[House Hearing, 113 Congress]
[From the U.S. Government Publishing Office]
ESA DECISIONS BY CLOSED-DOOR SETTLEMENT: SHORT-CHANGING SCIENCE,
TRANSPARENCY, PRIVATE PROPERTY, AND STATE AND LOCAL ECONOMIES
=======================================================================
OVERSIGHT HEARING
before the
COMMITTEE ON NATURAL RESOURCES
U.S. HOUSE OF REPRESENTATIVES
ONE HUNDRED THIRTEENTH CONGRESS
FIRST SESSION
__________
Thursday, December 12, 2013
__________
Serial No. 113-55
__________
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COMMITTEE ON NATURAL RESOURCES
DOC HASTINGS, WA, Chairman
PETER A. DeFAZIO, OR, Ranking Democratic Member
Don Young, AK Eni F. H. Faleomavaega, AS
Louie Gohmert, TX Frank Pallone, Jr., NJ
Rob Bishop, UT Grace F. Napolitano, CA
Doug Lamborn, CO Rush Holt, NJ
Robert J. Wittman, VA Rauul M. Grijalva, AZ
Paul C. Broun, GA Madeleine Z. Bordallo, GU
John Fleming, LA Jim Costa, CA
Tom McClintock, CA Gregorio Kilili Camacho Sablan,
Glenn Thompson, PA CNMI
Cynthia M. Lummis, WY Niki Tsongas, MA
Dan Benishek, MI Pedro R. Pierluisi, PR
Jeff Duncan, SC Colleen W. Hanabusa, HI
Scott R. Tipton, CO Tony Caardenas, CA
Paul A. Gosar, AZ Steven A. Horsford, NV
Rauul R. Labrador, ID Jared Huffman, CA
Steve Southerland, II, FL Raul Ruiz, CA
Bill Flores, TX Carol Shea-Porter, NH
Jon Runyan, NJ Alan S. Lowenthal, CA
Markwayne Mullin, OK Joe Garcia, FL
Steve Daines, MT Matt Cartwright, PA
Kevin Cramer, ND Vacancy
Doug LaMalfa, CA
Jason T. Smith, MO
Vance M. McAllister, LA
Vacancy
Todd Young, Chief of Staff
Lisa Pittman, Chief Legislative Counsel
Penny Dodge, Democratic Staff Director
David Watkins, Democratic Chief Counsel
------
CONTENTS
----------
Page
Hearing held on Thursday, December 12, 2013...................... 1
Statement of Members:
DeFazio, Hon. Peter A., a Representative in Congress from the
State of Oregon............................................ 6
Hastings, Hon. Doc, a Representative in Congress from the
State of Washington........................................ 3
Prepared statement of.................................... 4
Statement of Witnesses:
Albrecht, Carl, CEO, Garkane Energy Cooperative, Inc., Loa,
Utah....................................................... 30
Prepared statement of.................................... 32
Evans, Brock, President, Endangered Species Coalition,
Washington,
DC......................................................... 23
Prepared statement of.................................... 25
Questions Submitted for the record....................... 27
Foley, Greg A., Executive Director, Division of Conservation,
Kansas Department of Agriculture, Topeka, Kansas........... 12
Prepared statement of.................................... 14
Maxwell, Megan, Consulting Biologist, Broomfield, Colorado... 33
Prepared statement of.................................... 35
Questions Submitted for the record....................... 72
Roman, Dr. Joseph, Rubenstein School of Environment and
Natural Resources, University of Vermont, Burlington,
Vermont.................................................... 16
Prepared statement of.................................... 17
Questions Submitted for the record....................... 21
Sikes, Jeff, Legislative Director, Association of Arkansas
Counties [AAC], Little Rock, Arkansas...................... 9
Prepared statement of.................................... 11
Additional Material Submitted for the Record:
Beebe, Mike, Governor, State of Arkansas, Letter submitted
for the record............................................. 9
Salvo, Mark N., Director, Federal Lands Conservation,
Defenders of Wildlife, Letter submitted for the record..... 103
OVERSIGHT HEARING ON ESA DECISIONS BY CLOSED-DOOR SETTLEMENT: SHORT-
CHANGING SCIENCE, TRANSPARENCY, PRIVATE PROPERTY, AND STATE AND LOCAL
ECONOMIES
----------
Thursday, December 12, 2013
U.S. House of Representatives
Committee on Natural Resources
Washington, DC
----------
The committee met, pursuant to notice, at 10:04 a.m., in
room 1324, Longworth House Office Building, Hon. Doc Hastings
[Chairman of the committee] presiding.
Present: Representatives Hastings, Gohmert, Bishop,
Lamborn, Fleming, McClintock, Thompson, Lummis, Benishek,
Duncan, Tipton, Labrador, Southerland, Flores, Daines, LaMalfa,
McAllister, DeFazio, Holt, Grijalva, Costa, Huffman, Ruiz,
Lowenthal, and Garcia.
Also present: Representatives Huelskamp, Womack, and
Stewart.
The Chairman. The committee will come to order. The
Committee on Natural Resources is meeting today to hear
testimony on ``ESA Decisions by Closed-Door Settlement: Short-
Changing Science, Transparency, Private Property, State, and
Local Economies.''
Now, before I begin our statements of the Chairman and
Ranking Member and the witnesses, I ask unanimous consent that
Mr. Womack, from Arkansas, Mr. Huelskamp, from Kansas, and Mr.
Stewart, who, ironically, last time we met, was a member of the
committee, but is now not a member of the committee, be allowed
to sit on the committee and participate in these hearings.
[No response.]
The Chairman. And, without objection, so ordered.
Before I start my opening statement, I want to make an
announcement of where we are, as we are winding down this first
session of this Congress. This is the last hearing of the year.
And, as those that are gathered here know, it is part of this
committee's continuing view of the Endangered Species Act, and
how the law would be improved to prioritize recovery and
science over lawsuits and closed-door settlements. This effort
will continue in the near year, whereas my expectation that the
committee will begin to advance common-sense ESA improvement
legislation that will truly benefit species and the people.
Second, in September of this year, the committee completed
its eighth hearing on renewing the Magnuson-Stevens Fishery
Conservation and Management Act. I am announcing today that,
within a week, a discussion draft of the reauthorization bill
will be released for public review and input. This will be
followed by a hearing in January on this legislation.
Other priority matters that this committee will address
next year include protecting and expanding American hydropower;
pursuing solutions to build more water storage; and a committed
focus on restoring the promise made to our rural counties and
schools by ensuring responsible, active management of our
national forests.
Over the past year, great patience has been shown in
conducting several oversight requests to the Interior
Department and other agencies. What is sought is transparency
information and accountability on decisions and actions made by
the Department and other agencies. To date, the Interior
Department's response has been far less than satisfactory, in
my view. And in several instances, our questions appear to be
met with deliberate slow-walking by their attorneys.
This is not acceptable. And, after many months of patient
persistence, unless prompt compliance comes very soon, more
direct steps will be taken to ensure that the Department
fulfills its oversight obligations to this committee and to
Congress.
Finally, it was my hope that a last mark-up of the year
could occur this week. Regrettably, that wasn't possible for
tomorrow. We will now look ahead to January to continue the
hard work begun earlier this year. Over the past 12 months,
this committee has continued its work in workhorse ways. And
let me just give you some statistics.
The House has passed 50 bills from this committee, each
with bipartisan support. This includes 41 bills passed under
the suspension process, which means that each of these bills
have broad, overwhelming, and bipartisan support in the House.
More than 30 of these measures await action in the Senate. A
number have had Senate hearings, and several have been reported
from the Senate committees, and await action by the full
Senate. And, between our work and the Senate, 10 bills have
been signed into law by the President.
As we enter next year, it is my intent to continue to work
to achieve enactment of common-sense solutions and legislation.
Now, let me give you two examples. In January, it is my
specific intent to advance legislation advocated by our
colleague on the committee, Mr. Benishek, to resolve a long-
standing situation in northern Michigan, by recognizing
boundaries and establishing a Sleeping Bear Dunes Wilderness
Area. Dr. Benishek has been working overtime to get this
accomplished. Both he and his senior Senator Levin have this as
a priority. And I am committed to working with both of them,
because I believe it is possible to reach an appropriate
resolution that accomplishes their collective goals.
There is also a public lands and wilderness legislation
that our former colleague, Mr. Amodei, who was just made a
member of the Appropriations Committee, has been tirelessly
working to advance. Due to his persistent efforts, action will
occur on that legislation also in January.
Now, I know that these are not easy issues. They require
careful consideration and thoughtful action to ensure that they
are done right. That is how we have approached our work on this
committee, and we will continue to do so in January and next
year.
I recognize my colleague from Michigan, Mr. Benishek.
Dr. Benishek. Thank you, Mr. Chairman. Chairman Hastings, I
would like to thank you and Ranking Member DeFazio and the
committee staff for your commitment to moving H.R. 163, the
Sleeping Bear Dunes National Lakeshore Conservation and
Recreation Act, forward next year.
As you know, this legislation was created by my
constituents. They came together in response to a plan
originally created by the National Park Service that they felt
didn't meet the needs of the local area. So they came up with
something better, a plan that guaranteed beach access, and
guaranteed the needs of the local community.
Again, thank you for continuing to work with me and my
constituents on this effort. I appreciate it.
The Chairman. I thank the gentleman, and I really want to
congratulate his persistence on this issue. It is a difficult
issue, as I know the gentleman knows.
With that, now I will recognize myself for my opening
statement.
STATEMENT OF THE HON. DOC HASTINGS, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF WASHINGTON
The Chairman. Two years ago, the Obama administration's
Interior Department signed settlement agreements with two
litigious groups, in their words, ``to make implementation of
the ESA less complex, less contentious, and more effective.''
In August, the Director of the Fish and Wildlife Service
testified before this committee that ``settlement agreements
are often in the public's best interest because the Service has
no effective legal defense to most deadline cases, and because
settlement agreements facilitate issue resolution as a more
expeditious and less costly alternative to litigation.''
This, then, raises several questions. Are these ESA
settlements, and others negotiated by Federal agencies behind
closed doors with certain groups truly in the public's best
interest? Have they made implementation of ESA less contentious
and less costly? Are expeditious ESA listings allowing adequate
involvement of States, local governments, and private
landowners? Have they encouraged use of transparent and best
science and commercial data in ESA decisions? Have they led to
robust economic impact analyses of ESA listings on communities?
Have they discouraged litigation? These are legitimate
questions.
Here are some of the facts of what these settlements have
produced in the 2 years. The current number of proposed and
final ESA listings has increased by 210, and the amount of
proposed and final critical habitat has increased by more than
2 million acres, and that, those settlements, potentially
affect more than 2,000 river miles nationwide.
The Interior Department has accepted 85 percent of the new
listing petitions it received, including petitions seeking more
than 140 new listings to the Fish and Wildlife Service, and the
National Marine Service. Selective use of ESA data in science
and peer review conflicts of interest has clouded the Obama
administration's adherence to data quality and transparency
requirements.
New executive orders and regulations are reducing robust
economic impact analyses, and could alter how critical habitat
is analyzed.
And litigants to the settlements are continuing to file
lawsuits. In just the past year, the Center for Biological
Diversity has threatened or filed over a dozen new lawsuits
against the Interior Department, either because they didn't
list fast enough, or because the Center for Biological
Diversity didn't agree with Interior's decision not to list.
Undoubtedly, of course, some believe cramming hundreds of
obscure species into the ESA list under deadlines and blocking
off huge swaths of land because of the settlements, some might
call those successes. But many areas of the country tell a
different story of how these policies are impacting their
communities, their economies, and, ultimately, the species
considered.
While the Service recently endorsed a plan submitted by
Texas, Oklahoma, Kansas, Colorado, and New Mexico to conserve
the Lesser Prairie Chicken, there is little assurance that the
Service won't list the prairie chicken anyway. The Service has
refused requests by dozens of counties and other interests for
additional time to factor new data and review other plans,
insisting it must stick to a self-imposed settlement deadline
of March 2014.
In the coming months, according to settlement-imposed
deadlines, the Bureau of Land Management and Forest Service
will submit plans covering over 250,000 square miles in 11
Western States to the Service to decide whether they are
adequate to avoid listing of the Greater sage grouse. These
plans are based on seriously flawed Federal technical documents
that lack transparency. Nevertheless, the Service has charged
ahead with proposing listing of sage grouse in portions of
Nevada, California, Colorado and Utah.
Over 2,000 river miles in a dozen Midwestern and Southern
States are likely to be impacted as a result of the Service's
listing of mussels and other fish species. These listings will
impact over 40 percent of Arkansas alone, including
agriculture, timber, and energy producers, and small
businesses.
In my home State of Washington, listing is imminent for a
plant called the bladderpod, although DNA shows it is not
warranted, and proposed gopher listings are impacting local
economies and one of the greatest military installations in the
world in my State. These are some impacts from the settlements.
The listing-by-litigation approach is not working for people
and species.
So, I look forward to hearing from our witnesses to
continue a frank and open discussion on how to improve the law.
[The prepared statement of Mr. Hastings follows:]
Prepared Statement of the Honorable Doc Hastings, Chairman, Committee
on Natural Resources
Two years ago, the Obama administration's Interior Department
signed settlement agreements with two litigious groups, in their words,
``to make implementation of the ESA less complex, less contentious and
more effective.''
In August, the Director of the Fish and Wildlife Service testified
before this committee that ``settlement agreements are often in the
public's best interest because [the Service] has no effective legal
defense to most deadline cases, and because settlement agreements
facilitate issue resolution as a more expeditious and less costly
alternative to litigation.''
This raises several questions: are these ESA settlements, and
others negotiated by Federal agencies behind closed doors with certain
groups, truly in the public's ``best interest?'' Have they made
implementation of ESA ``less contentious'' and ``less costly?'' Are
``expeditious'' ESA listings allowing adequate involvement of States,
local governments, and private landowners or aiding efforts to avoid
listings or to delist species? Have they encouraged use of transparent
and best science and commercial data in ESA decisions? Have they led to
robust economic impact analyses of ESA listings on communities? Have
they discouraged litigation?
Here are some facts of what these settlements have produced in just
2 years:
The current number of proposed and final ESA listings has
increased by 210, and the amount of proposed and final critical
habitat has increased by more than 2 million acres and more
than 2,000 river miles nationwide.
The Interior Department has accepted 85 percent of the new
listing petitions it received, including petitions seeking more
than 140 new listings to the Fish and Wildlife Service, and the
National Marine Fisheries Service.
Selective use of ESA data and science and peer review
conflicts of interest has clouded the Obama administration's
adherence to data quality and transparency requirements.
New executive orders and regulations are reducing robust
economic impact analyses, and could alter how critical habitat
is analyzed.
Litigants to the settlements are continuing to file
lawsuits. In just the past year, the Center for Biological
Diversity has threatened or filed over a dozen new lawsuits
against the Interior Department, either because they didn't
list fast enough, or because the Center for Biological
Diversity didn't agree with Interior's decision not to list.
Undoubtedly, some believe cramming hundreds of obscure species onto
the ESA list under deadlines and blocking off huge swaths of land
because of the settlements are ``successes,'' but many areas of the
country tell a different account of how these policies are impacting
their communities, their economies, and ultimately, the species.
While the Service recently ``endorsed'' a plan submitted by Texas,
Oklahoma, Kansas, Colorado and New Mexico to conserve the Lesser
Prairie Chicken, there is little assurance that the Service won't list
the prairie chicken anyway. The Service has refused requests by dozens
of counties and other interests for additional time to factor new data
and review other plans, insisting it must stick to its self-imposed
settlement deadline of March 2014.
In coming months, according to settlement-imposed deadlines, the
Bureau of Land Management and Forest Service will submit plans covering
over 250,000 square miles in 11 Western States to the Service to decide
whether they are adequate to avoid listing of the Greater Sage Grouse.
These plans are based on seriously flawed Federal technical documents
that lack transparency. Nevertheless, the Service has charged ahead
with proposing listing of sage grouse in portions of Nevada,
California, Colorado and Utah.
Over 2,000 river miles in a dozen Midwestern and Southern States
are likely to be impacted as a result of the Service's listing of
mussels and other fish species. These listings will impact over 40
percent of Arkansas alone, including agriculture, timber, and energy
producers, and other small businesses.
In Washington, listing is imminent for a plant called the
bladderpod, though DNA shows it is not warranted, and proposed gopher
listings are impacting local economies and one of the largest military
installations in the world.
These are some impacts from the settlements. The ``listing-by-
litigation'' approach is not working for people and species. I look
forward to hearing from our witnesses and to continuing a frank and
open discussion on how to improve this law.
______
The Chairman. And before I recognize the Ranking Member for
his opening statement, I want to recognize the newest member of
our committee, Mr. Vance McAllister, who just walked in--timing
is everything, you notice. I welcome him to the committee. His
background, and coming from the great State of Louisiana, I
know he will add a great deal to our deliberations. So welcome,
Mr. McAllister, to the committee.
And, with that, I recognize the Ranking Member, Mr.
DeFazio.
STATEMENT OF THE HON. PETER A. DeFAZIO, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF OREGON
Mr. DeFazio. Thank you, Mr. Chairman. I am interested to
hear there will be a proposal on reauthorizing Magnuson
available in a week. I would hope perhaps, if your draft is
near done, you might share it. We haven't seen it. Because I
think this is something that can be worked out on a bipartisan
basis, and doesn't need to be one side of the aisle, and
doesn't need to be contentious. So I am hopeful that, before it
is released to the general public, that we might have an
opportunity to look at it.
I have talked with the Secretary of the Interior. She has
expressed a willingness to take a phone call from you at any
time, to provide any specific information that is necessary.
The Department has been basically, devoting a lot of resources
to tens of thousands of pages of documents that, as far as I
can tell, no one bothers to read, once they have been brought
down here to the Hill. They are all in a closet somewhere.
I don't know what the objective is. If we have some very
specific objectives or concerns regarding the Interior
Department and lack of transparency on a particular issue, I am
sure on a bipartisan basis we can pursue those things. But to
mire Interior down is actually going to slow them down in many
things that we agree upon that we want to get done out there,
the myriad activities that Interior is involved in. So, I think
that they have been more than forthcoming. And if there is
anything in particular that reaches a conclusion or a point
that isn't just some sort of giant fishing expedition for tens
of thousands of pages of documents that no one is going to read
or compile, then I am sure we could get that. Again, I think we
could do these things better.
And then, to the case in point, which is Endangered Species
Act reform, I have been on the committee 27 years now, as of a
few weeks from now. And over that time we have visited a couple
of times meaningful updates to the Endangered Species Act.
Republican Wayne Gilchrest from the Eastern Shore of Maryland
had a bipartisan proposal which I supported some number of
years ago. George Miller at one point had a bipartisan
proposal, which I supported. There are ways to continue the
objectives of the Endangered Species Act that would be less
time consuming, less litigious, less burdensome, particularly
as we move more toward looking at larger landscape management
and ecosystem approaches, as is being done with the Lesser
Prairie Chicken in a cooperative mode with a number of States.
And I would hope that those are the kind of reforms we are
going to look at in the law.
Listing species one at a time, sometimes in conflict, one
with another--most famously, I think, the Kootenai sturgeon--in
an area that needs certain water types of flows to spawn. But
when those flows are created it creates conflicts for other
endangered species downstream. We have got to work these things
out in a way that is a more general ecosystem-based approach to
management, so we don't create inherent conflicts and
imponderables, in terms of accomplishing the goals of the act,
which I would hope we all still share. We don't want to see
species go extinct.
So, this is the sixth hearing on this issue. I am hopeful
that, in a collaborative way, we can look at some reforms that
will make the act work better to achieve the goals that were
set forth 40 years ago. It is a 40-year-old law. And we do need
to recognize more modern science and different approaches to
accomplish those goals. Thank you, Mr. Chairman.
The Chairman. Will the gentleman yield before his time runs
out? Let me just quickly respond to the oversight aspect that I
had mentioned in my statement and the gentleman responded to.
I welcome Secretary Jewell--and we had a meeting and she
said, ``Give me a call on these things,'' and I welcome that.
And, frankly, I thought that would be a page-turner in trying
to get information. It is very hard to come to conclusions when
you don't get the information. That is why we are asking for
the information.
But I have to say to the gentleman this will obviously be a
work in progress. But after that meeting with Secretary Jewell,
and after giving her a heads up on information that she
requested, we still haven't been getting it. And there is
always speculation about what we are looking for, but when we
are asking for something specific, if we get that then we can
make a determination.
So I just wanted to respond briefly. This is a work in
progress, and I would certainly welcome the gentleman, as we
move forward. I thank the gentleman for yielding.
Mr. DeFazio. Well, if I could reclaim my time, even though
it has expired, if there is a particular specific request or
objective that I am--I would be happy to be made aware of it,
and also help expedite things with Interior. But the feeling
is--so far they have gotten 50,000 pages of documents, and I
don't know who has reviewed those 50,000 pages, and what it is
we need in addition.
So, I would like to work together on that and relieve them
of some burden so that she can focus on other issues that are
of mutual concern. So thank you, Mr. Chairman.
The Chairman. I will take that request in the spirit that
it is given, and hopefully we can get what our desired outcome
is.
Now I want to welcome the first panel in front of us. And
let me go through briefly and recognize the panelists. And then
we will have individual introductions. We have, first, Mr. Jeff
Sikes, who is a Legislative Director for the Association of
Washington Counties, located in Little Rock, Arkansas; Mr. Greg
Foley, who is the Executive Director of the Division of
Conservation for the Kansas Department of Agriculture in
Topeka, Kansas; Dr. Joe Roman, from the Rubenstein School of
Environment and Natural Resources at the University of Vermont
in Burlington, Vermont; Mr. Brock Evans, President of the
Endangered Species Coalition, based here, in Washington, DC;
Mr. Carl Albrecht, CEO and General Manager of Garkane Energy,
located in Loa, Utah; and Megan Maxwell, an independent
biologist from Broomfield, Colorado.
Before we start the introductions, let me explain how the
timing light works there. You all submitted written testimony
to us, and that will all be part of the record. And so I would
ask you to keep your oral remarks to within 5 minutes, and that
is what that timer is in front of you. Now, there are three
lights on the timer: green light, yellow light, and red light.
When the green light is going, that means that you are doing
wonderfully well. When the yellow light comes on, it means you
have a minute to go before the 5 minutes is over. And when the
red light comes on--well, try not to get to the red light, if I
could just say it that way.
So, with that, I want to thank you. And I will recognize
now our colleague from Arkansas, Mr. Womack, for the purposes
of an introduction. Mr. Womack?
Mr. DeFazio. Mr. Chairman?
The Chairman. Yes?
Mr. DeFazio. If I could, just for one second?
The Chairman. Go ahead.
Mr. DeFazio. There is a hearing in Aviation, which--I have
a couple of pressing questions--I am going to head to. No
disrespect to the witnesses. I have read your testimony.
And I will be back with some questions, Mr. Chairman, but I
do have to get down there for a bit. So thank you.
The Chairman. I recognize that. There are always conflicts
going on. And so you don't need my excuse, but you are OK, you
can go.
Mr. Womack is recognized.
Mr. Womack. Thank you, Mr. Chairman. I, first of all, want
to personally thank you for holding a hearing on the impact
these ESA designations could have on Arkansans and citizens
across America.
The critical habitat designation for rabbitsfoot mussels
and neosho muckets will affect nearly half of my State's
surface area and, simply put, jeopardizes the livelihood of
Arkansans. Today I am proud to say that every member of the
Arkansas delegation is well versed on the issue, thanks in
large part to Jeff Sikes, who I am proud to introduce to this
distinguished committee this morning.
As the Association of Arkansas Counties' Legislative
Director, Jeff sounded the alarm on the true and possibly
devastating impact this critical habitat designation will have
on a startling number of Arkansans and their communities. Jeff
was also responsible for building the broad coalition of
leaders throughout Arkansas who are committed to standing up
for the rights of the people and businesses of our great State.
I look forward to Jeff's testimony today. For while he is
an expert of the science and legality of the designation, he
also speaks with common sense and is acutely aware of the
designation's real-life implications.
Mr. Chairman, before I yield back, I have in my possession
a letter from Arkansas Governor Mike Beebe that echoes our
concerns, as well. And I would like to seek unanimous consent
to enter his letter into the record for today's proceedings.
[No response.]
The Chairman. Without objection, that letter will be part
of the record.
[The letter from Governor Beebe submitted by Mr. Womack for
the record follows:]
Letter Submitted for the Record from Mike Beebe
Governor,
State of Arkansas,
December 10, 2013.
The Honorable Sally Jewell,
Secretary,
U.S. Department of the Interior,
1849 C Street, NW.,
Washington, DC 20240.
Re: Proposed Critical Habitat Designation, Docket ID No. FWS-R4-ES-
2013-0007
Dear Madame Secretary:
I am writing in regard to the U.S. Fish and Wildlife Service's
proposed critical habitat designation for the neosho mucket and
rabbitsfoot mussels. The proposed rule would designate 769.2 river
miles as critical habitat. The targeted watershed covers approximately
42 percent of Arkansas's entire geographic area. I am concerned about
the adverse impact this designation, as recommended, could have, not
only on the 31 counties directly concerned, but on my entire State.
More than 90 percent of the property through which the affected river
and stream flow is privately owned. That means thousands of Arkansas
farmers, livestock producers, business owners, and individuals will be
negatively impacted.
A coalition of well-respected Arkans as entities, led by the
Association of Arkansas Counties [AAC], representing a wide range of
public and private stakeholders, filed an official comment with the
Service on October 28, 2013. Based on sound scientific research, the
coalition recommends that the Service reduce its proposed critical
habitat area by about 38 percent. The group is not recommending the
elimination of critical habitat, simply a more realistic designation.
The coalition also points out that the Service's economic analysis,
based solely on agency-to-agency interaction, does not weigh the
substantial private costs to be incurred. It drastically underestimates
the potentially devastating effect the change could have on numerous
small businesses and industries. Many, including agriculture, are vital
economic drivers in our State.
I support the recommendations made by the AAC, and I urge you to
reconsider this sweeping designation that will be a hindrance making
life difficult for so many Arkansans. I am confident that a narrower
critical habitat designation can be reached--one that will adequately
protect these species, without unnecessarily jeopardizing the
livelihoods of many Arkansans. Thank you for your consideration.
Sincerely,
Mike Beebe.
______
Mr. Womack. And with that, Mr. Chairman, again, our thanks
for holding the hearing. And I yield back my time.
The Chairman. All right. Mr. Sikes, you are recognized for
5 minutes. Thank you very much.
STATEMENT OF JEFF SIKES, LEGISLATIVE DIRECTOR, ASSOCIATION OF
ARKANSAS COUNTIES [AAC], LITTLE ROCK, ARKANSAS
Mr. Sikes. Chairman Hastings, well, was Ranking Member
DeFazio, and committee members, good morning. I am Jeff Sikes,
Legislative Director for the Association of Arkansas Counties.
I appreciate the honor and the privilege of testifying here
today on a matter of great concern in my home State, namely the
potential listing of over 40 species under the Endangered
Species Act with a required designation of critical habitat for
each. As I speak to you today, I represent not only the 75
counties of Arkansas, but also a number of public and private
stakeholders who have come together to push back against this
historic expansion of the number of listed species under the
Endangered Species Act.
This potential expansion--if we had all 40 listed, it quite
literally could cover our entire State with critical habitat
units. Now, the groups that I represent, I have got them in my
comments, but they are the Arkansas State Chamber of Commerce,
the Arkansas Environmental Federation, Farm Bureau, timber
producers, et cetera. All stakeholders are going to be impacted
greatly by this.
Now, as we speak, Arkansas has actually submitted comments
on two of these species, the neosho mucket and the rabbitsfoot
mussel, who, combined, have this potential of putting 42
percent of our State's watershed into critical habitat.
Now, for the record, we do not oppose the listing of
candidate species, so long as that listing is supported by good
science. However, we heartily oppose the designation of
critical habitat unless absolutely necessary. As I am sure most
Members know, it is the designation of critical habitat that
can give the green light to a devastating environmental
litigation.
Now, currently, we in the South and Southeast find
ourselves dealing with the results of a settlement between the
Department of Justice and various environmental groups, and it
is a court order mediation that was completely secret in nature
until the results of it were quietly rolled out. And we only
found out about this, the settlement, after a business
associate out West who had some experience with the Endangered
Species Act alerted me to the settlement and, more importantly,
actually educated me, took the time to educate me, what the
ramifications were of this settlement. And if we hadn't had
that, no one in the South, or no one in Arkansas, no one I have
spoken to in the South or Southeast would have had any idea
that this was going on. Clearly, that process is broken, and I
think we need to fix it.
One of the things I would suggest is that in these cases
where you do have a settlement, or you do have a lawsuit, that
the education provided by the Service regarding those--that
settlement be proactive, better rounded, and not limited to
waiting for some request from land owners who can't make the
request if they don't know what is going on.
And then, currently, it is the position, the official
position of the Service, that a land owner has no reason to
fear a listing of critical habitat or a critical habitat
designation, unless there is some sort of Federal nexus, unless
they take some money from the Federal Government. And that is
true, as far as it goes. But the reality is the real
devastating impact of ESA is third-party litigation. And that
has devastated the West, and now it is set to devastate the
South and Southeast. And our people in Arkansas will just never
know what hit them until they wake up one day and they can't
use their property any more for what they bought it for.
And this leads me to my final point. We absolutely must
change the way the Service performs its economic analysis prior
to designation of critical habitat. I am not an economist, but
as I understand it the Service currently utilizes an
incremental model as opposed to a more inclusive cumulative
model to determine the economic impact. And the upshot of this
method is it only measures the cost of government agencies
talking to each other, consulting with one another during the
20-year life of the critical habitat designation. That is just
way off.
To give you an example of what I--well, the upshot of that
is what it results in is a ridiculously low and misleading
economic analysis. And when you look at--whoever would read
that would just be completely misled as to what the real
effects were going to be. And to give you an example of what I
mean, their economic analysis for the neosho mucket and
rabbitsfoot mussel was $220,000 a year, spread across 12
States, $20,000 a year each for 20 years for $4.4 million. Our
economist, who teaches at the University of Arkansas, projected
$20 to $50 million, just in Arkansas alone during that same
period. That has to be fixed. It can be fixed by a rule change,
not a law. And we would hope that you all would take that up.
[The prepared statement of Mr. Sikes follows:]
Prepared Statement of Jeff Sikes, Legislative Director, Association of
Arkansas Counties [AAC], Little Rock, Arkansas
Chairman Hastings, Ranking Member DeFazio and committee members
good morning, I am Jeff Sikes, Legislative Director for the Association
of Arkansas Counties. I appreciate the honor and privilege of
testifying here today on a matter of great concern in my home State,
namely the potential listing of over 40 species under the Endangered
Species Act [ESA] with a required designation of critical habitat for
each.
As I speak to you today, I represent not only the 75 counties of
Arkansas, but also a number of public and private stake holders who
have come together to push back against this historic number of
potential listings and designation of critical habitat that has put our
State, and many States in the South, in danger of becoming, quite
literally, covered by critical habitat units. These stakeholders
include: Arkansas State Chamber of Commerce; Arkansas Environmental
Federation; Arkansas Association of Conservation Districts; Arkansas
Forestry Association; Arkansas Farm Bureau; Arkansas Timber Producers
Association; Arkansas Poultry Federation; Arkansas Independent
Producers and Royalty Owners; Agriculture Council of Arkansas; Camp
Ozark; Arkansas Cattlemen's Association; Energy and Environmental
Alliance of Arkansas; and Cargill Foods, Inc.
As we speak, Arkansas has submitted comments on two of these
species, the neosho mucket and the rabbitsfoot mussel, who, combined,
have the potential of putting 42 percent of our State's watershed into
critical habitat.
While we do not oppose the listing of candidate species, whose
listings are supported by good science, we heartily oppose the
designation of critical habitat unless absolutely necessary. As I'm
sure most of the Members know it is the designation of critical habitat
that can give the green light to devastating environmental litigation.
In fact as far back as 1989 Donald Carr, former acting Assistant
Attorney General for the Land and Natural Resources Division, stated
``Critical Habitat does have advocacy value. It helps the prosecutor
get rid of showing the steps to jeopardy.''
In the current situation, we in the South find ourselves dealing
with the results of a settlement between Department of Justice
attorneys and various environmental groups. This settlement was the
result of a court-ordered mediation that was completely secret in
nature until the results were quietly rolled out. We only found out
about this settlement because of my relationship with a gentleman from
out west, who along with being an expert on the Secure Rural Schools
and Community Self-Determination Act reauthorization issue, was also an
expert in ESA matters. Were it not for his alerting me, and, just as
importantly, educating me as to why I should be alerted, absolutely no
one in Arkansas or indeed much of the South, would've had any idea they
should be alarmed or have any further idea as to what they should do
about it. Clearly, this process of ``sue and settle'' is broken and
should be addressed. More importantly, the public outreach and
information provided by the U.S. Fish and Wildlife Service [FWS], in
the wake of these settlements, should be greatly increased so as to
avoid future catastrophes for ill-informed business and land owners.
I would suggest that future education provided by the FWS be
better-rounded, proactive and not limited to waiting for a request
which cannot happen if business or landowner has no knowledge the
action is occurring. Currently, it is the official position of the FWS
that a landowner has no reason to fear an ESA listing or critical
habitat designation unless there is some sort of nexus between the
landowner and the Federal Government--and this is true as far as it
goes. It completely misses, however, the most probable and most
potentially devastating impact of the ESA and here I am referring to
third party litigation. This litigation has devastated the West and now
appears prepared to wreak the same sort of havoc in the South/
Southeast. There should be no attempts, by the FWS, to minimize the
impacts that may be visited upon the landowners, most of whom work
there tails off every day, to support their families and pay taxes.
This leads me to my final point. We absolutely must change the way
the FWS performs its Economic Analysis prior to the designation of
critical habitat. I am not an economist; however, as I understand it
the service currently utilizes an incremental model, as opposed to more
inclusive cumulative model (co-extensive), to determine the economic
impact of declaring critical habitat. The upshot of this method is that
it only measures the costs of agencies talking to each other during
section 7 consultations. This is guaranteed, indeed designed, to
provide an analysis that is ridiculously low and certain to mislead the
reader as to the real human and economic impact of declaring critical
habitat.
To give you an example of what I mean, the service's economic
assessment regarding the declaration of critical habitat for the Neosho
Mucket and Rabbitsfoot Mussels provides for, a $220,000 per year impact
spread across 12 States, over a 20 year period, for a total projected
impact of $4.4 million. Our Economist, Dr. Jim Metzger, Professor of
Economics, University of Arkansas in Little Rock, in the briefest of
snapshots, and excluding third party litigation, projected the loss to
Arkansas alone to be $20-$50 million. The good news, if there is any,
is that it would not require an act of Congress but a change with
Service regulations (73 FR 33052) and the Office of Management and
Budget [OMB] guidelines for best practices for the conduct of economic
analysis of Federal regulations
In closing, we must attempt to slow down ``sue and settle''
activities and, when a loss or settlement is inevitable, educate the
affected landowners as to all of their ramifications. Finally, we
should work to change the rule on economic analysis to one that
accurately reflects the real economic and human costs of the
designation of critical habitat.
______
The Chairman. Thank you very much, Mr. Sikes, for your
testimony.
I now recognize Mr. Greg Foley, Executive Director of the
Division of Conservation for the Kansas Department of
Agriculture, located in Topeka, Kansas.
Mr. Foley, you are recognized for 5 minutes.
STATEMENT OF GREG A. FOLEY, EXECUTIVE DIRECTOR, DIVISION OF
CONSERVATION, KANSAS DEPARTMENT OF AGRICULTURE, TOPEKA, KANSAS
Mr. Foley. Thank you, Mr. Chairman. Good morning. Mr.
Chairman, members of the committee, my name is Greg Foley. As
the Director of the Division of Conservation, Department of
Agriculture, I appreciate the opportunity and the invitation to
appear before the committee and express thoughts, concerns, and
impacts associated with the Endangered Species Act listing of
the Lesser Prairie Chicken.
Agriculture is our largest economic driver in Kansas,
valued at more than $33 billion annually. We have more than 50
million acres of land, providing agricultural jobs for more
than 400,000 people. Agriculture is not just growing crops and
raising animals, but it includes robust sectors of renewable
energy, food processing, research, and education, and
agribusiness. Kansas has very few public lands, and has a
private ownership rate of approximately 98 percent.
How are we being proactive to protect the Lesser Prairie
Chicken? There are five States that have areas currently that
are occupied by the Lesser Prairie Chicken, Kansas being one of
those States. There are numerous voluntary plans for
conservation actions that have been developed by stakeholders
in our region. The Kansas Department of Wildlife and Parks and
Tourism, one of our State agencies, has played an integral role
in the development of one of those such plans that was actually
endorsed--that the Chairman spoke about--just a couple days ago
by the U.S. Fish and Wildlife Service.
Additional stakeholder groups have developed strategies, as
well. We are open to the multiple voluntary strategies and
plans for species recovery, and believe that the Service should
expedite consideration of all plans to ensure the oil and gas
industry and agricultural producers have best options available
to them to prevent a listing. I have attached a slide
presentation that--the opening slide is on the screen there--
that identifies some tools, maps, conservation priority areas,
the conservation reserve program status in the Lesser Prairie
Chicken-occupied range, acres enrolled. It has a lot of
components, and I would encourage you to take a look through
that at your leisure.
Mr. Chairman, the Department of Agriculture, in our
division, we have a large stakeholder group. We have 105
counties in Kansas, a lot of volunteers. They work side by side
with thousands of other farmers and ranchers, as natural
resource conservationists, to protect soil, water, air, plants,
and animals. These leaders have voiced some fears and impacts
in the event of a listing.
Common questions--and I wrote this testimony as the issues
or fears or concerns and some of the information I read in the
last couple of days, maybe they are prophecies, but I will
leave that to be determined--some of those questions include,
``Will I be able to take my CRP out of the program, if the
Lesser Chicken is listed?''; ``Will I be able to build new
fences, outbuildings, grain bins?''; ``Why would the Federal
Government extend my current CRP contract if a different
Federal agency prevents them from putting land back in to its
prior use as a row crop production?''; ``If returning CRP back
to crop land is prohibited, and the land is not re-enrolled in
the program, will I be prohibited from haying or grazing during
primary nesting seasons?''; ``Will I be able to hay or graze
existing pasture or range land?'' That is just the start of the
list.
These landowner questions communicate a significant message
of the potential for loss of current enrolled CRP acres. The
cause-and-effect relationship from a regulatory action may
reduce the ability of USDA and State efforts to maintain and
re-enroll existing habitat, enroll new habitat acres, and to
utilize other voluntary incentive-based programs to assist the
recovery of the Lesser Chicken. We believe current Kansas
conservation efforts are an indication of why Kansas has the
largest number of acres and the number of birds within the
occupied range.
Kansas has experienced three consecutive years of drought.
In my review of the Lesser Chicken, it looks like there are
three basic requirements or principles to ensure the existence
of the species: food, nesting, and brood-rearing habitat, and
water. We would challenge utilizing existing programs within
USDA to add other components such as the livestock water
supply, dealing with drought-related issues, water is obviously
an issue that we have endured. Even drought can be planned and
managed for with voluntary incentive-based programs.
In closing, I would like to highlight a handful of points
that are potential impacts and issues in Kansas agriculture and
the Lesser Prairie Chicken, if a listing were to occur: the
ability to continue food and fiber production in the affected
area; the potential of expanding the footprint or buffer zone
of the current occupied range, arbitrarily adding tens of
thousands of acres under the control of the U.S. Fish and
Wildlife Service; reduction of personal property rights.
Agriculture is our economic driver. Negative impacts means
lost jobs, population, assurances, predictability, State
programs, and many other bureaucratic terms of protection are
feared due to loopholes, complex rules, and hidden agendas.
Mr. Chairman, members of the committee, thank you for the
opportunity to testify before you to touch a few bases and
address written testimony, as well. We request voluntary
solutions in lieu of regulatory controls. Thank you, Mr.
Chairman.
[The prepared statement of Mr. Foley follows:]
Prepared Statement of Greg A. Foley, Executive Director, Division of
Conservation, Kansas Department of Agriculture, Topeka, Kansas
Good morning, Mr. Chairman, members of the committee. My name is
Greg Foley and I am the Executive Director of the Division of
Conservation, Kansas Department of Agriculture. I want to thank you for
the invitation to appear before the committee to express thoughts,
concerns and impacts associated with an Endangered Species Act [ESA]
listing of the Lesser Prairie Chicken [LPC].
I work closely with the recently appointed Kansas Secretary of
Agriculture, Jackie McClaskey, and am appearing today to convey
concerns that impact Kansas Agriculture. Agriculture is the largest
economic driver in Kansas, valued at more than $33 billion annually. In
Kansas, there are 52,320,102 acres of land that provides jobs for more
than 427,000 people. Agriculture in Kansas is not just about growing
crops and raising animals, but also includes robust sectors of
renewable energy production, food processing, research and education,
agribusiness and more. Kansas farmers and ranchers are feeding the
world. In 2011, Kansas exported nearly $5.3 billion in agricultural
products. Kansas has very few public lands and has a private ownership
rate of approximately 98 percent.
How is Kansas being proactive to protect the LPC? There are five
States that have areas that are currently occupied by the LPC. There
are numerous plans for voluntary conservation actions that have been
developed by stakeholders in the region. The Kansas Wildlife, Parks and
Tourism has played an integral role in the development of a multi-state
Range-Wide Conservation Plan coordinated through the Western
Association of Fish and Wildlife agencies. These conservation programs
being implemented that have resulted in positive effect on LPC
populations or are expected to create those benefits. Additional Kansas
stakeholder groups have also developed strategies as well. We are open
to multiple voluntary strategies and plans for species recovery and
believe that the Service should expedite consideration of all plans to
ensure that the oil and gas industry and agricultural producers have
the best options available to them to prevent a listing or, in the
event of a listing to facilitate mitigation and conservation
activities. I have attached a slide presentation outlining some of
those efforts and accomplishments in Kansas. The presentation includes
Federal program tools, maps of conservation priority areas, CRP status
in the LPC range, acres enrolled, etc.
Mr. Chairman, Kansas Department of Agriculture and the Division of
Conservation have a network of 525 locally elected voluntary
supervisors within the 105 organized Conservation Districts. This
grassroots governance of voluntary incentive based programs provides us
with input from every county throughout the State. These volunteers,
side by side with thousands of other farmers and ranchers, are natural
resource conservationists working to protect soil, water, air, plants,
and animals. Kansans have worked with State and Federal programs
implementing conservation practices, many of which have significant
benefits to wildlife. Of the 27 million acres enrolled in the USDA
Conservation Reserve Program [CRP], Kansas currently holds
approximately 2.34 million of the enrolled acres. These local leaders
have voiced fears of the impacts in the event of a listing. Common
questions arise: Will I be able to take my CRP out of the program if
the LPC is listed? Will I be able to build new fences, outbuildings,
grain bins, etc.? Why would the Federal Government extend my current
CRP contract if a different Federal agency prevents them from putting
the land back to its prior use as row crop production? If returning CRP
back to cropland is prohibited and the land is not re-enrolled in the
program will I be prohibited from haying or grazing during ``primary
nesting seasons?'' Will I be able to hay or graze existing pasture and
rangeland? The list goes on and on.
These landowner questions communicate a significant potential for
loss of currently enrolled CRP acres. This cause and effect
relationship from a regulatory action may reduce the ability of USDA to
maintain and re-enroll existing habitat, enroll new habitat acres, and
to utilize other voluntary programs to assist the recovery of the LPC.
We believe current Kansas conservation efforts are an indication as to
why Kansas has the largest number of acres and numbers of birds within
the occupied range. The Kansas Department of Agriculture's formal
comments to the USFWS requested that they work with the Natural
Resources Conservation Service and the Farm Service Agency to utilize
existing programs such as CRP, Conservation Reserve Enhancement Program
[CREP], and the Lesser Prairie-Chicken Initiative to prioritize these
conservation practices and applicable programs to open sign-up status,
increase the rental rates, and potentially add practices or plant
mixtures to benefit the species.
Kansas has experienced three consecutive years of drought. Federal
drought declarations verify this drought of record and this has had a
significant impact on crops, plants, animals and everything in this
region of the State. In my review of the LPC, it appears there are
three basic requirements that will ensure the existence of the species
which are food, nesting and brood rearing habitat and water. Outside
the box thinking to add ``wildlife water supply'' to existing Federal
programs is necessary, and may be essential, if recovery and
repopulation of the LPC is the mission. I would volunteer to assist
NRCS to modify an existing livestock water supply specification and to
work with wildlife specialists to design a system that works. This
should be the American way, assess the problem and define solutions,
not resort to litigation or regulatory sprawl. Even drought can be
planned for and managed with voluntary incentive based programs if the
will is there that is supported by Congress, the Administration and
respective Federal agencies.
In closing, I would like to highlight some of the most significant
concerns of the Kansas Department of Agriculture. Potential impacts and
issues for Kansas agriculture and the Lesser Prairie Chicken if a
Federal listing occurs:
The ability to continue food and fiber production in the
affected area.
The potential of expanding the footprint or buffer zone of
current occupied range arbitrarily adding tens of thousands of
acres under the control of USFWS.
A reduction in personal property rights such as the
inability to add an outbuilding at the farm, or pursue oil
exploration, or utilize steady class 4 or class 5 winds for
clean energy, to install or move an irrigation center pivot, to
till expired CRP, etc.
Weather cycles are not controlled by a Federal agency.
Establishing and or maintaining habitat are subject to adequate
precipitation for growth, which has potential implication with
program compliance rules.
Agriculture is the economic driver in Kansas; negative
impact to that engine means schools will close, population will
decline, jobs will be lost, etc. This is a narrow margin
industry that is a price taker in the market place. When costs
increase, the agriculture producer does not have the luxury of
raising the price of the commodity.
Assurances, Predictability (NRCS NB 300-14-7-LTP), State
``Certainty'' programs and many other bureaucratic terms of
``protection'' are feared due to loop-holes, complex rules,
hidden agendas that could lead to regulation of non-point
source pollution.
A listing will likely result in decreased participation by
private landowners in voluntary conservation programs designed
to benefit the LPC. Because the vast majority of LPC range is
under private ownership, a Federal listing will likely hinder
our ability to conserve the species rather than increase
populations as intended.
Mr. Chairman, members of the committee, thank you for the
opportunity to testify before you and to plea for help to find working
voluntary solutions in lieu of regulatory control. Senator Roberts used
a quote of President Dwight D. Eisenhower last week that I believe
holds the key to a solution: ``There is nothing wrong with America that
the faith, love of freedom, intelligence and energy of her citizens
cannot cure.''
If it be the pleasure of the Chairman, I will stand for questions
at the appropriate time.
______
The Chairman. Thank you very much, Mr. Foley, for your
testimony. And now I will recognize Dr. Joe Roman from the
Rubenstein School of Environment and Natural Resources at the
University of Vermont in Burlington.
Dr. Roman, you are recognized for 5 minutes.
STATEMENT OF DR. JOSEPH ROMAN, RUBENSTEIN SCHOOL OF ENVIRONMENT
AND NATURAL RESOURCES, UNIVERSITY OF VERMONT, BURLINGTON,
VERMONT
Dr. Roman. Thank you, Chairman Hastings and members of the
committee. So my name is Joe Roman, and I am honored to appear
before you to discuss the importance of the Endangered Species
Act today. I am a fellow at the Gund Institute for Ecological
Economics at the University of Vermont, and also a visiting
scholar at Duke University in North Carolina. In 2011, my book,
``Listed: Dispatches from America's Endangered Species Act''
was published by Harvard University Press.
Now I am going to give you a background on the act and on
some of the ecological impacts of the act, in this case the
economic benefits that the act can have. Forty years ago this
month, the Endangered Species Act was passed. It was unopposed,
90 to nothing in the Senate, and there were only 4 nays in the
House of Representatives. Richard Nixon signed the bill on
December 28, 1973. So this month.
How has the act fared since then? The Endangered Species
Act remains the strongest environmental legislation in the
country, and the first comprehensive law to address the global
extinction crisis. The diagnosis of listing a species is
intended to be as clear as a visit to the doctor's office. A
species is endangered or it is not, regardless of political or
economic considerations.
The trouble is we often wait until animals and plants get
to the emergency room before we make that diagnosis. Ninety-
nine percent of listed species have been saved from extinction
over the past 40 years, and there are clear success stories.
The bald eagle was recovered in 2007 with breeding eagles in
every State on the continent. The Pacific gray whale now has a
population of about 19,000. And the gray wolf is once again an
important part of the Rocky Mountain ecosystem.
Please allow me to discuss some of the many benefits of
endangered species conservation. Biodiversity produces the
ecosystem services from climate regulation to pollination and
food production that we all depend on every day. These benefits
could be spiritual or cultural. They can also be of direct
value to local communities and human health.
In 2011, Americans spent about $144 billion on wildlife
viewing, hunting, and fishing. About 1 in 20 people are
directly or indirectly employed by such outdoor activities.
Wildlife conservation supports millions of jobs.
Endangered species protection also supports local
economies. Manatees listed in 1967 in an earlier version of the
act attract hundreds of thousands of visitors to Florida each
year. Reef-based tourism around the Florida Keys is almost
entirely based on corals, including the federally listed
staghorn and elkhorn corals. The industry employs more than
43,000 people, earning $1.2 billion a year. This is supported
by the ESA.
Endangered species and natural habitats provide ecosystem
services, benefits provided by nature for free. Call it natural
capital. Two endangered mussel species, the purple bank climber
and the fat three-ridge, are found only on the Apalachicola
River in Florida. Protection of these mussels helps ensure that
our waters are not overused, that rivering and forest habitat
provide a buffer from storm surges, and a nursery for shrimp,
crab, and bass, essential to fisheries, including oystermen,
the 1,200 oystermen that work in that area.
This diversity of life matters to our health and well-being
on a daily basis. More species diversity means greater chemical
diversity and more opportunities to discover pharmaceuticals
for cancer or infectious disease. Most of our drugs come from
natural compounds.
There is also a direct correlation between diversity of
wildlife and the reduction of the transmission of zoonotic
diseases. Those diseases pass from animals to humans. Lyme
Disease, for example, is the most commonly diagnosed vector-
borne disease in the country. It comes from ticks. Several
studies have shown that areas with high diversity of wildlife
can reduce the risk of this disease. Many species play a
protective role by feeding, but not infecting, the black-legged
ticks. So having a diversity of wildlife reduces the disease
burden. Healthy ecosystems means healthy people.
Many species now struggle with habitat loss. In the
Southeast, where I traveled from today, 99 percent of the long-
leafed pine forests were cut down--they were already cut down
when the ESA was passed--endangering many of its residents,
including the red cockaded woodpecker. To respond to this loss,
the Endangered Species Act has become the Nation's most
effective habitat protection law.
Species and their habitats and their ecosystems are
integrally related. The success of this powerful law depends on
adequate funding and listing decisions based on the best
available science. Economic studies should include the economic
and ecological benefits of protecting endangered species, and
we should work to incentivize voluntary conservation efforts on
private lands so we don't wait until species are in the
emergency room before we treat them.
I would like to conclude by thanking the Members of
Congress and the American people for supporting the Endangered
Species Act. The law is in the fine American tradition of
protecting our citizens, economy, environment, and wildlife in
all its forms.
[The prepared statement of Dr. Roman follows:]
Prepared Statement of Dr. Joseph Roman, Rubenstein School of
Environment and Natural Resources, University of Vermont, Burlington,
Vermont
Good morning, Chairman Hastings and members of the committee. My
name is Joe Roman, and I am honored to appear before you to discuss the
importance of the Endangered Species Act. I have been working on
endangered species conservation for the past 20 years. I am a visiting
scholar at Duke University and a fellow at the Gund Institute for
Ecological Economics at the University of Vermont. My research and
writing focus on the biology and economics of endangered species
conservation. In 2011, my book Listed: Dispatches from America's
Endangered Species Act was published by Harvard University Press; it
was awarded the 2012 Rachel Carson Book Award by the Society of
Environmental Journalists.
Forty years ago this month, the Endangered Species Act was passed.
When the act came up for a vote in the Senate, there was widespread
bilateral support. Republicans Bob Dole of Kansas, Jesse Helms of North
Carolina, Ted Stevens of Alaska, and Howard Baker of Tennessee voted
for the bill. There were only four nays in the House of
Representatives. Signing the act on December 28, 1973, President
Richard Nixon noted that the ``legislation provides the Federal
Government with the needed authority to protect an irreplaceable part
of our natural heritage--threatened wildlife. . . . Nothing is more
priceless and more worthy of preservation than the rich array of animal
life with which our country has been blessed. It is a many-faceted
treasure, of value to scholars, scientists, and nature-lovers alike,
and it forms a vital part of the heritage we all share as Americans.''
Forty years on, how has the act fared? The Endangered Species Act
remains the strongest environmental legislation in the country, and the
first comprehensive law to address the global extinction crisis: zero-
tolerance legislation. No new extinctions, no exceptions. The diagnosis
of listing a species is intended to be as clear as a visit to the
doctor's office: a species is endangered or it is not, regardless of
political or economic considerations. Once a species is protected, the
Fish and Wildlife Service has had a very high success rate: about 99
percent of listed species have been saved from extinction, and
populations of most animals and plants protected under the act are
stable or increasing in size (Bean 2009). It is likely that hundreds of
species would have gone extinct in the United States in the absence of
this legislation.
There are clear successes: The bald eagle was recovered in 2007,
with breeding eagles in every State on the continent. After hunting was
banned and habitat preserved, the American alligator fully recovered in
1987. The Pacific gray whale, delisted in 1994, now has a population of
about 19,000. The gray wolf, extirpated by park rangers in Yellowstone
in the early 20th century, is now an important part of the Rocky
Mountain ecosystem. These are just a few of the species that have
benefited.
The Endangered Species Act has been an influential law, serving as
the model for biodiversity conservation around the world and in many
States looking to protect biodiversity on a local level. By investing
in endangered species, we are saving wildlife in all its forms and
protecting our economy and human well-being. Yet stagnant funding
levels hurt nearly every aspect of Endangered Species Act
implementation, from listing species, to conducting recovery activities
and providing sufficient law enforcement. When we make these
investments, we can expect endangered species recovery and healthy
ecosystems. Please allow me to discuss some of the many benefits of
endangered species conservation.
the economics of wildlife protection
Biodiversity produces the ecosystem services--from climate
regulation to pollination and food production--that all of us depend on
everyday. The field of ecological economics can help us to resolve
conflicts and see a path forward that includes stewardship,
sustainability, and the valuation of natural capital. It can also help
us to quantify the benefits of protecting endangered species and their
habitats. These benefits can be spiritual and cultural, and they can
also be of direct value to local communities and human health.
On the most obvious level, wildlife brings in millions of
recreational and tourism dollars to many communities, through bird
watching, whale watching, and other forms of outdoor activities. The
Department of the Interior, Commerce Department, and Census Bureau have
been gathering economic data on outdoor activities since 1955. In 2011,
Americans spent more than $144 billion on hunting, fishing, and
wildlife watching (U.S. Fish and Wildlife Service and U.S. Census
Bureau 2012). About 1 in 20 people are employed directly or indirectly
by such outdoor activities. Wildlife conservation supports millions of
jobs.
Endangered species protection also supports local economies.
Manatees, federally listed since 1967, attract hundreds of thousands of
visitors to Florida each year (Fig. 1). Just about all of the tourism
in Citrus County, on Florida's ``Nature Coast,'' centers on manatees.
Tourists spent $23 million a year to see them in the local springs, and
many tour operators support Federal protections of these marine
mammals. Homosassa, Florida, has erected a statue celebrating its
favorite attraction.
Citrus County, like other parts of Florida, makes its living from
protected species. Reef-based tourism around the Florida Keys is almost
entirely dependent on corals, including the federally listed staghorn
and elkhorn corals; the industry employs more than 43,000 people, whose
wage income totals $1.2 billion a year. By protecting whales, we
created a $956 million annual industry for Coastal States in the
Atlantic, Pacific, Gulf of Mexico, Hawaii, and Alaska (O'Connor et al
2009). In many cases, this industry helped diversify employment as
commercial fishing opportunities were reduced. The figures for
birdwatchers alone are staggering: there are 48 million in the United
States, compared to about 33 million anglers and hunters. Bird watching
is worth $32 billion per year in the United States. Just as cities
compete for stadiums and factories, communities should vie for parks
and charismatic fauna, such as whooping cranes in Texas and Wisconsin,
bald eagles at Mason's Neck in Virginia, and humpback whales in New
England.
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Though wildlife conservation clearly boosts employment, a
common complaint is that protected areas reduce a community's tax base.
But the reality is that these expenditures help local economies:
wildlife watching and outdoor recreation bring in about $40 billion in
tax revenues to State and local governments (Southwick Associates
2012).
Endangered species conservation also supports our natural capital
in the form of ecosystem services. Two endangered mussel species--the
purple bankclimber and the fat three-ridge--are found only on the
Apalachicola River in Florida. It appeared that they were in direct
conflict with human activities, especially when Atlanta was suffering
drought in 2007. But here's the thing: endangered species are their
habitat, and these habitats provide long-term benefits to all of us.
Protection of endangered mussels helps ensure that our waters are not
overallocated or overexploited, and these filter-feeding bivalves can
help reduce pollutants, which benefits people downstream. The riverine
habitat of endangered mussels provides numerous services for people and
their local economies. Flooding forests can buffer communities from
storm surges and provide a nursery for shrimp, crab, and bass and other
fish. Apalachicola fisheries are worth more than $200 million per year.
There are 1,200 oystermen and 25 packinghouses working in this region,
representing 90 percent of the Florida harvest. The flooding forests
are also the source of tupelo honey. In a good harvest year, the tupelo
honey crop in Florida approaches $900,000 (Roman 2011).
The benefits of protecting species often outweigh the short-term
costs. Forests help stabilize the climate by absorbing and storing
carbon dioxide in trees, soils, and understory foliage. Marshlands and
barrier beaches protect us from extreme storms and hurricanes. Trees
clean the air. By restoring and conserving natural infrastructure, we
create jobs and provide ecosystem services to the most vulnerable
populations, dependent on forests and oceans.
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.epsbiodiversity and human health
The diversity of life matters to our health and well-being on a
day-to-day basis. More species diversity means greater chemical
diversity and more opportunities to discover pharmaceuticals. Sixty
percent of cancer drugs and 75 percent of drugs for infectious diseases
come from natural compounds. There is also a direct correlation between
the diversity of wildlife and the reduction of the transmission of
zoonotic diseases, such as hantavirus, which are transmitted from
animals to humans. This is important since we appear to be in a time
when diseases are emerging and re-emerging at a high rate, perhaps
because we are altering environments so quickly and traveling around
the world more rapidly.
West Nile virus reached the United States in 1999 and is now found
from Massachusetts to Florida to Washington State. The hosts for West
Nile virus are our common birds of the suburbs, such as robins and
crows, which can contract the disease and die. Other less common
species, such as wading birds and woodpeckers, are epidemiological dead
ends. When mosquitoes bite these birds, the virus is not transmitted,
and the prevalence of the disease goes down (Ezenwa et al. 2006). The
greater the species richness, the greater the dilution effect for the
disease reservoir, and the lower the risk to people. More species
diversity equals reduced disease transmission.
Lyme disease is the most commonly diagnosed vector-borne disease in
the country, transmitted by the blacklegged tick (Fig. 2). An important
host for this bacterial disease is the white-footed mouse, common in
fragmented landscapes. Several studies have shown that areas with high
diversity of wildlife can reduce the risk of Lyme disease: many species
play a protective role by feeding but not infecting blacklegged ticks.
The Virginia opossum, for example, grooms and kills the ticks, which
can reduce the prevalence of the disease (Ostfeld and Keesing 2012).
By restoring healthy ecosystems, with a full suite of native
species from microbes to plants to predators, we can reduce disease
transmission, bolster local economies, and enhance our experience of
nature. Biodiversity protection may be as important to people on a
local scale in their everyday lives as it is in remote protected
ecosystems (Pongsiri et al. 2009).
habitat conservation
Historically, overexploitation was responsible for many of the
extinctions in North America, such as the great auk, sea mink, and
passenger pigeon. But now many species struggle with more systemic
problems, such as habitat loss and invasive species. In the Southeast,
99 percent of the native long-leaf pine forests were cut down,
endangering many of its residents, including the red-cockaded
woodpecker. Loss and fragmentation of sagebrush habitats are the main
causes in the decline of Gunnison and greater sage grouse populations.
The Gunnison sage-grouse has declined by more than 90 percent from its
historic abundance and has been proposed for listing as endangered with
a final decision expected next year.
In its attempt to decelerate or mitigate such threats, the
Endangered Species Act has become the Nation's most effective habitat
protection law. The drafters of the law made it clear that more than
just species conservation in a zoo or arboretum, the act was intended
``to provide a means whereby the ecosystems upon which endangered
species and threatened species depend may be conserved.'' The Supreme
Court has affirmed that the act's definition of ``take'' included the
severe harm of habitat destruction. Our protection of endangered
species depends on preserving and restoring healthy ecosystems.
ways forward
The Endangered Species Act is a powerful law, but its success
depends on funding it adequately and on maintaining its integrity. If
we invest more in protecting species, we can recover them and receive
enhanced benefits from our natural capital. All species that deserve
protection should be listed and fully protected. Many species have to
wait years, and sometimes decades, to be protected under the act even
though the science is clear that they need to be listed. Delaying
listing makes conservation more difficult, and species have gone
extinct while waiting for status determinations. Decisions should be
made based on the best available science, without political
interference. Economic studies should examine the economic and
ecological value of protecting endangered species in addition to the
costs. We should work to incentivize voluntary conservation efforts
through the Farm Bill and other legislation, to protect native species
and endangered habitats on private lands.
I would like to conclude by thanking the Members of Congress and
the American people for supporting the Endangered Species Act. The law
is in the fine American tradition of protecting our citizens,
environment, and wildlife in all its forms. The act has been successful
in reducing extinctions and protecting our natural heritage. By
protecting endangered species we can conserve the flora, fauna, and
natural systems that fuel our economy and protect our well-being.
references
Bean, M. J. 2009. The Endangered Species Act: Science, Policy, and
Politics, The Year in Ecology and Conservation Biology 1162: 369-91.
Ezenwa, V. O., Godsey, M. S., King, R. J., Guptill, S. C. 2006.
Avian diversity and West Nile virus: Testing associations between
biodiversity and infectious disease risk. Proceedings of the Royal
Society B 273: 109-117.
O'Connor, S, Campbell R, Cortez H, and Knowles T. 2009. Whale
Watching Worldwide: Tourism Numbers, Expenditures and Expanding
Economic Benefits. International Fund for Animal Welfare. Yarmouth, MA.
Ostfeld, R. S., and F. Keesing. 2012. Effects of host diversity on
infectious disease. Annual Review of Ecology, Evolution, and
Systematics 43: 157-82.
Roman, J. 2011. Listed: Dispatches from America's Endangered
Species Act. Harvard University Press: Cambridge, MA.
Schmidt, K. A., and R. S. Ostfeld. 2001. Biodiversity and dilution
effect in disease ecology. Ecology 82: 609-619.
Southwick Associates. 2012. The Outdoor Economy. The Outdoor
Industry Association: Boulder, CO.
U.S. Fish and Wildlife Service. 2013. Gunnison Sage Grouse:
Proposed Listing and Responsibilities Under the Endangered Species Act.
www.fws.gov.
U.S. Fish and Wildlife Service and U.S. Census Bureau. 2012.
National Survey of Fishing, Hunting, and Wildlife-Associated
Recreation, 2011. www.census.gov.
______
Questions Submitted for the Record to Dr. Joseph Roman
Questions Submitted for the Record by the Committee on Natural
Resources
Question. Given the advancements in scientific understanding we
have made as a society, is it appropriate for us to ensure that
development activity is compatible with species conservation? Is
development that ignores biodiversity responsible?
Answer. Development that ignores biodiversity is neither
responsible nor sustainable. In the 40 years since the Endangered
Species Act was passed, we have made major strides in conservation
biology, including conservation genetics, captive breeding, and habitat
restoration. We've even started restoring species like whooping cranes,
California condors, and gray wolves, to historic ranges.
During this time, we've come to understand that we can live with
wildlife--that our native animals and plants are not simply denizens of
remote preserved areas, but part of the mosaic of human landscapes.
Responsible, sustainable development will give us a desirable future
and protect biodiversity in all of its forms. Perhaps more than
anything we do, future generations will thank us for protecting the
wild charismatic animals, such as whales and rhinos, and the critical
components of ecosystems, such as plants, invertebrates, and microbes.
Question. Can you please elaborate on the benefits of biodiversity
for helping to stop the spread of, and cure, deadly diseases?
Answer. Biodiversity can help us in many ways, perhaps most
obviously because more species diversity means greater chemical
diversity and more opportunities to discover pharmaceuticals.
Approximately 60 percent of cancer drugs and 75 percent of drugs for
infectious diseases come from natural compounds.
There is also a direct correlation between the diversity of
wildlife and the reduction of the transmission of zoonotic diseases,
such as hantavirus, which are passed from animals to humans. West Nile
virus reached the United States in 1999 and is now found from
Massachusetts to Florida to Washington State. The hosts for West Nile
virus are the common birds of the suburbs, such as robins and crows,
which can contract the disease and die. Other less common species, such
as wading birds and woodpeckers, are epidemiological dead ends. When
mosquitoes bite these birds, the virus is not transmitted, and the
prevalence of the disease goes down. The greater the species richness,
the greater the ``dilution effect'' for the disease reservoir and the
lower the risk to people. More species diversity equals reduced disease
transmission (Roman 2011).
Lyme disease is the most commonly diagnosed vector-borne disease in
the country, transmitted by the black-legged tick. An important host
for this bacterial disease is the white-footed mouse, common in
fragmented landscapes. Several studies have shown that areas with high
diversity of wildlife can reduce the risk of Lyme disease: many species
play a protective role by feeding but not infecting blacklegged ticks.
The Virginia opossum, for example, grooms and kills the ticks, which
can reduce the prevalence of the disease.
By restoring healthy ecosystems, with a full suite of native
species from microbes to plants to predators, we can reduce the
transmission of some diseases. Biodiversity protection may be as
important to people on a local scale in their everyday lives as it is
in remote protected ecosystems.
Question. A paper published last week in Nature magazine found that
tidal wetland communities have an incredible ability to adapt to rising
sea levels and more frequent flooding. This would seem to be a boon for
coastal communities, as wetlands buffer against storms and absorb
floodwaters and high tides, but the paper also reports, ironically,
that human development is the biggest threat to allowing these wetlands
to adapt for our benefit. Can protecting this type of habitat for the
diamondback terrapin and the whooping crane protect our coastal
communities and private property as well?
Answer. Yes, I think there is a great value in protecting wildlife
and wetlands. By doing so, we protect endangered species, such as the
whooping crane, and the many Americans that live along the Nation's
coast. I recently wrote a piece about the piping plover on the east
coast for Slate. In the article I discuss how conservationists and
landowners can work together to preserve the coastline for shorebirds
and other wildlife as well as homes (Roman 2013). We can start with
more stringent building codes and a retreat from the high-risk overwash
zones. We should also use ecological engineering to protect our
coastlines. Along the bays and estuaries, salt marshes absorb storm
surges. Oyster reefs are natural breakwaters, protecting shorelines.
All of these habitats, our natural infrastructure, provide other
services, including nurseries for fish, carbon sequestration, and the
conservation of wildlife, as well as protecting property. Restoring
habitats that trap sediment and damp waves, such as oyster beds, mussel
beds, and willow floodplains, will have many benefits for coastal
communities (Borsje et al. 2011).
One recent study suggests that natural habitats protect two-thirds
of U.S. coastlines. We need to protect these habitats now, as sea-level
rise is likely to increase the number of people by up to 60 percent in
the coming decades (Arkema et al. 2013). To prepare for these changes,
human communities should be built wisely, saving protected areas.
Pioneering efforts in Louisiana and New York that include natural and
engineered systems can be emulated in other regions. Including natural
systems on our coastal planning will save us money, heartache, and the
species we treasure like piping plovers, whooping cranes, and
diamondback terrapins.
Question. In his testimony, Mr. Albrecht mentioned that the greater
sage-grouse is hunted and killed by sportsmen in Utah. If threats to
its habitat require that a species be protected under the ESA, hunting
will need to be greatly curtailed or eliminated. Can you talk about the
negative economic consequences for sportsmen and rural communities when
irresponsible land use leads to a decline in game species?
Answer. In my home State of Vermont, and in North Carolina, where I
have been working this year, hunters form an important part of the
local community and economy. In 2011, hunters spent approximately $34
billion dollars in the United States, and fisherman contributed $24
billion to the economy (U.S. Fish and Wildlife Service 2012). Just like
the greater sage grouse, these hunters and fishers depend on healthy
productive ecosystems--open land where they can hunt and fish. If we
lose that land, people will have to travel further, and those travel
costs are tough if you're on tight budget.
Consider the fantastic work that Ducks Unlimited has done in
protecting and restoring marshes or the money that has gone into
protecting wildlife refuges by the Duck Stamp program. Trout Unlimited
has also worked hard to keep our waters healthy and running free.
Hunters and fishers have long understood that we need healthy
ecosystems with abundant wildlife. They travel, they spend money, and
they learn to appreciate the outdoors. They can be some of our greatest
allies in habitat protection.
references
Arkema KK, Guannel G, Verutes G, Wood SA, Guerry A, Ruckelshaus M,
Kareiva P, Lacayo M, Silver JM. 2013. Coastal habitats shield people
and property from sea-level rise and storms. Nature Climate Change 3:
913-918.
Borsje BW, van Wesenbeeck BK, Dekker F, Paalvast P, Bouma TJ, van
Katwijk MM, de Vries MB. 2011. How ecological engineering can serve in
coastal protection. Ecological Engineering 37: 113-122.
Roman J. 2011. Listed: Dispatches from America's Endangered Species
Act. Cambridge: Harvard University Press.
--. 2013. Can the plover save New York? Slate: Aug. 23.
U.S. Fish and Wildlife Service. 2012. 2011 National Survey of
Fishing, Hunting, and Wildlife-associated Recreation. Washington, DC.
______
The Chairman. Thank you very much, Dr. Roman, for your
testimony. And now I will recognize Mr. Brock Evans, President
of the Endangered Species Coalition based here, in Washington,
DC.
Mr. Evans, you are recognized for 5 minutes.
STATEMENT OF BROCK EVANS, PRESIDENT, ENDANGERED SPECIES
COALITION, WASHINGTON, DC
Mr. Evans. Thanks, Mr. Chairman and members of the
committee. I very much appreciate the invitation to be here.
And personally, I want to say, for myself and the Endangered
Species Coalition--which is about 300 groups, scientific
societies, religious groups, and sportsmen groups, as well as
environmental, actually, Mr. Chairman--that it is a great
honor, a special honor to be here this month and this date.
Because, as my colleagues have mentioned, this is the 40th
anniversary of the Endangered Species Act, signed by Richard
Nixon December 28, 1973. And so it is considered by many as one
of the finest and most effective wildlife and habitat
protection laws anywhere in the world. And I want to come back
to that.
First, I also want to add--I can't resist adding to my
colleague that I used to spend many years in our State, Mr.
Chairman, in Washington State, concerned about what is
happening to the ancient forests out there. And during most of
those days in the early 1960s and 1970s, we always thought that
the most valuable treasure that should be protected that is
unique are those magnificent trees of the ancient forests, 4 to
8 feet thick and 200 feet high, and they were like cathedrals,
and so on. And so, that is what we fought for and worked for.
I didn't realize until a good deal later that the most
important tree in that forest, from a human scientific
standpoint, was a little small, scraggly tree called the yew
tree, Pacific yew tree. You know it, I am sure. Small, bent
over, a little tree down there in the bottom. Whenever they
would clear out the big trees for lumber, they would always
just burn the yew tree in the pile. Well, it turns out that the
bark of the yew tree produces Taxol, which is used in the
treatment of cancer. It melts ovarian tumors. It protects
against cancer, for example. This is just another example to
add to what my colleague just added about, all the uses of
these seemingly insignificant species that can make a big
difference. And we must not let them go extinct.
In my opinion, and my colleague's opinion, the whole world
is a library full of books of all these chemical compounds and
things like that, that we don't even know the answers to yet.
And we have only read about 5 percent of the books. And so, to
let a species go extinct is like burning down all the
libraries, but not reading any--only 5 percent of the books.
Let me come back, though, because time is limited, and I
appreciate having some. This might be a good time to read
President Richard Nixon's words, which I think respect what
this is all about here. He said, ``Nothing is more priceless
and more worthy of preservation than the rich array of animal
life with which our country has been blessed. It is a many-
faceted treasure, of value to scholars, scientists, and nature
lovers alike, and it forms a vital part of the heritage of all
Americans. I congratulate the 93rd Congress for taking this
important step toward protecting a heritage which we hold in
trust for countless future generations of our fellow citizens.
Their lives will be richer and America will be more beautiful
in the years ahead, thanks to the measure that I have the
pleasure of signing into law today.'' That is what Richard
Nixon said.
And I don't think he was just speaking about the fact that
it is a strong and remarkable law, Mr. Chairman, but he is also
commenting on the enormous majorities by which it passed. As my
colleague said, 92 to nothing in the Senate, 355 to 4 in the
House. Quite a remarkable expression of bipartisan unity, one
of the best that our feisty people can ever get.
So, that was very, very powerful, expressed the hopes and
the loves of the whole American people, who don't want to see
things go extinct, who want to have a regular process for
saving them, protect them, and keep them going. So we would
suggest, Mr. Chairman--and I think we all feel this inside our
hearts, here--that what we have is before us in the native
species--it is not just one of the best wildlife habitat
protection statutes anywhere in the whole world, but it is a
profoundly moral law. Moral. Think of that.
For the first time ever in the history of the world, the
legislators of our great Nation got together in 1973 and they
said that from now and henceforth, we shall not permit any
living species of plant or animal that shares its natural
territory with us to go extinct. So, there is a lot more in my
statement about that, but we should always remember the
morality of these laws. And that is why the American people
love them so much, among other things.
Let me just close with the remarks of one of our most
active board members, a retired Marine Corps general, and here
is what he said. ``When service members deploy to other lands,
they see the devastation wrought by governments who don't hold
their land in stewardship for future generations. It gives
those of us in uniform a unique perspective on the incredible
beauty of our own land. And we know that. Were it not for the
protection of the Endangered Species Act, we would be no
different from those countries that have failed to respect
their environment. For us, a country worth defending is a
country worth preserving.''
Thank you, Mr. Chairman.
[The prepared statement of Mr. Evans follows:]
Prepared Statement of Brock Evans, President, Endangered Species
Coalition, Washington, DC
Mr. Chairman and Ranking Member DeFazio, thank you for the
invitation to appear here before you today. I am Brock Evans, President
of the Endangered Species Coalition. While we have some members who are
individuals, most of our membership consists of more than 300 groups
around the country large and small, including scientific societies,
sportsmen's organizations and religious groups as well as environmental
organizations. Founded in 1982, just 9 years after passage of the
Endangered Species Act, our mission ever since has been to watch over
the implementation of this landmark law. It is considered by many as
one of the finest and most effective wildlife and habitat-protection
laws anywhere in the world.
We at the Endangered Species Coalition are very proud of the
Endangered Species Act and the way it has operated in all branches of
our political system, to carry out its specific legal mandate, passed
into law by the Congress 40 years ago, and signed by President Richard
M. Nixon exactly 40 years ago this month--December 28, 1973.
Perhaps this 40th year Anniversary of the Endangered Species Act is
just the right place for us all to recall the exact words of President
Nixon, who was clearly expressing the near-unanimous will of the whole
American people, in his official remarks while signing the law:
``I have today signed S. 1983, the Endangered Species Act of
1973. At a time when Americans are more concerned than ever
with conserving our natural resources, this legislation
provides the Federal Government with needed authority to
protect and irreplaceable part of our natural heritage--
threatened wildlife.
``This important measure grants the Government both the
authority to make early identification of endangered species
and the means to act quickly and thoroughly to save them from
extinction. . . .
``Nothing is more priceless and more worthy of preservation
than the rich array of animal life with which our country has
been blessed. It is a many faceted treasure, of value to
scholars, scientists, and nature lovers alike, and it forms a
vital part of the heritage of all Americans. I congratulate the
93rd Congress for taking this important step toward protecting
a heritage, which we hold in trust to countless future
generations of our fellow citizens. Their lives will be richer,
and America will be more beautiful in the years ahead, thanks
to the measure that I have the pleasure of signing into law
today.''
President Nixon was speaking, not just about a strong and
remarkable law, but also about the enormous majorities by which it was
passed: 92-0 by the Senate, and 355-4 in the House. . . . Quite a
remarkable expression of bipartisan unanimity for any democratically
elective body, anywhere in the world . . . this was one of those most
clear expressions of our will to be found in nearly any statute.
Its passage back then 40 years ago was also an expression of the
hopes, of a whole people and their elected representatives--that these
other most interesting, beautiful and useful native plants and animals,
who share our Nation with us, will survive, despite the desperate
condition of many of them at that time . . . and likely, off into the
foreseeable future. Something had to be done and quickly, reasoned the
Congress--or not at all, and we would lose all this.
This grand hope has proved itself and its value many times over in
the four decades since in spite of many ups and downs. Remember a
species has to be truly in emergency room status before it can even get
ON the endangered species list, and only then recovered when
populations reach a sustainable level. Yet the successes are a great
tribute. We brought the American peregrine falcon back from just 324
individuals in 1975 to approximately 3,500 nesting pairs today. The
American alligator had been hunted and traded to near-extinction. Today
they number around 5 million from North Carolina through Texas. Even
species that are not yet ready to come off of the endangered species
list are seeing great comebacks, such as the southern sea otter. Sea
otters were down to about 50, yet have rebounded to approximately 2,800
individuals in recent years.
But there is something else, Mr. Chair, which we also want to share
with the committee. It is the recognition, the understanding, that the
Endangered Species Act is a law uniquely expressive of American values,
and American culture . . . in short, it is an American law. . . . Thus
a most powerful statement of our love, as a people, for our land and
our wildlife.
Let us remember, reflect back on those events of 1973 once again
when the legislators of a great nation got together, and they said . .
. from now on and henceforth, we the American people shall not permit
any living native plant or wild creature which shares the national
territory with us, to become extinct.
And as we have seen, that legislation which passed by the
overwhelming numbers I mentioned already and was signed by a Republican
President with the enthusiastic support of his advisors. This is about
as bipartisan and unified as our feisty people can get.
Why is this? I have pondered this great achievement many times,
since I became the Executive Director of the Coalition in 1997, and the
President in 2006: And I think I have, at last, understood: it is
because the Endangered Species Act is not just another wildlife
protection statute. It is more, so much more, than just that: it is a
moral, profoundly moral law. And thus the political expression of the
love of a whole people.
But there is something else, Mr. Chairman, and then I will close:
The Endangered Species Act was not then, in 1973, and is not now, 40
years later, some kind of weird anomaly in our political history. I
have come to realize that too. Most Americans really do love their
land, and this is a tradition of our national life that goes way, way
back . . . before anyone even thought of the words ``endangered
species'' . . . to William Bartram 1778, James Feminore Coopper, the
Hudson River School, all the way to the establishment of Yellowstone
National Park a century later, 1872.
The establishment of Yellowstone, followed by a whole National Park
System, was so significant and so influential that in 1912, the British
Ambassador commented: ``National Parks are the best idea America ever
had''.
But that wasn't the end of it, this narrative about the innate love
and concern for wild places and the wildlife they sheltered, by our
people either. In 1964 along came another very strong and very
protective law: the Wilderness Act--an even stronger law, again passed
by huge majorities, and requiring protection of the best of our
Nation's remaining wild places, and the wild creatures which inhabited
them.
Because of this long and consistent past political history
protecting natural places and their native wildlife, we suggest it is
no accident that the Endangered Species Act was passed just 9 short
years later.
Think of it again: the profound morality of all these statutes,
together one dramatic and powerful set of expressions: of Americans'
desire to protect as much as possible of the beauty and wildlife we
live among.
Simply put, in my direct experience, the American people of every
and any party, race, culture . . . religion, all love their parks and
wildlife and will fight to protect them . . . that fact explains better
than anything else why the Endangered Species Act has not only
survived, but also flourished despite all the efforts to weaken it over
the years.
And that brings me again to the subject of this hearing: legal
settlements negotiated under the Endangered Species Act.
The question is whether it is lawsuits that are hampering species
recovery or whether it is actually the chronic underfunding of the Fish
and Wildlife Service and their efforts to recover species. With
adequate funding, the agency would be able to not only review listing
petitions in a timely fashion, but they would also have the resources
to recover species--not just prevent their extinction.
This is what we believe, and what we have witnessed Mr. Chairman,
and we appreciate the opportunity to share these thoughts with the
Committee today. We are all Americans here, and the Endangered Species
Act and the way it works to fulfill its guarantee--to the whole
American people as well as to our native plant and animal life--offers
much to be proud of . . . just as do the National Parks and Wilderness
Acts.
I close with the remarks of a retired Marine Corps general Mike
Lehnert, who also happens to be a very active member of our Endangered
Species Coalition Board of Directors:
``When service members deploy to other lands, they see the
devastation wrought by governments who do not hold their land in
stewardship for future generations. It gives those of us in uniform a
unique perspective of the incredible beauty of our own land, and we
know that, were it not for the protection of the Endangered Species
Act, we would be no different from those countries that have failed to
respect their environment. For us, a country worth defending is a
country worth preserving.''
Thank you, Mr. Chairman and Ranking Member DeFazio for the
opportunity to share our views with the committee today.
______
Questions Submitted for the Record to Brock Evans
Questions Submitted for the Record by the Committee on Natural
Resources
Question. The Endangered Species Act has been described by some as
a ``Federal receivership,'' into which plants and animals are only
placed if they become threatened with or in danger of extinction given
that States have primary jurisdiction over wildlife management. When
State mismanagement has pushed a species to the brink, does it make
sense to then give the same State authority over species conservation
and recovery?
Answer. Often touted by opponents of Federal protection, the claim
that Endangered Species Act removes the authority of States to manage
wildlife is inaccurate. In many cases of listed species, the States
(through memorandum of understanding with FWS) are often the primary
agencies managing the species on the ground, and they almost always
work in concert with the Federal agencies on various conservation
measures aimed at restoring protected species and their habitat.
Examples include gray wolves and grizzly bears in the N. Rockies
States, where State wildlife agency staff are the boots on the ground
working to minimize human-wildlife conflict and managing (and sometimes
removing) animals that are repeatedly getting into conflict. The act
also provides Federal funds to States to manage conservation of listed
species. So, while ultimately the FWS has the final say, the States are
heavily involved in management of listed species.
For most species on the brink, the problem isn't State management
per se, rather it is habitat destruction and fragmentation. Some of
this is private land that has been lost as quality habitat due to the
commercial and residential development, and some are Federal lands and
waters that have been fragmented due to industrial development and
road-building. Both State AND Federal agencies have been complicit in
permitting activities that result in the loss of habitat that drives
species to the brink.
With regard to State fish and wildlife agencies, much (if not most)
of their revenue derives from the sale of hunting and fishing licenses.
As a result, many States have an incentive to protect this revenue
source, which may incline wildlife managers to favor certain species
over others. In the case of large carnivores, which are seen by some as
a threat to huntable big-game species (and thus, State license
revenue), States have shown a propensity toward more aggressive
management of large carnivores to reduce threats to ungulates, even
though there is little evidence that predators are the primary drivers
of ungulate population control. In most cases, predation is secondary
to habitat loss, over-hunting, and climate on populations of ungulates.
Recent analysis by Defenders of Wildlife also show that States do
not have the necessary resources to protect species. While the budget
for the Fish and Wildlife Service has decreased, the agency still has
greater resources for wildlife protections compared to resources that
States provide for threatened and endangered species.
Furthermore, State management around Federal lands can greatly
impact the ability of Federal lands to serve as wildlife havens. For
instance, Denali National Park in Alaska had previously had a buffer
zone around the park where wolf hunting was prohibited. Buffer zone
protections were lifted 4 years ago to devastating impacts according to
a recent article in the Washington Post, The Last Wolves by Jane
Goodall. While the National Park Service has been boasting that Denali
is one of the best places in the world for people to see wolves in the
wild, this has shifted dramatically. The chance of seeing a wolf has
dropped to less than 12 percent today from nearly 45 percent just a few
years ago. Only 59 wolves were found in the last count in Denali.
Scientists such as Jane Goodall fear that the wolves of Yellowstone
National Park may be headed in the same direction.
For those reasons, Federal involvement in protecting species is
essential. It does not make sense to simply handover complete authority
to State management without Federal engagement.
Question. We often hear that the cost of complying with the
Endangered Species Act is a burden on landowners and businesses.
However, it is a fact that only 1 percent of ESA consultations result
in a ``jeopardy'' finding, meaning that 99 percent of proposed projects
move forward with no restrictions. Isn't it true that the Fish and
Wildlife Service works with other agencies, businesses, and property
owners to find ways to allow economic development that is compatible
with species conservation?
Answer. Yes, U.S. Fish and Wildlife Service absolutely work with
other agencies, businesses and property owners to find ways to allow
economic development. Agencies have become very adept at supporting
business and property owners to maintain their lands and business
interests in ways that are compatible with species conservation. The
idea that one must choose between the environment and economy is simply
an urban myth spread by wildlife opponents.
Let me give you an example:
John and Christine Deck along with their five children, raise cows,
pigs, chickens, goats and sheep outside of Junction City, Oregon. The
Decks are very thoughtful in how they ranch, aiming to create wildlife
habitat and improve the land's productivity while minimizing inputs.
The Decks' ranch runs along Owens Creek. The waters of Owens Creek flow
into rivers home to Upper Willamette River steelhead and Chinook
salmon. Both are listed as threatened under the Endangered Species Act.
The Decks made the choice to go beyond current Government required
protections and help ensure their farm does not harm these already-
compromised fish.
When they moved onto the farm, the Decks made a number of land
management changes to be more sustainable. For example, their pasture
was dependent on chemical inputs to maintain its vigor. With support
from the Natural Resources Conservation Service, which is an arm of the
U.S. Department of Agriculture, the Decks eliminated the inputs and
built up organic matter by recapturing manure.
The Decks' actions were simple; they fenced off the adjoining creek
from livestock and restored the riparian habitat by planting native
trees. Since then they have seen a noticeable improvement in the water
clarity. They also doubled the phosphorus levels in their soil on
ground where the practice grazing with chickens, creating naturally
vigorous pastures.
The Decks understand the need to balance environmental protections
with support for farmers. As John states, ``Sustainable forestry and
agriculture are the goals. Incentives for improving soil, sequestering
carbon, and building sustainable systems will help reach that goal.
Still, when harvesting degrades the land appreciably we need to rely on
environmental protections.''
There are hundreds of other examples of FWS working with other
agencies, businesses and property owners to find ways to allow economic
development that is compatible with species conservation. CCAs, CCAAs,
HCPs, Safe Harbor and No Surprise policies all do just that. States and
private individuals worked to ensure the Sand Dunes Lizard was not
listed and are working to prevent the listings of Lesser Prairie
Chicken, Gunnison and Greater Sage Grouse etc.--because these species
are finally moving toward listing decisions. Thus, the ESA listing
process actually encourages this behavior.
According to FWS, of the more than 219,000 projects reviewed under
the ESA between 1998 and 2001, less than \1/10\ of 1 percent (367
projects) were found to potentially jeopardize endangered wildlife.
Almost all of these projects, 99.7 percent either occurred on public
land or required some type of Federal action to go forward. Most of the
projects were allowed to go forward after taking steps to limit harm to
species.\1\
---------------------------------------------------------------------------
\1\ U.S. Fish and Wildlife Service, ``Consultations with Federal
Agencies, section 7 of the Endangered Species Act,'' February 2002.
---------------------------------------------------------------------------
Question. This year, the Majority has used delays in the
development of water resources projects as an excuse to short circuit
the ESA and NEPA processes, when there is NO evidence that these delays
are caused by anything other than a lack of funding. Still, they press
on arguing that they are not undermining environmental laws, only
trying to ensure that decisions get made in a timely fashion. While we
all support timely decisions, it seems that this support, for some,
only applies when the goal is to develop natural resources, but not
when it comes to protecting them. In 2007, for example, the Washington,
DC District Court noted that the average delay in listing a candidate
species was 10.6 years. So, the question is, does it seem reasonable to
set hard, and often very short, deadlines for NEPA and ESA reviews that
agencies must comply with when it comes to building a dam for example,
but then to not expect that the agencies should also live by hard
deadlines when it comes to making a determination related to the
listing of a species?
Answer. It has always struck us as unreasonable, not to mention
logically inconsistent, to demand very strict timetables for developing
natural resources but not when it comes to protecting them. As cited
above lack of funding is often the determining factor for projects not
moving forward. For example, in California the two biggest water
impoundments built in the last 20 years are Los Vaqueros Reservoir in
Contra Costa County, and Diamond Valley reservoir in Riverside County.
Los Vaqueros serves the people of eastern S.F. area, and Diamond Valley
is a metropolitan Water District impoundment serving the L.A. basin.
Both of these went through normal NEPA and ESA compliance review, and
were built primarily because the agencies involved paid for them. Other
actions related to water here, namely the Klamath basin settlement
agreements have been waiting for 4 years for funding, mainly from the
Federal Government. They, too, have passed NEPA and ESA compliance
reviews. These projects were not blocked by ESA or NEPA compliance, but
by lack of funding.
On developing natural resources and streamlining environmental
reviews:
The National Environmental Policy Act and coordination with
agencies like the U.S. Fish and Wildlife Service disclose the true
environmental and economic costs of projects and allow decisionmakers
and the public to determine whether those projects are deserving of
investment by Federal taxpayers. They produce better, less damaging
projects and have prevented fundamentally ill-conceived projects from
advancing. This has saved hundreds of millions in taxpayer dollars
while protecting wetlands vital to flood protection, migratory
waterfowl, and clean water. In the face of increasing fiscal
challenges, severe storms, floods, droughts, and sea level rise, we
simply cannot afford to undermine these critical safeguards.
Streamlining environmental reviews as seen in bills like the
Transportation bill, Water Resources Development Act and Restoring
Healthy Forest for Healthy Communities Act are deeply concerning. While
the majority of the streamlining is focused on NEPA, it is not limited
to it and could include streamlining of ESA consultations and
biological opinions. Project acceleration could apply to huge water
projects including dams, draining wetlands and estuaries, beach
renourishment, bridges, river and stream channel alterations of all
sizes, harbor construction and maintenance, river and harbor channel
dredging, and other environmentally devastating projects.
Many of the areas where these projects are proposed are home to
endangered and threatened species. Without proper evaluations of
impacts to habitat and species survival, hundreds of species could face
considerable negative impacts over time. Not only could species and
their long term survival be directly undermined by streamlining
provisions, but its wide range and permanent implications could have
overarching impacts to biodiversity as a whole.
Finally, these streamlining provisions would set an extremely
dangerous precedent and open the door to similar streamlining
provisions in other bills that would similarly weaken NEPA, the ESA and
other Federal environmental statutes with respect to other Federal
projects and actions, thereby allowing for more development, and more
habitat impacts. For example, Sen. Murkowski (R-AK) has already
suggested implementing the exact same streamlining language for energy
development projects. This would undermine ESA review for huge energy
related projects including transcontinental pipelines, wind turbines,
coal mining, and major on and off shore oil drilling and exploration
projects. Eventually all development and infrastructure will have
streamlined environmental review.
Environmental reviews are often blamed for delays, however,
according to Michael Replogle of the Institute for Transportation and
Development Policy, only 3 percent of Federal highway projects actually
undergo an environmental impact statement process. He says efforts to
reduce delays should focus on diminishing unnecessary and redundant
bureaucracy and improving cost-effectiveness. The same could be said of
the listing process for threatened and endangered species.
These are just a few examples of the general pattern . . . wherein
the really long delays in completion of Federal development projects,
especially water projects, is not because of the mandated environmental
reviews--which are neither costly nor particularly time-consuming (as
compared with actual construction monies). Rather, and quite often,
delays after those crucially important reviews occur because of a lack
of Federal funding, politics and bureaucracy--not because of the
reviews necessary to protect our lands and waters. We can furnish more
examples of this general pattern if necessary.
______
The Chairman. Thank you very much, Mr. Evans, for your
testimony. And now, for purposes of introduction, I recognize
Mr. Stewart from Utah for purpose of introduction.
Mr. Stewart?
Mr. Stewart. Thank you, Mr. Chairman, and thank you for
letting me visit your committee, once again. It is good to be
among friends who share the same interests as I do. And it is
my pleasure to introduce one of my constituents, and a good
friend, and a great leader, Mr. Carl Albrecht from Garkane
Cooperative Energy.
He has been employed there for more than 40 years. He has
been the CEO for 21 years. And Garkane serves 14,000 customers,
has over 400 miles of transmission lines, 2,200 miles of
distribution lines. They serve six counties in south-central
Utah, and two counties in northern Arizona.
Interestingly, as he will indicate in his testimony, they
also serve four national parks, two national monuments, three
national forests, besides BLM lands, and two Native American
tribes. It is a great example of American innovation and
resourcefulness.
And, Mr. Albrecht, as I have said, I have reviewed your
testimony. As you indicated, is an example of a Keystone Cops
scenario of really bad public policy, policy which makes it
harder for working families, policy which makes it hard to
create jobs, and frankly--and I think worst of all--in some
cases it is policy that destroys the trust between American
people and the Government. And I look forward to your
testimony, sir, and thank you for being with us.
And, Mr. Chairman, I yield back.
The Chairman. I thank the gentleman for the introduction.
And, Mr. Albrecht, you are recognized for 5 minutes.
STATEMENT OF CARL ALBRECHT, CEO AND GENERAL MANAGER, GARKANE
ENERGY, LOA, UTAH
Mr. Albrecht. Thank you, Chairman Hastings, and the
committee, and Congressman Stewart, for the opportunity to
visit with you this morning. My name is Carl Albrecht. I am the
CEO for Garkane Energy, a rural electric co-op serving
customers in south-central Utah and northern Arizona. We will
celebrate our 75th anniversary next year. I believe we have the
distinction of serving more national parks and monuments than
any utility in the Nation. Our power lines enable the National
Park Service to showcase these spectacular areas to people from
throughout the world.
Each day we face the challenge of striving to balance
between environmental desires and economic realities. We take
very seriously the impact on the animals we live and work
around, and believe it is important to protect the wildlife in
our areas. The Endangered Species Act, a well-intended law,
has, through the years, altered rural economies and
communities. I started working at Garkane the year before
Congress passed the ESA, and it seems to have occupied much of
my career, ever since.
Not long ago, Garkane had an incident where we had acquired
the right of way to build a power line, primarily on private
and State lands. We were abruptly ordered to stop construction
when it was determined that 2 acres of Utah prairie dog habitat
were within a 350-foot buffer of the project's right of way.
The habitat was on private land adjacent to a major highway,
and was not mapped by the State Department of Wildlife
Resources. Work was delayed 9 months, until consultants for the
Fish and Wildlife Service, paid for by our customers, could
complete a prairie dog survey. To restart work on the project,
Garkane agreed to pay $20,000 to the National Wildlife Defense
Fund, and hire a biologist to monitor all the work within the
350 feet of the prairie dog habitat.
Last month, as part of the construction of a transmission
line which took 7 years and $2 million to permit, we were
required to fly in by helicopter 7 power poles to locations
that were within yards of an existing public access road. This
happened because the sites were contained in a prairie dog
conservation area. Placing the power line in a prairie dog
conservation area because a sage grouse lek, a potential
strutting ground, was identified along the most economic
alternative route for the line studied in an EIS. The resulting
shift in routes required poles to be set with a helicopter and
meant an additional single day expense for Garkane of over
$150,000.
Realize that while we tiptoe between a sage grouse lek and
a prairie dog conservation area, there are existing roads and
power lines all around us. It simply becomes a real-life
version of the old floor game, Twister. Recognize this all
takes place while private land owners can obtain permits to
kill prairie dogs on their land, and sage grouse are hunted and
killed by sportsmen in Utah.
Recently, the Fish and Wildlife Service identified nearly
150 new species as candidates for the Endangered Species Act.
The entire Nation can expect more and more listings as the Fish
and Wildlife Service works its way through a backlog of
candidates being considered for protection. If folks in your
State have not been hit by the ever-escalating cost of doing
business and dealing with the ESA, just wait. Your phone will
soon be ringing.
Compared to the dollars authorized by Congress here in
Washington, DC, the costs incurred by Garkane to comply with
the ESA regulations would be lost in congressional cafeteria
cash registers. But when those costs end up in the electric
rates for Garkane customers, it becomes real money. The few
customers at Garkane and similarly affected utilities end up
paying all the freight for litigation activities designed to
safeguard various species for protection by the Government
acting on behalf of all the citizens.
Garkane and other co-ops across the Nation believe that in
this 40th year of the act, we must look at some type of reform
to alleviate the ever-escalating burden placed on the backs of
a few. Garkane's locally elected board of directors finds
itself constantly asking why they, along with their friends and
neighbors, are with increasing frequency being asked to pay
more and more to meet ESA regulations, and wondering why, if
the intent is to protect a species on behalf of all the
Americans, the rest of the Nation's citizens don't share in the
cost for protection.
Locally owned electric co-ops across the country continue
to work to keep the electricity flowing to millions of homes at
a price homeowners can afford. Seventy-five years ago, the
Federal Government worked with us to turn the lights on in part
of Utah and Arizona by bringing electricity to their homes.
Garkane's power lines today follow the same general paths they
have taken all these years, yet the Federal Government appears
more inclined to hinder and delay, rather than help and
develop.
I believe it is time we looked back at what it means to
have electricity in our homes, and other things that made this
Nation great, and a more rational approach to the ESA. Thank
you.
[The prepared statement of Mr. Albrecht follows:]
Prepared Statement of Carl Albrecht, CEO, Garkane Energy Cooperative,
Inc., Loa, Utah
Thank you for the opportunity to visit with you this morning. My
name is Carl Albrecht. I'm the CEO for Garkane Energy, a rural electric
cooperative serving customers in south-central Utah and northern
Arizona. Garkane will celebrate its 75th anniversary next year. I
believe we may have the distinction of serving more national parks and
national monuments than any other utility in the Nation. The power
lines that serve these areas have enabled the National Park Service to
showcase to the world these spectacular places. Each day we face the
challenge of striving for balance between environmental desires and
economic realities. We take very seriously the impact on the animals we
live and work around and believe it's important to protect and live in
harmony with the wildlife in our areas.
The Endangered Species Act [ESA], a well-intended law, has through
the years altered rural economies and communities. I started working at
Garkane the year before Congress passed the ESA and it seems to have
occupied much of my career ever since!
Not long ago, Garkane had an incident where we had already acquired
the right of way to build a power line primarily on private property
and State owned lands. A small portion of the line was on Bureau of
Land Management [BLM] property where a National Environmental Policy
Act [NEPA] analysis had been completed. We were abruptly ordered to
stop construction when it was determined that 2 acres of Utah Prairie
Dog [UPD] habitat were within a 350, buffer of the project's right of
way. The habitat was on private land, adjacent to a major U.S. Highway
and was not mapped by the State Department of Wildlife Resources. Work
was delayed for 9 months until consultants for the U.S. Fish and
Wildlife Service [USFWS] (paid for by Garkane customers) could complete
a UPD survey. To restart work on the project, Garkane agreed to pay
$20,000 to the National Wildlife Defense Fund and hire a biologist to
monitor all the work within 350, of the UPD habitat.
Last month as part of the construction of a transmission line,
which took us 7 years and $2 million to permit, we were required to fly
in, by helicopter, 7 power poles to locations that were within yards of
an existing public access road. This happened because the sites were
contained in a Utah Prairie Dog conservation area. Placing the power
line in a Prairie Dog conservation area happened because a sage grouse
``lek'' (a potential strutting ground) was identified along the most
economical alternative route for the transmission line studied in an
Environmental Impact Statement. The resulting shift in routes,
requiring poles to be set with a helicopter, meant an additional single
day expense for Garkane of over $150,000. Realize that while we tip toe
between a Sage Grouse lek and a Prairie Dog Conservation Area, there
are existing access roads and existing power lines all around us. It
simply becomes a real-life version of the old floor game ``Twister.''
And recognize this all takes place while private landowners can obtain
permits to kill prairie dogs on their land and Sage Grouse are hunted
and killed by sportsmen in Utah.
Recently the U.S. Fish and Wildlife Service identified nearly 150
new species as candidates for endangered species act protection. The
Service looks at protecting America's most at-risk wildlife as one of
their highest priorities. The entire Nation can expect more and more
listings as the USFWS works its way through a backlog of candidates
being considered for protection. If folks in your State have not yet
been hit by the ever escalating costs of doing business and dealing
with the ESA, just wait, your phone will soon be ringing. Federal
agencies begin treating some species as threatened before they are ever
listed under the ESA. Such is the case with the Sage Grouse in our
area. Some scientific documents on Sage Grouse released by the
Department of the Interior have raised serious questions about the data
and analysis used in the reports along with concerns over potential
conflicts of interest among peer reviewers of the documents.
Nevertheless, we continue incurring expenses to mitigate impacts based
on the information derived from these reports.
Compared to the dollars authorized by Congress here in Washington,
DC, the costs incurred by Garkane to comply with ESA regulations would
be lost in congressional cafeteria cash registers. But when those costs
end up in electric rates for Garkane customers, it becomes real money.
The few customers at Garkane, and at similarly affected utilities, end
up paying all the freight for mitigation activities designed to
safeguard various species selected for protection by the U.S.
Government acting on behalf of all U.S. citizens.
Garkane and other rural electric cooperatives across the Nation
believe that, in this the 40th year of the act, we must look at some
type of reform to alleviate the ever escalating economic burden being
placed on the backs of the few. Garkane's locally elected board of
directors finds itself constantly asking why they, along with their
friends and neighbors, are with increasing frequency, being asked to
pay more and more to meet ESA obligations and wondering why, if the
intent is to protect a species on behalf of all Americans, the rest of
the Nation's citizens don't share in the costs for protection.
In the rural electric cooperative world we often quote a farmer
giving witness in a rural Tennessee church in the early 1940s when he
said, ``Brothers and sister, I want to tell you this. The greatest
thing on earth is to have the love of God in your heart, and the next
greatest thing is to have electricity in your house.'' Locally owned
Rural Electric Co-ops across the country continue working to keep
electricity flowing to millions of homes--at a price homeowners can
afford.
Seventy-five years ago the Federal Government worked with Garkane
to turn the lights on in rural parts of Utah and improve the lives of
its citizens by bringing electricity to their homes. For the most part,
Garkane's power lines today follow the same general paths they have
taken for all those years, yet now the Federal Government appears more
inclined to hinder and delay rather than help and develop, unless
you're a prairie dog or a sage grouse, or a goshawk, or a pygmy rabbit
. . . the list goes on and on. I believe It's time we look back at what
it means to have electricity in our homes, and other things that make
this Nation great, and return to a sense of reason and a more rational
approach to the Endangered Species Act.
Thank you for the opportunity to testify, I would be pleased to
answer your questions.
______
The Chairman. Thank you very much, Mr. Albrecht, for your
testimony. And last, but certainly not least, I want to welcome
Ms. Megan Maxwell, an independent biologist from Broomfield,
Colorado. Ms. Maxwell, you are recognized for 5 minutes.
STATEMENT OF MEGAN MAXWELL, CONSULTING BIOLOGIST, BROOMFIELD,
COLORADO
Ms. Maxwell. Thank you, Mr. Chairman and members of the
committee. I appreciate the opportunity to share my view with
you. I am a consulting biologist, and I have conducted an in-
depth review of BLM's sage grouse national technical team
report, the NTT Report. As part of my review, I compared the
peer review comments on the draft report to the final report,
to see if the concerns raised during the peer review period had
been addressed. I thank the Chairman for his letter to
Secretary Salazar, which led to partial release of the peer
review comments, and which helped me in my review of the NTT
Report.
I would like to bring to your attention three key issues
with regards to the NTT Report.
First, peer review of the NTT Report and internal emails
between NTT members obtained through a FOIA request by Idaho
Governor Otter's office suggests that the report does not
represent the best available science, but rather, a policy
document that hastily and selectively applied scientific
studies, and consists of invalid assumptions,
mischaracterization and misrepresentation of sources, omission
of existing programs that benefit sage grouse, personal
opinions substituted in place of science, unachievable required
design features and best management practices, and policy
inconsistent with FLPMA and its associated regulations.
The second is with regard to the scale and the one-size-
fits-all approach advanced in the NTT Report. BLM manages 47
million acres of sage grouse habitat, which is located across
11 Western States, and which consists of highly varied
ecological conditions, as well as varied threats to sage grouse
and its habitat. The NTT Report provides habitat
recommendations for sage grouse across its entire range,
including specific habitat prescriptions or goals which would
apply to all sage grouse seasonal habitats.
Although this one-size-fits-all management approach may be
convenient for BLM to administer, it is completely
inappropriate for sage grouse, because of their broad
ecological range, variations in population traits and
characteristics across their range, and the variability and
habitat conditions and threats within the range. These
variations make managing sage grouse and their habitat a
complex task that must consider site-specific conditions and
variables.
Simplifying sage grouse management by creating range-wide
habitat prescriptions or percent disturbance thresholds fails
to target specific sub-regional and population scale factors,
as well as seasonal habitat preferences. The simplistic one-
size-fits-all approach advanced in the NTT Report completely
fails to recognize this variation and complexity, which is a
critical flaw. Consequently, the habitat management
recommendations in the NTT Report will likely fail to protect
sage grouse and sage grouse habitat range-wide, and could even
result in unintended adverse consequences, like increased risk
of catastrophic fire and habitat destruction in areas already
under extreme threat of wildlife.
The third issue is the NTT Report fails to adequately
address the primary threat to sage grouse, range-wide, and the
principal threat in the western portion of its range, which is
the fire and invasive species cycle, and, instead, focuses its
attention on activities that BLM already regulates, without
giving a regard to the degree to which these activities are
present across the entire range. The threat of fire and
invasive species cannot be ignored. It does not make sense to
apply conservation measures which are not specifically designed
to address this primary threat.
If protection of sage grouse and its habitat are going to
be effective, then properly identifying what the threats are,
where they are present, and to what degree they are present
would be the obvious first step. Only then can the most
effective conservation measures be implemented. The failure by
BLM to appropriately identify the threats to each population,
and then apply tailored conservation measures to address the
identified threats, will lead to implementation of ineffective
conservation measures, which will not likely provide Fish and
Wildlife with the data it needs to make a ``not warranted''
finding during the upcoming listing process.
All that said, there is an opportunity to remedy the
problem associated with the NTT Report: (1) Fully and evenly
implement its existing policy manual, 6840, which Fish and
Wildlife identified as having potential to adequately protect
sage grouse in its warranted but precluded determination; (2)
properly identify the threats at a population level, and then
consider the various conservation strategies available; and,
(3) take the opportunity to consider more recent studies, as
well as suggestions made by two other DOI agencies, the USGS
Sage Grouse Baseline Report, and Fish and Wildlife's COT
Report, which emphasized scale-appropriate and threat-specific
conservation measures, and collaboration with stakeholders,
including land users, private parties, and State and local
governments.
A species as complex as the greater sage grouse requires
this level of collaboration, and all interested parties should
have a seat at the table, given the broad implications if
improper management is carried forward.
Thank you.
[The prepared statement of Ms. Maxwell follows:]
Prepared Statement of Megan Maxwell, Consulting Biologist, Broomfield,
Colorado
i. introduction and background:
On March 23, 2010 the United States Fish and Wildlife Service
[USFWS] issued a Warranted but Precluded [WBP] determination for the
Greater sage-grouse (sage-grouse). Loss of habitat and fragmentation
due to wildfire, energy development, urbanization, agriculture, and
infrastructure development were cited as the primary threats to the
species (75 Fed. Reg. 13910 at 13924, 13927-28, 13931). The Bureau of
Land Management [BLM] was identified as having a unique opportunity to
conserve the sage-grouse through its resource management plans [RMPs]
i.e. land use plans, because approximately 52 percent of the sage-
grouse habitat is under the BLM's jurisdiction (75 Fed. Reg. 13910).
Then on September 9, 2011 USFWS entered into a court-approved
settlement agreement with several environmental groups which formalized
a schedule for making listing determinations for 251 candidate species
nationwide, including the sage-grouse. The court-approved schedule
indicates that a decision on whether to list or remove sage-grouse
range-wide is due by September 2015 (USFWS, ``Endangered Species Act
Workplan Fiscal Year 2013 to Fiscal Year 2018--MDL Packages and Other
Court Settlement Agreements,'' at 12) and which seems to be fueling
BLM's response to the WBP determination.
In response to the WBP determination to list sage-grouse as a
candidate species, BLM chartered the Sage-Grouse National Technical
Team [NTT] which was charged with developing policy and management
actions in order to manage sage-grouse conservation and protection
under its jurisdiction. A Report on National Greater Sage-Grouse
Conservation Measures (NTT Report) was subsequently published on
December 21, 2011. Then 6 days later, on December 27, 2011 the
Department of the Interior [DOI] issued Instruction Memorandum [IM]
2012-044 to provide direction to BLM for considering sage-grouse
conservation measures, identified in the NTT Report, during the land
use planning/National Environmental Policy Act [NEPA] process which was
already underway in accordance with the 2011 National Greater Sage-
Grouse Planning Strategy. IM 2012-044 directs BLM to ``consider all
applicable conservation measures when revising or amending its RMPs in
Greater Sage Grouse habitat. The conservation measures developed by the
NTT . . . must be considered and analyzed, as appropriate . . . and
incorporated into at least one alternative in the land use planning
process.'' IM 2012-044 also provides for adjustments to the
conservation measures in order to take into account local conditions
(Department of the Interior, Instruction Memorandum 2012-044 ``BLM
National Greater Sage-Grouse Land Use Planning Strategy.'' December 27,
2011).
On November 20, 2012 in the U.S. District Court of Idaho in a
hearing on remedies following a decision made on summary judgment in
Western Watershed Project v. Salazar, No. 4:08-CV-516-BLW, U.S.
District Court of Idaho, 2011, docket no. 131 (hereafter WWP v.
Salazar), the court found during a 3 day evidentiary hearing that BLM's
NTT Report represented the ``best available science.'' Then on March
11, 2013 BLM's Assistant Director Edwin Roberson entered a declaration
in the U.S. District Court of Idaho indicating that the conservation
measures recommended in the NTT Report are being incorporated into 79
RMPs, across 10 States (Western Watershed Project v. Salazar, 2013,
Roberson declaration). Because this declaration was made while the NEPA
process was (and still is) underway to evaluate the impacts associated
with implementing the conservation measures in the NTT Report on
millions of acres of the public domain, and uses ranging from
recreation, to grazing, to mineral and energy development, this
declaration was pre-decisional and therefore contrary to the act and
its implementing regulations at 40 CFR Sec. Sec. 1502.2(f), 1500.1(b).
ii. the ntt report
The NTT Report provides habitat management recommendations for
sage-grouse priority habitat across its entire range, including
prescriptive restrictions on access and use of lands within priority
habitat including:
Three percent limit on surface disturbance;
A 50-70 percent sagebrush cover threshold;
No surface occupancy [NSO];
One disturbance per section (640 acres);
Right-of-Way [ROW] exclusion and avoidance areas;
Mineral withdrawals.
BLM maintains the NTT conservation measures are required to respond
to the WBP determination and describes BLM's interpretation of USFWS'
finding in the WBP determination that BLM lacks adequate regulatory
tools to conserve sage-grouse, and therefore new regulatory mechanisms
must be developed. However, throughout the WBP determination USFWS
repeats over and over its inability to assess BLM's then existing
regulatory mechanisms because of how the information was reported to
them, and because of the uneven application and implementation across
BLM offices:
``. . . the BLM data call reported information at a different
scale than was used for their landscape mapping. Therefore, we
lack the information necessary to assess how this regulatory
mechanism effects sage-grouse conservation . . .'' (Id. at
13976).
USFWS also identified BLM's 2008 Manual 6840: Special Status
Species Management as potentially having adequate regulatory
protections for the sage-grouse:
``As a designated sensitive species under BLM Manual 6840,
sage-grouse conservation must be addressed in the development
and implementation of RMPs on BLM lands . . . if an RMP
contains specific direction regarding sage-grouse habitat,
conservation, or management, it represents a regulatory
mechanism that has potential to ensure that the species and its
habitats are protected . . . during decisionmaking on BLM lands
. . . However, the information provided to us by BLM did not
specify what requirements, direction, measures, or guidance has
been included in the newly revised RMPs to address threats to
sage-grouse and sagebrush habitat. Therefore, we cannot assess
their value or rely on them as regulatory mechanisms for the
conservation of sage-grouse . . . Although RMPs, AMPs, and the
permit renewal process provide an adequate regulatory
framework, whether or not these regulatory mechanisms are being
implemented in a manner that conserves sage-grouse is unclear''
(75 Fed. Reg. 13910 at 13975-77, emphasis added).
USFWS goes on to discuss how it is unable to assess fire management
and invasive species management, again, because of the uneven
application and implementation across BLM offices (See Id. at 13977).
It seems clear from the above-cited sections of the USFWS' WBP
determination that the agency was seeking evidence that the then
current regulatory mechanisms would be implemented and documentation of
the effectiveness of those mechanisms. USFWS did not say BLM's
regulatory mechanisms were inadequate; nor did the agency demand that
BLM develop new regulatory mechanisms. Rather the ``Factor D-inadequate
regulatory mechanisms'' finding was made because of incomplete data
given to the agency during the listing process.
The primary objective of the NTT Report is ``to protect sage-grouse
habitats from anthropogenic disturbances that will reduce distribution
or abundance of sage-grouse'' (NTT Report at 7). However this objective
inappropriately assumes that anthropogenic disturbances are the primary
threat to sage-grouse range-wide, are universally negative-regardless
of whether impact minimization and mitigation practices are utilized,
and that sage-grouse will respond positively to a decrease in
anthropogenic disturbances, without providing data to support the
assumption. Most importantly, the NTT Report fails to adequately
address the fire and invasive species cycle--one of the main threats to
sage-grouse habitat range-wide (75 Fed. Reg. 13910 at 13931-4) and the
principal threat in the western part of the range.
iii. review of the ntt report
Peer-review of the NTT Report conducted prior to its issuance
suggests that it does not in fact represent the ``Best Available
Science'' and instead consists of (NTT Peer Review Comments attached
herewith):
Invalid assumptions;
Mischaracterization and misrepresentation of sources;
Omission of existing programs that benefit sage-grouse;
Personal opinion substituted in place of science;
Unachievable required design features/best management
practices; and
Policy inconsistent with Federal Land Policy and Management
Act of 1976 (FLPMA, 43 U.S.C. 1701 et. seq.) and associated
regulations.
The NTT Report also relies on studies which have been criticized
for significant mischaracterization of previous research; substantial
errors and omissions; lack of independent authorship and peer review;
methodological bias; a lack of reproducibility; invalid assumptions and
analysis; and inadequate data, leading to considerable flaws in the
recommendations contained in the NTT Report (Maxwell 2013, hereafter
Maxwell and attached herewith).
Other deficiencies present in the NTT Report and associated studies
are the lack of independent authorship, methodological issues, and
misleading use of citations. For example, three of the authors of the
NTT Report are also the authors, researchers, and editors of three of
the most cited sources in the NTT Report. This reliance on a select and
limited group of authors is highly questionable because it does not
ensure objectivity or consider multiple scientific observations and
conclusions, a critical component of the scientific analysis and peer-
review process.
Other data quality issues range from failure to identify limiting
factors, inadequate sampling, and use of inferior equipment. The
significance of these deficiencies is described in detail in R.R.
Ramey, Review of Data Quality Issues in A Report on National Greater
Sage-Grouse Conservation Measures Produced by the BLM Sage-Grouse
National Technical Team [NTT], Dated December 21, 2011. Unpublished
Report, September 19, 2013, hereafter Ramey 2013.
All of the above mentioned issues call into question the validity
of the NTT Report as a whole. Without sound science, and sound
application of the science the NTT Report is effectively a species-
centric advocacy document. Of particular concern is the ``one-size-
fits-all'' application of the conservation measures which is not the
best approach to sage-grouse conservation and may overlook important
opportunities to protect and enhance sage-grouse habitat. As described
below, particular attention and criticism needs to focus on scale,
habitat characterization, disturbance thresholds, and lack of
independent peer review.
a. Scale
The NTT Report proposes conservation measures and goals that are
range-wide in scale, including 70 percent canopy cover, 3 percent
disturbance cap, and 15-25 percent canopy cover in all sage-grouse
habitats. Recommending a ``one-size-fits-all approach'' is not
optimal--if not completely inappropriate and counter-productive at a
range-wide scale, because the distribution of sage-grouse populations
is vast, encompassing different ecological zones in which there are
different kinds of risks to the sage-grouse and its habitat, which must
be managed differently. Additionally, sage-grouse behavior indicates
sagebrush cover preference differs between seasons, and thus using a
single percent cover is inappropriate. As one peer reviewer of the NTT
Report states:
``. . . if this document is to be effective in defining
conservation measures on a range-wide basis, it must take into
account the considerable large-scale variation in plant
community ecology present within the range of the sage-grouse.
Otherwise we are faced with species-centric generalizations of
the effects of ecological processes that may or may not
represent the ecological reality'' (NTT Peer Review Comments at
4).
The concern related to scale and ``one-size-fits-all'' management
contained in the NTT Report was expressed in a letter dated May 16,
2013 to Secretary Jewell from the Western Association of Fish and
Wildlife Agencies [WAFWA]:
``. . . Simply put, we believe it would represent a setback to
sage-grouse conservation . . . Applying a ``one-size-fits-all''
approach focusing solely on the NTT report is not appropriate for
management of the variations that occur across the sage-grouse range .
. . Our concern is that using the NTT, in vacuum, would undermine sage-
grouse conservation range-wide.''
In an effort to help inform management and conservation strategies
so that they are consistent within ecological regions rather than State
boundaries, WAFWA delineated seven Management Zones [MZs] based on
ecological and geographical similarities (See USGS Report at 10);
however the NTT did not recommend use of MZs as an appropriate scale in
the NTT Report. The reason why ``one-size-fits-all'' management is
inappropriate for sage-grouse is because of their broad ecological
range, variations in population traits and characteristics across their
range, and the variability in habitat conditions and threats within
this range. These variations make managing sage-grouse a complex task
that must consider site-specific conditions and variables. Simplifying
sage-grouse management by creating range-wide habitat prescriptions or
percent thresholds fails to target the specific sub-regional and
population scale factors which are important because the various
sagebrush biomes which support sage-grouse vary, and sage-grouse have
varying seasonal habitat requirements within those biomes. For example
dense cover and low-growing types of sagebrush might be preferred
during nesting, but significantly less dense sagebrush cover and
abundance in forbs and grasses might be preferred for late brood-
rearing. Additionally, it is important to consider that sagebrush may
not be as densely distributed in drier regions than wetter regions as a
result of natural processes. The ``one-size-fits-all'' approach
advanced in the NTT Report completely fails to recognize this variation
and complexity which is a critical flaw (See the attached map to
provide context for the large area that would be subject to the NTT
Report).
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
b. Habitat Requirements/Thresholds
To achieve its primary objective the NTT sets forth sub-objectives
in the NTT Report. Two of the four sub-objectives assert that a minimum
range of 50-70 percent of the acreage in sagebrush cover is required
for long-term persistence of sage-grouse, and that discrete
anthropogenic disturbances in priority habitat must be limited to less
than 3 percent of the total sage-grouse habitat regardless of ownership
(NTT Report at 6-7). These objectives are not supported by the
literature. Limiting disturbance to less than 3 percent of the total
habitat is arbitrary. The NTT fails in its Report to show how the
``one-size-fits-all'' goal of 50-70 percent sagebrush cover in priority
habitat and the 3 percent disturbance cap are necessary, reasonable,
achievable, would actually benefit sage-grouse, and not result in
unintended adverse consequences to sage-grouse or other species.
Additionally, two of the most frequently used sources with respect
to vegetative habitat requirements, provide that ``adequate''
vegetative cover for sage-grouse, ranges from 15 percent to 25 percent
sagebrush cover, greater than 10 percent forbs, greater than 10 percent
grass canopy, and even smaller percentages depending on the season or
ecological location (Connelly et. al. 2000, and Hagen et. al. 2007).
These studies do not include data that support the NTT's conclusion
that 50-70 percent sagebrush canopy is required by sage-grouse range-
wide or within all seasonal habitats in order to persist.
In addition, the 70 percent canopy cover goal disregards the
importance of healthy understories required for sage-grouse to survive
and rear broods, and fails to consider the fact that not all sagebrush
habitats are suitable; without healthy understories a sagebrush
dominated landscape may in fact be unsuitable to support sage-grouse.
This is a significant omission that must be addressed in order for the
conservation measures to be scientifically sound. As the NTT Report
stands now, omitting discussion of understory health will result in
unintended, adverse consequences to sage-grouse and the sagebrush
ecosystem, including increased risk of fire (See Maxwell at 5-6).
In addition to the potential for increased fire resulting from
inadequate management of understory vegetation, there is substantial
scientific authority showing the importance of understory to sage-
grouse. Grass height and cover are important for adequate nesting
habitat. Early brood-rearing habitats are best when they contain
abundant forbs and insects for foraging, with a 14 percent sagebrush
canopy cover (Connelly et. al. 2000).
In a report published by the United States Geological Survey [USGS]
at the request of the BLM, and in response to the WBP determination,
USGS indicates that habitat fragmentation ``generally begins to have
significant effects on wildlife when suitable habitat becomes less than
30 to 50 percent of the landscape'' (Manier et al 2013 at 26, hereafter
USGS Report). The corollary is that non-suitable habitat, does not have
a significant effect on wildlife until it reaches 50-70 percent of the
landscape, which directly contradicts the NTT Report's 70 percent cover
threshold.
The USGS Report further calls into question the sagebrush cover
objective in the NTT Report with this statement:
``The natural variation in vegetation, the dynamic nature of
sagebrush habitats, and the variation in the habitats selected
by sage-grouse across a landscape imply that characterizing
habitats using a single value or narrow range of values, for
example, 15- to 25-percent sagebrush-canopy cover in breeding
habitat (Citation omitted), is insufficient to describe sage-
grouse habitat requirements. The differing seasonal habitat
requirements of sage-grouse dictate that multiple vegetation
attributes, across the landscape and in particular sites, are
important, reinforcing emphasis that combinations of shrub
overstory and herbaceous understory, which are both important
as habitat components during different seasons, are important
in combination and across scales'' (USGS Report at 24, internal
citation omitted).
The 3 percent disturbance cap is not supported by the data either,
and instead represents the authors' opinions in the cited studies.
Outside review of the studies indicate that three of the sources cited
in favor of a 3 percent disturbance cap (Johnson et al. 2011; Naugle et
al. 2011a, b; and Walker et al. 2007), only represented partial review
of the available literature while omitting important factors and other
studies, and utilized weak and/or flawed study parameters (See Ramey
2013).
Interestingly, the scientific validity of the 70 percent cover goal
and 3 percent disturbance threshold were called into question by
Department of the Interior [DOI] employees during the preparation of
the NTT Report, yet the team chose to recommend the arbitrary
thresholds anyway (italics used for emphasis):
``. . . Science says 30-50 percent in non-sagebrush cover is OK
(see quote below [underlined]), but the NTT Report says 3
percent in anthropogenic features is the NTT recommended
maximum . . . Am I missing something, is it worded poorly, or
is this a misapplication of professional judgment and science .
. . The report now makes this scientifically based assertion:
Within priority habitat, a minimum range of 50-70 percent of
the acreage in sagebrush cover is required for long-term sage-
grouse persistence (Aldridge et al. 2008, Doherty et al. 2010,
Wisdom et al. 2011). That leaves an allowance of 30-50 percent
in non-sage-brush cover. So how was the 3 percent maximum cap
on surface anthropogenic features derived based on
``professional judgment''? (See footnote) 3 percent is a long
way from 30-50 percent? . . .'' (Email correspondence from Jim
Perry to Raul Morales and Dwight Fielder, December 22, 2011.
Information was obtained from a FOIA response by Department of
the Interior, Bureau of Land Management, and Office of the
Solicitor to a request by Idaho Governor Otter's office,
hereafter FOIA Response).
Mr. Perry goes on to state through email correspondence ``The NTT
bullet points above (regarding 3 percent anthropogenic disturbance
caps) need to be removed from the report as it conflicts with science''
(FOIA Response, December 22, 2011).
The USGS Report further challenges the NTT Report's broad assertion
that disturbance negatively impacts sage-grouse and sagebrush habitats
in all instances, and instead acknowledges that:
``[t]hough the presence and distribution of suitable sagebrush
habitats is limited at landscape scales, precluding the need
for disturbances to intact sagebrush communities . . .
maintenance of healthy sagebrush communities includes some
localized disturbance in many regions'' (USGS Report at 79,
internal citation omitted).
The NTT Report recommends several ``one-size-fits-all'' regulatory
prescriptions (i.e. 4 mile buffers, 3 percent disturbance threshold,
and Best Management Practices), and makes no allowance for
recommendations to include local level sage-grouse conservation plans
which are tailored to local conditions, including unique habitat and
threats, and socio-economic conditions. Local conditions and local
efforts are factors which should be considered when designing a
conservation strategy to better ensure effectiveness. For example,
requiring surface use restrictions in an area where fire and invasive
species are the primary threats may not benefit sage-grouse as much as
fire suppression and invasive species eradication mechanisms.
c. Failure To Incorporate or Recognize Current Regulatory and
Conservation Measures
The lack of discussion related to current State and local level
sage-grouse plans, and other conservation efforts that are protective
in nature represents a departure from the notion that States are the
experts in managing and regulating wildlife within their boundaries. An
example of the NTT's failure to consider existing conservation and
regulatory efforts is demonstrated by the omission of the State of
Wyoming's EO 2008-2 in the NTT Report. The WBP determination recognized
this EO for providing ``substantial regulatory protection for sage-
grouse in previously undeveloped areas on Wyoming State lands'' (75
Fed. Reg. 13910 at 13974). These protections would also apply to energy
development and permitting on all lands located within the State;
however they were not mentioned anywhere in the NTT Report. One of the
NTT's main conservation strategies is to prevent future energy
development in priority habitat (NTT Report at 21). For this reason,
the NTT's failure to consider current protections that are recognized
in the WBP decision to ``ameliorate threats'' to sage-grouse (from new
energy development) once fully implemented, is inappropriate.
Significant literature exists regarding the importance of voluntary
conservation measures by private citizens and industries, and other
voluntary incentive based programs with respect to the recovery of ESA
species, yet the NTT seems ardent in continuing ``command and control''
management, which has largely failed, as evidenced by the few species
that have been de-listed (See, Ramey 2013; USGS Report).
On the other hand, USFWS in its March 2013 report titled Greater
Sage-grouse (Centrocercus urophasianus) Conservation Objectives: Final
Report (hereafter COT Report) recommends that State conservation plans/
strategies be deferred to when they are effective, and that proactive
measures be taken by Federal agencies to initiate voluntary incentive
based programs (COT Report at 33-36).
The NTT Report provides no discussion of current regulatory
mechanisms available to BLM including the considerable provisions
contained in Manual 6840: BLM's Special Status Species Management and
the unnecessary and undue degradation provisions under Sec. 302(b) of
FLPMA and associated regulations.
The NTT Report fails to explain or analyze how existing
conservation measures put in place pursuant to Manual 6840, FLPMA
Sec. 302(b) are either adequate or inadequate to conserve sage-grouse,
nor does it explain the need for an entirely new regulatory approach.
If the inadequacies are a result of failure or uneven implementation of
conservation measures, the NTT inappropriately discards an existing
agency policy and on-the-ground efforts (assuming BLM followed its own
policy) without ever justifying the changes advanced in the NTT Report.
Further, if BLM failed to implement conservation efforts pursuant to
Manual 6840 or other regulatory mechanisms, it could be considered
``agency action unreasonably delayed,'' and BLM should be compelled to
implement its own policy (WWP v. Salazar, ``the Court found that the
Craters EIS violated NEPA and FLPMA by failing to adequately address .
. . BLM's own Special Status Species Policy . . .'' at 2).
In addition, the NTT Report's conservation measures are
inappropriate because both the USFWS and USGS have published new data
and recommendations, which post-date and in some cases conflict with
the recommendations in the NTT Report.
d. Legal Issues
The NTT Report is fraught with substantial legal and scientific
flaws, which again, were recognized by DOI employees and discussed in
internal emails questioning the legality of some of the conservation
measures recommended in the NTT Report:
``. . . But, does the NTT really want to recommend something
that is blatantly illegal?'' (FOIA Response, email
correspondence from Dwight Fielder, December 21, 2011)
Peer Review of the NTT Report also recognized misrepresentation of
sources:
``This seems a strange blend of policy loosely backed by
citations, with no analysis of the science.'' (NTT Peer Review
Comments at 2)
Regrettably, DOI decisionmakers did not heed warnings like this
from DOI staff and peer reviewers and proceeded with publishing the NTT
Report knowing that there were significant internal concerns about the
report.
The NTT Report creates policies that assume that sage-grouse
conservation is the highest and best use of the land (See NTT Report at
6-7), while subordinating other interests, without adequate analysis of
the economic impacts these policies will have on communities, small
businesses, and industry, and ultimately creates a species-centric
policy on BLM lands, which is contrary to the multiple use and
sustained yield provisions under FLPMA (43 U.S.C. Sec. 1712(c)). DOI
employees who were involved with developing the NTT Report recognized
some of these flaws in internal emails between them:
``. . . Overall, the NTT Report conservation measures (planning
prescriptions) are complete game-changers for any actions
within the Priority Habitats where there are valid existing
rights and showstoppers for those actions where there are no
valid existing rights . . .'' (FOIA Response, email
correspondence from Jim Perry, December 20, 2011).
1. FLPMA
In enacting FLPMA in 1976, Congress directed the Secretary of the
Interior to consider a broad range of resource issues, land
characteristics, and public needs and values in determining how public
lands should be managed. FLPMA directs BLM to manage public lands for
multiple uses and to consider a wide range of resource values including
the need to protect wildlife and quality of the environment. Section
102(a)(8) requires BLM to manage the public lands in a ``manner that
will protect the quality of scientific, scenic, historical, ecological,
environmental . . . values'' (U.S.C. 1701(a)(8), emphasis added), while
section 102(a)(7) establishes multiple use and sustained yield land
management directives and requires the Secretary to develop'' . . .
goals and objectives (that are) established by law as guidelines for
public land use planning, and that management be on the basis of
multiple use and sustained yield unless otherwise specified by law''
(U.S.C. 1701(a)(7)). In defining the term ``multiple use'' FLPMA
section 103(c) directs the Secretary to ensure:
``. . . the management of the public lands and their various
resource values so that they are utilized in the combination
that will best meet the present and future needs of the
American people; making the most judicious use of the land for
some or all of these resources . . . to conform to changing
needs and conditions; the use of some land for less than all of
the resources; a combination of balanced and diverse resource
uses that takes into account the long-term needs of future
generations for renewable and nonrenewable resources,
including, but not limited to, recreation, range, timber,
minerals, watershed, wildlife and fish, and natural scenic,
scientific and historical values.'' (43 U.S.C. Sec. 1702(c)).
Therefore, under the multiple use and sustained yield requirements,
BLM must strike an appropriate balance between potentially competing
interests while considering the needs for all species, and land
management objectives. This balance is to be achieved in the section
102 land use planning process and the resulting RMPs. FLPMA does not
authorize the subordination of any of these uses in preference for a
single land use such as sage-grouse habitat conservation. Thus applying
an emphasis on one resource, sage-grouse, across 47 million acres of
sage-grouse habitat is not consistent with FLPMA; BLM must consider how
the sage-grouse centric management contained in the NTT Report is
appropriate in the context of other special status species, especially
the habitat prescriptions and, fire and invasive species management.
IM 2012-044, the implementing mechanism for the NTT Report, asserts
that:
``When considering the conservation measures in (the NTT
Report) through the land use planning process, BLM offices
should ensure that implementation of any of the measures is
consistent with applicable statute and regulation. Where
inconsistencies arise, BLM offices should consider the
conservation measure(s) to the fullest extent consistent with
such statute and regulation'' (emphasis added).
The ``one-size fits-all'' habitat prescriptions is not consistent
with FLPMA's specific directive pertaining to protecting quality of
environmental and ecological values described above because it assumes
what is good for northeastern Montana is good for western Nevada,
despite their ecological differences.
1. NEPA
The principle of informed decisionmaking is the primary purpose of
NEPA, and is intended to be used as a tool during the planning and
decisionmaking process. As such, an EIS should not be used to justify
decisions that have already been made and ``[a]gencies shall not commit
resources prejudicing selection of alternatives before making a final
decision'' (40 CFR Sec. Sec. 1502.2(f), emphasis added). Nevertheless,
BLM has already decided to incorporate the NTT conservation measures
into 79 of its RMPs prior to issuance of the Final EIS documents (See
WWP v. Salazar, Roberson Decl.). BLM's failure to include consideration
and detailed analysis of conservation measures other than those in the
NTT Report represents a pre-determined decision by BLM to implement the
NTT conservation measures without giving proper and detailed analysis
to alternative conservation measures or policy including the specific
directives contained in Manual 6840, which seems odd in light of the
decision made in WWP v. Salazar where the Court found that BLM violated
NEPA and FLPMA by disregarding existing BLM policy.
iv. conclusion
The technical and policy flaws contained in the NTT Report are
considerable and must be addressed before it is fully implemented as
the ``one-size-fits-all'' approach will produce misguided land
management policies that will not benefit sage-grouse range-wide. Such
policies will not provide the best approach to sage-grouse habitat
conservation and enhancement because sage-grouse conservation measures
must be custom-tailored to reflect site-specific conditions. In some
situations--especially in the case of the invasive species, fuel and
fire-management, the NTT Report does not adequately address the primary
threat to sage-grouse habitat in the western part of the range (e.g.,
the invasive species--wildfire cycle), which is currently an under-
managed problem on public lands. The failure to address this problem in
the NTT Report could result in ecologically devastating consequences,
while broad application could conflict with FLPMA and other laws.
Attachments
NTT Peer Review Comments.
Maxwell, M. BLM's NTT Report: Is It the Best Available Science or a
Tool to Support a Pre-Determined Outcome?, Northwest Mining Association
(2013).
BLM Planning Units and Sage-Grouse Occurrence Map.
Works Cited
42 U.S.C. Sec. 4321 et. seq. National Environmental Policy Act.
43 U.S.C. 1712(c) Federal Land Management Policy Act
75 FR 13910. 2010. Endangered and Threatened Wildlife and Plants:
12-month Finding for Petitions to List the Greater Sage-Grouse as
Threatened or Endangered.
Connelly, J. W., Schroeder, M., Sands, A., & Braun, C. (2000).
Guidelines to Manage Sage-grouse Populations and Their Habitats.
Wildlife Society Bulletin 28:967-985.
Hagen, C., Connelly, J., & Schroeder, M. (2007). A Meta-Analysis
for Greater Sage-Grouse Nesting and Brood Rearing Habitats. Wildlife
Biology 13 (Supplement 1), 42-50.
Manier, D.J., Wood, D.J.A., Bowen, Z.H., Donovan, R.M., Holloran,
M.J., Juliusson, L.M., Mayne, K.S., Oyler-McCance, S.J., Quamen, F.R.,
Saher, D.J., and Titolo, A.J., 2013, Summary of science, activities,
programs, and policies that influence the rangewide conservation of
Greater Sage-Grouse (Centrocercus urophasianus): U.S. Geological Survey
Open-File Report 2013-1098, 170 p., http://pubs.usgs.gov/of/2013/1098/.
Maxwell, M. BLM's NTT Report: Is It the Best Available Science or a
Tool to Support a Pre-Determined Outcome?, Northwest Mining Association
(2013).
Ramey II, R. R. Review of Data Quality Issues in A Report on
National Greater Sage-Grouse Conservation Measures Produced by the BLM
Sage-Grouse National Technical Team (NTT), Dated December 21, 2011,
Unpublished Report, September 2013.
U.S. Department of the Interior. A Report on National Greater Sage-
Grouse. Sage-Grouse National Technical Team. December 2011.
U.S. Department of the Interior, Instruction Memorandum 2012-044
``BLM National Greater Sage-Grouse Land Use Planning Strategy.''
December 27, 2011; Available at: http://www.blm.gov/wo/st/en/info/
regulations/Instruction_Memos_
and_Bulletins/national_instruction/2012/IM_2012-044.html.
U.S. Fish and Wildlife Service, ``Endangered Species Act Workplan
Fiscal Year 2013 to Fiscal Year 2018--MDL Packages and Other Court
Settlement Agreements,'' 12; available at http://www.fws.gov/
endangered/improving_ESA/FY13-18_ESA_Listing_workplan.pdf.
U.S. Fish and Wildlife Service, Greater Sage-grouse (Centrocercus
urophasianus) Conservation Objectives: Final Report. U.S. Fish and
Wildlife Service, Denver, CO. February 2013; available at http://
www.fws.gov/mountain-prairie/species/birds/sagegrouse/COT/COT-Report-
with-Dear-Interested-Reader-Letter.pdf.
______
BLM's NTT Report: Is It the Best Available Science or a Tool to Support
a Pre-determined Outcome?
__________
(Megan Maxwell)
5/20/2013
THIS DOCUMENT WAS PREPARED FOR USE BY THE NORTHWEST MINING ASSOCIATION.
NOTHING IN THIS REPORT SHOULD BE CONSTRUED AS LEGAL
ADVICE.
QUESTIONS OR COMMENTS REGARDING THIS DOCUMENT SHOULD BE DIRECTED TO:
MEGAN MAXWELL
Table of Contents
Executive Summary................................................ 45
Introduction..................................................... 46
A. Peer Review Comments.......................................... 46
1. Habitat Requirements/Threshold Values..................... 47
2. Scale..................................................... 47
a. Inadequacies of the Science........................... 48
3. Failure to Incorporate or Recognize Current Regulatory and
Conservation Measures...................................... 50
a. Existing Regulatory Measures.......................... 50
1) BLM Manual 6840................................... 50
2) 2004 National Sage-Grouse Habitat Conservation
Strategy........................................... 52
b. PECE Considerations................................... 52
1) Arbitrary and Capricious Standard of Review....... 54
c. NEPA Considerations................................... 54
B. Technical Errors.............................................. 55
1. Source Mischaracterization................................ 55
C. Conclusions and Recommendations............................... 56
Works Cited
Appendix A: NTT Peer Review Comments
Appendix B: Manual 6840
Appendix C: 2004 Guidance
Appendix D: Author
______
executive summary
On March 23, 2010 the United States Fish and Wildlife Service
[USFWS] issued a Warranted But Precluded (WPB) determination for the
Greater sage-grouse, and gave the bird a Listing Priority Number [LPN]
of 8, where 1 represents species with the most dire need for listing
and 12 representing species with substantially less priority. Loss of
habitat and fragmentation due to wildfire, energy development,
urbanization, agriculture, and infrastructure development were cited as
the primary threats to the species (75 Fed. Reg. 13910). The annual
Candidate Notice of Review, allows the USFWS to change the LPN of
candidate species in response to varying circumstances. The 2012
Candidate Notice of Review maintained a LPN of 8 for the Greater sage-
grouse (77 Fed. Reg. 69994, Nov. 21, 2012 @ 70015).
The 2010 listing determination identifies the habitat management
and species conservation measures in the Bureau of Land Management's
[BLM's] 2008 Manual 6840: Special Status Species Management as
potentially having adequate regulatory protections for the Greater
sage-grouse:
``If an RMP contains specific direction regarding sage-grouse
habitat, conservation, or management, it represents a
regulatory mechanism that has potential to ensure that the
species and its habitats are protected . . . during
decisionmaking on BLM lands'' (75 Fed. Reg. 13910 at 13976,
emphasis added).
Manual 6840 if implemented properly into Resource Management Plans
[RMPs] and if the results of the conservation measures were adequately
documented, would constitute an adequate regulatory mechanism,
satisfying the provisions under the Endangered Species Act [ESA].
Further, RMPs that include conservation measures pursuant Manual 6840,
and that provide for proper implementation and monitoring of the
conservation measures, as well as adaptive management protocols to
adjust for conservation measures that are not meeting the desired on-
the-ground effect, could and should be subject to the Policy for the
Evaluation of Conservation Efforts [PECE]. However, USFWS apparently
could not consider these measures during the listing process, including
the WBP determination for the Greater sage-grouse, due to a lack of
certainty of how the conservation efforts would be implemented into
RMPs (See Generally, 75 Fed. Reg. 13910):
``. . . However, the information provided to us by BLM did not
specify what requirements, direction, measures, or guidance has
been included in the newly revised RMP's to address threats to
sage-grouse and sagebrush habitat. Therefore, we cannot assess
their value or rely on them as regulatory mechanisms for the
conservation of sage-grouse . . .'' (75 Fed. Reg. 13910 at
13976).
In response to the WBP determination to list Greater sage-grouse as
a candidate species, BLM published, A Report on National Greater Sage-
Grouse Conservation Measures [NTT] and started the National
Environmental Policy Act process to amend numerous RMP's throughout 11
Western States to evaluate the impacts associated with implementing the
conservation measures recommended in the NTT. BLM maintains the NTT
conservation measures are required to respond to the WBP determination
and describes USFWS' finding in the WBP determination that BLM lacks
adequate regulatory tools to conserve Greater sage-grouse. The NTT does
not use Manual 6840 or ESA as a foundation upon which to build. In
fact, it never even references Manual 6840 or the ESA, nor does it
explain the need for an entirely new regulatory approach. As such, it
inappropriately discards an existing agency policy without ever
justifying the radical change advanced in the NTT, and is thus
arbitrary and capricious.
Prior to USFWS' determination that the Greater sage-grouse
warranted listing as a candidate species, and prior to BLM's issuance
in 2008 of Manual 6840, the BLM had issued a 2004 guidance document
that specifically addressed the management of sagebrush habitats, and
how to integrate conservation measures that would be consistent with
its management mandate under the Federal Land Policy Management Act and
the National Environmental Policy Act. A reasonable response to the WBP
determination by BLM would have been to simply implement Manual 6840
and the 2004 guidance, and then provide the USFWS with evidence of
their implementation and effectiveness pursuant to PECE. Instead, BLM
responded with the NTT. The NTT does not appear to be based on
reasonable consideration of the regulatory tools BLM already has, like
Manual 6840, multiple authorities to require project-specific wildlife
protection and habitat enhancement measures, and private-on-the-ground
conservation efforts.
The NEPA process requires an agency to rigorously explore and
objectively evaluate all reasonable alternatives so that decisionmakers
and the public are fully informed and is intended to be used as a tool
during the planning and decisionmaking process (40 CFR
Sec. Sec. 1502.14(a), 1502.14(b), (d)). Substantial case law exists
regarding the range of alternatives that need to be included in an
Environmental Impact Statement [EIS], and ``[t]he existence of a viable
but unexamined alternative renders an environmental impact statement
inadequate (Resources Ltd. v. Robertson, 35 F.3d 1300, 1307 (9th Cir.
1993)). To that end, failing to include full implementation of Manual
6840 and the 2004 Guidance as an alternative in the Draft EIS documents
is arbitrary and capricious, and the Draft EIS documents should not be
published for public review until full analysis of this alternative is
included. Further, an EIS should not be used to justify decisions that
have already been made and ``[a]gencies shall not commit resources
prejudicing selection of alternatives before making a final decision''
(40 CFR Sec. Sec. 1502.2(f), 1500.1(b)) (emphasis added). Nevertheless,
BLM has already decided to incorporate the NTT conservation measures
into 79 of its RMP's prior to issuance of the FEIS and is in direct
violation of NEPA (Western Watershed Project v. Salazar, No. 4:08-CV-
516-BLW, U.S. District Court of Idaho, 2013, decl.).
During the peer-review period for the NTT multiple peer reviewers
criticized the applicability of the NTT due to misapplication of the
science and omission of existing Federal and State regulatory programs
that could be used to conserve sage-grouse and its habitat. As a result
the NTT would not likely withstand scrutiny under PECE.
Additional research shows inadequacies in the science itself.
Limited analysis of the science used in creating the NTT, as well as
the science used in the WBP determination has shown that there has
been:
Significant mischaracterization of past research;
Methodological bias;
Substantial errors and omissions;
Lack of independent authorship and peer review; and
Substantial technical errors.
These issues call into question whether the ``Best Available
Science'' was in fact used to establish the conservation measures in
the NTT, and the validity of the NTT as a whole. To that end, flawed
science will lead to flawed species-centric policy, like that in the
NTT.
introduction
On March 23, 2010 the U.S. Fish and Wildlife Service [USFWS] issued
a Warranted but Precluded [WBP] determination for the Greater sage-
grouse (sage-grouse) after repeated and successful litigious activities
regarding the status of the species. Loss of habitat and fragmentation
due to wildfire, energy development, urbanization, agriculture, and
infrastructure development were cited as the primary threats to the
species (75 Fed. Reg. 13910 at 13924, 13927-28, 13931). The Bureau of
Land Management [BLM] was identified as having a unique opportunity to
conserve the sage-grouse through its resource management plans [RMP's]
i.e. land use plans, because reportedly 51 percent of the sage-grouse
habitat is under the BLM's jurisdiction (75 Fed. Reg. 13910 at 13975).
In response to the potential listing, BLM chartered the Sage-Grouse
National Technical Team who was charged with developing policy on how
to manage sage-grouse conservation and protection under its
jurisdiction, and against which all BLM activities would be measured. A
Report on National Greater Sage-Grouse Conservation Measures [NTT] was
subsequently published on December 21, 2011. Then on March 11, 2013
BLM's Assistant Director Edwin Roberson entered a declaration in the
U.S. District Court of Idaho (Western Watershed Project v. Salazar, No.
4:08-CV-516-BLW, U.S. District Court of Idaho, 2013, decl.) indicating
that the NTT conservation measures are being incorporated into 79
RMP's, across 10 States affecting millions of acres of the public
domain, and uses ranging from recreation, to grazing, to mineral and
energy development.
During the peer-review period for the NTT, multiple reviewers
criticized the applicability of the NTT, especially with respect to
habitat requirements/threshold values, scale, and failure to
incorporate existing regulatory and conservation efforts into the NTT,
including lack of consideration of the Policy for the Evaluation of
Conservation Efforts [PECE]. Additional research shows inadequacies in
the science used to support decisions made in the NTT,
mischaracterization, and insufficient reference citations. These issues
call into question, both whether the ``Best Available Science'' was in
fact used, and the overall validity of the NTT.
a. peer review comments
The peer reviewer comments and issues can be categorized into three
main areas of concern: (1) habitat requirements/threshold values; (2)
scale; and (3) failure to incorporate existing regulatory and
conservation efforts into the NTT. The peer review comments may be
reviewed in their entirety in Appendix A (attached herewith).
1. Habitat Requirements/Threshold Values
The NTT authors attempted to resolve the peer reviewers' issue
related to habitat and scale by adding ``Appendix A'' to the report
which was intended to provide ``context'' for the conservation
measures. ``Appendix A'' is an excerpt from the WBP determination
describing the life history requirements of sage-grouse. The peer
reviewers were particularly concerned about the threshold values
present throughout the NTT, because they represent a one-size-fits-all
approach. In terms of ecology, one-size-fits-all is not considered
sound, because there are variable risks and limiting factors present
across the range, which would warrant different conservation
approaches. The information contained in ``Appendix A'' does not
provide any information to support the threshold values contained in
the NTT, and might even produce contrary results if applied across the
range. For example, one peer reviewer notes that 20 percent sagebrush
cover is not necessarily ``healthier'' than an area that has 10 percent
sagebrush cover and good grass densities. Another peer reviewer states,
``[i]n many areas site potential will be below 15 percent so this
blanket statement seems a little irrelevant. Why not say the sagebrush
will not be reduced below site potential . . .'' (NTT Peer Review
Comments at 16).
The primary objective of the NTT is ``to protect sage-grouse
habitats from anthropogenic disturbances that will reduce distribution
or abundance of sage-grouse'' (NTT at 7). To achieve the primary
objective the NTT sets forth sub-objectives. Two of the four sub-
objectives assert that 70 percent of the range within priority habitat
needs to provide ``adequate'' sagebrush habitat to meet sage-grouse
needs, and that discrete anthropogenic disturbances in priority habitat
be limited to less than 3 percent of the total sage-grouse habitat
regardless of ownership (NTT at 7). These objectives are not supported
by the literature.\1\ Two of the most frequently used sources with
respect to vegetative habitat requirements, provide that ``adequate''
vegetative cover for sage-grouse, ranges from 15 percent to 25 percent
sagebrush cover, >10 percent forbs, >10 percent grass canopy, and even
smaller percentages depending on the season or ecological location
(Connelly et. al. 2000, Hagen et. al. 2007). Absent from these studies
is data to support the NTT's conclusion that 70 percent of the range
within priority habitat must provide ``adequate'' habitat in order for
sage-grouse to persist. Limiting disturbance to less than 3 percent \2\
of the total habitat is not scientifically supported, nor is it
reasonable to assume this limit is even possible given the likely
variances in ownership and jurisdiction across the total habitat, and
it also creates issues in terms of PECE review, discussed below.
---------------------------------------------------------------------------
\1\ The NTT uses three sources to support its 70 percent threshold.
However, the NTT has mischaracterized the results of these studies. The
misuse of these studies is discussed in detail, infra Section B.
\2\ Based on the reviewer comments, it appears that this threshold
value was originally set at 2.5 percent. However, the reviewer states
that 2.5 percent is not supported by research, and that the only
percentage value he knew of was 1 percent.
---------------------------------------------------------------------------
The peer reviewers concerns related to the lack of discussion on
limiting habitat does not appear to have been adequately addressed, and
is a significant omission because it fails to provide a mechanism for
prioritizing management efforts and assumes the same risks are
representative across the entire range. The NTT and ``Appendix A'' fail
to provide reason or support for consolidating all \3\ sage-grouse
seasonal habitat range-wide, regardless of relative importance or
quality to sage-grouse populations.
---------------------------------------------------------------------------
\3\ Sage-grouse habitat varies seasonally. Habitat used in the
winter has different vegetative requirements than breeding, nesting, or
brood-rearing habitats, for example. Thus assuming that all habitats
should be treated the same, with a one-size-fits-all approach is
improper.
---------------------------------------------------------------------------
2. Scale
The NTT appears to have added a short discussion on spatial and
temporal scales in an attempt to address the peer reviewers' concerns,
but again, it falls short. When choosing what scale to use in aiding
management decisions, it is important to limit the size, as to reduce
variables, which is why using a range-wide scale is inappropriate.
However using too small a scale is also problematic because it can be
too limiting, as in the case of the NTT, where the discussion focuses
on measuring disturbance at the priority habitat scale and each 1-mile
section within a priority area. Measurements taken at these scales
ignore the concerns by the peer reviewers related to the applicability
of range-wide conservation measures, and instead appears to provide
some kind of justification for using specific, one-size-fits-all
disturbance thresholds. All that said if a spatial scale were at a
management zone level as opposed to a priority habitat level, it would
still limit the ecological variables otherwise present range-wide, and
could still provide managers with specific conservation measures that
might be applicable at a broader management zone scale, while still
allowing some use that might otherwise be restricted at a smaller
scale.
The issue of scale is repeatedly identified throughout the
reviewers' comments, with particular concern for the broad application
and one-size-fits-all approach toward conservation. This presents a
major issue because the distribution of sage-grouse populations is
vast, encompassing different ecological zones which have different
risks to the sage-grouse and its habitat. For example, in the Great
Basin invasive plants and altered fire regime have resulted in loss of
habitat (75 Fed. Reg. 13190 at 13933). The conservation measures that
are best suited to deal with these issues should not be assumed to be
necessary where these risks do not exist, like in Wyoming where habitat
fragmentation due to energy development is considered the greatest
threat. As one reviewer states:
``If this document is to be effective in defining conservation
measures on a range-wide basis, it must take into account the
considerable large-scale variation in plant community ecology
present within the range of the sage-grouse. Otherwise we are
faced with species-centric generalizations of the effects of
ecological processes that may or may not represent the
ecological reality'' (NTT Peer Review Comments at 4).
Again, the peer reviewers warn against the rigidness of the NTT's
conservation measures and their applicability range-wide. The NTT has
not addressed these concerns nor has it provided scientific authority
supporting its decisions as noted by one reviewer:
``This seems a strange blend of policy loosely backed by
citations, with no analysis of the science'' (NTT Peer Review
Comments at 2, emphasis added).
To that end, analysis of the science would show that conclusions
were made on the basis of improper interpretation of the data,
especially with respect to policy and management recommendation's,
calling even more question to the validity of the NTT's policies.
a. Inadequacies of the Science
Research and analysis of the science used in creating the NTT as
well as the science used in the WBP determination have shown that there
has been significant mischaracterization of past research,
methodological bias, substantial errors and omissions, and lack of
independent authorship and peer review; leading to considerable flaws
in the science (See Generally, Science or Advocacy? Ecology and
Conservation of Greater Sage-Grouse: A Landscape Species and its
Habitats: An Analysis of the four most influential chapters of the
monograph Center for Environmental Science, Accuracy and Reliability,
hereafter CESAR 2012).
Understanding the problems with the WBP determination is important
because it is one of the most frequently cited sources in the NTT, and
analysis has shown that the science used in making the WBP
determination is considerably flawed. The CESAR report reviewed and
analyzed four of the most frequently cited sources used by USFWS in its
WBP determination. Each source is a chapter derived from the Cooper
Ornithological Society's Monograph: Studies in Avian Biology
(monograph). The CESAR report indicates that this monograph was
specifically developed to aid the USFWS in its WBP determination for
the sage-grouse, raising the question whether the monograph was written
to push a specific agenda: listing the sage-grouse as threatened or
endangered. The CESAR report makes several alarming conclusions that
the WBP listing determination is based on:
Significant mischaracterization of previous research;
Substantial errors and omissions;
Lack of independent authorship and peer review;
Methodological bias;
A lack of reproducibility;
Invalid assumptions and analysis; and
Inadequate data.
Like the WBP determination, the NTT relied heavily on the monograph
to support its choices. In fact, the NTT uses 16 of the monograph's
chapters, 3 of which the CESAR report included in its analyses.\4\
Specifically, the Knick et. al. chapter titled, Ecological Influence
and Pathways of Land Use in Sagebrush, was frequently cited in the NTT.
The CESAR report found that in this chapter, omission of limiting
factors, mischaracterization of previous research, and lack of
reproducibility was present and states ``Knick et al. do not accurately
represent the results of cited authors but rather substitute their own
values to delineate the effect area for each type of human activity.''
CESAR concludes its analysis on this chapter with, ``this study also
fails the litmus test of sound scientific research since the results
are not repeatable and verifiable.''
---------------------------------------------------------------------------
\4\ While the CESAR report did not analyze all the chapters of the
monograph, the same conclusions are expected to be present throughout
the monograph, primarily due to methodological bias and lack of
authorship and peer review which undermines the process significantly.
The publication dates of the monograph differ between the CESAR report
and the NTT due to draft publication and final publication. Reportedly,
only minor changes were made between the draft and final monograph, no
substantive content was changed. Therefore the CESAR conclusions remain
accurate.
---------------------------------------------------------------------------
Other examples of the deficiencies noted in CESAR that are
replicated in the NTT and associated studies are the lack of
independent authorship, methodological issues, and misleading use of
citations. For example, three of the authors of the NTT are also the
authors, researchers, and editors on three of the most cited sources in
the NTT. This reliance on a select and limited group of authors is
highly questionable because it does not allow for objectivity or
multiple scientific observations and conclusions, a critical component
of the scientific analysis and peer-review process.
The policy conclusions drawn from the research are also
questionable due to methodological flaws in the research of sage-
grouse. For example, a study where analysis evaluates relative
importance of breeding areas to one another conducted on high density
populations, cannot yield reliable conclusions on low density
populations, which one study \5\ used by the NTT attempts to do. This
is also true when small sample populations are used to draw conclusions
to be applied range-wide.
---------------------------------------------------------------------------
\5\ See Kevin Doherty et. al., Energy Development and Conservation
Tradeoffs: Systematic Planning for Greater Sage-Grouse in Their Eastern
Range. Pages 505-516 in S.T. Knick and J.W. Connelly (editors). Greater
Sage-Grouse: ecology and conservation landscape species and its
habitats. Studies in Avian Biology (Vol. 38), University of California
Press, Berkeley, Ca (2011).
---------------------------------------------------------------------------
Other frequent omissions in the research of sage-grouse fail to
incorporate limiting factors into the analyses. The significance of
limiting factors is important because scientifically drawn conclusions
that would support a particular policy choice cannot be confidently
made without recognition of what might be producing an observed result.
Identifying limiting factors is typically one of the first steps in
identifying a problem, but if those are not recognized then there can
be little confidence that the proposed ``answer,'' in this case
conservation measure, will be successful. For example, a study which
seeks to provide information on survival rates of nestlings must
consider outside influences that might affect survival rates such as
drought, natural predation, and temperature; all are limiting factors
that may exacerbate or yield results that would show a low survival
rate. If these limiting factors are not considered, then a conclusion
showing that low survival rate is influenced by energy development,
would not be sufficiently reliable \6\ on which to base a policy
choice.
---------------------------------------------------------------------------
\6\ The NTT attempts to provide justification for the science used
in the report by providing Appendix B: Scientific Inference. While
inference is commonly made in scientific research the methodology used
in the study must be sound.
---------------------------------------------------------------------------
The NTT also omits discussion on the importance of understory to
sagebrush ecosystems and sage-grouse, with a focus on sagebrush canopy.
This is a significant omission that must be addressed in order for the
conservation measures to be scientifically sound. As the NTT stands
now, omitting discussion of understory health will result in unintended
consequences. As some reviewers note:
``. . . Remember, good long lived perennial grass densities are
the best way to suppress cheatgrass fuel loads that is critical
in protecting sagebrush habitats. The 20 percent big sagebrush
cover may very well be suppressing the much needed long-lived
perennial grasses . . .'' (NTT Peer Review Comments at 10).
``. . . If the result of no grazing is increased risk of fire,
then it might be worth reconsidering.'' \7\ (NTT Peer Review
Comments at 14).
---------------------------------------------------------------------------
\7\ The reviewer in this instance was commenting on retiring
grazing privileges. However responsible grazing practices can improve
understory health and reduce fire.
``Are you going to sit back and have catastrophic wildfires
dictate your outcome? . . . Are winter ranges a constant
vegetation type? No, so why would you state such an objective?
. . . This type of passive management is helping further
degrade critical habitats . . .'' \8\ (NTT Peer Review Comments
at 17).
---------------------------------------------------------------------------
\8\ The reviewer was commenting on the conservation measure that
provides, ``no treatments will be allowed in known winter range.''
``. . . The removal of livestock will most likely result in
bunchgrass/fuel loads in the mountain brush habitat. These fuel
loads will probably result in increased wildfires in these
habitats and will burn critical sagebrush communities'' \9\
(NTT Peer Review Comments at 12).
---------------------------------------------------------------------------
\9\ The reviewer was commenting on the conservation measure that
would retire grazing privileges. However responsible grazing practices
can improve understory health and reduce fire.
``. . . This may be fine for high elevation sites, but I
strongly disagree for low elevation sites, where annual grasses
are the biggest threat to ecological integrity ...'' \10\ (NTT
Peer Review Comments at 4).
---------------------------------------------------------------------------
\10\ The reviewer was commenting on the provision under Emergency
Stabilization and Rehabilitation section of the NTT where it states,
``Re-establishment of sagebrush over-stories shall be the highest
priority for rehabilitation . . .''
In addition to the reviewers concerns related to the potential for
increased fire resulting from inadequate management of understory
vegetation, there is substantial scientific authority showing the
importance of understory to sage-grouse. In fact, grass height and
cover are important for adequate nesting habitat, and early brood-
rearing habitats are best when they are abundant in forbs and insects
for foraging, with a 14 percent sagebrush canopy cover (Connelly et.
al. 2000). However, the NTT implies that restoring sagebrush canopy to
15-25 percent is appropriate in all habitats, all the time (See
Generally NTT), which is simply not true.
The CESAR findings, questionable methodologies used in other
studies cited in the NTT, and inappropriate application of the science
raise significant questions as to the validity of policy decisions in
the NTT. Without sound science and sound application of the science,
the NTT report is effectively a species-centric advocacy document.
3. Failure to Incorporate or Recognize Current Regulatory and
Conservation Measures
The peer reviewers recognized the lack of discussion related to
current State level sage-grouse plans, and other regulatory mechanisms
that are protective in nature, as well as the complete disregard of
Federal Land Policy Management Act [FLPMA] and PECE considerations. The
NTT report failed to address these concerns in any way except to say
that management actions taken by the BLM would be in concert with other
agencies, State and local governments, and private owner actions (NTT
at 4).
a. Existing Regulatory Measures
An example of BLM's failure to consider existing conservation and
regulatory efforts is demonstrated by the NTT's omission of the State
of Wyoming's EO
2008-2. The WBP determination recognized this EO for providing
``substantial regulatory protection for sage-grouse in previously
undeveloped areas on Wyoming State lands;'' (75 Fed. Reg. 13910 at
13974) these protections would also apply to energy development and
permitting on all lands located within the State; however it was not
mentioned anywhere in the NTT. One of the NTT's main conservation
strategies is to prevent future energy development in priority habitat
(NTT at 21). For this reason, the NTT's failure to consider current
protections that are recognized in the WBP decision to ``ameliorate
threats'' to sage-grouse (from new energy development) once fully
implemented, is inappropriate.
The NTT states that ``management priorities will need to be shifted
and balanced to maximize benefits to sage-grouse habitats and
populations in priority habitats'' (NTT at 6-7, emphasis added).
Throughout the NTT there are instances like this where there is an
assumption that the protection of sage-grouse is the highest and best
use of the land and ultimately creates a species-centric policy on BLM
lands, which is contrary to the multiple use and sustained yield
provisions, and criteria that must be considered when developing land
use plans provided for under FLPMA (43 U.S.C. Sec. Sec. 1712(c)).
One reviewer calls attention to the USDA-NRCS National Conservation
Practices Guide (used for grazing practices) that could be used with a
focus on sage-grouse habitat, or address grazing threats to sage-grouse
habitat through allotment management plans, instead of reinventing the
wheel for grazing practices through the NTT. But perhaps more
importantly, is the lack of discussion related to BLM's Manual 6840
(Manual).
1) BLM Manual 6840
Manual 6840 was revised and re-issued in December 2008. The purpose
of the Manual is to establish policy for the management of species
listed or proposed for listing under the Endangered Species Act [ESA]
and for ``sensitive species'' on BLM lands. It contains guidance on how
to designate and ensure for the conservation of ``sensitive species''
(i.e.; ``special status species,'' like sage-grouse). One of the
objectives in the Manual is to ``initiate proactive conservation
measures that reduce or eliminate threats to Bureau sensitive species
to minimize the likelihood of and need for listing of these species
under the ESA'' (Manual 6840 at .01). In order to meet this objective
the Manual seeks to:
Ensure ``that when the BLM engages in the planning process,
land use plans and subsequent implementation-level plans
identify appropriate outcomes, strategies, restoration
opportunities, use restrictions, and management actions
necessary to conserve and/or recover listed species, as well as
provisions for the conservation of Bureau sensitive species. In
particular, such plans should address any approved recovery
plans and conservation agreements.'' (Manual 6840 at .04D2,
emphasis added)
As such, conservation of the sage-grouse must be addressed in the
development and implementation of Resource Management Plans [RMPs], the
mechanism USFWS indicated was a good tool for conserving sage-grouse.
In fact, USFWS states:
``. . . BLM Manual 6840 further requires that RMPs . . . should
consider all site-specific methods and procedures needed to
bring species and their habitats to the condition under which
management under the Bureau sensitive species policies would no
longer be necessary (quoting Manual 6840, citation omitted). As
a designated sensitive species under BLM Manual 6840, sage-
grouse conservation must be addressed in the development and
implementation of RMPs on BLM lands . . . if an RMP contains
specific direction regarding sage-grouse habitat, conservation,
or management, it represents a regulatory mechanism that has
potential to ensure that the species and its habitats are
protected . . . during decisionmaking on BLM lands . . .
However, the information provided to us by BLM did not specify
what requirements, direction, measures, or guidance has been
included in the newly revised RMPs to address threats to sage-
grouse and sagebrush habitat. Therefore, we cannot assess their
value or rely on them as regulatory mechanisms for the
conservation of sage-grouse . . . Although RMPs, AMPs, and the
permit renewal process provide an adequate regulatory
framework, whether or not these regulatory mechanisms are being
implemented in a manner that conserves sage-grouse is unclear''
(75 Fed. Reg. 13910 at 13975-77, emphasis added).
What this means is that USFWS was not looking for new regulatory
mechanisms. What they needed was evidence the current regulatory
mechanisms would be implemented and documentation of the effectiveness
of those mechanisms. In other words, all BLM needs to do is monitor and
implement its own policy with regards to ``special status species''
under the Manual and provide data to USFWS in a useable format so that
they can show reliable, quantifiable trends relating to the
effectiveness of the Manual's provisions in RMPs to the USFWS.
The Manual's provisions are designed to be in compliance with the
requirements for agencies pursuant the ESA. The ESA is the single-most
protective Federal legislation for threatened and endangered species;
the Manual uses the requirements of the ESA as a starting point from
upon which to build, in order to adequately protect at risk or listed
species. The ``special status species'' provisions in the Manual (which
are distinct from the provisions for threatened and endangered species
under the Manual) are consistent with those required for listed species
under the ESA. As such, the Manual requires the same level of
protection for candidate species as it does for species listed as
threatened or endangered.\11\
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\11\ The main difference between the protections awarded actual
listed species under the ESA, and candidate/special status species
under the Manual is procedural. The ESA requires agency consultation
with the USWS or NOAA (Services) when an agency action may affect a
listed species. After a consultation is conducted, the Services will
then issue biological opinion, which may or may not place further
restrictions on the given agency. The Manual does not require
consultation with the Services for candidate species.
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The Manual requires monitoring of ``special status species'' in
order to determine whether management objectives are being met and
evaluate whether or not the conservation strategies implemented are
effective (Manual 6840 at .2A1). If this provision of the Manual had
been or would be implemented, it would provide the quantifiable
information required by the USFWS. Additionally, if the monitoring data
revealed that the conservation measures were not having the desired
effect, BLM could have made appropriate adjustments to the conservation
measures pursuant to the Manual.
The Manual also provides for the protection of all ESA listed,
candidate, proposed species, and their habitat for a period of 5 years
following delisting, which is consistent with provisions under the ESA
for species listed as threatened or endangered (Manual 6840 at .2), but
not for candidate species. Thus, this provision in Manual 6840 provides
more protection for candidate species than the ESA.
The WBP determination was issued in March 2010, less than a year
and a half after the Manual was revised in 2008. At 75 FR 13910, the
USFWS recognized that sage-grouse conservation must be addressed in
RMPs under the Manual, and RMPs that address sage-grouse conservation
consistent with Manual 6840 would provide an adequate regulatory
mechanism (See Generally at 13975-77). Accordingly, the Manual already
provides the necessary protective measures for the sage-grouse, as
recognized by the USFWS, and simply needs to be implemented, followed
by appropriate monitoring to document the effectiveness of the
conservation measures in the Manual.
The Manual goes beyond what the ESA requires for candidate species,
like the sage-grouse, and is a significant formalized conservation
effort, if it is implemented properly. Curiously the NTT completely
fails to include any discussion of the Manual or even recognize its
existence (it is not included in the Literature Cited section of the
NTT). The failure of the NTT to use or amend the Manual is particularly
perplexing since the Manual is designed to be as protective, if not
more, protective as the ESA. Instead, the BLM mischaracterized what the
USFWS stated in its WBP determination and set aside adequate existing
regulatory and conservation mechanisms pursuant the Manual in favor of
the NTT, without providing a reasonable explanation for doing so, and
may in fact be arbitrary and capricious. The Manual can be reviewed in
its entirety in Appendix B.
2) 2004 National Sage-Grouse Habitat Conservation Strategy
In addition to the Manual, in November 2004 the BLM issued The
National Sage-Grouse Habitat Conservation Strategy: Guidance for
Addressing Sagebrush Habitat Conservation in BLM Land Use Plans
(Guidance). Pursuant to the Guidance, each State Director was to
``develop a process and schedule to update deficient land use plans to
adequately address sage-grouse and sagebrush conservation needs,'' by
April 2005 (Guidance at 2). The Guidance provides land managers with
the steps to incorporate ``sagebrush considerations'' into the
preparation of land use plans and National Environmental Policy Act
[NEPA] analysis. Section 4 of the Guidance explicitly states ``that
each alternative [in the NEPA analyses] contain[s] considerations for
sagebrush habitat conservation by (1) developing one or more goals
related to sagebrush habitat with emphasis on sage-grouse habitat that
will apply to all alternatives . . .'' (Guidance at 5, emphasis added).
The Guidance also provides for the development of goals and objectives
intended for the protection/maintenance, restoration and rehabilitation
of sagebrush habitat. The Guidance also suggests that when developing
considerations, i.e. conservation measures, that the PECE is taken into
account, which would ensure that the conservation efforts stipulated in
the land use plan's would be adequately considered during the USFWS
ESA-listing process. The Guidance may be reviewed in its entirety in
Appendix C.
The Guidance is not referenced in the WBP determination, and it is
unclear whether the Guidance was even implemented. What is clear is
that the ``deficient'' land use plans were to be revised by April 2005
(Guidance at 2) and were to incorporate the provisions of the Guidance
document and Manual 6840.\12\ If this were implemented as intended,
then it is difficult to conceive a reasonable manager would not inform
USFWS of its existence during the listing evaluation process for the
sage-grouse or in conjunction with the data provided to USFWS for
listing decisions. However, this does not appear to have occurred,
given the lack of reference in the WBP determination. Moreover, if this
did not occur, it might be considered agency action that was
``unreasonably delayed'' and the BLM should be compelled to use the
policy and regulatory tools they already have available to them, as
opposed to using scientifically questionable conservation measures like
those in the NTT.
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\12\ Manual 6840 was revised in 2008; however there was an earlier
version in existence in 2004-05.
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b. PECE Considerations
The PECE is a policy designed to provide guidance to the USFWS and
National Oceanic and Atmospheric Administration Fisheries (Services)
when making listing decisions under the ESA. Section 4(b)(1)(A) of the
ESA requires the Service to: (1) consider various threats affecting a
species; and (2) consider any formalized conservation efforts, even
those efforts that are not specific to a species but are still
beneficial to the species, when making listing decisions. The intent of
the PECE policy is to provide consistency in the methods used to
evaluate whether formalized conservation efforts identified in a
conservation agreement, conservation plan, management plan, or similar
document that have not yet been implemented, or have yet to show
effectiveness, can be considered in making a listing determination. It
can also be used to provide guidance to other Federal agencies, States
and local governments, tribal governments and, private entities in
developing conservation plans and/or agreements for the protection of
an at risk species prior to ESA-listing (68 Fed. Reg. 15100, Mar.28,
2003).
Under the PECE, the criteria used to determine whether formalized
conservation efforts that have yet to be implemented or to show
effectiveness contribute to making listing a species as threatened or
endangered unnecessary, the Services must find that there is: (1)
certainty that the conservation efforts will be implemented; and (2)
certainty that the efforts will be effective. In addition to the two
main criteria, the policy provides specific factors used to review a
specific conservation effort. In evaluating whether a specific effort
will be implemented the underlying factors considered include whether
there is sufficient funding or other resources available to carry out
the effort, and do the parties have the authority to implement it.\13\
In evaluating whether a specific conservation effort will be effective,
the factors considered include whether there is a schedule for
completing the effort, does the effort establish specific conservation
objectives, and are there performance measures established to monitor
success (68 Fed. Reg. 15101).\14\
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\13\ Other underlying factors are also considered during the PECE
review process for whether or not a conservation effort will be
implemented; however only a few are discussed in this paper.
\14\ Other underlying factors are also considered during the PECE
review process for whether or not a conservation effort is likely to be
effective; however only a few are discussed in this paper.
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The main tenet of PECE is the certainty that a conservation measure
will be implemented and effective. The NTT peer reviewers expressed
concern that many of the stipulations in the NTT will not in fact
withstand this level of scrutiny. One reviewer states, ``. . . [this]
seems like very weak guidance that is a long way from any instruction
that would lead to these actions'' (NTT Peer Review Comments at 7).\15\
Another reviewer questions the use of plant measurements to quantify
rangeland health due to the high level of error involved in the
methodology, which goes back to the reviewers concern relating to scale
and threshold values. Yet another reviewer comments on the proposed
land exchange measures and questions ``how achievable'' it would
actually be given the reality of local mentalities toward property and
mineral rights. One reviewer states:
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\15\ The reviewer was commenting on the stipulation regarding the
removal, burial, or modification of existing power lines.
``All activity plans should address PECE considerations . . .
Given the budget situation for the foreseeable future, plan
projections of a rosy success are often nothing more than happy
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bullroar . . .'' (NTT Peer Review Comments at 3).
Consideration of budget is particularly important to Federal
agencies since it is difficult to guarantee the funds to implement the
conservation measures will be approved for the long-term. BLM has made
unrealistic assumptions that the conservation measures articulated in
the NTT will be fully funded by Congress for the foreseeable future,
and disregards the reality of obtaining the necessary funds to
implement the NTT conservation measures. If the conservation measures
in the NTT are not effective because they were applied improperly due
to disregard of scale, or they fail to ensure for adequate funding,
especially with respect to land exchanges and fire management, then it
is likely that the NTT's conservation measures will not survive PECE
analysis during the 12-month listing process for the sage-grouse
beginning in September 2014
Conversely, the provisions of the Manual are designed to be in
compliance with the ESA, and to conserve species so that listing under
the ESA is no longer necessary. As such, RMPs that include the
conservation measures pursuant the Manual and the 2004 Guidance which
provide for: (1) the proper design and implementation of the
conservation measures; (2) effective monitoring to determine whether
the conservation measures are having the desired on-the-ground effect;
and (3) require adaptive management to adjust the conservation measures
in response to the monitoring data could have and should be subject to
PECE. A reasonable response by BLM to the WBP determination would have
been to simply implement Manual 6840 and the 2004 Guidance and then
provide USFWS with monitoring data in a useable format to show
effectiveness. Instead BLM's response with the NTT appears to be
completely absent of rationale between the facts found in the WBP
determination and the choice made to commission the NTT, and instead
creates an entirely new regulatory tool, which raises the question of
whether the BLM acted arbitrarily and capriciously.
1) Arbitrary and Capricious Standard of Review
Under the Administrative Procedure Act (5 U.S.C. Sec. 706(2)(A))
\16\ the court is authorized to ``set aside agency action . . . found
to be . . . arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law.'' Under this standard of review ``the
agency . . . must articulate a satisfactory explanation for its action
including a rational connection between the facts found and the choice
made'' (Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co.,
463 U.S. 29, 43, 103 S.Ct. 2856, 2866, 77 L.Ed.2d 443 (1983)).\17\ In
reviewing the agency explanation, the court must ``consider whether the
decision was based on a consideration of the relevant factors and
whether there has been a clear error of judgment.''(Id.).\18\ BLM's
response to the WBP determination with the NTT appears to be completely
absent of rationale between the facts found in the WBP determination
and the choice made to commission the NTT, and thus raises the question
of whether BLM acted arbitrarily and capriciously. Moreover, the
provisions in the NTT lead to a species-centric policy that assumes
conservation of sage-grouse is the highest and best use of the land
which directly violates FLPMA's multiple-use mandate (43 U.S.C.
Sec. 1701(a)(7)). BLM should be compelled to provide a reasonable
explanation for ignoring Manual 6840 and the 2004 Guidance and
replacing them with the NTT in light of USFWS' findings regarding
Manual 6840 in the WBP determination.
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\16\ Under the APA agency action is only judicially reviewable if
there is a question of law and not limited to questions of fact. So
there needs to be a ``substantive legal standard'' set out in a statute
like NEPA or FLPMA in order for an arbitrary and capricious standard of
review to be upheld by the court.
\17\ Citing Burlington Truck Lines v. United States, 371 U.S. 156,
168, 83 S.Ct. 239, 245-246, 9 L.Ed.2d 207 (1962).
\18\ Citing Bowman Transp. Inc. v. Arkansas-Best Freight System,
419 U.S., at 285, 95 S.Ct., at 442; Citizens to Preserve Overton Park
v. Volpe, 401 U.S., at 416, 91 S.Ct., at 823(1971).
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Also under the arbitrary and capricious standard of review, if an
agency completely fails to consider an important aspect of a problem,
like the fact that USFWS found that Manual 6840 could provide adequate
conservation measures if implemented properly through RMP's, the court
may find that the agency acted arbitrarily and capriciously (Motor
Vehicle Mfrs.). The NTT does not use Manual 6840 as a foundation from
which to build upon. In fact, it never even references Manual 6840 or
explains the need for an entirely new regulatory approach. As such, it
inappropriately discards an existing agency policy without ever
justifying the radical change advanced in the NTT.
c. NEPA Considerations
NEPA was enacted in 1969 and creates a procedural obligation upon
Federal agencies to consider the environmental impacts likely to occur
as a result of major Federal agency action, significantly affecting the
quality of the human environment (42 U.S.C.A. Sec. Sec. 4321-4070a).
NEPA requires that agencies document their analysis and findings in an
Environmental Impact Statement [EIS]. An EIS must address the
environmental impacts of the proposed action, unavoidable adverse
affects, secondary and cumulative impacts, alternatives to the proposed
action, and mitigation designed to minimize the adverse impacts of the
proposed action.
The ``alternatives'' portion of the EIS has long been considered
the ``heart'' of the NEPA process and requires an agency to rigorously
explore and objectively evaluate all reasonable alternatives so that
decisionmakers and the public are fully informed (40 CFR
Sec. 1502.14(a)).\19\ Substantial case law exists regarding the range
of alternatives that need to be included in an EIS. For instance in
Natural Resource Defense Council v. Morton, 458 F. 2d 827 (D.C. Cir.
1972) the court found that an agency must look at reasonable
alternatives sufficient to allow for a reasoned decision, and it is not
appropriate to disregard an alternative merely because it does not
offer a complete solution to a broad problem. In Dubois v. USDA, 102 F.
3d 1273 (1st Cir. 1997) the court held that the Forest Service acted
arbitrarily and capriciously when its FEIS did not sufficiently explore
all reasonable alternatives, and that an ``agency has duty to study all
alternatives that appear reasonable and appropriate for study . . ., as
well as significant alternatives suggested by other agencies or public
during the comment period.'' \20\ Further, in Resources Ltd. v.
Robertson, 35 F.3d 1300, 1307 (9th Cir. 1993) the court held ``The
existence of a viable but unexamined alternative renders an
environmental impact statement inadequate.'' \21\ To that end, failing
to include full implementation of Manual 6840 and the 2004 Guidance as
an alternative in the Draft EIS documents is arbitrary and capricious,
and the Draft EIS documents should not be published for public review
until full analysis of this alternative is included.
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\19\ See also Sec. 1502.14(b), (d)) ``Devote substantial treatment
to each alternative considered in detail including the proposed action
so that reviewers may evaluate their comparative merits.'' (``Include
the no action alternative.'')
\20\ Quoting Roosevelt Campobello Int'l Park Comm'n v. USEPA, 684
F. 2d. 1041, 1047 (1st Cir. 1982).
\21\ Quoting Idaho Conservation League v. Mumma, 956 F.2d 1508,
1519 (9th Cir. 1992). See also, NRDC v. Callaway, 524 F.2d 79, 92 (2d
Cir. 1975) (citation omitted) ``It is absolutely essential to the NEPA
process that the decisionmaker be provided with a detailed and careful
analysis of the relative environmental merits and demerits of the
proposed action and possible alternatives, a requirement that we have
characterized as `the linchpin of the entire impact statement.' ''
(emphasis added); Silva v. Lynn, 482 F.2d at 1285; All Indian Pueblo
Council v. United States, 975 F.2d 1437, 1444 (10th Cir. 1992) (holding
that a thorough discussion of the alternatives is ``imperative'').
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In addition, the principle of informed decisionmaking is the
primary purpose of NEPA, and is intended to be used as a tool during
the planning and decisionmaking process. As such, an EIS should not be
used to justify decisions that have already been made and ``[a]gencies
shall not commit resources prejudicing selection of alternatives before
making a final decision'' (40 CFR Sec. Sec. 1502.2(f), emphasis
added).\22\ Nevertheless, the BLM has already decided to incorporate
the NTT conservation measures into 79 of its RMP's prior to issuance of
the FEIS, as Assistant Director Edwin Roberson indicated in his
declaration in the U.S. District Court of Idaho (Western Watershed
Project v. Salazar, No. 4:08-CV-516-BLW, U.S. District Court of Idaho,
2013, decl.), and is in direct violation of NEPA.
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\22\ See also, 1500.1(b), ``NEPA procedures must insure that
environmental information is available to public officials and citizens
before decisions are made and before actions are taken.'' (emphasis
added)
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b. technical errors
In addition to the concerns and issues articulated by the peer
reviewers, substantial technical errors are present throughout the NTT,
in the form of misleading use of citations and use of citations that
are not verifiable because they are not provided in the ``Literature
Cited'' section. If the NTT's claims cannot be scientifically verified,
it cannot be considered the ``Best Available Science.''
1. Source Mischaracterization
The work of one researcher, J.W. Connelly, is cited 12 times in the
NTT; however, 25 percent of the time Connelly was referenced there was
not a corresponding source available to review. This also is true for
B.L. Walker who is cited 11 times, and 45 percent of the time there was
not a corresponding source to review.\23\ Together, these researchers
work was improperly used 34 percent of the time. Whether this is a
result of poor editing or intentional misuse of authority, it does not
change the reality that it limits the ability of outside reviewers or
the public to verify the claims presented, which is critical to the
review process, and which reduces the NTT's scientific credibility even
further. Oddly, there are articles listed in the ``Literature Cited''
that are not used within the document itself, again, creating
credibility issues for the NTT.
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\23\ Comprehensive, quantifiable review of all the sources used in
the NTT was not conducted. These authors are highlighted because of how
frequently they were used within the NTT. It is possible that this same
type of error is present with other researcher's works.
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Another example of source mischaracterization is misleading use of
authority. In the NTT, the BLM stipulates that a full reclamation bond,
which would result in full restoration of priority habitat,\24\ be
included in the terms and conditions of approved RMP's that allow for
oil and gas leases (NTT at 23). However, the first source cited,
Connelly et. al. 2000, does not directly support this conservation
measure. Connelly et. al. 2000 instead provides that in breeding
habitat only, the rangeland should be restored to a condition that will
provide suitable breeding habitat. Moreover, Connelly et. al. 2000 only
recommends this level of restoration for areas where there has been at
least 40 percent loss of habitat, it does not necessarily apply range-
wide, like the NTT implies. With respect to winter habitat restoration,
the discussion in Connelly et. al. 2000 is limited to managing
prescribed burns and reseeding techniques, and does not establish the
level of restoration required in winter habitat.
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\24\ The NTT classifies breeding habitat, early brood-rearing
habitat, late brood-rearing habitat, and wintering habitat as priority
habitat.
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The NTT also stipulates that with regard to fuel management,
sagebrush canopy should not be reduced to less than 15 percent (NTT at
26). However Connelly et. al 2000, the source cited, does not support
this proposition. What Connelly et. al. 2000 does say is that land
treatments should not be based on schedules, targets, and quotas
(Connelly et. al. 2000 at 77). The 15 percent threshold across the
range is not supported, as Connelly et al. distinguish between types of
habitat and then provide corresponding sagebrush canopy percentages
which vary from 10 percent to 30 percent depending on habitat function
and quality.
As previously discussed, the NTT stipulates that in order to
maintain or increase sage-grouse populations, priority habitat must be
managed so that 70 percent of sage-grouse habitat is ``adequate'' (NTT
at 7). However on page 6, the NTT claims that 50-70 percent of the
range must be adequate to persist, and then provides three sources to
support its proposition. Two of the three sources were reviewed and do
not support this assertion.\25\ At best, one study suggests that
``preferably'' 65 percent is necessary for sage-grouse to persist, but
the results of this study give measurements related to range
persistence and how that correlates to extirpation and only provides
this threshold anecdotally. In essence, if occupied habitat was
converted to a crop field, for example, the sage-grouse population
closest to the converted area was less likely to persist than
populations located in suitable habitat farther away from the crop-
field. These results do not indicate that 70 percent or even 65 percent
of the habitat must be suitable, only that fringe populations are more
likely to be extirpated.\26\
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\25\ We were unable to obtain the following source. As such, any
conclusions that are drawn in this report relating to this source are
subject to change: M.J. Wisdom et.al., Factors Associated with
Extirpation of Sage-grouse, 2011. Pages 451-472 in S.T. Knick and J.W.
Connelly (editors). Greater Sage-grouse: Ecology and Conservation of a
Landscape Species and Its Habitats. Studies in Avian Biology (Vol. 38).
University of California press, Berkeley, California, USA.
\26\ See C.L. Aldridge et al., Range-wide Patterns of Greater Sage-
grouse Persistence. Pages 983-994. Diversity and Distributions (Vol.
7). 2008.
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c. conclusions and recommendations
During the peer-review period for the NTT, multiple peer reviewers
criticized the applicability of the NTT due to misapplication of the
science and omission of existing regulatory programs that could be used
to conserve sage-grouse and its habitat. As a result the NTT would not
likely withstand scrutiny under PECE.
Additional research shows inadequacies in the science itself.
Limited analysis of the science used in creating the NTT, as well as
the science used in the WBP determination, has shown that there has
been:
Significant mischaracterization of past research;
Methodological bias;
Substantial errors and omissions;
Lack of independent authorship and peer review; and
Substantial technical errors.
These issues call into question whether the ``Best Available
Science'' was in fact used to establish the conservation measures in
the NTT, and the validity of the NTT as a whole. To that end, flawed
science will lead to flawed species-centric policy, like that in the
NTT. Manual 6840 is designed to be in compliance with the ESA, and to
conserve species so that listing under the ESA is no longer necessary.
As such, RMPs that include the conservation measures pursuant the
Manual and the 2004 Guidance and which provide for: (1) the proper
design and implementation of the conservation measures; (2) effective
monitoring to determine whether the conservation measures are having
the desired on-the-ground effect; and (3) require adaptive management
to adjust the conservation measures in response to the monitoring data
is sufficient to preclude listing of the sage-grouse if implemented
properly. However, the NTT does not use Manual 6840 as a foundation
upon which to build. In fact, it never even references Manual 6840, nor
does it explain the need for an entirely new regulatory approach. As
such, it inappropriately discards an existing agency policy without
ever justifying the radical changes advanced in the NTT, and is thus
arbitrary and capricious.
The NEPA process requires an agency to rigorously explore and
objectively evaluate all reasonable alternatives so that decisionmakers
and the public are fully informed (40 CFR Sec. Sec. 1502.14(a),
1502.14(b), (d)). Failing to include full implementation of Manual 6840
and the 2004 Guidance as an alternative in the Draft EIS documents is
arbitrary and capricious, the Draft EIS documents should not be
published for public review until full analysis of this alternative is
included.\27\
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\27\ See discussion, supra page 13.
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NEPA is intended to be used as a tool during the planning and
decisionmaking process. As such, an EIS should not be used to justify
decisions that have already been made. Therefore, the inclusion of the
NTT conservation measures into 79 of BLM's RMPs \28\ prior to issuance
of the FEIS is in direct violation of NEPA (40 CFR Sec. Sec. 1502.2(f),
1500.1(b)) and is arbitrary and capricious (5 U.S.C. Sec. 706(2)(A)).
---------------------------------------------------------------------------
\28\ See Western Watershed Project v. Salazar, No. 4:08-CV-516-BLW,
U.S. District Court of Idaho, 2013, decl.
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The policy and technical flaws in the NTT are considerable and must
be addressed before it is fully implemented as it could result in
ecologically devastating consequences, and conflicts with FLPMA's
multiple use mandate. Consideration of its ability to withstand PECE
scrutiny is especially important because USFWS has already indicated
that Manual 6840 is an adequate conservation effort if implemented
through RMP's. Therefore, the BLM must consider fully implementing
Manual 6840 and the 2004 guidance into its RMPs that contain sagebrush
ecosystems. The BLM should also provide a reasonable explanation for
replacing Manual 6840 and the 2004 Guidance with the NTT in light of
USFWS' findings about the Manual in the WBP determination.
WORKS CITED
68 FR 15100-15115. 2003. Policy for Evaluation of Conservation Efforts
When Making Listing Decisions.
16 U.S.C. 1531-1544, 87 Stat. 884. Endangered Species Act of 1973.
42 U.S.C. Sec. 4321 et. seq. National Environmental Policy Act.
43 U.S.C. 1712(c) Federal Land Management Policy Act.
5 U.S.C. 500 et seq. Administrative Procedure Act.
75 FR 13910. 2010. Endangered and Threatened Wildlife and Plants: 12-
month Finding for Petitions to List the Greater Sage-Grouse as
Threatened or Endangered.
Aldridge, C., S.E. Nielson, H.L. Beyer, M.S. Boyce, J.W. Connelly, S.T.
Knick, et al. (2008). Range-Wide Patterns of Greater Sage-
grouse Persistence.
Center for Environmental Science, Accuracy and Reliability (CESAR).
(2012). Science or Advocacy? Ecology and Conservation of
Greater Sage-Grouse: A Landscape Species and its Habitats: An
analysis of the four most influential chapters of the
monograph.
Connelly, J. W., Schroeder, M., Sands, A., & Braun, C. (2000).
Guidelines to Manage Sage-grouse Populations and Their
Habitats. Wildlife Society Bulletin 28:967-985.
Doherty, K., D.E. Naugle, H.E. Copeland, A. Pocewicz, & J.M. Kiesecker.
(2011). Energy Development and Conservation Tradeoffs:
Systematic Planning for Greater Sage-Grouse in Their Eastern
Range.
Hagen, C., Connelly, J., & Schroeder, M. (2007). A Meta-Analysis for
Greater Sage-Grouse Nesting and Brood Rearing Habitats.
Wildlife Biology 13 (Supplement 1), 42-50.
Knick., S., S.E. Hanser, R.F. Miller, D.A. Pyke, M.J. Wisdom, S.P.
Finn, et al. (2009). Ecological Influence and Pathwasy of Land
Use in Sagebrush. in S.T. Knick and J.C. Connelly (editors),
Greater Sage-Grouse: Ecology and Conservation of a Landscape
Species and Its Habitats. Studies in Avian Biology (vol. 38),
203-251.
U.S. Department of the Interior. (2004, November). Bureau of Land
Management National Sage-Grouse Habitat Conservation Strategy:
1.31 Guidance for Addressing Sagebrush Habitat Conservation.
U.S. Department of the Interior. (2011, December 21). A Report on
National Greater Sage-Grouse. Sage-Grouse National Technical
Team.
U.S. Department of the Interior, Bureau of Land Management. (2008).
Manual 6840: Special Status Species Management.
______
Conservation Measures/Proposed Planning Decisions
Independent Review of Conservation Measures
Reviewer Comments--December 18, 2012
I) Introductory comments by reviewers
a) R1--First of all, putting together range-wide recommendations for
sage-grouse conservation measures is an unenviable and
difficult task fraught with ecological complexities, strong and
diverse opinions, and judicial and political realities. To that
end my hat is off to those in the spotlight, and I wish you the
best going forward. That said, the impact of this document will
be substantial and long-lasting; realistically it could be the
standard that governs most land management activities on much
of the public land in 11 Western States. With that in mind I
have done my best to critically evaluate the utility of the
current draft and provide constructive comments for its
improvement.
b) R2--I have reviewed the ``Conservation Measures/Proposed Planning
Decisions'' document. It is easily the most far-reaching sage
grouse conservation strategy that BLM has ever considered, and
they should be commended for its development. There are areas
where I believe the strategy can be strengthened, and/or blow
back minimized which will make the strategies more effective.
c) R3--I will preface my comments by saying that I am not entirely
sure about the intent or expected outcomes associated with the
document, and that I focused on the Range Management, Fire and
Fuels Management, and Habitat Restoration sections. The letter
from Ken Mayer provided a clue as to the intent (``. . . to
help BLM develop a set of conservation options that BLM field
managers will apply in the resulting Instruction Memorandum
(IM)''). If the goal here is to outline conservation options
for sage-grouse, then the document seems to fall short in my
view. The shortcomings I see fall into several categories:
1) There is no introduction as to the intent of the document, it
reads as a laundry list of items. There is no discuss ion
of the seasonal requirements of sage-grouse to provide
managers a context for their actions. There are limited
references to the state-level sage-grouse plans. A good
deal of effort went into these plans and they contain
valuable information that should be incorporated into the
planning process.
2) There seems to be no focus on identifying the limiting habitats
as a first step. How can managers be expected to prioritize
their efforts if there is no analysis of which habitats are
most limiting?
3) If we are to maintain sage-grouse habitat it will be critical
to identify and understand the risks to each particular
habitat type. There seems to be limited discussion of risk
analysis in the sections [ reviewed.
4) If the document is to be applied across the sage-grouse range
it does not make sense to use specific numbers (15 percent
sagebrush cover or 12 inches of precipitation) on plant
communities that vary tremendously over even small
distances. Use concepts that make ecological sense (site
potential or risk factor), rather than trying to simplify
our complex landscapes.
5) It seems that everyone familiar with the subject recognizes
that sage-grouse require large intact landscapes, yet there
is no mention of a landscape perspective or spatial scale
in the document. For example, a series of 5 acre projects
may sound good on paper, but may do nothing to help the
bird.
In summary, the approach taken in the document is rather short-
term and narrow, and it seems to miss the opportunity to
take a more holistic and long-term view of sage-grouse
management. Since the IM is to be used to revise or amend
Resource Management Plans, which are long-term in nature,
it seems to me that a broader discussion in this document
would be of more value.
d) R4--No Comments
e) R5--No Comments
f) R6--Opening paragraph. I don't really see any habitat and
population objectives.
2) Comments on Structure
a) R1--They develop a list of conservation strategies that apply to
priority habitat and don't define it? The definition they gave
could be changed to ``to be determined.'' The devil is
completely in that detail. Even using core area is inadequate,
in that many ``cores'' are based only on leks, and mayor may
not include other important seasonal habitat. I understand the
need and desire to have a flexible definition to accommodate
variation across the range, but far better to have a base
definition to which States can append other criteria as
necessary, than to defer the definition.
b) R2--The document states at the beginning that the ``following
conservation measures are designed to achieve population and
habitat objectives stated in this report'', yet no population
or habitat objectives were stated. I assume they are in another
part of the document I did not see. The document is an odd mix
of scientific citations and policy decisions, with no real tie
between the two. I expected a science document that reviewed
the literature, laid out what is known about program area
impacts to sage grouse, and where the uncertainties lie. The
science review would lead to a range of numbers and alternative
approaches, which would then segue into a policy document that
described the approach chosen. The science team would develop
the science document, the program managers the policy outcome
emanating from it. This seems a strange blend of policy loosely
backed by citations, with no analysis of the science. Because
there is no iteration of the rational scientific basis for the
very prescriptive strategies, I would anticipate strong
blowback by Industry and by Environmental groups, the former
finding it over-reaching and the latter inadequate.
c) R3--No Comments
d) R4--The organization could be more consistent. Various sections
address high-priority areas and general areas, some don't
include both (i.e., only address high-priority), and some
points are repeated over in several activities. There should be
a section containing provisions common to all activities for
both high-priority and general areas (such as for reclamation/
restoration, roads, other infrastructure). Then the separate
activities can have activity-specific provisions.
i) Are the habitat references to occupied habitat, unoccupied
habitat, both? One of my concerns is that actions may be
taken in presently unoccupied habitat that can compromise
its value for sage-grouse. That needs to be explicitly
addressed. Unoccupied habitat can still be a high-priority
area.
ii) There is no activity section for Fish/Wildlife/Special Status
Plants actions as they may otherwise affect sage-grouse
(e.g., rehab projects for species other than sage-grouse).
Also, such a section (or Range) should contain provisions
for identifying seed reserves to be managed for seed
collection.
iii) There should be a Planning-specific section/provision/
umbrella for all of these sections. One provision would be
that ``No planning effort will be initiated until a
complete HAF evaluation has been completed for the entire
planning area under consideration and adjacent sage-grouse
habitats that may be impacted by activities in the planning
area under consideration.'' Further, All BLM land use plans
should contain a section about relevant or associated LWG
plans and their applicability to BLM actions and provisions
in the area addressed by the LUP.
iv) Soil productivity needs to be explicitly addresses when
considering alternatives for activity plans and plans of
operation. Burying of lines, constructing roads, installing
livestock facilities, etc. All seek to exploit the deepest,
most productive soils which can have the most detriment to
habitat productivity.
v) All activity plans should explicitly address PECE
considerations, i.e., the certainty of implementation and
certainty of effectiveness. Given the budget situation for
the foreseeable future, plan projections of rosy success
are often nothing more than happy bullroar. I've seen it
too many times before.
e) R5--No Comments
f) R6--No Comments
3) General Comments
i) R1--Space and time
(1) A central premise in ecology is the notion that ecological
processes unfold in both space and time. Lack of
consideration of space, and particularly (in this document)
time is a critical mistake that, to me, renders this
document problematic, if not dangerous. Let's consider both
dimensions and how they might influence the current
document.
As written, there is essentially no consideration of the temporal
dynamics of plant communities that provide sage-grouse
habitat. For example, let's consider a mountain big
sagebrush community with high abundance of perennial
grasses and shrubs. Furthermore, let's say that there are
numerous small (< 1-m tall) western juniper plants present.
If we forget about time, then we might look at this
community and say that it would provide great habitat for
specific life history stages of sage-grouse and thus it
should be ``left alone'' from a management standpoint.
However, given what we know about juniper encroachment, if
we leave it alone for long enough (perhaps 70 to 90 years)
it will eventually transition to juniper dominance and the
shrub (and perhaps perennial grass) component will be lost.
At that point it is no longer sage-grouse habitat. An
alternative would be to bum the plant community while it is
still in the early stages of juniper encroachment. This
would remove the shrub component and dramatically reduce
quality of or eliminate (depending on bum size) sage-grouse
habitat at the site. However, grouse habitat would improve
as sagebrush abundance recovered over time; based on
available literature this process might take two decades.
So, at the end of 20 years, we could either have a
recovered sage-grouse habitat without juniper (i.e., with
fire) or be well on our way to losing this site as sage-
grouse habitat (i.e., juniper dominance in the absence of
fire or other management action). The point of all this is
that in ecological systems that operate in both space and
time, we cannot categorize either disturbance or management
actions in the absence of considering the temporal
component. Overlooking the temporal aspects of ecological
disturbances such as fire promotes a species-centric focus
in which disturbance effects are characterized using the
intellectually pedestrian notions of ``good'' or ``bad''
without consideration of the specific temporal context
within which these disturbances unfold. This, in turn,
reinforces a focus on sage-grouse, rather than a focus on
the ecology of the ecosystems to which the integrity of
sage-grouse habitat is subservient.
The current document does a better job with space (as compared to
time) but I think the document needs to more explicitly
consider the spatial context within which sage-grouse
management is set. You need to better incorporate spatial
variability in site potential via the use of ecological
site descriptions and realize the interrelationships
between ESD's and the effects of management actions. For
example, under ``Emergency Stabilization and
Rehabilitation'', you state, in part: ``. . . Re-
establishment of sagebrush overstories shall be the highest
priority for rehabilitation efforts based onsite
potential.'' This may be fine for high elevation sites,
but, I strongly disagree for low-elevation sites where
annual grasses are biggest threat to ecological integrity.
The ``highest priority'' on these sites should be
maintaining ecological integrity of the site by having
something other than annual grasses present. The highest
probability treatment in this case is to seed perennial
grass species, which are, at present, the best defense
(once established) against annual grass invasion. Shrubs
are harder to establish on these sites and restoration of
that component should take place after or in conjunction
with securing the ecological integrity of the site. Thus,
the appropriate management actions, and in this case the
order of appropriate management actions, is strongly tied
to ecological site. This concept needs to be specifically
addressed to avoid on-the-ground problems for BLM. I would
recommend either 1) sufficiently vague language to allow
for flexibility at more local scales, 2) explicitly
recognizing the need for reliance on ESDs, or, ideally, 3)
both.
The document also misses the mark when it comes to larger scale
variation associated with inter and intraregional variation
in plant community ecology. This is a serious omission. For
example, the present-day disturbance ecology of relatively
low elevation big sagebrush communities is in stark
contrast to that of higher elevation big sagebrush
communities. Using southeast Oregon as an example, too much
fire has been associated with proliferation and spread of
annual grasses in lower elevation plant communities;
arguably the single greatest threat to sage-grouse habitat
at lower elevations. At higher elevations, too little fire
is associated with encroachment of native conifers (namely
western juniper) into sagebrush/bunchgrass habitats to the
extent that conifer-associated loss of sagebrush habitat is
now the greatest threat (as defined by the state-level
sage-grouse working group) to sage-grouse habitat in the
State. If this document is to be effective in defining
conservation measures on a range-wide basis, it must take
into account the considerable large-scale variation in
plant community ecology present within the range of sage-
grouse. Otherwise, we are faced with species-centric
generalizations of the effects of ecological processes that
mayor may not represent ecological reality.
ii) Native vs. introduced grasses
(1) Exotic annual grasses are a serious and ongoing threat to low
elevation sage-grouse habitat throughout the range of the
species. At present, our ability deal with annual grasses
at large spatial scales is very limited. The best
management option currently available involves
establishment of perennial grasses, which inevitably brings
up the discussion of native vs. introduced species. Re-
seeding with either group can be difficult at low
elevations. However, the bulk of the peer-review literature
clearly indicates that introduced perennial grasses (namely
crested wheatgrass and its affiliates) are the highest
probability choice. My point is that maintaining the
ecological integrity of these sites through establishment
of perennial vegetation should be the first priority, and
the best shot at making that happen at low elevations is
with introduced species. I say this in full recognition of
the fact that subsequent conversion of these introduced
communities back to native has proven incredibly difficult
and with present technology is simply not feasible at large
spatial scales.
iii) Climate change
(1) I would suggest that language directing managers to consider
future climate change in determining seeded species be
taken out. Present knowledge of climate change is not at
the stage (i.e. accurate enough) where we can predict
future climate to the extent that we are designing seed
mixes based on those predictions and we have enough
problems to worry about with restoration success in the
present climate.
iv) Other thoughts
(1) What happens when potential of the ecological site is at odds
with stated sage-grouse habitat requirements? This could be
clarified by specifically incorporating Ecological Site
Descriptions and not using cutoff values such as 15 percent
sagebrush canopy cover.
(2) The notion that grazing privileges in sage-grouse areas should
be retired when base property is transferred or a current
operator is willing to retire such privileges assumes
grazing is automatically a problem and can't be used as a
tool for habitat management. It also assumes that grouse
are the highest and best use of the land . . . this HAS to
be addressed before these guidelines become policy or
serious problems will arise. What about FLPMA . . . where
does it fit into the picture?
(3) The notion that no treatments will be allowed in known winter
range seems a bit draconian. What if winter habitat is also
breeding habitat? Dave Dahlgren's research has demonstrated
how small patch-scale sagebrush reduction treatments can be
used to create beta diversity that improves grouse habitat
while retaining sagebrush dominance at large scales. Again,
the issue of spatial scale.
(4) Document suggests not using fire to treat sagebrush in less
than 12-inch precipitation zones. I generally agree with
this, but at the same time I have a problem with making
these broad generalizations about ecosystems, the
properties of which vary strongly across sites and over
time.
b) R2--Almost all of the emphasis is on preventing additional
habitat loss or degradation on BLM land, with relatively little
effort spent on strategies to improve existing habitat. BLM has
huge opportunities to remove fences, close roads, control
weeds, eliminate crested wheat grass, develop springs, etc., to
make degraded habitats better, and this should be emphasized as
much as not making things worse.
i) The document suffers from a I-size fits all approach that lacks
context. Lumping all sage grouse seasonal habitats in all
locations across the range regardless of population size or
relative importance of the population into either
``priority sage grouse habitats'' or ``general sage grouse
habitats'' strikes me as tremendously over simplistic. When
combined with very prescriptive direction, it may lead to
strong opposition, which may lead to weak application of
the IM.
ii) The document does not define either ``priority'' or
``general'' sage grouse habitat. Without a definition the
conservation measures have no meaning. I asked for a
definition, and what I was given was this:
(a) Preliminary Priority Habitat [PPH] is the area
identified as having the highest conservation value
relative to maintaining sustainable Greater Sage-Grouse
populations. The PPH are being identified by State
wildlife agencies and the BLM (these may also be
referred to as ``core areas'' in some States).
(b) Preliminary General Habitat [PGH] is occupied
habitat outside of PPH as identified by State wildlife
agencies and/or the BLM.
iii) The definition for priority habitat is circular, in that
``highest conservation value to maintain sustainable
Greater sage grouse populations'' is also not defined.
There are as many definitions for core areas as there are
States, most at present are lek-based and therefore don't
consider brood rearing or winter habitats un less they
occur within whatever buffer is used. The definition for
general habitat is occupied habitat, so in that case why
not just use occupied habitat? I would expand that however
to include ``unoccupied but potentially suitable habitat.''
iv) Priority habitat must be defined before this document goes out
for wider review, rather than kicking that can down the
road. The elements that must be included would be lek/
nesting habitat (rather than using arbitrary buffers may
want to include proportions of nesting hens included and
let the buffer vary with habitat quality and local
characteristics), late brood-rearing habitats, and winter
concentration areas. It would be far preferable to have a
base definition that is amended locally, than to have no
definition and allow each State and potentially Field
Office to develop their own.
v) There is no performance aspect or adaptive management
component. The document begins by stating that the
following conservation measures are designed to achieve
population and habitat objectives stated in this report,
yet that is the only time population and habitat objectives
are mentioned. What happens if the conservation measures
don't achieve population and habitat objectives? Some type
of rigorous adaptive management must be the final
conservation strategy, where the effectiveness of these
measures, and the degree to which sage grouse habitat and
populations are conserved by these measures (in the face of
other threats), are constantly evaluated and reassessed.
There is a sentence on monitoring that says a monitoring
strategy for sage-grouse and sagebrush will be developed
for adaptive management purposes, but this ignores the
critical feedback aspect of adaptive management, where data
collections feed back to change management strategies where
necessary.
c) R3--No Comments.
d) R4--No Comments.
e) R5--No Comments.
Travel and Transportation
1) Priority sage-grouse habitat areas
a) R1--No Comments.
b) R2--This is a good example where opportunities to make things
better as opposed to not making them worse exist. The document
talks about completing activity level plans within 5 years and
``where appropriate'' designating routes within priority
habitats as administrative access only. Routes that are
adjacent (within \1/4\ to \1/2\ mile?) to leks should be moved
away from leks or closed, and seasonal closures should be
considered within lek areas similar to what Gunnison County has
done in Colorado. Travel management plans should be reviewed
within some reasonable timeframe to consider de-designating and
closing routes near leks or brood areas.
The ROW exclusion in priority habitats is good, but the exception
is troubling. Simply excusing new road construction within
priority habitats by requiring off-site mitigation if it causes
surface disturbance to exceed 2.5 percent is not adequately
protective. I don't know where 2.5 percent comes from, I
percent surface disturbance in core areas is the number I've
seen from Naugle's work. It also matters greatly whether that
road is \1/4\ mile or 3 miles from a lek (or merely crosses
nesting habitat), and whether that lek has 5 males or 300; one-
size fits all is not the right model here. The purpose of the
ROW matters as well; oil and gas rigs vs. mountain bikes. You
can't mitigate loss of a 100 bird lek if frequent traffic
caused abandonment.
``Take advantage of opportunities'' to remove, bury or modify
existing power lines seems to be very weak guidance that is a
long way from any instruction that would lead to these actions.
This should be recast as actions that field offices must take.
c) R3--No Comments.
d) R4--I don't see anything about seasonal closures in this section.
At the end of the first point is the phrase ``at a minimum.''
What else would quality?
With respect to the 2.5 percent surface disturbance, this should be
changed to something like ``if the total infrastructure
footprint to sage-grouse habitat would exceed 2.5 percent, then
off-site mitigation at least equal to the total footprint will
be required.'' Although a powerline, road, etc., may only
physically impact a small area that would not cause an area to
exceed 2.5 percent, the effective habitat impacts (footprint)
could affect much more than the 2.5 percent physical
disturbance area.
e) R5--No Comments.
f) R6--No Comments.
Recreation
1) Special Recreation Permits
a) No Comments.
2) Recreational Management Areas
a) No Comments.
Lands/Realty
Rights of Way
1) General Comments on Lands/Realty
a) R4--re: ``entire footprint''--is this only the physical footprint
or the effective habitat footprint? Same point to be made
regarding the phrase ``existing disturbance.'' Second point,
re: ``disturbance exceeds 2.5 percent'' See previous comment
(earlier email) regarding physical versus habitat disturbance.
Third point (evaluate and take advantage of . . . ) This should
apply generally, not just to priority areas. Insert ``and
proposed'' between ``existing power'' so it reads ``existing
and proposed power lines.'' Under ``Planning Direction Note,''
to the last sentence, after ``during the planning process'' add
``. . . resulting in it becoming an exclusion area not subject
to the exceptions described above.''
b) R5--Why address only those disturbances that are larger than 2.5
percent of the area? All disturbances should be addressed. The
inability to address small areas usually leads to bigger
problems (i.e. weed infestations).
Removing, burying, or altering power lines will most likely add
disturbances to the plant community that will be very difficult
to rehabilitate in many habitat types and thus decrease
suitable habitat and increase weed infestations in sage grouse
habitats
Land Tenure Adjustment
2) Priority sage-grouse habitat areas and general habitat areas
a) R1--No Comments.
b) R2--Retaining priority habitat in public ownership seems to be a
good strategy both as a conservation measure to protect against
conversion and to shift the burden of management of a
potentially listed species to the government. I do think the
language about acquisition of privately held habitat is a bit
open ended, and would suggest modifying that to reflect
acquisition of in-holdings or key parcels that are contiguous
to public ground so as not to appear like a Federal land grab.
I wouldn't also allow for the sale of BLM land to private
conservation organizations (land trusts) or State agencies as
long as there are conservation easements or other protections
in place to ensure sage grouse habitat is preserved in
perpetuity. There are situations where taking land out of
multiple use mandates may well be in the best interest of sage
grouse.
c) R3--No Comments.
d) R4--Land Tenure Adjustment: this section only addresses priority
sage-grouse habitat areas. It should also address general sage-
grouse habitat areas. Also the point made in the draft is only
about ownership patterns. The priority should be placed on
acquiring/managing/consolidating sage-grouse habitat. That's
probably intended, but as worded it is only inferred, not
explicitly stated.
e) R5--Land exchange part appears to me to be very difficult. Private
land owners own much of the water on arid western lands. In my
experience they hold those properties in high regard and do not
want to give those holdings up, especially to the government.
Again, the mineral rights are more sacred than the riparian areas,
mineral rights are seldom sold, but rather quick deeded from
generation to generation. Working in Nevada I commonly hear
``you never sale mineral rights'', so with this mentality how
achievable would this be.
f) R6--No Comments.
Proposed Land Withdrawals
3) Priority sage-grouse habitat areas
a) R2--'' Lands within priority sage-grouse habitat areas will be
proposed for mineral withdrawal.'' I understand and support
what withdraw means in this context, but don't understand what
proposed means? What happens after the proposal, and what
guidance is provided relative to appeals etc.?
b) R4--The example given (military range buffer area) seems like an
isolated situation, not something more likely to be encountered
across sage-grouse range. Can a better example be provided? Is
the buffer example one that is already under active
consideration? Fantasizing (again, think the present budget
situation), what if bases are closed and habitat reverts to the
BLM? How would restoration be conducted and who would pay?
Range Management
1) General
a) R1--No Comments.
b) R2--These strategies seem pretty tepid and largely reflect
commitments that BLM has already made. The statement ``Consider
at least one alternative in the NEPA document required for
permit renewal, if an effective deferred system that meets
sage-grouse habitat requirements are not already in place''
doesn't seem to make sense as written since there is always
more than one alternative considered. I believe it is supposed
to say ``consider at least one deferred grazing alternative''
as opposed to consider at least one alternative. Non-use for
some period should also be explicitly mentioned as a management
action that should be considered when sage grouse habitat
elements are not met by sites capable of meeting them. While
non-use or denial of permit applications may be possible
outcomes under ``grazing decisions'', neither are listed as one
of the five management actions to be considered, all of which
assume some level of grazing use.
There is too much emphasis on protecting crested wheat grass
seedings (``introduced perennial grass seedings'').
Understanding they may concentrate grazing pressure, the
reality is there is an opportunity cost associated with the
potential sage grouse habitat those stands could be providing
and are not, that is ignored here. Sage grouse would be better
off if large tracts of crested wheat are converted back to sage
grouse/native grass and forb communities, with AUMs reduced if
necessary if loss of crested wheat stands reduces forage
availability. This is also true of large burns within occupied
range, which should be explicitly mentioned as targets for
sagebrush re-establishment.
Structural range improvements, including fencing, corrals,
livestock handling structures etc., are prohibited within
priority habitats unless they conserve, enhance or restore sage
grouse habitat. It is impossible to determine whether they
conserve, enhance or restore sage grouse habitat or not without
some explicit criteria as to when they do and when they don't
that is context and scale relevant. For instance I can't
envision a situation where a fence line that goes through a lek
would on balance conserve, enhance or restore sage grouse
habitat regardless of offsetting gains from a livestock
management perspective. If the fence simply went through winter
range and excluded livestock from important brood habitat, I
could.
c) R3--No Comments.
d) R4--Change ``or'' to ``and''. Third point; last sentence. In the
last sentence, use of the term ``productive'' implies that Connelly
et al. and Hagen et al. included unproductive recommendations in
the publications.
e) R5--I have always had a problem with this ``Rangeland Health''
thing. I understand it to a point, but the reality is that the
health is in the eye of the beholder. Is a big sagebrush/bunchgrass
habitat with 10 percent sagebrush cover and good perennial grass
densities less healthier than 20 percent sagebrush cover and less
perennial grasses? Remember, good long-lived perennial grass
densities are the best way to suppress cheatgrass fuel loads that
is critical in protecting sage grouse habitats. The 20 percent big
sagebrush cover may very well be suppressing the much needed long-
lived perennial grasses. Also, plant measurements taken by numerous
individuals, even with a strict protocol, have high error, so in
many cases the data you analyze does not represent on-the-ground
situations. You risk not achieving stated goals and objectives due
to this disconnect between data collected and on-the-ground
realities.
Managing vegetation composition and understanding on-the-ground site
potential is very good!
It is very difficult to modify grazing systems in the arid west. With
such variations in forage productions the climate does not offer
annual predictions, therefore livestock are put out on the range
during drought years in the same manner as during rare wet years.
Our rangelands simply do not provide the flexibility to accommodate
the livestock producer without some kind of financial hardship.
Most livestock producers are lacking winter allotments and have to
feed or supplement their stock at a high cost, therefore they are
chewing at the bit to get their livestock back on the range early
and keep them out their as long as possible. One of the best ways
to manage livestock is to get the cowboy back on the horse and to
focus on the distribution part of the management.
Perhaps using programs that help pay for this labor could be
addressed. On three ranch operations that I work with closely,
there is an average of 1 cow/200 + acres, yet we have hot spots
from improper grazing management because the rancher is now a
farmer/mechanic and trying to produce winter forage for his stock.
Placing the cowboy back on the horse and manually moving their
stock will be much more beneficial and less time consuming than
sitting down at the table and trying to change their numbers and
seasons of use. You want this effort to be achievable then be
careful when placing the livestock industry on the defensive, the
only ones that make out are the lawyers. I once had a livestock
operator in Colorado tell me that it was ``hard to swallow someone
coming in and decreasing his equity in such a closed minded
fashion, how would they like it if I came in and took out a bedroom
and bathroom out of their home''. He ended up selling his property
to a developer. If this mentality is consistent out there, wildlife
in general could pay a price.
e) R6--No Comments.
2) Implemelltillg Management Actions after Land Health and Habitat
Evaluations
a) R1--No Comments.
b) R2--See comments above.
c) R3--Maybe this makes sense to folks internal to BLM, but I did not
really understand the point of this paragraph. This is the only
place where ESDs are mentioned and that is probably a mistake. ESDs
should probably be the basis for many of the evaluations and
actions taken by BLM. That would provide for some consistency
across the county.
``BLM will manage for vegetation composition and structure
consistent with site potential (based on ESDs) to achieve
sage-grouse seasonal habitat objectives.'' This sentence
(as modified) seems to cover the topic pretty well.
Implement management actions (grazing decisions, AMP/
Conservation Plan development, or other agreements) to
modify grazing management to meet seasonal sage-grouse
habitat requirements. Consider singly or in combination
changes in: 1) Season or timing of use, 2) Numbers of
livestock, 3) Distribution of livestock use, 4) Intensity
of Use, and 5) Type of Livestock (e.g., cattle, sheep,
horses, llamas, alpacas and goats). Reviewer comment
``Doesn't BLM have a reference document on grazing
management? If not it might be worth saying that mangers
should use the approach outlined in USDA-NRCS National
Conservation Practices Guide for prescribed grazing (using
grazing to achieved specific vegetation objectives) with a
focus on specific sage-grouse habitat needs.''
d) R4--Under ``Implementing Management Actions after . . .
Evaluations'', second sentence; insert the phrase ``sage-grouse
conservation'' after ``at least one'', and change ``deferred'' to
``grazing''. It doesn't matter what the new system is if it is
effective (recognizing that the deferment period could conceivably
be for several years). Change ``are'' to ``is''.
e) R5--See comments above.
f) R6--No comments.
3) Riparian Areas and Wet Meadows
a) R1--No Comments.
b) R2--See Comments above.
c) R3--Analyze springs, seeps and associated pipelines to determine
if modifications are necessary to maintain the continuity of
the predevelopment riparian area within priority sage-grouse
habitats. Make modifications where necessary, considering
impacts to other water uses when such considerations are
neutral or beneficial to sage-grouse.
Reviewer Comment: Woody plant encroachment is a major
threat to riparian systems in the western part of the
range (juniper species primarily in OR, ID, and NV),
but I imagine there is pine encroachment in higher
elevation meadows in other parts of the range as well.
There areas are lost as habitat if nothing is done.
d) R4--First point, lead sentence. These areas should be managed
everywhere for PFC, period. That's a fundamental tenet of land
management.
Third point re: water development; wells and stock ponds should be
included among the types of developments allowable only when sage-
grouse habitat would benefit. Water developments almost always
exploiting vegetation on the most highly productive soils to
increase or otherwise facilitate livestock grazing. There are also
almost always invasive species issues associated with livestock
facilities, and the analysis horizon for EAs and LUPs is generally
only 10 years, which is not nearly long enough (my opinion). It's
only a matter of time until a new invader arrives or climatic
parameters become suitable for invasives establishment in, or
expansion from disturbed areas. The impact area(s) for livestock
facilities can include areas well away from the immediate
facilities, such as underneath stands of trees (e.g., mountain
mahogany) when livestock use the trees for shading and hammer the
vegetation and soils as a result of prolonged presence These areas
become sources for invasive establishment and spread and it's only
a matter of time before they expand by one or more mechanisms into
adjacent higher-quality vegetation stands. Lots of examples in the
Owyhees, Jarbidge where I have taken photos of such areas where
cheatgrass has become well-established and is lying in wait for the
right conditions and already fingering out along cowpaths.
e) R5--How many of these wet meadows are private? How does this
affect the ability to meet these management goals? Here they are
discussing building fences, earlier they discussed removing
fencing. Is fencing harmful to sage grouse? Again, simply placing a
cowboy back on the range will reduce hot season grazing! Building a
fence around so many riparian areas will only increase maintenance
and repair which may add disturbances to the overall area and in
most cases place the livestock producer in a position where they
are spending time repairing fence on top of farming/mechanic duties
rather than moving and actively managing livestock. Don't these
fences just add perches for predators?
Remember, site potential is important as stated earlier, but don't
forget the inherent potential of plant species to germinate, sprout
and establish in the face of such exotic species such as
cheatgrass. The best known method to suppress cheatgrass is through
the establishment of long-lived perennial grasses such as bluebunch
wheatgrass and crested wheatgrass. In the more arid locations of
the Great Basin the return of Wyoming big sagebrush back into these
disturbed habitats is more successful following the decrease in
wildfire frequencies that can be achieved through seeding of
introduced species such as crested wheatgrass. This is important
because the open window of seeding following a Wyoming big
sagebrush wildfire is that 1st fall season following the
wildfire event. If the seeding fails because of the choice to seed
species with less inherent potential, the window closes and then
some more aggressive, costly methodology to rehabilitate the
habitat is then needed. This latter approach is of high risk and
lower returns; don't fail during this open window! By highly
preferring native species that have little or no chance of
achieving the stated goals, which leads to further degradation in
many circumstances.
Is the Federal Government going to go into the business of managing
their own livestock? In the part about retiring grazing permits I
have this question: Only about 7 percent of Nevada is considered
mountain brush habitat, whereas Wyoming big sagebrush is the major
plant community. Where is the fuels management? The removal of
livestock will most likely result in increased bunch grasses/fuel
loads in the mountain brush habitats. These fuel loads will
probably result in increased wildfires in these habitats that will
burn critical sagebrush communities. In the Wyoming big sagebrush
communities, the perennial bunch grasses are largely gone and
cheatgrass is now the dominant herbaceous vegetation. Whether
cheatgrass is 1" high or 12" high it will still produce seed and
build seed banks. Even though wildfires occur with the presence of
livestock, the reduction of such grazing would result in extreme
buildups of fuel loads. Again, resulting in further loss of
critical shrub communities. The simple removal of livestock will
not result in the return of healthy big sagebrush/bunchgrass
communities, especially in Wyoming big sagebrush communities. So,
how do you plan on managing these fuel loads?
Also, these string meadow systems will have increase in herbaceous
grass species and decrease the forb component, how do you manage
the meadows to increase the critical forb component without some
type of grazing management? Yes horses can achieve that, but they
are not managed and therefore many meadow systems will not receive
this treatment and the risk of decreasing critical sage grouse
habitat needs also increases. This is not effective management.
f) R6--No Comments.
4) Treatments to Increase Forage for Livestock/wild ungulates
a) R1--No Comments.
b) R2--See comments above.
c) R3--For example: Some introduced grass seedings are an integral
part of a livestock management plan and reduce grazing use in
important sagebrush habitats or serve as a strategic fuels
management area.
Reviewer Comment: Be careful here--we have had limited success
converting crested wheatgrass stands to natives in the Great Basin
and if this sort of approach is attempted in the wrong setting
there is a risk of conversion to annual invasive grasses and entry
into short fire return cycles.
d) R4--No Comments.
e) R5--See Comments above.
f) R6--No Comments.
5) Structural Range Improvements and Livestock Management
a) R1--No Comments.
b) R2--See comments above.
c) R3--Modify first sentence: Any new structural range improvements
and location of supplements (salt or protein blocks) will be
designed to conserve, enhance, or restore sage-grouse habitat
through an improved grazing management system relative to sage-
grouse objectives. (Structural range improvements include but are
not limited to: cattleguards, fences, enclosures, corrals or other
livestock handling structures; pipelines, troughs, storage tanks
[including moveable tanks used in livestock water hauling),
windmills, ponds/reservoirs, solar panels and spring developments.)
d) R4--Third point ``Evaluate existing structural . . .'' Ensure that
such evaluations address potential invasives as I discuss above.
Monitoring programs should include regular statistical sampling and
photo monitoring of invasive islands to document whether or not
incremental creeping from the disturbed areas is taking place.
e) R5--See comments above.
f) R6--No Comments.
6) Retirement of Grazing Privileges
a) R1--No Comments.
b) R2--No Comments.
c) R3--Seems like the first thing to do is to assess the effects of
retiring the grazing. If the result of no grazing is increased risk
of fire, then it might be worth reconsidering.
d) R4--This should also include retirements outside of high-priority
areas so that livestock use within high-priority areas can be
shifted out of the high-priority areas when desired.
e) R5--No Comments.
f) R6--No Comments.
Wild Horse and Burros Management
I) General Comments.
a) R1--No Comments.
b) R2--Woefully inadequate measures. While managing wild horses and
burros to AML levels in priority sage grouse habitats would be a
good start, the AML levels themselves must be re-evaluated and in
almost all cases lowered to conserve sage grouse habitat.
c) R3--No Comments.
d) R4--No Comments.
e) R5--Pretty short addressing of the horses/burros issue. If you are
going to mention fencing, water hole dispersal etc., with livestock
then even with a proper management level of horses you need to
address hot season use and the degradation of these water holes by
horses and burros.
f) R6--On-going section: Prioritize gathers? not sure what this is in
priority sage-grouse habitat, unless removals are necessary in
other areas to prevent catastrophic environmental issues, including
herd health impacts.
Minerals
1) General Comments
a) R1--No Comments.
b) R2--Closing priority habitats to mineral development and not
renewing existing leases in priority habitats is a huge
conservation measure, depending of course on the definition of
priority habitat that is ultimately settled on. Applying a NSO
stipulation within 3.1 miles of a lek, and within winter
concentration areas is also a big step. I also support the
requirement that Master Development Plans be required in priority
habitats, as opposed to individual APDs. In the Master Development
Planning process, some consideration should be given to waivers
within 3.1 miles of peripheral/small leks, in exchange for
maintaining NSO near true ``core'' lek areas. In other words, leks
of a half dozen males that are isolated are less important to sage
grouse conservation than core areas where the 3.1 mile buffer may
encompass several leks and hundreds of grouse.
The exception to the NSO stipulation when the entire lease area is
within 3.1 miles is reasonable considering property rights conveyed
with existing leases, but new leases should not be granted on
parcel sizes so small as to make this likely. The full 3.1 mile
buffer contains almost 20,000 acres, which is likely an
unreasonable minimum lease size, but lease minimums of at least
1,000 acres should be instituted so keeping disturbance to within
less than 1 percent of the surface within breeding areas can be
accomplished.
I do think some additional flexibility is called for. The exceptions
to the NSO state that if the entire lease is within 3.1 miles of a
lek or a winter concentration area (which will not be uncommon),
then the pad must be placed in the ``most distal'' part of the
lease. Depending on topography and other habitat aspects, the most
distal portion of the lease mayor may not be the best place to put
the pad from a sage grouse perspective, and some exception that is
demonstrably beneficial to sage grouse should be allowed.
I think another conservation strategy that should be considered is to
not lease Federal mineral under State Wildlife Areas or private
ground that is managed for the benefit of sage grouse. In the
latter case a conservation easement and sage grouse management plan
should be required.
Again I question whether less than or equal to 2.5 percent surface
area disturbance with no more than I pad per section is adequately
protective of sage grouse. Need to ensure that if infill
development is allowed under these circumstances it is restricted
to existing pads/roads only.
One protection needs additional clarification, namely ``a seasonal
restriction will be applied that prohibits surface-disturbing
activities during the nesting and early brood-rearing season in all
priority sage-grouse habitat during this period''. Again, without a
definition of priority habitat it is not clear what this means. If
priority habitat includes winter range, which it should, then
breeding season timing stipulations would not be appropriate there.
I would suggest a buffer around leks (0.6 miles?), to which could
be added early brood-rearing habitat not contained within that
buffer. Seasonal timing stipulations have generally not been
effective sage grouse conservation strategies for a variety of
reasons, and are particularly vexing to industry given huge
directional drilling rigs that are expensive to operate and
difficult and expensive to move. If the net effect of timing
stipulations is to push drill rigs to private land that may be
better habitat, sage grouse are likely to be negatively impacted.
Master Management Plans should be developed that allow for
exceptions to seasonal timing stipulations when impacts are
mitigated by other conservation strategies.
I generally support the BMPs as mandatory conditions of approval, but
the process needs to recognize that Industry frequently finds
better ways to do things more quickly than BMPs are modified, so
any mandatory aspect needs to allow for better approaches to be
approved.
Prioritizing offsite mitigation to priority habitat areas, and to the
population impacted makes sense, but the whole question of when
mitigation is required, to what degree, and even what constitutes
mitigation needs a great deal more development. This document is
silent on that, which leaves it entirely to field discretion. The
currency of mitigation needs to be developed, with credit given for
mitigation over and above that required.
Requiring that sage-grouse habitat objectives are incorporated into
reclamation planning is good, but evaluation must be outcome based.
Applying good practices is not adequate, industry must continue to
manage reclaimed sites until sage-grouse habitat is restored to
required levels.
c) R3--No Comments.
d) R4--Best Management Practices; I'd like to see a provision that
whenever possible everything, including structures traditionally
left above ground, such as well trees, will be buried. In some
cases it would be necessary to dig pits to get structures below
grade. Cost is seemingly the primary issue, but if it is
technologically possible, it should be considered. It would be good
somewhere to establish a sizable pilot area where non-traditional
practices could be implemented and evaluated. Cam Aldridge and I
have talked in the past about facilities being totally buried on
the Sheffield military training area in Canada, and it seems to
work well, without compromising the military mission or raising
havoc with the buried facilities.
e) R5--No Comments.
f) R6--Alternative B I don't follow the Alternative A and Alternative
B? Is one to be deleted? A is better for the species than is B?
What is Appendix A?
Reviewer suggests adding: A seasonal restriction will be applied that
prohibits surface-disturbing activities during the lekking, nesting
and early brood-rearing season in all priority sage-grouse habitat
during this period.
Require unitization? not sure what this is when deemed
necessary for proper development? and operation of an area
(with strong oversight and monitoring) to minimize adverse
impacts to sage-grouse according to the Federal Lease Form,
3100-11, sections 4 and 6. I don't understand this one--it
seems confusing.
Under BMPs on page 11: Roads These are all duplicates of those on
page 8 and;
Operations: These are mostly duplicates--why the redundancy? Can't
the statements about roads and Operations be numbered and stated
once and then later mentioned by number in appropriate sections?
Page 12: Reclamation Redundant; Locatable misspelled.
Fire and Fuels Management
1) Fuels Management
a) Rl--No Comments.
b) R2--Prohibiting Fuels Management treatments in known winter range
is too restrictive. There may be situations where the fuels
treatment is small enough or in higher precipitation zones with
ample forage where treatments will be beneficial (i.e., where
winter range is also brood habitat). Similarly, excluding fire in
areas with less than 12-inches of annual precipitation is also too
restrictive, as size of treatment definitely matters.
c) R3--
Do not reduce sagebrush canopy cover to less than 15
percent (Connelly et al. 2000, Hagen et al. 2007) unless
the fuels management objective requires additional
reduction in sagebrush cover to meet strategic protection
of priority sage-grouse habitat. Closely evaluate the
benefits of the fuel break against the additional loss of
sagebrush cover in the EA process. Reviewer comment: In
many areas site potential will be below 15 percent, so this
number seems a little irrelevant. Why not say the sagebrush
will not be reduced below site potential unless required
for strategic reasons? There is a need to insert some
language about reducing the risk of wildfire and post-fire
expansion of invasive species.
No treatments will be allowed in known winter range.
Reviewer comment: Seems a little extreme--what if there is
a risk of loss of winter range that might require some
treatment?
Do not use fire to treat sagebrush in less than 12-inch
precipitation zones (e.g., Wyoming big sagebrush or other
xeric sagebrush species; Connelly et al. 2000, Hagen et al.
2007, Beck et al. 2009). Reviewer comment: This sort of
blanket statement is bound to create unintended negative
consequences. Again, I would suggest referring to site
potential. Site potential in a 12" precipitation zone in
eastern Wyoming is different from a 12" zone in eastern
Oregon. The western port of the sage-grouse range in
dominated by a winter precipitation climate, the eastern
part of the range has much more summer precipitation.
Temperature and thus evaporation potential during the
period precipitation comes can have a big impact onsite
potential. Along the some lines, north slopes have a very
different site potential and set of risk factors than south
slopes even in the same precipitation lone.
Reviewer suggests: It might be better to include a
statement to the effect that treatments must be analyzed
with regard to the risk of invasive species expansion.
d) R4--Clarify/define the terms ``native seeds'' and ``non-native
seeds''. Does this mean locally collected seeds, the same species
of seeds collected from anywhere (BLM has had problems in the past
with, for example, sagebrush seed being planted that was collected
hundreds of miles away from where it was collected. Not good.), or
truly exotic species?
In the third point, change ``etc.'' to ``or other activities'', and
delete the last phrase ``that benefits sage-grouse''. That's the
reason it's being done in the first place.
e) R5--``No treatments will be allowed in known winter range''. Are
you going to sit back and have a catastrophic wildfire dictate your
outcome? Wouldn't you rather implement a fuels management plan that
can reduce the chances of a wildfire taking out an entire mountain
range (e.g. Montana's). Or would you rather close the lid to the
tool box and take the chance that back to back years of above
precipitation occurs that buildup cheatgrass and other fuels and
just wait for a dry lightning storm and see another mountain range
burn completely. The wildfire storms of 1999 are not that long ago!
Again this holds true for PJ encroachment as well.
Are winter ranges a constant vegetation type? No, so why would you
state such an objective? These plant communities are continually
changing, no matter how subtle they appear. This type of passive
management is helping further degrade critical habitats. Be pro-
active and vision what the habitat needs will be in 20-25 years
down the road and approach the issue in this manner rather than
letting outside forces dictate the destructive outcome that is sure
to happen by being passive.
If a wildfire burns a cheatgrass dominated landscape, what is
protecting the site from grazing for 2 years going to accomplish,
other than the buildup of more cheatgrass biomass? Does someone
magically think that the system will restore itself? Where the hell
is the evidence of this? Is your management promoting fuel loads?
Remember, with each fire season comes a cheatgrass fueled wildfire
that destroys more and more unburned sagebrush islands.
Where is the table or data that suggests the probability of native
seeds versus introduced seeds for fuels management or restoration/
rehabilitation? How do you accomplish your goals and objectives
without such information?
f) R6--Page 15
Do not reduce sagebrush canopy cover to less than 15
percent. Reviewer comment; Why reduce it in the first
place? There should be strong evidence to reduce any
sagebrush canopy given the great variety of negative things
that can happen during and after ``reduction activity''
(Connelly et al. 2000, Hagen et al. 2007) unless the fuels
management objective requires additional reduction in
sagebrush cover to meet strategic protection of priority
sage-grouse habitat. Closely evaluate the benefits of the
fuel break against the additional loss of sagebrush cover
in the EA process.
Page 16
Do not use fire to treat sagebrush in less than 12-inch
precipitation zones. Reviewer comment: I'd prefer no use of
fire in any sagebrush in a priority sagebrush area (e.g.,
Wyoming big sagebrush or other xeric sagebrush species;
Connelly et al. 2000, Hagen et al. 2007, Beck et al. 2009).
Monitor and control. Reviewer comment: How is monitoring
to be done? And only the Lord knows how to control
invasives post-treatment, biologists sure don't invasive
vegetation post-treatment. Does anyone really think this
will happen on the ground?
3) Emergency Stabilization and Rehabilitation (ES&R)
a) R1--No Comments.
b) R2--No Comments.
c) R3--
Consider potential changes in climate when proposing post-
fire seedings using native plants. Selecting native plants
adapted to a warmer climate with more variable
precipitation should be considered given the longevity of
native plants. Reviewer comment: There is no basis for this
suggestion. To date there is no research I am aware of
showing that plant species are changing their ranges. And
the movements are likely to be so slow that managers will
be able to adapt without introducing new species (in other
words those species will have become part of the system by
the time we need to actively consider them in seeding
mixes). We have enough trouble establishing the existing
native species on most sites. I know Interior is under
pressure to ``respond'' to climate change, so if you must,
put in a statement to the effect that species mixes will be
adjusted as information on changes in species ranges
becomes available.
d) R4--No Comments.
e) R5--No Comments.
f) R6--No Comments.
Habitat Restoration
a) R1--No Comments.
b) R2--No Comments.
c) R3--
Habitat restoration objectives should include sage-grouse
habitat parameters as defined by Connelly et al. 2000, Hagen et
al. 2007 or if available, appropriate local information.
Reviewer comment: (State sage-grouse plans for example?)
Meeting these objectives within priority sage-grouse habitat
areas would be the highest priority.
Consider potential changes in climate when proposing
restoration projects using native plants. Selecting native
plants adapted to a warmer climate with more variable
precipitation will be considered given the longevity of native
plants. Reviewer comment (bad idea-see above)
d) R4--No Comments.
e) R5--No Comments.
f) R6--No Comments.
Monitoring Strategy
a) R1--No Comments.
b) R2--No Comments.
c) R3--
Long-term monitoring strategy of sage-grouse and sagebrush
will be developed and implemented for adaptive management.
Regular updates would reflect changes in distribution in
priority habitats once functional habitat is restored and
used by sage-grouse.
I know invasive species can be considered a part of most sections,
but given their importance relative to grouse and grouse habitat,
it seems odd that the coverage of this issue is so sparse.
d) R4--Page 17, Sixth point ``Work as an interdisciplinary team . .
.'' Again, this is a fundamental tenet for BLM as a management
agency. It shouldn't be necessary to remind people to do what their
jobs already require. And if it's going to be mentioned under one
activity, it should be mentioned in all. A final side note here:
Not all that many years ago, Fire Management was an entity unto
itself and, in fact, did not always work closely with other
disciplines. It may be that mentioning this here harkens back to
that time and some folks may want to keep it.
e) R5--This section needs to be titled Restoration/Rehabilitation
since the use of non-native seeds are an option.
It is very theoretical to suggest using species that are more adapted
to warmer or drier climates (assisted succession) in a management
plan. Are you suggesting seeding Wyoming big sagebrush in a
mountain big sagebrush zone? This approach, which we have worked
with for 10+ years, suggests that it works. Do you really want to
make management decisions of this magnitude off of a theory?
This is not restoration, but rather revegetation. There is nothing
wrong with testing this theory further, but it should probably be
under fuels management, not restoration.
There is an underlying tone to use native seeds in the argument of
``native''. It would be a mistake to go to a site and try and
restore it without understanding the risks of such efforts. You
could use needle-and-threadgrass or Thurber's needlegrass in a
restoration effort @ $135/lb and not add any value to your outcome
because the lack of understanding. It is very difficult for this
species to be successfully seeded, but yet we did it under the
``native'' argument. Far too often seed mixes are put together
under what looks good on paper or someone's ecological site
description, rather than what are the chances we can get this
species established and help prevent further degradation! After
all, this effort is to protect and enhance sage grouse habitat,
right?
In the effort to restore sagebrush densities, it should be noted that
there are levels of big sagebrush which are detrimental to big
sagebrush itself. Once the big sagebrush reaches higher percent
covers, long-lived perennial grasses will decrease, cheatgrass will
then be the void and fire will follow. It always amazes me how many
folks miss the point that cheatgrass starts under the shrub,
excellent safe-site with litter and moisture, and then mines the
site out into the inter-spaces. Sagebrush does not suppress
cheatgrass. Sagebrush over-stories should be more defined and
managed by the local resource managers specific to the site since
it is of ``highest priority''. I truly see the concern because we
are not very good at restoring or protecting sagebrush, but sitting
back and hoping that the sagebrush community is not destroyed has
not worked. We aged big sagebrush communities (both mountain and
Wyoming) and found the ages from 20-75 yrs of age. Mountain big
sagebrush built small numbers of seed banks but really not enough
to sustain itself without some type of outside help. No seed banks
were recorded from Wyoming big sagebrush communities. The return of
Wyoming big sagebrush on our 28 year old plots is absent, yet the
mountain big sagebrush community had various return rates from 15
percent cover in 10 years to only 8 percent cover in 15 years at
another site. These goals and objectives need to be flexible and
more lenient or they will never be achieved for some habitats. The
reality is that in many of these habitats we would be ecstatic to
have 10 percent sagebrush cover!
f) R6--No Comments.
Literature Cited
Endangered first citation misspelled.
Many citations are not in this document. Assume they are in
accompanying document.
______
Questions Submitted for the Record to Megan Maxell
Questions Submitted for the Record from the Committee on Natural
Resources
Question. Are the policies and procedures in instruction Memorandum
No. 2012-043 legally binding on the BLM?
Answer. Instruction Memoranda (IM) are internal operating policies
for the BLM, and it is my expectation that the BLM will follow them.
Question. Will States be exempted from the applicability of the
Instruction Memorandum 2012-043? If yes, please explain the exemption
process in detail.
Answer. It is possible for a BLM field office to be ``exempted''
from IM 2012-043. The process is outlined in the IM itself, which
exempts BLM field offices from its effect when a State or local
conservation mechanism has been developed with the concurrence of the
Fish and Wildlife Service and the State sage-grouse plan has been
adopted by the BLM State office through issuance of a state-level IM.
Question. If the FWS concurs with a State's management plan, will
the BLM defer to tile FWS in determining whether the State will be
exempted from the applicability of Instruction Memorandum No. 2012-043,
and will that plan be treated as a ``preferred alternative'' in the
NEPA analysis?
Answer. The ``exemption'' process, including the role of the FWS,
is addressed in the IM itself and in response to Question 2 above. It
would be premature to identify a preferred alternative at this point;
rather, one will be selected at the appropriate stage in the NEPA
process for the resource management planning effort currently underway
to address conservation measures to benefit the Greater Sage-Grouse. As
part of that planning effort, the BLM will consider a State management
plan in its development of alternatives.
Question. How will the Department ensure a consistent approach
between State BLM offices?
Answer. The Department has established a collaborative structure to
guide the Greater Sage-Grouse planning effort-including numerous teams
involving representatives from various Federal and State agencies,
including each affected Governor's office. For example, the Sage-Grouse
Task Force is led by Governors Hickenlooper and Mead, the BLM Director,
the BLM's National Policy and Regional Management Teams, and State
Planning Teams. The Department believes that this unprecedented level
of collaboration will ensure a consistent approach among the BLM State
offices.
Question. How do the Instruction Memorandums [IM] and National
Technical Team Report [NTT Report] comply with the multiple-use mandate
of the Federal Land Policy and Management Act?
Answer. The IMs do not require any particular action on-the-ground;
rather, they require the BLM to incorporate certain procedures and
consider certain management actions during the NEPA process in
accordance with FLPMA's multiple use mandate. During the applicable
NEPA process, the BLM will consider a variety of factors, including
whether a particular measure or combination of measures is appropriate
in the context of its multiple use mission. Our goal is to develop and
implement effective Greater Sage-Grouse conservation measures so we can
maintain the maximum level of management flexibility on the lands we
manage.
Question. How does BLM intend to use the NTT Report and IM No.
2012-044 in the NEPA analysis?
Answer. As outlined in IM 2012-044, through the land use planning
and NEPA processes that are currently underway, the BLM will consider,
in at least one alternative, all of the applicable conservation
measures in the NTT Report.
Question. Is BLM relying on IM No. 2012-043 and/or the NTT Report
to authorize the grazing restrictions, allotment closures, and drought
management measures they are imposing in Nevada?
Answer. The BLM refers to all applicable policy and best available
science in its management decisions. The drought related management
measures referred in your letter are based on overall drought
conditions and the impact to overall rangeland health. The drought
measures in Nevada include voluntary livestock removals and subsequent
requests for grazing changes, including non-use, in 2013. The requests
are limited to intact native vegetation and riparian zones. While
Greater Sage-Grouse habitat, if present, would be considered with the
best available science, the drought measures are not specific to the
Greater Sage-Grouse.
Question. Does the Department intend that the IMs, NTT Report or
BLM's preliminary mapping efforts will require the conservation of
sage-grouse to the exclusion of other resource uses, including the
rights of locators or claims under the Mining Law of 1872, or other
mining rights pursuant to other laws?
Answer. The land use planning amendment effort currently underway
is aimed at implementing conservation measures to benefit the Greater
Sage-Grouse. Through this process, the BLM hopes to strike the
appropriate balance of resource uses and resource conservation to
ensure the short- and long-term sustainability of Greater Sage-Grouse
habitat and populations in a manner that promotes a healthy economy,
protects valid existing rights, and provides a promising future for
both the public and the Greater Sage-Grouse. The BLM will consider
incorporating appropriate conservation measures into all of its land
use plans covering occupied Greater Sage-Grouse habitat. The BLM
believes that no single set of conservation objectives will apply
across the entire multi-state range, or even within the area of a
single State. Greater Sage-Grouse conservation efforts need to be
defined at a local scale and be supported by the best available
science.
Question. Have the IMs, NTT Report or the Bureau's preliminary
mapping effort ever been used to delay, deny, or alter final
determination on BLM authorizations? Please explain each such instance
in detail.
Answer. The BLM is aware of some authorizations that have been
delayed while our planning process is underway but a comprehensive list
has not been developed. I have asked the BLM to conduct a field data
call so we can assemble this detailed information.
Question. Was the NTT Report document peer reviewed according to
the Department's Data Quality Act requirements? If yes, please provide
copies of all peer review documents.
Answer. The BLM followed the Department's Data Quality Act policy
and sought a peer review commissioned by the Nevada Department of
Wildlife Director, Mr. Ken Mayer. Mr. Mayer serves on the National
Greater Sage-Grouse Planning Strategy National Policy Team. Mr. Mayer
commissioned an outside review of the conservation measures in a draft
version of the NTT Report by six scientists. A report of their comments
is enclosed. A subset of the National Technical Team members met in
Phoenix from December 6-8, 2011, to address many of these scientists'
comments and further articulate and document the scientific basis for
the recommended conservation measures. These were incorporated into the
final NTT Report.
Question. How will the BLM incorporate the NTT Report into its
ongoing Land Use Planning Strategy?
Answer. As explained in response to Question 6 above, the BLM will
incorporate the NTT Report into its analysis as outlined in IM 2012-
044.
Question. Does the Service believe that the NTT Report represents
the baseline for conserving the species?
Answer. The NTT Report provides a summary of the best available
scientific information for the conservation of Sage-Grouse within the
framework of the BLM's planning process. As such, it is an excellent
reference. As noted in the NTT Report, in some cases conservation
measures identified in the Report will need to be modified based on
local ecological conditions or new information.
______
The Chairman. Thank you very much for your testimony, Ms.
Maxwell. We will now start the questioning process, and I will
recognize myself first for 5 minutes.
It occurs to me, in the number of hearings that we have
had, where we have had both proponents and opponents of the
Endangered Species--I shouldn't say ``opponents,'' but people
have different views of the Endangered Species Act. In
testimony that we have heard thus far, I have never, never
heard anybody say that we should totally repeal the Endangered
Species Act.
In fact, if there is one common thread that I have heard in
all these discussions, it centers in two areas. It centers on
process of implementing the Endangered Species Act, which we
heard here today, and we hear about the transparency of the
data used to make these decisions. Those seem to be the areas
where people have a concern.
Now, in my State of Washington, we have been impacted, I
think, greatly by listings of the Endangered Species Act. And
it is interesting, Dr. Roman, you alluded to the gray wolf as
being a success story. But let me tell you how stupid it is in
my State as to how that listing works. In my State of
Washington, specifically in Okanogan County, on the east side
of Highway 97 they are delisted. On the west side of Highway 97
they are not. Now, I know that the wolf is supposed to be a
very intelligent animal, but I don't think the wolf reads
highway signs.
Now, this is the dumb stuff of the implementation. And yet
we come in front of these committees all the time, and we hear
about all of the wonderful things that can come from savings
species. Nobody is arguing about that. I have never heard a
proponent at any of these hearings talk about the
implementation from their perspective. It is always from people
that are trying to improve the act. This is where we are. And
it disturbs me.
And as far as the transparency is concerned, there are a
lot of questions regarding transparency. Mr. Evans, as you
know, this committee requires public disclosure of Federal
grants and so forth in contracts that you may have. You listed
those in your application today. And your organization, the
Endangered Species Coalition, has received or has finalized
over $44,000, as I understand, in Federal contracts with the
U.S. Fish and Wildlife Service, just during the Obama
administration in the last 3 years. Is that correct?
Mr. Evans. I don't have the details, but I think it is
generally correct. And it is to celebrate the 40th anniversary
of the Endangered Species Act.
The Chairman. Well, I am just asking about the
transparency.
Now, you mentioned in your opening statement that your
Endangered Species Coalition is made up of a number of
organizations. I understand that the Center for Biological
Diversity and the Wild Earth Guardians are part of that, that
makes up your group. Is that correct?
Mr. Evans. Correct.
The Chairman. That is correct. Well, it seems to me those
two groups were the two groups that entered into this mega-
settlement that I alluded to in my opening statement that has
caused so much consternation around the country with this mega-
settlement. Would not the fact that your group, of which these
groups are part of it, getting Federal grants seem to be a
conflict of interest in this whole process?
Mr. Evans. It doesn't seem to me, Mr. Chairman, because of
the way our coalition works. It really is a coalition. Each
organization--which is members entitled to make its own
decisions. And, matter of fact, our own board can make its own
decisions, too. We don't file lawsuits as a coalition.
For example, if they want to do whatever they want to do
according to their own internal processes, it really has
nothing to do with whatever grant we might get from, say, Fish
and Wildlife Service to help celebrate the 40th anniversary of
the Endangered----
The Chairman. OK, well, let me say, then--so you say from
your--you don't see a conflict with your organization. But
would you see--potentially see that there is a conflict if a
organization that was receiving Federal grants brought a
lawsuit against the Federal Government? Don't you think there
would be a conflict there?
Mr. Evans. I guess I don't. I am a lawyer, myself. But I
don't think it is any more of a conflict than a consulting
biologist doing work for an agency or a county government and
having their own opinion about what things might be.
The Chairman. Well, my time is expiring, and I just want to
point out that those are the facts that we have seen. And there
are some--there are some, including this Member--that believes
that there is potential conflict when you have people on one
hand receiving taxpayer dollars and, on the other hand, suing
the Federal Government. There seems to be a distinct conflict.
This is part of the problem that I see of process, as the
implementation of the Endangered Species Act.
My time has expired, and I recognize Mr. Grijalva for 5
minutes.
Mr. Grijalva. Thank you very much, Mr. Chairman. And just
following along with the Chairman's point, Ms. Maxwell, in the
analysis that you provide us, provided the committee, as an
independent biologist, consulting biologist, that work was in
an independent effort on your part, or was it work provided to
a client?
Ms. Maxwell. No, it was work provided to a client. I was
asked to review the NTT Report for Northwest Mining
Association.
Mr. Grijalva. OK. I don't see it as a conflict that you can
get paid by a client that has a particular interest in how ESA
is implemented, and I don't see a conflict in organizations
that have an interest in protecting the Endangered Species Act
or critical habitats being able to use the process to litigate.
Anyway, Mr. Roman, in your testimony you mentioned that
protecting endangered species protects our economy. The
rhetoric coming from people who oppose ESA would lead one to
believe that keeping species from going extinct is destroying
our economy. What is that--what are they missing?
Dr. Roman. Well, thank you. As I had mentioned, it is the
idea of natural capital and natural infrastructure, that these
wild areas, including endangered species and the ecosystems
that they depend on, provide services and benefits to the
community. So it is not just about costs, it is not going to
destroy our economy.
In fact, working in the field of ecological economics, as I
do, the economy and the ecology are the same thing. I mean the
economy is part of the broader ecology. We need to work with
nature in that regard. And we will find lots of benefits, as we
have when we have protected rivers. You get fisheries, you get
recreation, you get all kinds of benefits from that protection,
by building this natural infrastructure. We can really
protect--also protect our coastlines. Natural infrastructure,
what we might call horizontal levees, instead of building
large, concrete structures, are more resilient and more long-
lasting. So that is one of the many ways that we might be able
to look at it.
Mr. Grijalva. Yes, when we hear the cost analysis of the
Endangered Species Act, it is always on the loss side of the
ledger. And the benefit side, whether it is flood control
protection, drinking water, economic benefit to communities, in
terms of visitations, those are never quite--don't have the
prominence, unfortunately, to what the benefit side of that
ledger is.
One more question, Mr. Roman. Indicator species often feel
the effects of a changing environment way, way ahead of humans.
And we have seen this play out as earth's climate is warmed.
Mr. Foley talks in his testimony about the threat of drought
both to Lesser Prairie Chicken and to the Kansas economy. Do
you believe we need to heed or ignore the signals that
endangered species are sending us about how climate change
influences drought, fire risk, and the productivity, in
general, of an area?
Dr. Roman. Absolutely. So, as we have heard today,
endangered species are often surrogates for their ecosystems.
When we say that the red cockaded woodpecker is endangered, we
really mean that long-leaf pine forests are gone. And now,
endangered species are showing us something temporal, something
that is changing about the entire world. As many species such
as the polar bear, which is disappearing in the Arctic, or
coral reefs, corals are disappearing around the world, they are
clear warnings that things are changing in the oceans and the
climate. We need to heed that and to act on it: one, by
reducing greenhouse gases, but also by mitigating or helping
them to adapt.
Mr. Grijalva. Thank you. And a couple things for the
record. Eighty percent of the litigation, of the lawsuits right
now filed regarding the Endangered Species Act, are opponents,
opposed to the implementation or opposed to the Endangered
Species Act.
So, as we do the equation about all this litigation is
killing the economy and keeping the process from moving
forward, I think it is only fair to point the finger where the
finger needs to be pointed.
I also like to point out that the Chairman of the U.S. Farm
Bureau has sued the Federal Government on behalf of farmers
representing many of them who, if I am not mistaken, many of
them--on the Endangered Species Act who receive farm subsidies
all the time. That is taxpayer's money, as I see it, as well.
With that, let me yield back. And thank you, Mr. Chairman.
The Chairman. The time of the gentleman has expired, but I
thank him for yielding back.
I understand Mr. Lamborn is going to let Mr. Bishop go
first, so Mr. Bishop is recognized for 5 minutes.
Mr. Bishop. Thank you very much. He just wants to get rid
of me faster.
I appreciate all the testimony that has been given here. I
just have to make one comment at the beginning. Any program
that is passed unanimously by the Senate and signed by Richard
Nixon has got to be a priori evidence that this is a screwed-up
program.
[Laughter.]
Mr. Bishop. Mr. Albrecht, let me first start with you. You
mentioned several of the issues that you were facing in Garkane
Power. And it is good to see you again, Carl. Are the other
Utah co-ops facing similar situations to Garkane?
Mr. Albrecht. Yes. There are six co-ops based in Utah. Two
others have sage grouse issues, and I believe one other one has
prairie dog issues.
Mr. Bishop. OK. How much have you actually spent on ESA and
mitigation in the last 3 years?
Mr. Albrecht. Well, I just went through and did a
calculation on legal and environmental work on transmission
lines for the past 3 years, and I came up with $624,000, which
amounts to about $54.22 per customer. Those are real dollars. I
mean these folks in southern Utah don't make a lot of money.
They are not inside the beltway, so their income is quite low.
And they are struggling. Ten percent of the land is privately
owned, and so those farms, they don't make a lot of money, yet
they are impacted by our regulations. And any amount on the
power bill is going to be an increase.
Mr. Bishop. We came up with co-ops in the first place back
decades ago, because of the additional expense it was for
electrification in rural areas.
Let me ask you one last question also about what is
happening. You gave in your testimony some of the hurdles you
have to jump to go through things. In your experience, does the
ESA provide you with flexibility to make common-sense
decisions, or is it a rigidity that stops you from making
common-sense decisions?
Mr. Albrecht. Well, there is very little flexibility.
Mr. Bishop. That answers it, right there.
Ms. Maxwell, if I can hit you up on a couple things. NTT
stands for what?
Ms. Maxwell. National Technical Team.
Mr. Bishop. So, is there a conflict here? FLPMA tells us
that we have to manage these lands for multiple use. That is
the goal. But NTT has a different goal. Doesn't it put a
different ecological value above anything else that is there?
Ms. Maxwell. Yes, that is true. Their primary objective is
to decrease anthropogenic disturbances, which then makes their
objective inconsistent with FLPMA, because it puts all
ecological preferences above other uses.
Mr. Bishop. All right. I appreciate your references to the
FOIA request that Governor Otter got. I thought you were too
kind to Fish and Wildlife in the way you presented it.
What those internal memos simply told us is that normally
you would assume people would look at the science, make some
best guesses, and then come up with a decision. What I think
those memos told us is the agency was making a decision, then
trying to find some science to back it up. And then, when they
couldn't find that, then they filled in the gaps with their
best guesses, which means we have reversed this entire process
with this particular agency. And I think those memos that were
uncovered by Governor Otter are extremely significant at this
particular time.
I want to emphasize some of the problems we have with the
administration that is supposedly trying to work with the
States, but does not do it. The State of Utah has a wonderful
sage grouse plan. I think it is even better than Wyoming's. But
the difference is our BLM has retarded the effort of the State
to try and implement that plan, where they have worked with
other States in a different manner. It is frustrating.
We have a grand penstemon, or whatever it is. It is a
flower that, ironically, grows over oil shale only. But it can
only be determined by the bloom. Otherwise, it looks like other
flowers. Fish and Wildlife has said local governments can come
up with a mitigation plan if they can identify it by March. The
unfortunate thing this coming year, the unfortunate thing is
the bloom doesn't take place until May or June, which means we
have to come up with a mitigation plan before we can find out
what the hell the plants are, and where they are. That is the
kind of problem that this administration is placing on States
who actually can do the work.
And I don't even have time to go into the John Gochner
story, but some day we will----
The Chairman. Will the gentleman yield?
Mr. Bishop. I will be happy to yield.
The Chairman. This sounds very consistent with what I was
talking about, was the implementation of the plan. I mean every
time we bring up these sort of things--this is a case of
implementing a law. I will yield back to the gentleman.
Mr. Bishop. And I will yield back to you, because my time
is out.
The Chairman. I noticed that. Next I recognize Mr. Huffman
from California.
Mr. Huffman. Thank you very much, Mr. Chair. Just one quick
question.
Dr. Roman, in your testimony I notice that you talked about
the economic value of species, the charismatic mega-fauna, the
whales, the manatees, and the eagles. And certainly, we have
come to appreciate that iconic species like that have a lot of
economic value, through tourism and other things. But I wonder
if you could speak a bit about the fact that those charismatic
iconic species are also part of a bigger ecosystem that depends
on lesser species.
And I know that a favorite tactic of critics of the ESA is
always to pick out some obscure flower or some non-charismatic
species, and to sort of ridicule it as not being important or
not being significant. So I guess this question also brings up
the broader value of biodiversity and functioning ecosystems,
which clearly were an inherent value in the Endangered Species
Act, which has been supported for so long with bipartisan
majorities, and of course, remains very, very popular with the
people of the United States.
So, it is a rather open-ended question, but I think you
understand what I am asking for.
Dr. Roman. Absolutely. And I chose those species because
they are familiar. But equally important--perhaps more
important--are plants. And the primary producers in these
ecosystems are essential. Nothing is going to exist without
them. We have managed to--a lot of carnivores, the larger
animals, have declined more quickly than the smaller ones--we
thought so, at least in the beginning--because they were
hunted. That was the main threat to a lot of species until
about the past 50 years, when habitat became the big issue.
So, by focusing on habitat, one way to look at it is to
look at the plant diversity. And you find lots of diversity in
these areas. And to me, they are equally important to those
charismatic animals, whether it is a mussel, a plant, or a
snail. We need to protect all of them. There are spiritual/
moral reasons for that, but there are also very good economic
reasons and reasons why it is good for our health and well-
being, as well.
Mr. Huffman. All right. Thank you. I will yield the
balance----
The Chairman. Will the gentleman yield to me?
Mr. Huffman. Certainly, certainly.
The Chairman. I appreciate the gentleman yielding. And the
gentleman talked about plants. Let me tell you again, following
the same line of reasoning that I was using earlier about the
implementation, and I mentioned specifically the bladderpod in
the State of Washington. Let me be more specific. It is in the
county I live in, just north of where I live.
Now, the listing did not include any input from any local
farmers or anybody. But it said that if it were to be
implemented, it would impact private property as well as
Federal property.
Now, the farmers were kind of, ``Where did this all come
from?'' And so they got permission to test the DNA on the
bladderpod in Franklin County with bladderpods in other parts
of Washington State and two other States. And they had a
geneticist or an agronomist from the University of Idaho look
at that, and they said the DNA is exactly the same in all of
these areas.
Now, wouldn't logic say, ``Boy, maybe we ought to have a
re-look at this?'' Now, this happened about 6 months ago. There
has been no re-look. Does this not suggest that the process
someplace here, where everybody is upset about, needs to be
looked at? So I very much appreciate the gentleman yielding to
me to make that point, because nobody--as I have mentioned
earlier; I think you were here when I said that--has said,
``Eliminate the Endangered Species Act.'' And I will yield back
to the gentleman, if he wants to continue.
Mr. Huffman. Well, thank you very much, Mr. Chair, and
maybe that is an occasion to ask Dr. Roman an additional
question.
If the science is wrong on a listing, and that can be
demonstrated, is there a fix for that, and a remedy for that,
under the Endangered Species Act?
Dr. Roman. Absolutely. Species are delisted because of
taxonomic error.
Mr. Huffman. OK.
Dr. Roman. They have been in the past. So there are
opportunities for that, for them to be revisited, if that is
the case.
Mr. Huffman. I am not a plant geneticist, but I do think it
is important to make the point that if they are correct, your
constituents are correct, hopefully the system will work, and
the mechanism will be available to them.
The Chairman. Well, if the gentleman will yield, since
there is a little bit of time, I just want to make the point.
Nobody locally in my home county of Franklin was contacted
regarding this listing. Nobody was. And then they raise money
themselves to test the DNA. This was 6 months ago. And still no
response.
I mean I am looking to see what is going to happen. I am in
the air, just like they are, on something that has proven by
DNA--now, I don't know if DNA is absolutely the best test, but
it has got to be a pretty good test, it seems to me.
I thank the gentleman for yielding.
Mr. Huffman. Thank you, Mr. Chair.
The Chairman. Next I will recognize Mr. Fleming from
Louisiana.
Dr. Fleming. Thank you, Mr. Chairman. First of all, I would
like to echo the statements of the Chairman that some of our
panel members argue about the ESA as though there are Members
here who actually oppose that we have protection for endangered
species. Nothing could be further from the truth. And we hear
name-dropping of a Republican President, former President
Nixon. He signed that into law. And it is true that protection
of endangered species is popular among the American people.
What isn't popular is the disruption to people's lives and
to commerce that is happening through its implementation. So
that is really what we are here to talk about today, not to
debate whether or not it should have been signed into law some
40 years ago.
I have a question for Mr. Sikes and Ms. Maxwell. In 2007,
the Fish and Wildlife Service approved guidelines to comply
with the Information Quality Act. Page two of those guidelines
state the following: ``The quality of the information that the
FWS disseminates is always important, but that certain factors
such as court-ordered deadlines may limit applicability of
these deadlines.''
So, my question is this. Is it concerning to you that court
deadlines, including the mega-settlements, could limit the
quality of the ESA information FWS disseminates to the public?
Ms. Maxwell. I think it can, because it facilitates a rush
to science. And in a lot of instances, that underlying data of
these reports or studies isn't then made available, not even to
Fish. So it can be a problem.
Dr. Fleming. Right. And I heard you say earlier that, often
times, opinion is substituted for science. And that is
problematic in a lot of the things that we deal with here,
where it seems like the facts, the data, is hidden in the
shadows, and get, instead, opinion, which--of course, opinion
is often biased, and that is OK. But the important thing are
the facts. That should be most transparent.
And Mr. Sikes?
Mr. Sikes. Yes. I mean I agree that they do--they don't
provide any information, as far as I can tell from Arkansas'
experience. I think I said in my comments we didn't know
anything about the settlement, we didn't know anything about
the science that was being brought forward, we didn't know--had
we not participated in this process on this--making comments on
the critical habitat designation, no one would have ever had
any idea, really, what was going on in the State of Arkansas.
As a matter of fact, we missed the first deadline. And it
was only through good fortune and the work of our delegation
that we were able to get an extension so that we could do
something. But there wouldn't have been any information
provided whatsoever, as far as I could tell.
Dr. Fleming. Well, then, to follow up on the question,
wouldn't that undermine the purpose of the information quality
provisions?
Mr. Sikes. I would think so.
Dr. Fleming. OK. Also, Mr. Sikes, Mr. Albrecht, and Mr.
Foley, many environmental groups have called the Endangered
Species Act ``99 percent effective.'' How would you
characterize the law's effectiveness?
Mr. Sikes. Well, now, I am not an expert on it. Here in the
last couple of years I have tried to bring myself up to speed.
But from my perspective, from working with folks from out
West----
Dr. Fleming. Just real quickly, because I have to get to
all three. How would you characterize it?
Mr. Sikes. Broken, completely.
Dr. Fleming. OK. Mr. Albrecht?
Mr. Albrecht. Not very effective in its implementation. We
have gone too far to one extreme. As is it now, it is affecting
rural economies, people who have private land they want to
develop prairie dogs on, they can't. Grazing, from the farmers
and ranchers. Power line right-of-ways.
Just to give you an example, in the power business we have
found that the northern goshawk, which is a species in our
area, actually uses a power line right-of-way as a feeding
alley. They can see the mice, the rabbits, whatever, better.
And so they use those for feeding. It is just too far extreme
the wrong way. It is affecting commerce, as you said.
Dr. Fleming. Right. And, real quickly, Mr. Foley?
Mr. Foley. I would concur with the Chairman, as far as I
believe that the process is broken and needs work.
Dr. Fleming. Thank you. I yield back.
Mrs. Lummis [presiding]. I thank the gentleman. Panel, our
Chairman has had to leave. Doc Hastings had another commitment.
My name is Cynthia Lummis. I am from Wyoming. And I would now
like to recognize the gentleman from Michigan, Mr. Benishek,
for 5 minutes.
Dr. Benishek. Thank you, Madam Chair.
Ms. Maxwell, I find it sort of amazing--I am a doctor, OK?
So I am familiar with peer review and critical analysis of
studies. And I am just a little bit concerned about the fact
that, from what I understand of the hearing and the testimony,
that many of the scientific analyses--the reasoning is not open
for review. Could you tell me about that? Because it seems to
me it should all be on the Internet, we should all be able to
look it up. Why is this species being made endangered? What is
the data that indicate that it needs to be done?
Ms. Maxwell. Well----
Dr. Benishek. Can you kind of go through that process a
little bit with me?
Ms. Maxwell. Well, some of the studies are just independent
researchers, or researchers with the university, not
necessarily with the Federal agencies. And they will withhold
the data for proprietary reasons.
Dr. Benishek. So it is not published, then. This is data
that is not published.
Ms. Maxwell. That is correct.
Dr. Benishek. And----
Ms. Maxwell. So, like, the raw data.
Dr. Benishek. People don't get a chance to see what the
data is that these decisions are being made on?
Ms. Maxwell. Sometimes they don't. I know for the sage
grouse specifically, there is one study that is heavily relied
on, as far as showing population decline. And the researcher
involved with this modeling has refused to release the
information to other researchers, to peer review, to Fish and
Wildlife. He----
Dr. Benishek. How can data like that be used?
Ms. Maxwell. It shouldn't.
Dr. Benishek. Is this a common practice? I mean, to me, I
am very wary of data--I mean I would do operations in my
practice, and I certainly don't change the operation that I do
based on somebody's report, saying that there is a better
operation, without it being copied and analyzed many times,
because you don't want to do something somebody says is great,
versus something you have been doing for 20 years. Do you
understand what I mean?
And it is very much concerning to me that many of the
decisions that we make in the--basically all through government
research, is more political than it is science. Do you find
that same skepticism that I have?
Ms. Maxwell. It certainly seems that way with the sage
grouse. A lot of the underlying data hasn't been made
available, or Fish hasn't even requested it. And it is
necessary, part of the scientific method, to be able to look at
these, this data, and try to prove it and disprove it.
Mr. Albrecht. Congressman, if I could just add to what she
said, in Utah those maps of those occupied areas and
conservation areas, they are very closely held by the DWR and
the Fish and Wildlife Service, and they are kind of considered
confidential. They are only willing to share those for specific
projects.
In other words, if we had a project for a new power line,
they would share that with us. But----
Dr. Benishek. Why is it confidential? I don't understand.
Mr. Albrecht. I don't know. I have been trying to figure
that out.
Dr. Benishek. What would be the proprietary value of it? I
mean how would somebody lose the value if this information was
made public? I mean they say the reason is because it is
proprietary, right? It must have some value. So what is the
value of keeping this information secret?
Mr. Albrecht. [No response.]
Dr. Benishek. You don't understand it. That is why I was
hoping to ask Mr. Roman. Don't you think that the information
and the data that we use should be open to analysis?
Dr. Roman. Usually it is. I don't know----
Dr. Benishek. Can you think of any reason why this
information would be proprietary, and people wouldn't want to
release it?
Dr. Roman. In this particular case, I don't know, yes.
Dr. Benishek. OK. Thank you very much.
Mrs. Lummis. I thank the gentleman from Michigan. The Chair
now recognizes the gentleman from Colorado, Mr. Lamborn, for 5
minutes.
Mr. Lamborn. OK. Thank you, Madam Chairman. Dr. Roman, let
me ask you more of a theoretical, philosophical question. If
there were an animal--and I am going to say polar bear, but any
animal--that were rare in Alaska, and their population was
declining, but across the national boundary in Canada it was
increasing and thriving in population, would that Alaska
population need to be protected, in your opinion, under the
Endangered Species Act?
Dr. Roman. Well, this being completely hypothetical, the
law would say if it is considered a distinct population
segment. So if there was genetic evidence, there was some
evidence that it was separate, then absolutely, it should be
protected.
Mr. Lamborn. But if it was identical?
Dr. Roman. If it was identical to the others, I can't
answer that hypothetical question. But----
Mr. Lamborn. Why would it need to be protected in Alaska,
if the Canadian population allowed for the propagation of the
genetic heritage of that animal?
Dr. Roman. Because part of the historic range, I would say,
in this hypothetical case.
Mr. Lamborn. OK. Well, I don't--OK.
Dr. Roman. It is hard for me to answer that without having
some details. I would be happy to consider it----
Mr. Lamborn. Well, you are a professor. I thought you would
know these things.
OK, let me ask you another sort of theoretical question. If
an animal is released into the wild--and, for instance,
Colorado has a situation where they have been raising fish in
captivity that are endangered or threatened, and releasing them
into the Colorado River. Is there any problem with that, in
your opinion, even if the habitat issues would be something you
would--you would wish for habitat to be restored for that fish,
but there is enough fish being released from captivity into the
wild to keep that species going, you know, and thriving?
Dr. Roman. Well, the law is clear that you protect the
endangered species and the ecosystems that they depend on. So,
if it is just coming from fishery, I suspect not. In other
words, coming from a hatchery. But, again, it is hard to--I am
not an expert in this area. And I may be a professor, but I
don't necessarily have the answers to some of these questions.
Mr. Lamborn. OK. That is interesting, because I do have a
suspicion that some people in the environmental community are
really more after grabbing the habitat, and they really don't
care about the species. They want the land tied up and
preserved for their reasons.
One more question, and then I have a question for Megan.
But I am not a bird expert, but I know among birdwatchers there
is a division, a controversy at times, between what is called
the lumpers and the splitters, people that lump species or
subspecies together into one, and those that consider these
populations actually separate.
Is the science always absolutely crystal clear, or is there
sometimes subjectivity, or even arbitrariness in the scientific
decisions that are made as to where one species leaves off and
another one begins?
Dr. Roman. Well, the law, again, is clear here. It should
be made by the best available science. So you bring in experts
in that field, and they make that decision. It should not be
arbitrary. It should be transparent, and it should be a
decision made by consensus among scientists and experts.
Mr. Lamborn. OK. And, Megan, I am going to switch to you,
now. He mentioned transparency, which I agree, is a vital
issue. Is the data that the Fish and Wildlife Service or NMFS
uses always transparent, or is it sometimes held close by that
agency?
Ms. Maxwell. I think that Fish, the studies that they are
relying on, at least when it comes to sage grouse, are
generally available. But the underlying data isn't. So I don't
know that I would say Fish is necessarily holding it back. It
might be Fish in some instances. It might be the researcher in
others.
Mr. Lamborn. Well, in any cases. I don't mean just Fish,
but in any cases.
Ms. Maxwell. Oh.
Mr. Lamborn. I mean I have heard that--and I am, actually,
pretty much aware that they do hold that information sometimes.
You mentioned data is sometimes held. That leads to a suspicion
on my part that sometimes they don't want to be second-guessed.
Ms. Maxwell. I----
Mr. Lamborn. That is why they are not releasing it.
Ms. Maxwell. I agree.
Mr. Lamborn. OK.
Ms. Maxwell. Yes.
Mr. Lamborn. Thank you. And then, also in Colorado, a
Washington Times article recently quoted Governor Hickenlooper
as saying that slanted advice is being given by the Fish and
Wildlife staff on whether the Gunnison sage grouse should be
listed. Do you agree or disagree with that statement of the
Governor's?
Ms. Maxwell. Well, I agree that Fish relies on certain
scientists over others, even though they are experts in a
field. They have preferences. And those preferences can, in
some cases, lead to slanted opinions and observations.
Mr. Lamborn. Thank you.
Mrs. Lummis. I thank the gentleman. And now, with my
apologies to my neighbor to the North, the gentleman from
Montana, for taking my neighbor to the South out of order--it
was not meant as a slight or preference; I love both of my
neighboring States--I now recognize the gentleman from Montana
for 5 minutes, Mr. Daines.
Mr. Daines. Thank you, Madam Chairman. A question for Dr.
Roman. It was mentioned in your testimony that the ESA is one
of the strongest pieces of environmental legislation in the
country. I have been in business for 20 years, looking at
results. I think we have listed over 2,000 species, and
recovery of around 1 percent. So how can we say that is the
strongest environmental legislation in the country, with,
frankly, some pretty poor results?
Dr. Roman. Well, it depends on how you look at it. In that
case, there has been some very good recovery efforts made on
several species that I discussed, such as the gray whale and
the bald eagle and the gray wolf. Many other species have been
saved from extinction. I can't give you the exact numbers, but
I will give you a ballpark estimate.
Approximately 35 species went extinct since the ESA was
passed. And the expectation was, the estimate was, without the
ESA, if we hadn't had those protections, we would have lost
several hundred. Again, I don't have the exact numbers in hand,
but I would be happy to give it to you. To me, that is a good
indication that we are having success. We are protecting both
species and their habitats.
Mr. Daines. My experience, too, as a fifth-generation
Montanan, is the ESA is about listing species more so than it
is actually about recovery. We used the example of the wolf. It
took an act of Congress to get that removed, versus objective,
sound science. I am a chemical engineer by degree. I like to
look at numbers, and so forth, and have clear goals. And it
seems like the goal posts tend to keep moving here.
And I am going to pivot over here and talk about grizzly
bears for a moment, as well. We love grizzly bears in Montana.
Their populations are expanding, since they have been listed.
But I also am aware of the fact that we have schools in Montana
that are protected by high fences to protect the kids from the
grizzly bears, as the bears now are clearly starting to thrive
in my home State of Montana.
In pivoting over here to talk about the Kootenai National
Forest, and we are just going to go back to Ms. Maxwell here,
and we are going to talk about the sage grouse in a minute.
But, as background, in Montana the ESA affects our daily lives.
In fact, there are, in this mega-settlement discussion, the
topic of today, there are seven species under review today. The
Greater sage grouse, the wolverine and the Canadian lynx are a
few. But the grizzly bear has been listed as threatened for
decades. I remember backpacking as a kid. You wouldn't see a
grizzly bear in the back country. Today, when you are out in
the back country, you carry bear spray usually on your left hip
and your right hip, because we have got a lot of grizzly bears.
Moreover, Montana has been managing their lives around this
species, and its population, as I mentioned, is becoming
actually dangerous to towns nearby grizzly bear habitat. Just
last month the record of decision for the final EIS of the
Kootenai Forest plan was released. Now, the Kootenai is a
beautiful forest, 2.2 million acres. And the community is
there. They love to fish, they love to hunt, they love to
recreate around this forest. This area, though, used to be
bustling with a logging industry, and it is now struggling with
double-digit unemployment. I met with a couple for dinner here
recently, and they said, ``We describe our area, the State, now
as 'poverty with a view','' and that is what it has become.
The Forest Service decided to allow timber harvesting on
only 793,000 acres. In 1987, the plan had over a million acres
suitable for harvest, the same time the grizzly bears are
recovering.
Now, Ms. Maxwell, I am going to pivot over now to sage
grouse, because it is relevant. Hundreds of thousands of acres
across the West would be severely impacted under a potential
listing of the sage grouse as an endangered species, in spite
of outstanding local efforts to conserve the species which we
hunt today in Montana--it is a two-bird bag limit--reflect the
highest level of scientific integrity. In your view, how does
the BLM's NTT Report fail to meet the standard of sound
science? Because, in my view, it is a lot of political science
versus sound science. And how does this report undermine
legitimate scientific study being conducted at the local level?
Ms. Maxwell. Well, I will start with how it is undermining
local activities. Specifically, it really doesn't take into
account State plans, individual conservation plans, like CCAs,
or local working group plans, and how those are working. It is
assuming that they are getting no protection. And so they have
to have all this protection only from BLM, in order to have the
sage grouse survive and persist.
And, for instance, in Wyoming, Fish and Wildlife Service
actually said that the various Governor EOs have the potential
to ameliorate threats to the bird. And BLM totally failed to
recognize this, which is a big deal. You need to take those
into account.
I am sorry, what was your other question?
Mr. Daines. Well, it is just getting back to the sound
science here, and the recovery.
Ms. Maxwell. OK.
Mr. Daines. Right, on the----
Ms. Maxwell. Well, they are relying on studies that have
had a lot of criticism, ranging from invalid conclusions to the
source--the conservation measures that are being proposed, the
sources being listed don't even reference the conservation
measure restriction as necessary. It wasn't a part of the
study. The study was on population dynamics, and then they are
proposing a one disturbance per acre threshold. And it just
doesn't support the assertion at all.
Mr. Daines. All right, thank you----
Mrs. Lummis. The gentleman's time has expired.
Mr. Daines. Thank you.
Mrs. Lummis. And I--the Chair would comment that, as the
gentleman from Montana indicated, it took acts of Congress to
accomplish delisting of wolves, and they were listed under the
non-essential experimental population component of the
Endangered Species Act. So they were not even listed as
endangered. They were non-essential and experimental. And yet,
even then, we had to use acts of Congress to get them delisted
after objectives had long since been met. And I thank the
gentleman for his questions.
The Chair now recognizes the gentleman from Colorado, Mr.
Tipton, for 5 minutes.
Mr. Tipton. Thank you, Madam Chair, and thank the panel for
taking the time to be able to be here. This is an important
issue for all Western States, very important, I know, for our
district, in Colorado.
And, Ms. Maxwell, you are a Coloradoan, great to be able to
have another one here. You are pretty familiar with the
topography that we have unique to the State of Colorado, and
the ecology in the different regions. Very diverse.
Ms. Maxwell. Very.
Mr. Tipton. You have spoken to this, but to be able to get
it site-specific in Colorado, has the BLM, when they are
designating critical habitat, taken in good, sound science in
terms of designating areas of critical habitat for the greater
sage grouse and Gunnison sage grouse?
Ms. Maxwell. Well, as far as I know, they are relying on
the State's maps for the priority areas, and then they have
expanded the area to include corridors, at least as far as it
is in the RMP revision that is going on up there. And then they
have expanded it, and there is not a whole lot of science or
research out there on these migratory corridors, and whether
they are even present.
Mr. Tipton. Yes. You are a biologist, and I appreciated,
actually, in your testimony you seemed to be able to have a
passion for having actual science. You want to be able to have
it peer reviewed, to be able to have it analyzed, to be able to
make sure that we are actually trying to do the right thing.
But you seem to be indicating that the BLM actually is doing a
fairly sloppy job, when it comes to designating these areas.
Ms. Maxwell. Well, the critical habitat areas, a lot of it
is correlated with the State's information. But the
conservation measures, and the one-size-fits-all approach they
are taking is what is going to really be damaging, because, as
you said, the ecology of just Colorado alone is huge, let alone
across 11 States and the----
Mr. Tipton. Now, do you see a lot of other inconsistencies
between the different agencies that are involved when we are
talking about the Gunnison sage grouse, greater sage grouse?
Are there inconsistencies in terms of the policies that they
have for trying to be able to preserve habitat and to be able
to reinvigorate the species?
Ms. Maxwell. Between the State and BLM?
Mr. Tipton. Right.
Ms. Maxwell. Yes. The States generally have better data--
from a local level--and BLM is trying to go in and require 3
percent disturbance thresholds, which may not be appropriate at
that local level. And the State and the local working groups
are the ones that have that information.
Mr. Tipton. Now, is it your experience, have you seen--if
we go into Colorado, we look at the MOU that was put through in
southwest Colorado, southeast Utah. I believe we have 11
different counties that are all trying to be able to put
together a program of conservation, to be able to do the right
thing. This is not in dispute.
Are you seeing that the Federal Government is ignoring
these policies, I believe it has been something like $40
million in public-private sector funds have been addressed,
that it is just more about trying to drive an agenda, as
opposed to actually reinvigorate the species?
Ms. Maxwell. As it is reflected in the NTT, and as I have
seen in the DRMP's, they haven't been taking into account the
local level MOUs and plans.
Mr. Tipton. They haven't taken into account the local
levels and the local plans that are going on.
Ms. Maxwell. Yes.
Mr. Tipton. Yes. And we have actually seen--I have been
onsite. We are seeing remarkable efforts that are being made at
the State and the local levels. Do you think actually, when we
are getting ready to make policy that comes out of Washington,
DC--would it be useful maybe for Secretary Jewell--we have
extended the invitation in this committee--for her to be able
to come out to Colorado, out to Wyoming, Montana, to be able to
come onsite and actually visit, and to be able to see what our
Governors, our State legislatures, our local farmers and
ranchers are doing, rather than a one-size-fits-all program out
of Washington?
Ms. Maxwell. I think that would be very useful for her to
see the differences and what is going on out there.
Mr. Tipton. I don't know if they are listening in today,
but we will extend that invitation once again. And I know the
Governor of Colorado has extended an invitation, as well. And I
would love to be able to get them over into Utah, because there
are certainly a lot of challenges.
I think one thing that concerns me, as well, is the short
shrift that is being given on the impact of these rules and
regulations on private property, impacting real lives. We have
a report that came out from the Western Governors Association,
saying it will have dramatic negative impacts with some of this
designation, economically, the people in my region that are
struggling to be able to provide for their families.
Is there any science--any concern for that one other part
of the environment, the humans that actually live there?
Ms. Maxwell. No. The NTT Report doesn't take into account
impacts to humans. Its only concern is the sage grouse and
protecting sage grouse at, really, any cost.
Mr. Tipton. And I have got to tell you I have got some
families that are having a tough time making ends meet right
now, and they are seeing their livelihoods being threatened by
some of these policies that are not being backed up by sound
science, and it is going to hurt their prospects for their
future, as well.
So I see my time has expired. Thank you, Madam Chair.
Mrs. Lummis. I thank the gentleman from Colorado. The Chair
now recognizes the return of our Ranking Member, and I
recognize him for 5 minutes, the gentleman from Oregon, Mr.
DeFazio.
Mr. DeFazio. I thank the Chair. I was trying to defend U.S.
interests in the Aviation Committee, but now I am back. Thank
you.
I guess when I spoke at the beginning I was saying how we
need to move toward dealing with multiple species in innovative
ways. And although I am hearing complaints about it, it seems
to me--and I will direct it first to Mr. Evans, and then to one
of the other panel members--that this multi-State agreement on
the lesser prairie chicken is kind of in that model.
Isn't it, Mr. Evans? Don't you think that shows some
fairly--a good outcome?
Mr. Evans. Well, I don't know the details of that one, Mr.
Ranking Member, but I do know that the act is very flexible,
and wants people to get together, shareholders and
stakeholders, and do that. I have been listening to all the
testimony from everybody here. It is very, very interesting.
Because there is one thought that runs through my mind all the
time. We have starved the Fish and Wildlife Service from doing
its job under the Endangered Species Act.
It is a very straightforward regulatory process of sending
out notice, trying to involve everybody, holding meetings. They
may not even have enough money to hire more than one scientist
at a time to review things. They do it, and they do the best
job they can under best available science. What if they had all
the money they were funded, even 4 or 5 years ago? We could
have a much more comprehensive process, perhaps, that people
wouldn't be so concerned about, because they would do all these
things.
I think they are doing them anyhow, as far as I know, but
they could do it even more so, with this. The act does
encourage these things, does want people to be consulted, and
work things out together. And the prairie chicken probably is a
very good example of that. I don't know the details. From what
I have heard of the sage grouse issue, that is another very
good example. This is what we would like.
And so, I think it is there, it just needs to get better
funding somehow, we hope, before it is too late.
Mr. DeFazio. Well, it is sort of like a habitat
conservation plan, but it is different. It is under a special
4(d) rule.
And, Mr. Foley, you expressed some concerns about
agriculture in Kansas. But my understanding that this 4(d) rule
exempts row-crop agriculture and take, due to normal
agricultural activities. So wouldn't this actually alleviate or
address your concerns? And isn't this a good agreement? It
seems like this worked pretty well.
Mr. Foley. Well, this plan, as far as the multi-State plan,
was originated and built with the impetus of a voluntary plan,
in lieu of a listing. It has definitely components for 75
percent of habitat, basically an opportunity to acquire
different areas for habitat of short or mid-term contracts, 25
percent long-term contracts--it has a lot of components in it.
Within that plan--there are other plans that are out there,
as well. Those burdens--we definitely support--Wildlife and
Parks has been in that plan. We think it is a tool.
However, those voluntary measures aren't voluntary if your
carrot and your stick is so short, and your carrot that is
hanging there, they can see the huge axe behind your back. If
it is followed up with a subsequential listing of a species,
will you get the volunteers to participate to make the plan
work? That is our concern. And when you have all these people
get together to work and say, ``We can solve this problem, we
can do this, look at this plan, this is what we support and we
push forward, let us do this in lieu of this''----
Mr. DeFazio. But----
Mr. Foley [continuing]. It is so difficult----
Mr. DeFazio [continuing]. If I could, reclaiming my time, I
am reading the documents here. And it says, even if they go on
to listing, they can't preclude something from being listed if
it still meets the criteria for listing. But what they are
doing is mitigating the impacts of any listing ahead of time,
because they would still exempt take incidental to landowner
participation in the initiative that has been adopted.
So, it was developed cooperatively, as a voluntary plan.
But it will protect people if it goes on to a listing. I mean
what would you do, have nothing in place, and then wait for
them to mandate rules regarding take? I mean I have been
through that in the Northwest with forestry. You don't want to
go through that.
Mr. Foley. We believe in voluntary, incentive-based
programs. And we have been in conservation--I have been, my
entire career of 25 years. Whether it is any natural
resources--and we are looking for tools. We want the
opportunity for tools to be successful. And regardless of that
position, that was the intent. And when I am discussing these
points, I am discussing it for the ability or the opportunity
to succeed.
And with addressing those success factors, there is more
than row crop agriculture in agriculture, whether it is
agribusiness--there are so many different venues, whether it is
development of grain bins, development of all of these
different practices, those are all--will they be covered under
the 4(d) rule? That is subject to interpretation. No, in my
opinion.
So, these other things that cost a lot of money in this--
even these voluntary strategies, that is the issue that we are
talking about, just from the agricultural perspective, not
talking about the wind, oil, gas.
Mr. DeFazio. OK, thank you. My time has expired. Thank you.
Mrs. Lummis. I thank the gentleman. The Chair now
recognizes herself for 5 minutes.
I would like to return to a line of questioning that was
begun by Mr. Tipton from Colorado. My question is for Ms.
Maxwell.
You responded to a question by Mr. Tipton to say that the
NTT Report does assume that people are the primary threat to
the sage grouse. So does the report consider how human impacts
can be minimized or mitigated?
Ms. Maxwell. It doesn't take into account minimization
efforts or mitigation measures. It proposes restrictions. It
does have BMPs that it offers to be included in whatever
permitting process might be going on, but some of those aren't
even achievable BMPs.
Mrs. Lummis. If the BLM chooses to conserve the sage grouse
through the NTT, what is the end result for both species and
people? And can we do better by embracing plans like Wyoming's
plan? Or is the NTT the sort of top-down, one-size-fits-all
approach, is it better?
Ms. Maxwell. I think that if the NTT were to be implemented
across the entire range, it would cause major disasters,
especially in areas where the threat of fire and invasive
species is prominent, because it is focusing its efforts on
decreasing the threats of human disturbances, when that is not
the threat. So, if you are not going to mitigate or minimize
the actual threat, you are only hurting the species.
Mrs. Lummis. Did the NTT address fire and invasive species?
Ms. Maxwell. It has fire and invasive species in a
subsection. However, the way it deals with it is not as--it
deals with it in more of a passive management way, and it puts,
actually, sage grouse protection above that of humans. It says
on high fire season days, or days where they think there might
be some more fire, they would move fire resources to the sage
grouse habitat, which would mean you are moving it away from
structures and human developments.
Mrs. Lummis. Thank you. Mr. Foley, question for you. I want
to add my echo to those of the Chairman, Mr. Hastings, when he
started this meeting, and others who have spoken, that I
support the Endangered Species Act. I am concerned about the
manner in which it has been implemented and litigated. And the
litigation is driving its management and implementation, rather
than public policy and science.
So, I would like to hear from you about what would be a
better way to deal with the Federal hammers, like litigation
and listing deadlines, to create boots-on-the-ground
conservation?
Say I am somebody who likes flowers better than flowery
language, and I really do want to conserve an endangered
flower. What would be a better way to do that?
Mr. Foley. Thank you, Madam Chair. I believe a better way--
or getting the toolbox that we have--and let's just take the
conservation reserve program under the Farm Service Agency, for
example. There are other Federal agencies here that have tools.
Incentive it, prioritize it under our existing acreage caps. We
can go in there, place the rank, the priority high enough,
raise the incentive rates high enough within these types of
conservation programs. Just re-prioritize and direct these
areas where we don't have that regulatory hammer--continue the
participation, deal with those enrollments, deal with other
issues such as drought, where we have not only had reduction in
all--whether it is pheasants, quail, all of our upland game,
whether it is greater or lesser prairie chickens----
Mrs. Lummis. Mr. Foley, I want to sneak another question in
before I run out of time----
Mr. Foley. OK.
Mrs. Lummis [continuing]. For Mr. Sikes.
Should State and local governments have input before the
Federal Government signs court settlement agreements that drive
ESA policy?
Mr. Sikes. Absolutely. We are living through this one right
now, where we had no idea what was going on, had no input
whatsoever. And it is just suddenly forced down our throats.
And could I make one other point?
Mrs. Lummis. Quickly.
Mr. Sikes. Very quickly. On the programs that you can do at
home, we put together an unpaved roads working group in
Arkansas before any of this stuff really went into effect,
tried to mitigate the damages of sedimentation caused by
unpaved roads, because we understand that is the majority of
sedimentation for our aquatic species that are under threat,
and that is State, Federal, local, public, private. We have
gotten some money to do a couple of demonstration projects, and
we have gone back to our legislature, and we expect to get a
larger pilot program going. So we are not just focusing on
complaining about litigation, we are actually trying to do
something about it.
Mrs. Lummis. I thank the panel. My time has expired. And I
yield to the gentleman from California, Mr. McClintock.
Mr. McClintock. Thank you, Madam Chairman. This first
question will be for Mr. Sikes and Mr. Albrecht and Ms.
Maxwell, all of whom seem to have some practical experience
with this. The U.S. Fish and Wildlife Service is proposing to
declare about 2 million acres in the Sierra Nevada Mountains as
a critical habitat for the Sierra yellow-legged frog and the
Yosemite toad. That is pretty much the entire footprint of the
Sierra Nevada Mountains.
Now, we are told the designation was going to have no
impact on private property owners, it will only have a
negligible impact on the public's access to the public's land.
Mr. Sikes, is that true?
Mr. Sikes. That is not my understanding. Certainly not how
the litigation goes with the designation of critical habitat.
Mr. McClintock. Mr. Albrecht, is that true?
Mr. Albrecht. Not to my knowledge.
Mr. McClintock. Ms. Maxwell?
Ms. Maxwell. I think designating that large of an area will
definitely have impacts.
Mr. McClintock. OK. Well, Mr. Sikes, what should I tell
private property owners to expect if this designation is
imposed?
Mr. Sikes. I think you could tell them they have probably
got a bulls eye drawn on them.
Mr. McClintock. What does that mean, exactly, in----
Mr. Sikes. Well----
Mr. McClintock [continuing]. Terms?
Mr. Sikes [continuing]. I think what they can expect is--I
will give you an example of one of the bad effects of it.
Because the ESA provides for private right of action, we have
actually got two property owners in a critical habitat area
just above Little Rock that are suing each other, and have
brought in the Fish and Wildlife Service, because one property
owner is trying to outspend another one to force him to sell
him his property. And one property owner owns the property
above him and below him, so he is trying to get that property
in the middle. And he turned him in for doing some dirt work on
his property that he said would impact the yellowcheek darter.
So----
Mr. McClintock. But if the designation has no impact on
private property, what is the beef?
Mr. Sikes. I mean there you have it. I mean it does have
impact on private property.
Mr. McClintock. Mr. Albrecht, what can you advise me to
tell these folks what to expect?
Mr. Albrecht. Well, I think you need to tell them that if
the trees are infected with the western pine beetle, it might
be good to cut some of them for fire protection and protect
their properties.
This is the problem with the whole ESA. We don't sit down
and look at all the impacts across the board. We need to bring
some common sense into it. Yes, maybe they can clear some
property for this frog. But maybe they can also do some good
for the property owners, if there is some beetle-killed timber
in the area.
Mr. McClintock. Well, again, this is 2 million acres.
Mr. Albrecht. That seems a little extreme.
Mr. McClintock. Well, yes.
[Laughter.]
Mr. McClintock. By the way, what can you tell us to expect,
as far as the impact on the public's access to the public's
land? This is an area that desperately depends upon tourism and
public visitors coming to the area to recreate.
Mr. Albrecht. Look from a distance.
Mr. McClintock. Basically it will be look, but don't touch?
Mr. Albrecht. Yes.
Mr. McClintock. Well, that doesn't sound like a lot of fun.
I am afraid we might not have the kind of tourism that we once
had under that kind of----
Mr. Albrecht. The older people won't have access, the
younger ones that can hike in will.
Mr. McClintock. Ms. Maxwell, anything to add?
Ms. Maxwell. No, I agree with Mr. Albrecht.
Mr. McClintock. For you, we have heard many examples in
this committee of politically driven junk science that is
masquerading under the phrase ``best available science,'' and I
mean stunning gaps in data that--anything that is contrary to
predetermined policy outcomes seems to be omitted, quite
deliberately, from these studies. There have been basic math
errors.
In your written testimony you mentioned a number of
examples: invalid assumptions, mischaracterization, or
misrepresentation of sources, omission of existing programs
that benefit the sage grouse, personal opinion substituted in
place of science. Is this problem isolated, or are we seeing it
systemically throughout the system?
Ms. Maxwell. Well, my expertise, I guess, is in sage grouse
and the NTT and what is going on there. But I guess I wouldn't
be surprised if it was going on elsewhere, because it seems to
be a management problem.
Mr. McClintock. Are we making policy based on pre-
determined outcomes?
Ms. Maxwell. On the sage grouse, definitely.
Mr. McClintock. And, if that is the case, then how can we
trust the validity of any of these designations?
Ms. Maxwell. Exactly.
Mr. McClintock. On hatchery issues, I think it was Mr.
Roman mentioned the great success of breeding programs for
eagles, for example. Yet captive breeding isn't allowed to be
included in many of these decisions involving endangered
species, despite the fact it is often infinitely cheaper and
more effective than other measures that can end up being
ordered.
On the Klamath, in my old district, we had a situation
where they are pushing to tear down four perfectly good hydro-
electric dams because of what they describe as a catastrophic
decline in salmon population on the Klamath. I asked them,
well, why doesn't somebody build a fish hatchery, and we were
told, well, as a matter of fact, there is a fish hatchery at
the Iron Gate Dam that produces 5 million salmon smolts a year,
17,000 return annually as fully grown adults to spawn. The
problem is, they don't allow us to count them in any of the
population counts for ESA. And then, to add insult to insanity,
when they tear down the dams, the fish hatchery goes with it.
Wouldn't it be more practical to allow captive breeding
programs in all cases involving the ESA to not only mitigate
the damage, but also use the product of these breeding programs
to assess whether these species are still endangered, Ms.
Maxwell?
Mrs. Lummis. I ask the answer to be brief.
Ms. Maxwell. OK. I think that allowing breeding as part of
a program for ESA would be great.
Mr. McClintock. Thank you.
Mrs. Lummis. I thank the gentleman from California, and now
recognize another of our fine gentlemen from California, Mr.
LaMalfa, for 5 minutes.
Mr. LaMalfa. Thank you, Madam Chairman. Following on Mr.
McClintock's question and statement there--we share much of
that eastern side of California, Sierra Nevada area, so the
frog and toad designation, the dam removal, those area issues
that we have both been intimately involved with over our time.
And the flaw in the thinking here is that, for example, on
the fish designation, whether we are replacing with hatchery
fish or other grown species, and it was mentioned earlier with
other species, that there is no DNA difference between them,
given their geography or where they came from, yet we are not
allowed to count that as a recovery.
I mean the bottom line--in the minds, I think, of the
American public, they care about species. They care about being
able to see it or knowing that it exists. And so, when you show
that there is no difference in the species, depending where it
came from or how it got there, but that they are still around
to enjoy or view or see in picture books, what have you, that
is part of the problem of the thinking.
It was alluded to earlier, I think, on the gray wolf. Now,
some of the thinking in our region is that there has to be
mating pairs in basically almost every county, or something
like that, as part of a plan, a recovery act, or what have you.
Now, the compatibility with the gray wolf with livestock,
with communities--I mean I don't think the counties surrounding
Portland or surrounding Redding, California really want to have
the gray wolf in their back yard. But if we can all just know,
as Americans, that the gray wolf is doing well in the upper-
middle States along the Canadian border or in Canada, we know
we have the North American gray wolf as a species, it is still
around. It doesn't have to be everywhere. And I am just glad
that we don't have a plan for the recovery of the T-Rex or the
velociraptor to have to be in our neighborhoods.
But I am frustrated that, when we lay out these goals under
ESA, that, although there may be some number that is pointed to
for a species being threatened or endangered, that there is
never a number of when we have reached our goal. What is the
goal? What is the target we are shooting for, so that we have
recovered it, that we can remove it from threatened or
endangered?
It was mentioned earlier about the ESA being 99 percent
effective. By whose measure is it being that? Because we are
seeing that in the 40 years of the ESA, we have recovered 20 or
less species of the hundreds and hundreds listed. Twenty
percent or less have been removed from the list. We have great
frustration in my neighborhood, with one called the Valley
longhorn elderberry beetle. It has held up critical flood
control projects that have been needed for many years in the
area, not because of the beetle itself, but because of the
critical habitat designation, which is fraught with problems,
as we mentioned, everywhere. Two million acres for the toad and
the frog.
Here we have a problem where, if you have an elderberry
bush growing on a levee--maybe a beetle has not visited that
bush ever, or in years--you can't touch the bush in order to
fix the levee. And so, subsequently, a couple decades ago, a
massive blow-out was had on the levee, lives were lost,
hundreds of millions of dollars worth of damage, the State of
California lost a lawsuit, having to reward over $400 million
because they couldn't fix the levee because of a habitat
designation for something the species is not even using.
We have much to do on critical habitat designation, and
that is really one of the bigger flaws. Because I don't think
there is anybody on this panel that doesn't care about trying
to take a truly endangered species and figure out where to go
with it. On the other hand, I heard a statement earlier that
somewhere along the line somebody said we shall not--we, as
people, shall not permit any species to go extinct. Well, we
have only been industrialized, truly, as a country, for
probably maybe 150 years or so, 150 recent years, that we would
have any kind of sizable impact on changing an environment. And
yet species have been going extinct for all of the existence of
the earth.
And so, for mankind to think, in his arrogance, that we are
going to single-handedly stop the natural evolution of the God-
made system, to the extent it is being done, to the headstands
that we are taking to spend money, to take people's property
rights, and, indeed, the recovery rate of an Endangered Species
Act over 40 years that has been spending hundreds of millions
or more of tax dollars, and billions taking away from the
people to get such poor results, a major re-thinking is needed
of this act, one that is going to be effective for species that
people care about.
Because if regular people heard what the gentleman from
Utah was talking about with putting a pole line adjacent to a
regularly traveled roadway or dirt road or gravel road,
whatever it is, and having these helicopters to haul them 20
yards because of prairie dog habitat, which has a season on it,
and everybody else in the neighborhood is using their four-
wheelers and vehicles like that to do their farming and other
practices, it really comes down to ridiculous. That is what the
public doesn't hear about. All they hear about is the bleating
from the environment groups, like, ``Oh, we are going to lose
all these species,'' except they are not hearing what it is
really costing them in jobs in this bad economy and everything
else that is going on.
And so, Madam Chairman, I yield back, but we have much to
do on this, and much to overcome with misinformation on this
act. Thank you.
Mrs. Lummis. I thank the gentleman and recognize the
gentleman from Florida, Mr. Southerland.
Mr. Southerland. Thank you, Madam Chair. Dr. Roman, I had
some questions. You alluded in your testimony to my particular
region, northwest Florida, you made reference to Apalachicola.
I had some questions regarding an issue that is very important
to our folks there, the Apalachicola River Basin and the river.
In your testimony you said it appeared that several of the
mussels which you alluded to--appeared that they were in direct
conflict with human activities in our region. Define human
activities for me.
Dr. Roman. I am sorry if I was vague in the testimony. So,
in that regard, it was Atlanta drawing off water----
Mr. Southerland. It was what?
Dr. Roman. It was Atlanta drawing water upriver and
lowering the water table in that regard.
Mr. Southerland. OK. So you agree----
Dr. Roman. That is the conflict I know.
Mr. Southerland. So you agree--because, as I read through
your testimony, you referred to a drought in 2007. And you
referred to flooding forests, and the need for flooding
forests. But nowhere did you specify the water flow issue.
Dr. Roman. So that would have been an error on my part.
That was my intent, was looking at that water flow issue, and
talking about the fact that residents of Florida were in equal
state as they were with the two endangered mussels, the purple
bankclimber and the fat threeridge, in that they both depended
on water.
Mr. Southerland. They both what?
Dr. Roman. They both depended on water flow----
Mr. Southerland. Yes.
Dr. Roman [continuing]. Getting into the Apalachicola
estuary. So I was saying that the water unites both groups in
that way.
Mr. Southerland. Sure, OK. Well, then, you and I agree
there. I mean I look at when you have had 50 percent reduction
in water flows, it is having a--you did allude to the oyster
industry down in Apalachicola. That is the heart of my
district. And so, if you look at that area, our folks and
families down there are being crushed because of the water flow
issue.
Earlier in your testimony you mentioned spiritual and moral
reasons regarding the ESA. I am just curious. Rarely do I have
someone testify and inject spiritual and moral reasons why we
do things. And, as a spiritual person, I locked on to that. I
mean is it spiritually or morally valid to exacerbate the pain
and the suffering on habitat and humans downriver by the Corps'
continual ignoring those needs, and not addressing water flows
down the ACF, the Apalachicola, Chattahoochee, Flint River
system?
Dr. Roman. I agree with you completely. No, I don't think
it is moral at all. I think that water should flow there, as I
had said, for the wildlife that is there, for the flooding
forests, for your residents in your district. I have met with
the oystermen, I have been down there, as well--the 1,200
oystermen that work there. I have seen the folks that harvest
Tupelo honey, as well, dependent on those flooding forests that
provide storm protection. I argue and agree with you that water
should be coming to Florida, and should be coming to the
endangered species that are there, and the residents of that
area.
Mr. Southerland. I find it ironic that I am able to--
perhaps you and I may disagree on many things, but I find it
ironic that you and I agree, I believe, in our stance that we
think that the Corps of Engineers, on this issue, is immoral,
because of what they are doing. And I am very frustrated by a
50-year battle.
And we are prioritizing human recreation at the expense of
total devastation to a community where 60 percent of its
property is owned by government, so, therefore, they have
little to no ability to raise a tax base to protect its
citizens. And I find that this is an area where government and
those who appropriate dollars from the public treasury are, in
fact, immoral and lack the spiritual direction that I think the
good people of our region expect. So, I think it is ironic that
you and I agree on this.
Dr. Roman. I am glad we do.
Mr. Southerland. And I thank you for your testimony. One
thing we may--I am going to shift real quick. You also alluded
to the fact of the long-leaf pine in the Apalachicola area in
our region--and I know I am losing my time, so I will ask
quickly. You talk about how 99 percent of the native long-leaf
pine forests were cut down, endangering many of its residents,
including the red cockaded woodpecker.
Where is the incentive on the protection of this particular
species, where is the incentive? Because of the ESA, for a land
owner to harvest his marketable long-leaf pine, to replant his
property with seedlings to produce another long-leaf pine
forest--if knowing that habitat is going to usher in the
stripping of his property rights?
Dr. Roman. So the ESA now has safe harbor. And your
resident should know about this. So you can go on and register
your land. If you don't have any red cockaded woodpeckers on
your land then the Fish and Wildlife Service will come out and
say, ``OK, there are none there,'' then you can plant that area
and not have to worry about those restrictions if you register
early on. Or if you have one there, that you won't have to
worry about more coming in.
So, that is an issue that has been a concern to biologists
for a long time, and I think it is being addressed.
Mr. Southerland. Well, God help them if, after the
registering, a red cockaded woodpecker might irresponsibly find
its way on to that property owner's property. So----
Dr. Roman. It is intended to protect them for that.
Mr. Southerland. Yes, I understand. All right, I apologize
for going over time, Madam Chair. I yield back.
Mrs. Lummis. I thank the gentleman. And now, with
recognition of the patience of the gentleman from Kansas, he is
now recognized for 5 minutes. Mr. Huelskamp, the floor is
yours.
Mr. Huelskamp. Thank you, Madam Chairman, and particular
thanks to the committee for allowing me to join here today, as
I am not a member of this committee. And I appreciate the
Kansan that is here. I have a few questions for Mr. Foley and
others.
First, there has been some discussion in your testimony on
the lesser prairie chicken. What has happened with the
population of the lesser prairie chicken in Kansas in the last
decade?
Mr. Foley. In the last decade, as you aware, Mr. Huelskamp
and Congressman--I appreciated the opportunity to work with you
over the years--we have had multiple counts and the counts
range--I think the most current count was around--the
populations of those were about 17,000. It goes back to
validating data and some of the other discussions today, with
target ranges in that 46,000 to 67,000--it depends who you
read, as well.
We have had peaks and dales. I think it has been greater
over time. And then, with our 3 years of consecutive drought in
your congressional district, it has probably had some declines,
just like everything else.
Mr. Huelskamp. But the numbers have increased or decreased
in the last decade or so?
Mr. Foley. In the last decade we went from very low numbers
to very high numbers, 30,000 to 40,000. And if we are in the
20,000 range now, it has kind of increased, decreased a little
bit----
Mr. Huelskamp. Even with the decrease now, are the numbers
still higher than they were----
Mr. Foley. Yes.
Mr. Huelskamp [continuing]. A decade ago?
Mr. Foley. Yes.
Mr. Huelskamp. And that was without a listing, and the
numbers have still increased?
Mr. Foley. Yes.
Mr. Huelskamp. What do you attribute that to?
Mr. Foley. Well, we believe it was to the Federal program,
the conservation reserve program. A lot of those particular
habitats, we have had a lot of conservation reserve acres that
is in my testimony throughout the years that we had a lot of
habitat, a lot of voluntary conservation measures and managers
out there providing that habitat.
Mr. Huelskamp. What do you think a response--I know you
worked with a lot of farmers and ranchers over the last 20
years--in your experience, what would be the response if there
was a listing and, instead of voluntary, it all became
mandatory? How helpful and interested in progress of the lesser
prairie chicken would Kansas farmers and ranchers be, in your
opinion?
Mr. Foley. Well, Congressman, it is definitely a concern of
mine. And I believe the response will be pushing the other
direction to disenroll, to move the lands out of programs that
were put there to benefit wildlife and----
Mr. Huelskamp. Yes, that would be my guess, there would be
a reaction the other way, especially after all the progress
that has been made, a tremendous amount of progress, without
the Federal Government or the courts dictating this.
When the settlement was reached in the courtroom, I think
it was a secret agreement. When was the State of Kansas
informed about this settlement for the requirement that a
listing decision be made by March?
Mr. Foley. I would have to look at our testimony. It was
early on. Basically, when they announced the notice of
publication, when we----
Mr. Huelskamp. Were you in the room when the settlement was
made?
Mr. Foley. No, sir.
Mr. Huelskamp. Do you know who was in the room?
Mr. Foley. No, I do not.
Mr. Huelskamp. Do you think we should know who was in the
room?
Mr. Foley. I think it would be important for the American
public to know, yes.
Mr. Huelskamp. Yes. Do you think, though, that the State
should have the authority to pre-approve these type of secret
settlements?
Mr. Foley. I think the State should be involved in any
settlement that affects their land.
Mr. Huelskamp. Yes. Recently my office received official
notice from Fish and Wildlife Service saying that they intend
to release the Topeka shiner minnow--this was last week--
endangered species in Logan County, Kansas. Do you know what
caused this, or who has the authority to do this? And was the
State involved in this?
Mr. Foley. To release the minnow?
Mr. Huelskamp. Yes.
Mr. Foley. In a very, very arid climate? Where are they
going to put it, I guess, would be my first question. Where are
you going to find the water? We don't have a lot of surface
waters in northwest Kansas. I am not aware of that.
Mr. Huelskamp. OK.
Mr. Foley. We have had other reintroduction in Logan
County, with the black-footed ferret, which is a different
issue.
Mr. Huelskamp. For folks that are--and, Mr. Evans, you are
obviously very familiar with this law. There is nothing in the
law that would require or justify letting the State know that
there is the intention, in this particular case, in a very dry,
arid climate, to reintroduce a species that has not existed
there for years?
Mr. Evans. It was very interesting, Mr. Congressman. I
never heard this before. Generally, we know the law tries to do
everything possible to notify everybody. I don't know what
happened here in this specific detail. But, of course, it is a
good idea for the State to know in advance, especially if this
is an arid place like it is. And I would like to know more
detail, because it sounds unusual in my whole experience.
Mr. Huelskamp. And, actually, in my experience,
particularly in northwest Kansas, this is par for the course
with the Fish and Wildlife Service, as we demonstrated with
discussion of the lesser prairie chicken. The intent to proceed
ahead without notification, without working with local folks,
without working with the State--I guess I was somewhat thankful
they have actually agreed to actually review the lesser prairie
chicken reintroduction plan.
But what is interesting--and I will say this, and I
apologize for going over time, Madam Chairman--but the Director
was asked about the fact that Kansas still has a hunting
season, the lesser prairie chicken, because we have done such a
good job, and was asked, ``Do you plan on allowing the hunting
season to continue in Kansas,'' and his answer was yes. I think
everybody in the room thought that's the silliest thing we have
ever heard. Of course, my constituents think the same.
But the more silly answer was when asked about the fact the
Kansas population is going down. Actually, the New Mexico--or
Kansas is going up, New Mexico is going down. The Director was
asked a question, ``What about catching the birds in Kansas
that you are going to hunt, and instead, releasing them in New
Mexico? Would that help meet the goals of this listing?'' And
he said, ``We are considering that option.''
I mean that is the foolishness that Kansans see in these
approaches from Fish and Wildlife Service. We are making
progress, Greg. I appreciate the efforts in Kansas.
I yield back, Madam Chairman.
Mrs. Lummis. I might note that on my very own ranch the
swift fox was captured for reintroduction elsewhere with our
full cooperation. And so those activities have continued for a
long time. And in Wyoming, as well, there is a hunting season
on the sage grouse, even though they are headed in other parts
of the State for a difficult sailing.
I thank the gentleman from Kansas for being with us today.
And, in recognition of the impeccable timing of the gentleman
from Pennsylvania, I now recognize Mr. Thompson for 5 minutes.
Mr. Thompson. Well, I thank the gentlelady, and I thank the
gentleman from Kansas for going over, which allowed me to get
back here in time from the House Floor. And I thank the panel.
I apologize, I was here for a fair amount of the beginning, and
I apologize, I had to leave.
My observation of where we have gone with the EPA, like
sometimes other areas--I do believe when the ESA--when the
Endangered Species Act was put in place, it was put in place by
folks who were strictly scientists, and not advocates. And, for
me, I think the difference is a scientist uses scientific
methodology, a scientist does not have a bias.
Advocates--and I have a lot of advocates come to my office
every day to see me--they have a strict bias coming in. And
this is just--I am not looking for a response, but just my
observation on this is we have way too many advocates in our
agencies today, and not enough scientists who really go based
on pure scientific methodology.
And at the risk of--and I am a huge supporter of higher
education. So, Dr. Roman, a question for you--more of a
reflection in terms of the state of--you are kind of a
representative for higher education, and a lot of great
researchers that we have out there, it kind of reflects on some
of the discussion I heard early on, in terms of proprietary
information, and how that is not made available.
And specifically, the underlying data that would be so
helpful, in terms of explaining rationale, help to guide better
policy development, but a lot of that--unfortunately, I see a
lot of government-funded research that we don't see a return on
investment from, from investing in to with our researchers,
because too much of that is held back, and too much
proprietary--and I am wondering how much of that do you see the
role of that, of specifically where it is basically, it is held
back and considered proprietary because it is the basis for
securing future government funding for research, versus doing
what it truly should do, make it transparent, roll it out for
the greater public good.
I don't know if you are prepared to comment on that, or
your thoughts.
Dr. Roman. Well, personally, any time I have gotten public
funding, I have published that. So it has always been on public
record.
Mr. Thompson. I appreciate that.
Dr. Roman. And, in fact, we make it available to the public
for free.
Mr. Thompson. And I wasn't really looking specifically at
you, but your observation is academia, as a whole----
Dr. Roman. Yes.
Mr. Thompson [continuing]. Research----
Dr. Roman. To my knowledge, the vast majority of decisions
under the Endangered Species Act, and broadly in conservation,
are available online.
Mr. Thompson. Well, the testimony that I witnessed earlier
talked about a lot of underlying data not being--OK. I just was
interested----
Dr. Roman. I can't address that specific case.
Mr. Thompson. All right.
Dr. Roman. But I would say, in general, it is available.
Mr. Thompson. OK. Ms. Maxwell, in 2010--and I apologize if
I am kind of re-plowing ground, since I wasn't here for some of
the questions--specifically to the greater sage grouse, which I
obviously don't have a problem with in Pennsylvania, and
thankful of it, though I do enjoy grouse season, ruffed grouse
season, in Pennsylvania, hunting season, it was identified by
Fish and Wildlife as a listing priority.
I was just kind of curious of the switch from priority
eight to priority two. In your opinion, was that driven by
science--just kind of curious what your observations were.
Ms. Maxwell. Well, I wasn't aware that it had been lowered
to two. But between----
Mr. Thompson. I may have that flipped around, actually. It
was moved to a higher priority, whatever way the----
Ms. Maxwell. That is the way it goes. That is the way--it
goes down to go up.
Mr. Thompson. OK.
Ms. Maxwell. But between 2010 and now, there have been a
lot of new studies coming out. Some of the ones that I have
seen are actually showing it is more accurate science. And from
some of the studies I am seeing, it shouldn't have been
lowered, because the populations seem to be responding well to
mitigation, especially in areas where it was heavily studied
that they are declining, like in the Pinedale area. That was
where a lot of the studies are showing a decrease in
population.
But now there are newer studies coming out where it is
showing that is not necessarily the case any more. So I would
be surprised for it to have been lowered.
Mr. Thompson. Mr. Foley, thanks for your service to
agriculture. As the Agriculture Subcommittee Chairman, greatly
appreciate it, your work in Kansas.
I find that better public policy occurs when we don't do it
in a vacuum, when we get out--certainly outside the beltway, or
outside the agencies, and we have a spirit of collaboration
with looking at full impact on communities, on the biosphere,
everything. And, quite frankly, I would argue that the most
endangered species we have today are individuals who live in
rural communities and rural communities themselves can be on
the line--be on the way to being ghost towns, as a result of
regulations.
Your thoughts, in terms of--should we be doing a better job
at getting that collaboration, the Federal Government reaching
out to the States, to the communities?
Mr. Foley. Thank you for your kind comments. I think it is
critical. I really believe it. Obviously, we have 105 counties
in Kansas, we have a lot of sparsely populated counties. I am
talking 3,000 to 5,000 people in a county that is 30 miles
square. So a lot of land mass. And we have low populations in
it.
Everything that has an economic impact to your engine--and
our engine is agriculture--is relative to schools, is relative
to how do you keep your function, your grocery store, open. Are
you willing to truck your kids 75 miles? Are you going to move
them to a city where they can be educated? That is the reality
of when we start doing things that have this significant of an
impact, and you start reducing that tax resource, whether it
was from agricultural lands, and you change the use value of
those acres of land. It is critical.
If I had a row crop irrigated use value, or a dry land use
value, then it is on the tax rolls, part of what we are paying
in for our school infrastructure. It is all relative. It is all
relative. And everything that impacts that engine, the trickle
impacts, whether it is the agribusiness deal or the selling
tractors or fertilizer or seed or the packing plants where we
are feeding the cattle, we are taking our corn to the feed
lots, all of those things are relative to these activities.
And our concern, in addition to that, is that we are a
price-taker economy. In our economics, in agriculture, we don't
have the opportunity to set the price for our product. So if
Illinois, or even in the rest of Kansas, they didn't have these
additional costs, then you just moved production. So it lends
right to your ghost town theory. They just move out of there,
because I can't afford it, because I can't say, ``Well, I had
an additional cost of $12 per unit, I will raise my price.'' It
doesn't happen that way. That is our passion, our concern about
agriculture.
Mr. Thompson. Very good. Thank you to the panel. Thank you,
Madam Chair.
Mrs. Lummis. I want to thank the Members, particularly the
panelists, for your extraordinary participation, for your
expertise, and for your thoughtful commentary. I want to thank
our guests and our staff, both sides of the aisle. And everyone
on the panel today, I believe, has the same stated goals.
And I could relate, as Mr. Southerland said, to the
reference that there are spiritual and moral reasons to be good
stewards and good caretakers of our land and our water, and to
the species of the earth. So our goals are the same. And it is
my view that, since the Endangered Species Act was enacted in
1973, those goals have become embedded in the American psyche.
But the problem is we are still administering it and
enforcing this law by a 20th century litigation model. It is
like using an Edsel in 1913--or rather, in 2013. We really have
moved beyond the Edsel, in terms of our understanding of the
technology of the automobile. And I would assert that we have
moved beyond 1973 in terms of our ability to save species. We
understand the scale of the habitat that is required. We
understand the science that is useful to recovering species,
what activities, and what specific people on the ground are
best able to recover those species.
I believe it is time that the law and the rules and
regulations caught up with our ability, as Americans, to
conserve and preserve species. So I am hopeful that, as we move
forward with this effort, to have a 21st century conservation
model that recognizes that these values and goals are embedded
in the American people, will actually allow us to implement
boots-on-the-ground conservation, and not just flowery language
in courtrooms about the importance of the Endangered Species
Act.
With that conclusion, I once again want to thank our
panelists for their extraordinary testimony. This hearing is
now adjourned.
[Whereupon, at 12:41 p.m., the committee was adjourned.]
[Additional Material Submitted for the Record]
Letter Submitted for the Record by Mark N. Salvo, Director,
Federal Lands Conservation,
Defenders of Wildlife,
Washington, DC, December 26, 2013.
The Honorable Doc Hastings,
Committee on Natural Resources,
U.S. House of Representatives,
1324 Longworth House Office Building,
Washington, DC 20515.
The Honorable Edward Markey,
Committee on Natural Resources,
U.S. House of Representatives,
1329 Longworth House Office Building,
Washington, DC 20515.
Dear Chairman Hastings and Ranking Member Markey:
I am writing on behalf of Defenders of Wildlife to submit comments
in response to testimony presented at the recent oversight hearing,
``ESA Decisions by Closed-Door Settlement: Short-Changing Science,
Transparency, Private Property, and State and Local Economies,'' held
by the Committee on Natural Resources on December 12, 2013. We are
concerned about the veracity of statements by majority witnesses
concerning the potential listing of the lesser prairie-chicken under
the Endangered Species Act [ESA] (16 U.S.C. Sec. 1531 et seq.) and
conservation planning for the greater sage-grouse. Defenders of
Wildlife is a national, non-profit, public interest conservation
organization with expertise on both species and related administrative
processes. We respectfully request the committee to include our
submission in the record for the oversight hearing.
lesser prairie-chicken
The witness (Greg Foley, Executive Director, Division of
Conservation Kansas Department of Agriculture) who testified on the
possible listing of lesser prairie-chicken (Tympanuchus pallidicinctus)
understated the need to protect the bird under the ESA and overstated
the potential effects of listing on use of private property in his oral
testimony.
The lesser prairie-chicken has been reduced to less than 10 percent
of its historic distribution and populations have experienced long-term
declines.
The witness gave an overly optimistic report of the species' status
in Kansas. Using the best available science, the U.S. Fish and Wildlife
Service (Service) found that despite existing conservation programs,
the ``current statewide trend (in Kansas) in lesser prairie-chicken
abundance between 2004 and 2009 indicates a declining population'' (77
Fed. Reg. 73848). A subsequent population survey conducted in August
2013 for the Western Association of Fish and Wildlife Agencies
documented further population declines, finding that the species'
abundance had plummeted approximately 50 percent range-wide during the
previous year (McDonald et al. 2013, unpublished report).
Listing lesser prairie-chicken would have negligible effects on use
of private property.
The witness overstated the potential impacts to ``food and fiber
production'' and ``personal property rights'' from Federal listing of
the lesser-prairie chicken. On December 11, 2013, the Service proposed
a special ``4(d) rule'' that would exempt a host of activities from
having to comply with the ESA's prohibition on ``take'' of the species
if it is listed (78 Fed. Reg. 75306). Exempt activities include most
``routine agricultural practices'' on currently cultivated lands and
almost all ordinary ranching and farming practices on privately owned
agricultural lands enrolled in the U.S. Department of Agriculture's
Lesser Prairie-Chicken Initiative.
greater sage-grouse
The witness (Megan Maxwell, Consulting Biologist) who testified
about the current Federal planning process to conserve greater sage-
grouse (Centrocercus urophasianus) made numerous incorrect assertions
and mischaracterized the science, law and purpose of the planning
effort in her written testimony. We respond to her relevant contentions
as follows.
The National Technical Team's report on sage-grouse conservation
measures represents ``best available science'' on sage-grouse.\1\
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\1\ Defenders of Wildlife has also identified additional agency and
peer-reviewed science that augments and fills the gaps in conservation
measures in the NTT report.
In 2011, the Bureau of Land Management [BLM] convened a National
Technical Team of sage-grouse experts and land managers to develop ``A
Report on National Greater Sage-grouse Conservation Measures'' (NTT
report). The report includes management recommendations for conserving
and restoring sage-grouse and their habitat. BLM planning teams are
considering the recommendations in draft management plans and sub-
regional environmental impact statements [EISs] produced as part of the
National Greater Sage-Grouse Planning Strategy, an unprecedented effort
to update dozens of Federal land use plans with sage-grouse
conservation measures.
The NTT report was created to provide the best available science to
Federal planners (NTT 2011: 4) and the BLM has declared in court
proceedings that the NTT report represents best available science on
sage-grouse, as the witness acknowledged in her testimony (Maxwell
testimony: 2). Nevertheless, she glibly asserts that the NTT report
``does not in fact represent the `Best Available Science' '' on sage-
grouse (Maxwell testimony: 3), which also disregards the deliberative
process and quality of information used to develop the report. The NTT
report was written by 23 sage-grouse experts and land managers. The
team also consulted with additional agency and non-agency scientists.
The report cites dozens of scientific references on sage-grouse and
sagebrush steppe, including chapters from Greater Sage-Grouse: Ecology
and Conservation of a Landscape Species and Its Habitats, a sage-grouse
monograph written by the top 38 sage-grouse and sagebrush experts in
the world, edited by S. Knick and J. Connelly (experts on sagebrush and
sage-grouse ecology), technically edited by C. Braun (sage-grouse
expert), published by Studies in Avian Biology (Cooper Ornithological
Society) and printed by the University of California Press.
The Bureau of Land Management's determination that the NTT report
represents ``best available science'' on the species does not violate
the National Environmental Policy Act.
The witness contends that the BLM's declaration that the NTT report
represents the ``best available science'' on sage-grouse violates the
National Environmental Policy Act [NEPA] because it is ``pre-
decisional'' for the national planning process for sage-grouse (Maxwell
testimony: 2). Her assertion is without merit. NEPA prohibits Federal
agencies, like BLM, from predetermining the outcome of a NEPA planning
process such as the National Greater Sage-Grouse Planning Strategy--and
BLM hasn't predetermined the outcome of its NEPA process by developing
the NTT report--rather, the agency has developed conservation
recommendations that it has committed to consider in at least one
management alternative in draft management plans and sub-regional EISs
that comprise the planning strategy.
The witness seems to acknowledge this point where she wrote ``on
December 27, 2011 the Department of the Interior [DOI] issued
Instruction Memorandum [IM] 2012-044 to provide direction to BLM for
considering sage-grouse conservation measures, identified in the NTT
Report, during the land use planning/National Environmental Policy Act
[NEPA] process which was already underway in accordance with the 2011
National Greater Sage-Grouse Planning Strategy. IM 2012-044 directs BLM
to `consider all applicable conservation measures when revising or
amending its RMPs in Greater Sage Grouse habitat. The conservation
measures developed by the NTT . . . must be considered and analyzed, as
appropriate . . . and incorporated into at least one alternative in the
land use planning process' '' (Maxwell testimony: 1, emphasis
original). It is not a NEPA violation for BLM to require planners to
consider an alternative ``as appropriate'' in a planning document; it
would be a NEPA violation only if BLM required that a certain
alternative be selected during the planning process.
Additionally, the determination that the NTT report represents the
``best available science'' on sage-grouse was confirmed by a Federal
court (as the witness acknowledged; Maxell testimony: 2). NEPA does
require agencies to use ``high quality'' information in planning (40
CFR Sec. 1500.1(b)) and the BLM's own sensitive species policy commits
the agency to ``obtain and use the best available information deemed
necessary to evaluate the status of special status species in areas
affected by land use plans'' (BLM Manual 6840.22A), and so it would be
a violation for BLM not to consider the NTT report in its sage-grouse
plans (see also BLM NEPA Handbook H-1790-1, 6.8.1.2 (January 2008),
``Use the best available science to support NEPA analysesa . . .'').
Finally, while BLM has considered the NTT report recommendations in
draft management plans and sub-regional EISs released to date, the
agency has declined to adopt the recommendations as the preferred
alternative in any of these plans.
Anthropogenic disturbance threatens sage-grouse throughout their
range.
The witness, ignoring an exceptional amount of research on the
subject, falsely contends that the NTT report ``inappropriately assumes
that anthropogenic disturbances are the primary threat to sage-grouse
range-wide'' (Maxwell testimony: 3). Multiple compendiums of science
document the myriad effects of human activities and disturbance on
sage-grouse, including Connelly et al. (2004); Stiver et al. (2006);
Knick and Connelly (eds.) (2011) and, most recently, Manier et al.
(2013) (also cited by the witness). The Service cited many of these
references and dozens of other peer-reviewed scientific articles
documenting the impacts of anthropogenic disturbance on sage-grouse in
its ``warranted, but precluded'' determination in 2010 (75 Fed. Reg.
13910). The NTT report was developed in response to the Service's
determination that human activities are threatening the species and
that BLM's current regulatory framework for managing sage-grouse
habitat was unclear, inconsistent, inadequate, and haphazardly applied.
The NTT report recommends scientifically valid conservation
measures to minimize the effects of anthropogenic disturbance on sage-
grouse.
The witness claims certain NTT report recommendations are not
supported in scientific literature, including prescriptions to (1)
retain 70 percent of vegetation cover in sagebrush steppe in sage-
grouse habitat and (2) limit anthropogenic disturbance to no more than
3 percent of land surface in priority habitat areas (Maxwell testimony:
5). In fact, scientific research does support these objectives, as well
as the professional judgment of sage-grouse experts:
Retain 70 percent land cover in sagebrush steppe. Connelly
et al. (2000: 977, Table 3) recommend retaining > 80 percent of
sage-grouse breeding and winter habitat in desired habitat
conditions. The NTT report, citing Aldridge et al. (2008),
Doherty et al. (2010), Wisdom et al. (2011), recommends
maintaining a minimum range of 50-70 percent of priority
habitat areas in sagebrush cover. The Oregon sage-grouse
conservation assessment and strategy is predicated on
preserving/restoring 70 percent of sage-grouse habitat in
advanced successional stages of sagebrush steppe (the remaining
30 percent to include degraded areas that might also be
restored to habitat capable of supporting sage-grouse) (Hagen
2011: 74). Knick et al. (2013: 5-6) found that 79 percent of
the area within 5 km of remaining active sage-grouse leks was
in sagebrush cover.
Limit anthropogenic disturbance to 3 percent of land
surface. Knick et al. (2013) recently confirmed that remaining
active sage-grouse leks were in landscapes with 3 percent
anthropogenic surface disturbance within 5 km of the lek. In
comparison, Copeland et al. (2013), modelling 5 percent
surface disturbance, predicted that the higher rate would only
slow and not stop population declines in Wyoming.
NTT report recommendations to conserve sage-grouse habitat and
limit the effects of anthropogenic disturbance on the species are not
inconsistent.
Both the witness and internal agency review of the draft NTT report
questioned how the recommendation to retain 70 percent of vegetation
cover as sagebrush steppe in priority sage-grouse habitat comports with
the 3 percent cap on anthropogenic disturbance. The question was
presented by BLM staff in an email, which the witness excerpted in her
testimony:
Science says 30-50 percent in non-sagebrush cover is OK (see
quote below), but the NTT Report says 3 percent in
anthropogenic features is the NTT recommended maximum (see
quote below).
Am I missing something, is it worded poorly, or is this a
misapplication of professional judgment and science?
The report now makes this scientifically based assertion:
Within priority habitat, a minimum range of 50-70 percent of
the acreage in sagebrush cover is required for long-term sage-
grouse persistence (Aldridge et al. 2008, Doherty et al. 2010,
Wisdom et al. 2011).
That leaves an allowance of 30-50 percent in non-sage-brush
cover. So how was the 3 percent maximum cap on surface
anthropogenic features derived based on ooprofessional
judgmentoo? (see footnote) 3 percent is a long way from 30-50
percent[.]
(SGNTT emails, p. 235)
Both the witness and the BLM reviewer fail to understand the
distinction between the recommendation that management retain 70
percent of sage-grouse habitat in sagebrush steppe and the recommended
3 percent cap on anthropogenic disturbance. Retaining 70 percent of
vegetation in sagebrush steppe does not imply that the remaining 30
percent is not important to sage-grouse. In fact, those remaining areas
should consist of other natural habitats (e.g., pinyon-juniper, aspen
groves, riparian zones, early successional sagebrush steppe) or areas
that could be restored to sagebrush steppe. Research also separately
shows that within an entire landscape, sage-grouse can only tolerate 3
percent of discrete anthropogenic disturbance (e.g., drilling pads,
mines, roads, wind turbines, utility corridors, etc.) that permanently
eliminates sagebrush steppe and reduces the value of surrounding
habitat to the species.
So the 70 percent retention standard and the 3 percent disturbance
cap are not inconsistent, but together provide a baseline for managing
the last best sage-grouse habitat in the West. A scientist offered this
explanation in the same email communication excerpted above (which the
witness failed to mention in her testimony):
Anthropogenic feature[s] are being limited to 3 percent to
limit direct impacts to sagebrush habitat loss but more
importantly impacts to sage grouse (direct or indirect) as a
result of these features on the landscape.
The 50-70 percent sagebrush cover is really a minimum range for
healthy habitats and that if the remaining habitat were all
anthropogenic then the 50-70 percent would not be effective to
sustainable [sic] SG populations. If the remaining 30-50
percent was in some other plant seral stage (recent burn or
annual grassland) at least there is still habitat to be
reclaimed or evolve over time back to a sagebrush ecosystem.
(SGNTT emails, p. 240)
The purpose of the NTT report is to provide recommendations to
Federal planners to consider in the National Greater Sage-Grouse
Planning Strategy.
The witness criticizes the NTT report for failing to consider
current protections, including local sage-grouse conservation efforts,
in its management prescriptions (Maxwell testimony: 7). However, such a
criticism is misplaced because it conflates the NTT report, which
provides scientific recommendations to conserve sage-grouse, with an
Endangered Species Act listing determination, which evaluates the
effectiveness of conservation measures to protect and recover an
imperiled species. It is not the purpose of the NTT report to evaluate
existing conservation measures for sage-grouse, although the report
does include among its recommendations some prescriptions originally
developed by States, local sage-grouse working groups and others.
The witness similarly notes that the NTT report fails to consider
socio-economic conditions in its management recommendations (Maxwell
testimony: 7), but, again, that is the purpose of other processes, not
the NTT report. In this case, the NEPA planning strategy process is
considering socio-economic issues related to sage-grouse conservation
and the multitude of draft plans and sub-regional EISs produced to date
include extensive analysis of these concerns.
NTT report recommendations are a baseline for conserving sage-
grouse and their habitat.
The witness criticizes the NTT report for attempting to impose a
``one-size-fits-all'' approach on sage-grouse management plans in the
West (Maxwell testimony: 4-5, 9, 10). This misconstrues the report, and
the contention is otherwise mooted by the current planning process.
Conservation measures in the NTT report are recommended to conserve and
recover sage-grouse populations. The BLM is considering these
prescriptions in draft management plans and sub-regional EISs as part
of the national planning strategy to improve sage-grouse conservation
on public lands. The prescriptions do not ``predetermine'' the outcome
of the planning process, and considering them in draft plans is not
``illegal,'' as the witness otherwise suggests (Maxwell testimony: 8).
In fact, while the BLM has analyzed the NTT report recommendations in
many of the draft management plans and sub-regional EISs released as
part of the planning process, none of the preferred alternatives in
those plans would implement the NTT report prescriptions. Rather, the
agency has created different preferred alternatives for each plan,
based on local considerations and input, bucking the assertion that the
BLM has adopted a one-size-fits-all approach to conserve sage-grouse.
As the witness recognized (Maxwell testimony: 1), the BLM has a
unique opportunity to conserve sage-grouse on millions of acres of
public lands. But the agency has also acknowledged that reversing long-
term population declines will require a ``new paradigm'' (NTT 2011: 6)
in land management that protects essential habitat and concentrates
future land use and development in peripheral and non-habitat areas.
The NTT report recommendations are intended to help the agency to
achieve this goal.
Thank you for this opportunity to submit information to the record
for the oversight hearing.
Sincerely,
Mark N. Salvo, Director,
Federal Lands Conservation
references cited
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Connelly, S. T. Knick, M. A. Schroeder. 2008. Range-wide patterns of
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Connelly, J. W., M. A. Schroeder, A. R. Sands, C. E. Braun. 2000.
Guidelines to manage sage-grouse populations and their habitats. Wildl.
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