let me do this for you. I think

it would be quickest for the Committee if I submitted our approach

in writing for you. And then, if you need me to followup, I would

do that. We believe firmly that we’re adhering to the standards.

Fish and Wildlife concurs with where we are, and we think that

in the areas the only anomaly might be long-term ACPs where no

one can define what it is. We think that we have an approach that

is consistent, and that’s a proper-functioning habitat.

Mr. POMBO. It’s nice that Fish and Wildlife concurs with what

you’re doing; that’s great. But, you know, we’re kind of

responsible——

Mr. SCHMITTEN. Yes.

Mr. POMBO. [continuing] and I’m not exactly sure if you’ve kind

of expanded the authority of the Act, and I would like you to——

Mr. SCHMITTEN. I’ll submit that, then, in writing for the Committee.

Mr. POMBO. Mr. Herger.

Mr. HERGER. Thank you, Mr. Chairman. And thank you very

much for your addressing this concern that both of us have and

certainly our districts have. But, Mr. Director, I have to tell you my

question was directly to private land. I’d like to move now to Federal land. Just in talking, for example, with the Klamath National

Forest, they are having very dramatic problems on coordinating between the Fish and Wildlife and your organization in coming up

with a plan.

And it seems to be overlap. Are you—how would you address

that? Are you—do you recognize that we have a, what is perceived

by the people I represent, as a major problem of overlapping and

coming up with one policy? Let’s now take the example of forest

practices within the Klamath National Forest up in Northern California.

Mr. SCHMITTEN. Congressman, further, I have not heard that we

have any problem. In fact, in our Section 7 activity with other Federal agencies, we have specifically tailored a program—this goes

back to when I was a regional director in the West where we

looked at these as programmatic activities so we did all the grazing

at one time, all the timber so we would not slow down any of the

affected parties.

We have done literally thousands of Section 7s. To this date, we

are caught up. I have not heard a complaint in 2 years that we’re

in arrears on any of our Section 7 activity.

Mr. HERGER. Well, thank you, and I’ll get some more information

and come back to you.

Mr. HOGARTH. I’ll check on that, Congressman.

Mr. HERGER. Thank you. I appreciate that. Thank you, Mr.

Chairman.

Mr. POMBO. Before we close the hearing, I just wanted to give

you the opportunity to correct one thing. You said that there was

no duplication between Fish and Wildlife and the National Marine

Fisheries. We have lists of different permits, take permits, that
78

were required by you and the same people being required to do it

with Fish and Wildlife Service for different species. So, the fact——

Mr. SCHMITTEN. Mr. Chairman, that’d be right. For our species,

we simply are working together with Fish and Wildlife so there

should be no duplication. I could be——

Mr. POMBO. On the same species, there may not be a duplication,

but——

Mr. SCHMITTEN. That’s my very point that I’ve made to the Committee.

Mr. POMBO. Well, I guess there may be. I’m not sure. I mean, we

have one here where they already got a permit for Marble Marriet,

and they’ve applied for or are in negotiations on one on the Coho.

And so, they already did what they had to do to satisfy Fish and

Wildlife Service, and now they are in with you on the Coho.

So there is some duplication in terms of having to go through

several different agencies in order to proceed. And I think that was

the point that Mr. Herger was trying to make.

Mr. SCHMITTEN. Mr. Chairman, this is something I welcome getting into because that’s what I want to avoid and have gone truly

out of my way to make this a one-stop shopping. We should not put

people through multiple hoops when they seek Federal permits and

especially if it’s a permit that both agencies are involved in, so this

is something I would welcome the chance to look into any issues

that you raise like that.

Mr. POMBO. Well, I know there are other members that are concerned about this, and that’s one of the reasons why I wanted to

clarify that.

Mr. SCHMITTEN. I think you’ll find——

Mr. POMBO. And I know that that’s something, and we just

looked at this and we found one right off the top that they already

did everything they had to do to satisfy one Federal agency—actually two because they already satisfied the Forest Service——

Mr. SCHMITTEN. Yes.

Mr. POMBO. [continuing] then they satisfied Fish and Wildlife.

Now, they are back in negotiations trying to satisfy you. I don’t

know how long this one—particular one’s been going on, but I

would suspect if they’ve already satisfied Fish and Wildlife Service,

you’re talking about a long period of time.

Mr. SCHMITTEN. I assure you; this is what we want to avoid. For

instance, in the Northwest, we have teams now where the Forest

Service is there; BLM is there, Fish and Wildlife, National Marine

Fishery Service, Club Fed, you’ve got. Even EPA, Fish and Wildlife,

National Marine Fishery Service are trying to avoid the very thing

you suggested.

And you potentially have some sites. You share those with me

and those are the type of things that I can fix——

Mr. POMBO. Well, thank you.

Mr. SCHMITTEN. [continung] in holding up the standard.

Mr. POMBO. I know there are more questions we can ask, but it’s

been a long afternoon, and I’m sure there will be further questions

that we would submit to you. I apologize to you for the delay in

bringing your panel up, but all of you, thank you for being here

and being able to answer our questions.
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And the things that we ask that you respond to in writing, if you

could do that in a timely manner, it would help a great deal. But,

thank you very much.

Mr. SCHMITTEN. Thank you very much, Mr. Chairman.

Mr. POMBO. And the hearing is adjourned.

[Whereupon, at 3:42 p.m., the Committee was adjourned.]

[Additional material submitted for the record follows.]
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STATEMENT OF HON. JOHN B. SHADEGG, A REPRESENTATIVE IN CONGRESS FROM THE

STATE OF ARIZONA

Let me start by asking my colleagues a simple question: how many of you have

schools in your state which have had construction delays because a species on the

endangered list MIGHT be present?

In Arizona, we have the very dubious distinction of being faced with this situation. In Tucson, the Amphitheatre School District needs a new high school. The

Canyon del Oro High School which is currently being used by the district is overcrowded: it was built for only 1,800 students and is now being used by over 2,800

students. Needless to say, this is severe overcrowding and it will only get worse

since Tucson is in one of the fastest growing regions in the country. These excess

students are being taught in portable classrooms; not exactly the high-quality learning environment we want for our children.

The school district is trying to lessen the overcrowding by building a new school

on a plot of vacant land and, as required by law, the school district performed an

environmental assessment on the property. That environmental assessment revealed that no species on the endangered list are present on the property. Let me

repeat that, not one species on the endangered list is present on the property.

Despite the fact that there are no endangered species on the property the

Amphitheatre School District has been forced to wait while the Fish and Wildlife

Service prepares a formal biological opinion under the Endangered Species Act.

Why? Because surveys have revealed that there may be a Cactus Ferruginous

Pygmy Owl between one and six miles from the site of the proposed school!

It is ludicrous that construction of this badly needed school would be delayed be

cause there is a species not on the site, but in the neighborhood. What is even more

ludicrous is that the Cactus Ferruginous Pygmy Owl is not even endangered! There

are well over a thousand of the birds in Texas and hundreds, if not thousands more

in Mexico, a fact that the Fish and Wildlife Service itself has acknowledged.

Because of this situation, the school district has been forced to delay construction

of the new school and to look at alternative sites. The delay adds at least one more

year to the date when the new school will be able to open. That is at least one more

year that children in this school district will need to learn under overcrowded conditions.

I would not wish this problem on any state. However, it is apparent that quite

a number of my colleagues really do not understand just how serious this problem

is. That is the only conclusion I can come to because so many of my colleagues continue to support the status quo in regard to the Endangered Species Act. I firmly

believe that much of their support comes from a ‘‘Not In My Backyard’’ syndrome:

they don’t face the problem in their states and really don’t care what happens in

someone else’s state.

I would like to commend my colleague Don Young for holding this hearing. It is

crucial that we look at just how the Endangered Species Act is applied in different

regions of the United States and whether all regions are being treated in a fair and

equal manner. As the facts show, clearly this is not the case. In the Southwest Region where Arizona is located, there are 119 species listed under the Act. In contrast

the Northeast Region has only 39 listed species: less than one third the number listed in the Southwest! On a more fundamental level, it is important for people to understand that the Endangered Species Act simply is not working. The Act has been

in place since 1973 and currently has 1,679 species listed under it, however, in the

25 years that it has been in existence, only eight species have been delisted. This

is not a success story, this is an abject failure.

I am glad that we have this opportunity to bring facts like these before the American People and hope that, by bringing out the problems with the current Endangered Species Act, we can move expeditiously to enact meaningful reforms. It is vital

that we help people to understand that a ‘‘one size fits all’’ policy simply does not

work.

STATEMENT OF HON. ROBERT F. (BOB) SMITH, A REPRESENTATIVE IN CONGRESS FROM

THE STATE OF OREGON

Mr. Chairman—

The Endangered Species Act is the most powerful law in the country today. Its

impact on private property, economic production, and our standard of living is unprecedented; because of its power, the enforcement of this law must be carefully

scrutinized. I commend you on your decision to hold this important hearing.

The total impact of the implementation of the Endangered Species Act is sometimes difficult to ascertain. We do know, however, that it has led to a greater reli-
81

ance on imported wood products, higher energy costs, restrictions on the use of our

nation’s waterways, and more rigid regulations on the use of private land. Ultimately, my biggest concern about the Act is the emotional burden it places on hardworking farmers who have been forced to deal with a question fundamental to their

very existence: will they have enough water to grow their crops and provide for their

families?

This is a critical aspect of the law that is too often overlooked. As Federal agencies focus on the rigid regulations written to implement the Act, they often lose

sight of the fact that we are placing people’s livelihoods at stake over a biologist’s

judgment. This is an awesome responsibility. Do we cut off water to a farmer and

ruin his crops because one biologist believes that a lake ought to have six additional

inches of water in it? Or for an additional 50 cubic feet per second of flow in a river?

If such a decision is made, Federal agencies bear the burden of proof. Solid scientific

evidence must be driving these issues; too often it does not.

The listing of a species must contain two key components. First, we ought to have

rigid standards placed on the scientific evidence being used to support the listing.

The data should be collected using commonly-held scientific practices, peer reviewed

by a broad array of experts in the field, and closely scrutinized by agencies and affected interests before being adopted. If the Federal agencies rush to judgment

under the threat of a lawsuit, the burden of proof to delist then falls on landowners.

This is wrong. It should be the agencies’ burden to prove that a species merits listing, not a landowners’ burden to prove it does not. Second, there must be a comprehensive plan adopted that specifies realistic numerical targets for species recovery. Without such a common understanding of the goals, how can landowners participate in the species recovery? If they are forced to comply with an ever-expanding

list of Federal requirements and shifting standards, the Federal Government will

lose the most effective partner they have in the effort to save legitimately threatened species.

When the Federal Government’s efforts degenerate into incrementalism and loosely defined goals, the recovery of species will never be successful. If, however, we can

adopt a common understanding of the key issues that lay before us—principally, the

adherence to strictly scrutinized and peer reviewed science, and a detailed recovery

plan—we can make progress. The need to provide more stability to the victims of

misguided agency decisions require that we act to make this law better. I look forward to working with my colleagues in the Congress to achieve this goal.

Mr. Chairman, thank you again for calling this very important hearing, and I look

forward to discussing this matter in greater detail with our witnesses.

STATEMENT OF HON. DON AMENT, STATE SENATOR, AND HON. LEWIS H. ENTZ, STATE

REPRESENTATIVE, DENVER, COLORADO

Members of the House Committee on Resources:

It has come to our attention that the Director of the United States Fish and Wildlife Service (USFWS) will be appearing before your Committee on Thursday to address the issue of whether or not to list the Preble’s Meadow Jumping Mouse

(PMJM) as threatened or endangered under the Endangered Species Act.

As chairmen of the Senate and House agriculture committees we spend a great

deal of time addressing the endangered species issue. At the state level we have

held hearings regarding endangered species and understand the importance of extensive public comment. We have also been successful in developing recovery programs at the state level as a means of avoiding a Federal listing of certain species.

In this respect we request that the USFWS extend the comment period on the

Preble’s mouse. This extension would allow sufficient time for all parties affected

to provide the USFWS with information and possible recovery options. It is vital

that all local concerns be heard at the Federal level and the extension of the comment period will allow this to take place.

All too often the concerns of individuals and efforts by local and state governments are lost in the process at the Federal level. We urge your Committee to support an extension of the comment period in support of the citizens who will be directly affected by the decision of the USFWS.
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