[House Hearing, 113 Congress]
[From the U.S. Government Publishing Office]
COLLISION COURSE: OVERSIGHT OF THE OBAMA ADMINISTRATION'S ENFORCEMENT
APPROACH FOR AMERICA'S WILDLIFE LAWS AND ITS IMPACT ON DOMESTIC ENERGY
=======================================================================
OVERSIGHT HEARING
before the
COMMITTEE ON NATURAL RESOURCES
U.S. HOUSE OF REPRESENTATIVES
ONE HUNDRED THIRTEENTH CONGRESS
SECOND SESSION
__________
Wednesday, March 26, 2014
__________
Serial No. 113-64
__________
Printed for the use of the Committee on Natural Resources
Available via the World Wide Web: http://www.fdsys.gov
or
Committee address: http://naturalresources.house.gov
______
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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 Katherine M. Clark, MA
Doug LaMalfa, CA
Jason T. Smith, MO
Vance M. McAllister, LA
Bradley Byrne, AL
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 Wednesday, March 26, 2014........................ 1
Statement of Members:
DeFazio, Hon. Peter A., a Representative in Congress from the
State of Oregon............................................ 4
Prepared statement of.................................... 5
Hastings, Hon. Doc, a Representative in Congress from the
State of Washington........................................ 1
Prepared statement of.................................... 3
Statement of Witnesses:
Ashe, Hon. Daniel M., Director, U.S. Fish and Wildlife
Service, Department of the Interior........................ 6
Prepared statement of.................................... 7
Questions submitted for the record....................... 11
Additional Material Submitted for the Record:
American Wind Energy Association, Prepared statement of...... 49
Cramer, Hon. Kevin, a Representative in Congress from the
State of North Dakota, Prepared statement of............... 49
OVERSIGHT HEARING ON COLLISION COURSE: OVERSIGHT OF THE OBAMA
ADMINISTRATION'S ENFORCEMENT APPROACH FOR AMERICA'S WILDLIFE LAWS AND
ITS IMPACT ON DOMESTIC ENERGY
----------
Wednesday, March 26, 2014
U.S. House of Representatives
Committee on Natural Resources
Washington, DC
----------
The committee met, pursuant to notice, at 10:01 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, Tipton, Labrador, Southerland,
Flores, Mullin, Cramer, LaMalfa, DeFazio, Tsongas, Hanabusa,
Huffman, and Shea-Porter.
The Chairman. The committee will come to order, and the
Chair notes the presence of a quorum, which under rule 3(e) is
two Members, and we have exceeded that.
The Committee on Natural Resources is meeting today to hear
testimony on an oversight hearing entitled, ``Collision Course:
Oversight of the Obama Administration's Enforcement Approach
for America's Wildlife Laws and Its Impact on Domestic
Energy.''
Under committee rule 4(f), opening statements are limited
to the Chairman and the Ranking Member. However, I ask
unanimous consent that any Member who wishes to have an opening
statement as part of the record submit it to the clerk by close
of business today.
[No response.]
The Chairman. And without objection, so ordered. I will now
recognize myself for 5 minutes for my opening statement.
STATEMENT OF THE HON. DOC HASTINGS, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF WASHINGTON
The Chairman. For nearly 2 years, the Committee on Natural
Resources has investigated the Obama administration's approach
for enforcing wildlife laws, including the Migratory Bird
Treaty Act, and the Bald and Golden Eagle Protection Act, as it
relates to U.S. energy producers. Both of these laws are strict
liability statutes that prohibit the taking of migratory birds
and bald and golden eagles within the United States. As strict
liability statutes, any authorized take that occurs, be it
intentional or unintentional, violates the acts.
However, despite the strict liability of these laws, the
administration has developed specific guidance to assist the
burgeoning wind industry, and has selectively prosecuted only a
handful of violations. In November 2013, the Department of
Justice announced a plea agreement involving the Duke Energy
renewables in connection with the protected migratory birds and
golden eagles at two wind energy projects in Wyoming. This is
the only such enforcement case that has been brought to date
involving the wind industry.
Now, there are legitimate concerns that the administration
is implementing these laws in an arbitrary fashion. The goal of
this hearing and the committee's oversight efforts is to gain a
better understanding of how and why the administration decides
to enforce some violations and not others. We are also
interested in learning more about what role cooperation between
the administration and wind developer plays in making these
enforcement decisions. Unfortunately, like so many issues, this
administration has been less than transparent on this topic.
The Department has engaged in a deliberate, 10-month slow roll
in fulfilling the committee's request for documents and
information.
For example, it took the administration more than four
months before it provided fewer than 70 pages of emails and
meeting materials about the development of a secret bird
mortality data base. The administration dragged its feet for
six months before providing a two-page policy memo that was
written a year earlier. The administration gave us copies of
redacted documents that had previously been provided to the
public under the Freedom of Information Act. The administration
may be able to legally withhold certain information from the
public when responding to a 4-year quest, but FOIA exemptions
do not apply to Congress, and complete, unredacted copies
should have been provided to us, instead.
Now, this was not compliance. This is a deliberate slow-
rolling of documents and answers. And, frankly, I have had
enough of that. Unfortunately, the lack of transparency by the
Fish and Wildlife Service here is but one example, and is a
part of a larger, broader pattern by the Department and the
administration not to provide timely cooperation with
congressional oversight requests.
Although the administration may say it has provided
thousands of pages in response to this and other requests, what
it does not say is that the majority of the committee's
original requests remain unanswered and unaddressed, months
after they were sent, and the Department never explains what it
is withholding. This left me with no choice but to issue a
subpoena this month. It was an unfortunate, last resort which
we shouldn't have had to take in our attempt to get answers
from this administration.
I also want to be very clear. This hearing is not an attack
on the wind industry or wind energy. It is about how the
administration is developing and implementing enforcement
policies, and its lack of transparency with Congress and the
American people on how those decisions are made. I strongly
support an all-of-the-above approach to energy that includes
renewables and alternate sources of energy, including wind,
solar, hydropower, geothermal, and nuclear, along with oil,
natural gas, and coal. In fact, in my Central Washington
District, we have some of the highest number of windmills in
the country.
No matter the industry, all of these job creators deserve
to have certainty, clarity, and transparency from the
administration about how laws and regulations are enforced.
Fish and Wildlife Director Dan Ashe is testifying before us
today, and I hope we can get some answers about the
administration's enforcement policies and the status of the
committee's long-standing requests for information.
[The prepared statement of Mr. Hastings follows:]
Prepared Statement of The Honorable Doc Hastings, Chairman, Committee
on Natural Resources
For nearly 2 years the Committee on Natural Resources has
investigated the Obama administration's approach for enforcing wildlife
laws, including the Migratory Bird Treaty Act [MBTA] and the Bald and
Golden Eagle Protection Act [BGEPA], as it relates to U.S. energy
producers.
Both of these laws are strict liability statutes that prohibit the
taking of migratory birds and bald and golden eagles within the United
States. As strict liability statutes, any unauthorized take that
occurs--be it intentional or unintentional--violates the acts.
However, despite the strict liability requirements of these laws,
the administration has developed specific guidance to assist the
burgeoning wind industry and has selectively prosecuted only a handful
of violations. In November 2013, the Department of Justice announced a
plea agreement involving Duke Energy Renewables in connection with the
deaths of protected migratory birds and golden eagles at two wind
energy projects in Wyoming. This is the only such enforcement case that
has been brought to date involving the wind energy industry.
There are legitimate concerns that the Obama administration is
implementing these laws in an arbitrary fashion. The goal of this
hearing, and the committee's oversight efforts, is to gain a better
understanding of how and why the Obama administration decides to
enforce some violations and not others. We're also interested in
learning more about what role ``cooperation'' between the
administration and wind developers plays in making enforcement
decisions.
Unfortunately, like with so many other issues, the Obama
administration has been less than transparent on this topic. The
Department has engaged in a deliberate, 10-month-long slow roll in
fulfilling the committee's requests for documents and information.
For example, it took the administration more than 4 months before
it provided fewer than 70 pages of emails and meeting materials about
the development of a secret bird mortality data base.
The administration dragged its feet for 6 months before providing a
copy of a 2-page policy memo that was written the year before.
The administration gave us copies of redacted documents that had
previously been provided to the public under the Freedom of Information
Act. The administration may be able to legally withhold certain
information from the public when responding to a FOIA request, but FOIA
exemptions do not apply to Congress and complete, unredacted copies
should have been provided instead.
This is not compliance. This is the deliberate slow-rolling of
documents and answers, and we've had enough. Unfortunately, the lack of
transparency by the Fish and Wildlife Service here is but one example
and is part of a broader pattern by the Department and administration
to not provide timely cooperation with Congressional oversight
requests.
Although the administration may say it has provided thousands of
pages in response to this and other requests, what it does not say is
that the majority of the committee's original requests remain
unanswered and unaddressed months after they are sent and the
Department never explains what it is withholding. This left me with no
choice but to issue a subpoena this month. It was an unfortunate last-
resort, which we shouldn't have had to take, in our attempt to get
answers from this administration.
I also want to be very clear; this hearing is not an attack on the
wind industry or wind energy. It's about how the Obama administration
is developing and implementing enforcement policies, and its lack of
transparency with Congress and the American people on how decisions are
made.
I strongly support an all-of-the-above approach to energy that
includes renewable and alternative sources of energy including wind,
solar, hydropower, geothermal and nuclear, along with oil, natural gas
and coal. In fact, my Central Washington District has some of the
highest number of windmills in the country. No matter the industry, all
of these job-creators deserve to have certainty, clarity, and
transparency from the administration about how laws and regulations are
enforced.
Fish and Wildlife Service Director Dan Ashe is testifying before us
today and I hope we can finally get some answers about the
administration's enforcement policies and the status of the committee's
long-standing requests for information.
______
The Chairman. And, with that, I will yield back my time and
recognize the Ranking Member.
STATEMENT OF THE HON. PETER A. DeFAZIO, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF OREGON
Mr. DeFazio. Mr. Chairman, this hearing is yet another
hearing attempting to find intentional disregard by the
administration in areas where no evidence has been uncovered.
In this case there is no report at the hearing, because
there is nothing to report, except a few things I will talk
about, which are outrageous. There isn't a single directive, a
single secretarial policy, a single email that shows there was
any improper behavior or supposed favoritism toward the wind
industry, or prejudice toward the fossil fuel industry in
enforcement actions by this administration. It is yet another
conspiracy that doesn't exist. And, really, we are wasting a
lot of valuable time and taxpayer resources with these
investigations.
The subpoena, as I understand it, talking to the Director,
resulted in him diverting a substantial number--and I am not
exactly clear, I thought he told me 30, I am hearing today from
staff 50--professional law enforcement agents and other staff
to answer this mindless subpoena for the conspiracy that
doesn't exist. They were diverted from catching people who were
devastating elephant herds, rhinoceros, killing other
endangered species around the world, engaged in organized crime
and trafficking, and also real crimes that are being committed
here, in the United States of America. They were diverted from
those duties for 2 full weeks. Why? Because we wanted to send--
or you wanted to send a subpoena to uncover a conspiracy that
doesn't exist.
I mean enough is enough. We have been harassing the
Secretary of the Interior, diverting staff from a whole host of
things that need to be done, including what I need to do on a
bill that passed out of this committee to deal with the O&C
lands in Oregon, and developing a sustainable timber harvest on
those lands. We are diverting professional employees from doing
those things in these continuing quests to find some kind of
conspiracy. We want to pretend we are the Issa Committee, I
guess, on investigations and oversight, and act like Darrell
Issa, which is, really, not something to be aspired to or
replicated, so far as I am concerned, and this committee has
conducted itself----
Mr. Labrador. Mr. Chairman, I----
Mr. DeFazio [continuing]. With more comedy than----
Mr. Labrador. Mr. Chairman, I object.
The Chairman. The gentleman will suspend. The gentleman,
the Ranking Member, has a right to make this statement.
Obviously, there are some things that I would disagree with in
that, but the gentleman has every right to make his statement.
He is recognized.
Mr. DeFazio. Thank you, Mr. Chairman. I am pretty angry.
And I have foregone a number of times here and sat through
these hearings. I sat through last year, when I wasn't Ranking
Member, and we dragged a woman in here, I think, three times
for hours and hours and hours on end, to get at the meaning of
one word, which didn't make any difference, in fact, on the
Horizon spill report.
Really, I mean, we are wasting millions and millions of
dollars of taxpayer resources with these investigations. You
know, there are things to investigate. There are things that
need to be legislated. But that certainly isn't what is going
on here today.
And I don't have anything more to say about this. We will
let the Director represent his views. You can grill him all you
want, and you are not going to find anything here, except for
people doing their job, and being diverted from doing real jobs
that are much more important than shuffling paper and I don't
even know where you keep all this stuff. You must have rented a
giant storage locker somewhere.
Thank you, Mr. Chairman.
[The prepared statement of Mr. DeFazio follows:]
Prepared Statement of The Honorable Peter A. DeFazio, Ranking Member,
Committee on Natural Resources
Thank you Mr. Chairman.
Today's hearing marks the culmination of a long and fruitless
crusade by the majority aimed at uncovering an Obama administration
conspiracy to promote wind energy at the expense of fossil fuels. The
majority has not produced a report to accompany this hearing, because
they have nothing to report: the investigation found nothing. No White
House directive, no Secretarial policy, not even a single email
suggesting improper behavior, showed up in the thousands of pages of
correspondence produced by the Department of the Interior at the
Chairman's request. We are, yet again, wasting valuable time,
resources, and energy on another political conspiracy theory conjured
up in Republican imaginations.
Earlier this month, DOI received another subpoena that demanded
they produce even more documents. Attempting to comply with the demands
of this subpoena has virtually crippled the Fish and Wildlife Service's
Office of Law Enforcement, which has dedicated 73 employees--or one
third of its workforce--to this project full time. So far this has cost
an estimated $67,000 and 1,300 man hours, and fulfilling the request is
expected to take months at this level of effort. Maybe this is by
design: Committee Republicans do not seem to like it when the Service
enforces the law and holds criminals who engage in illegal timber
harvesting, or wildlife trafficking responsible for their actions.
Transparency is one thing. Congress has a duty to hold Federal
agencies accountable to the people. But this is something else. The
nine subpoenas and nearly endless list of document request letters sent
to Obama administration officials by this committee since 2011 have
produced exactly zero results. They have uncovered no intentional
wrongdoing or irresponsible actions whatsoever. In the last two
Congresses, these frivolous requests and subpoenas--including three
fixated on a years-old report that recommended a common sense ``time
out'' on offshore drilling in the wake of Deepwater Horizon--have
produced more than 50,000 pages of documents at a cost of $1.5 million
to taxpayers. Agency staff has spent 19,000 hours responding to these
requests, instead of doing the jobs we are paying them to do, like
permitting responsible energy development and combating illegal trade
in timber and endangered wildlife.
As for today, the only things on a ``collision course'' are the
Republican's far-fetched fantasies and reality. I find it laughable
that the most radically anti-environment House majority in history is
now trying to justify their contempt for this administration and for
renewable energy by crying ``fowl'' over impacts to migratory birds.
These same people are bottling up wilderness bills, undermining
creation of national monuments and parks, and plotting to gut the
Endangered Species Act.
Ironically, Monday was the 25th anniversary of the Exxon Valdez oil
spill. This preventable accident dumped 10.8 million gallons of crude
into Alaska's Prince William Sound, killing thousands of sea otters--
populations of which have only this year recovered to pre-spill levels.
Killer whales and harlequin ducks are still trying to bounce back, and
Pacific herring and pigeon guillemots (GILL-a-mots) have not yet
recovered from the effects of the spill. A recent study showed that oil
from the spill is still there, and is still leaching into the
environment. The spill also killed 900 bald eagles--orders of magnitude
more than wind farms ever have.
Over the weekend, an oil barge collided with a ship in Galveston
Bay, spilling 170,000 gallons of oil and further threatening a marine
ecosystem that is still reeling from the impacts of the 210 million
gallon Deepwater Horizon spill just 4 years ago. Scientific evidence
continues to show us that irresponsible fossil fuel development and
transport pose enormous threats to fish and wildlife, and I am not
aware of a ``wind spill'' ever blackening beaches or closing off
traffic to shipping lanes. But instead of investigating progress on
recovery in the Gulf of Mexico--and pushing much needed legislation to
prevent future spills--the Chairman has decided that today's hearing is
the best use of the committee's time. While I strongly disagree, I look
forward to hearing from Director Ashe, and I yield back the balance of
my time.
______
The Chairman. I thank, I think, the gentleman's opening
statement.
Director Ashe, thank you very much for being here. You have
been in front of this committee before. And, as a matter of
fact, you worked on predecessors to this committee, so you know
exactly how the timing lights work, and you have 5 minutes.
Now, you submitted a statement to us last night; appreciate
that. That will appear totally in the record. But I would like
to keep, if you would, your oral remarks within the 5 minutes.
With that, Director Ashe, you are recognized.
STATEMENT OF THE HON. DANIEL M. ASHE, DIRECTOR,
U.S. FISH AND WILDLIFE SERVICE, DEPARTMENT OF THE INTERIOR
Mr. Ashe. Thank you very much, Mr. Chairman, and good
morning. It is always an opportunity, and I appreciate the
opportunity, to testify before Congress, and particularly this
committee.
As you remarked, Mr. Chairman, I served for 13 years on the
staff of the former House Committee on Merchant Marine and
Fisheries, a predecessor of this committee. I fully understand
and respect the critical role of congressional oversight, and
the challenges sometimes faced in obtaining responsive
information. I have worked now in the executive branch for 19
years, nearly 3 years as Director of the United States Fish and
Wildlife Service. So I also understand the many demands facing
an organization which carries a mission and expectations that
far exceed its budget and resources.
Mr. Chairman, as I always have been, I am here today in
response to your request, to answer your questions to the best
of my abilities. I have, without exception, always made myself
and the employees and the officers of my organization available
to this committee and to its members, without exception. I will
accept on the face of your March 11 subpoena for documents that
you are not satisfied with our responsiveness.
But I really believe that the subpoena was unnecessary, and
it has been extraordinarily disruptive to agency mission, and
expensive to the taxpayer, as Mr. DeFazio remarked. The staff
work required to respond to the committee's multiple requests
is massive, and the cost of compliance with this subpoena is
illustrative. Since receiving the committee's subpoena about 2
weeks ago, we estimate that 125 Fish and Wildlife Service
employees have worked 2,600 hours at a taxpayer cost of about
$150,000. Notably, of these 125 employees, 73 are Office of Law
Enforcement employees, including 54 special agents, as Mr.
DeFazio remarked. Fully one quarter, 25 percent of our total
special agent force, are working full-time and over-time to
respond to this subpoena. This is to the exclusion of all
mission duties.
These are the world's most highly trained wildlife law
enforcement professionals, and right now they are sidelined
while internationally syndicated criminal rings are decimating
elephants, rhinos, and other iconic species. And to fully
comply with the committee's subpoena, we estimate that it will
likely need to sustain that level of effort for 3 months.
In regard to implementation and enforcement of the
Migratory Bird Treaty Act and the Bald and Golden Eagle
Protection Act, I am here to better understand your concerns,
address your questions, and hopefully find a productive course
forward in responding to your needs for information.
Our challenge has always been to implement these laws
faithful to the original intent of Congress, while meeting the
evolving needs of these species in the context of changing and
expanding demands of human society. We develop collaborative
solutions, we seek, first and foremost, to educate project
proponents and operators, regardless of the nature of their
business activity, about their obligations under the law.
By supporting and encouraging voluntary adherence to best
management practices, we focus our limited resources on those
entities that choose to ignore the law, or who are having
significant impacts on migratory birds. Criminal prosecution
has always been and will always be our last resort.
We have worked with the oil and gas industry to prevent
migratory bird deaths in oil field waste pits. We have worked
with the electric utility industry to understand how to
retrofit power lines and transmission towers to reduce
collisions and electrocutions of raptors and other birds. We
have worked similarly with the radio and cell tower industries,
the architectural and building trades communities, and the
commercial fishing industry. And today, we are working in a
similar fashion with the wind and the renewable energy
industry.
In taking enforcement actions, our agents go where the
evidence takes them, period. When they determine it is
necessary and appropriate to refer a case to the Justice
Department, they do so. They neither need nor seek approval at
political levels.
Thank you, Mr. Chairman and committee members, for giving
me the opportunity to testify today. I would be happy to answer
your questions and explore with you a better way forward.
[The prepared statement of Mr. Ashe follows:]
Prepared Statement of The Honorable Daniel M. Ashe, Director, U.S. Fish
and Wildlife Service, Department of the Interior
introduction
Good morning Chairman Hastings, Ranking Member DeFazio, and members
of the committee. I am Dan Ashe, Director of the U.S. Fish and Wildlife
Service (Service). Thank you for inviting me to testify today on the
Committee's oversight involving the Migratory Bird Treaty Act [MBTA]
and the Bald and Golden Eagle Protection Act (Eagle Act).
The Service's mission is working with others to conserve, protect,
and enhance fish, wildlife, plants and their habitats for the
continuing benefit of the American people. The Service's long track
record of working with industries, agencies, and individuals to
conserve migratory birds, including eagles, supports that mission.
Today, impacts to migratory birds from anthropogenic activities are
myriad and expanding. For decades, the Service has worked cooperatively
with its partners to minimize these impacts and facilitate compliance
with the MBTA and other Federal statutes, like the Eagle Act. Although
many bird populations are currently in decline, there is much to be
encouraged about. Bald eagle populations increased to the point that we
removed them from the endangered and threatened species list. In some
areas, like the Chesapeake Bay, bald eagle populations are increasing
rapidly. Our management and conservation of migratory waterfowl with
our State and international partners is one of history's great
conservation success stories. Many decades ago the viability of
waterfowl populations was in question, but sustained conservation and
management actions with our partners, grounded in science, has produced
robust populations that enable hunting activity along all four flyways
in the United States.
The MBTA prohibits the taking of migratory birds, including eagles,
and the Eagle Act prohibits the taking of bald and golden eagles. The
Service works with industries, agencies, and other stakeholders to
develop best management practices to facilitate compliance with these
laws. These guidelines are based on the best available science and
employ practical, common-sense actions that allow individuals and
organizations to carry out otherwise lawful activities in ways that
reduce impacts on migratory birds.
The Service focuses its resources on developing partnerships with
industries and other stakeholders to identify actions that can be taken
to minimize or eliminate take of migratory birds. After the Service
identifies best management practices that are practicable and
effective, our expectation is that people will use them. Examples of
successful partnerships include the Avian Power Line Interaction
Committee, which is a partnership with the electric transmission line
industry; and guidelines for oil companies to cover open oil pits that
attract birds. For the nascent wind industry, the Service convened the
Wind Turbine Guidelines Advisory Committee to develop guidelines for
siting and operating wind turbines. All of these are voluntary
programs.
committee oversight and document requests
The Service recognizes and respects the committee's oversight role
of the Federal agencies within its jurisdiction. The committee
requested documents from the Service pertaining to the enforcement of
the MBTA and the Eagle Act against energy companies, including: (1)
copies of documents related to Service investigations, as well as
referrals to the Department of Justice, created between January 2009
and the present; (2) copies of communications between the Service and
representatives from wind energy companies; (3) copies of policies,
legal analysis, and emails related to enforcement discretion under the
MBTA and Eagle Act; (4) communications between the Service and the
American Wind Wildlife Institute; and (5) documents related to meetings
concerning proposed revisions to the eagle take regulations.
The Department of the Interior (Department) and the Service
continue to cooperate with the committee to provide information that is
responsive to its concerns about these issues. Since receiving the
Chairman's original letter on May 16, 2013, the Department has provided
approximately 5,000 pages of documents to the committee on September
18, 2013, December 2, 2013, December 13, 2013, and February 28, 2014.
To compile this information, Service staff spent thousands of hours
reviewing years of records and files to comply with the committee's
request.
On December 17, 2013, committee staff met with Mr. William Woody,
Chief of the Service's Office of Law Enforcement, who answered
questions related to enforcement of the MBTA and the Eagle Act. At that
meeting, Chief Woody discussed the Chief's Directive on ``Enforcement
of the Migratory Bird Treaty Act as it Relates to Industry and
Agriculture.'' The Chief's Directive is a responsible way to focus
Service law enforcement efforts on entities that ignore best management
practices that are well known to avoid and minimize takes of migratory
birds, including bald eagles and golden eagles.
In response to the subpoena issued on March 11, 2014, we have once
again reached out to staff across the country to compile requested
documents. We hope to provide these to the committee in the near
future.
background on the migratory bird treaty act and bald and golden eagle
protection act
When Congress passed the MBTA in 1918 it sought to put an end to
the commercial trade in birds and their feathers that, by the early
years of the 20th century, had wreaked havoc on the populations of many
native bird species. The MBTA decrees that all migratory birds and
their parts (including eggs, nests, and feathers) are protected under
Federal law, and all migratory bird ``take'' is governed by the MBTA.
Killing, possessing, transporting, and importing migratory birds is
illegal except as authorized under a valid permit. Additionally, the
MBTA authorizes and directs the Secretary of the Interior to determine
if, and by what means, the take of migratory birds should be allowed
and to adopt suitable regulations permitting and governing take, such
as those embodied by hunting seasons and bag limits.
Since the enactment of the MBTA, great strides have been made in
conserving wild bird populations. Yet, the threats that human
activities pose to these bird populations continue to increase. The
United States population in 1915 reached 100 million people. Today it
exceeds 300 million people. It continues to increase. Development of
housing, electricity and communications, transportation systems and
other infrastructure directly and indirectly affect migratory bird
populations. The Service has adopted an approach to implementing the
MBTA that allows us to focus our enforcement activities on individuals
and organizations that disregard the law and repeatedly ignore best
management practices that minimize impacts to migratory birds.
When Congress passed the Bald Eagle Protection Act in 1940, it
sought to protect bald eagles, our national symbol, from exploitation.
In 1962, Congress added the same protections for golden eagles and
changed the statute's title to the Bald and Golden Eagle Protection Act
(Eagle Act). The Eagle Act protects the bald eagle and the golden eagle
by prohibiting the take, possession, sale, purchase, barter, offer to
sell, purchase or barter, transport, export or import, of any bald
eagle or golden eagle, alive or dead, including any part, nest, or egg,
unless allowed by permit. Additionally, the Eagle Act allows for
members of federally recognized Native American Tribes to take a very
limited number of eagles for their religious ceremonies, and it permits
the take of eagles where they are a threat to human health and safety.
permitting eagle take
The Eagle Act protects bald eagles and golden eagles, but it
authorizes the Secretary of the Interior to issue regulations,
consistent with the preservation of the species, permitting some take
of eagles. The permitting process under the Eagle Act is a key
mechanism to avoid and minimize the take of eagles from various
industries and activities that can impact eagles. Permits may be issued
for some limited take of eagles as a result of otherwise lawful
activities. An applicant for such a permit must demonstrate he or she
is doing everything possible to avoid and minimize risk to eagles, and
if needed, to compensate in some way for any unavoidable deaths so that
the eagle populations do not decline.
Any entity, including wind energy facilities, developers building
strip malls, utility companies constructing and operating power lines,
and highway departments building roads, may apply for one of these
permits. In December 2013, the Service finalized revisions to the 2009
eagle incidental take regulations to extend the maximum duration of
permits from 5 years to up to 30 years. Applicants can request permits
of any length up to 30 years. Permits will be subject to annual
reporting requirements and 5-year reviews, which allow for revisions to
the permit requirements. Such permits provide a greater level of
predictability to industry for ongoing projects, while providing much
needed data on the effects of long-term projects on eagles and on the
effectiveness of the mitigating measures and terms and conditions of
the permits.
Based on reported data, population data, and other information, at
the 5-year review, the Service will determine whether changes to the
terms and conditions of the permit are necessary to avoid and minimize
take, and can prescribe such changes going forward.
The Service is working closely with other Federal agencies, private
landowners, and developers to minimize conflicts between the emerging
wind energy industry and eagles. As with other industries, wind energy
companies are not required to obtain an eagle take permit to operate;
however, also as with other industries, they risk Federal penalties,
including criminal prosecution, for any unauthorized take of eagles.
Wind farms may adversely impact eagles, by disturbance of nesting
areas, migratory and foraging habitat, and by taking individuals via
collision with turbine blades. Therefore, we believe it is important
that they apply the voluntary wind energy guidelines, apply for an
Eagle Act permit where eagle take is anticipated, and implement the
conservation measures required under these permits.
The permit process provides the Service the opportunity to work
closely with wind developers and other project proponents onsite
selection, surveys and monitoring, and operational measures that will
minimize impacts to eagles and other birds, as well as bats. These
long-term permits will incorporate an adaptive management framework
under which the Service will review the project and make adjustments to
ensure the permitted activity does not unduly impact eagles. The
Service has been working with a variety of stakeholders to develop
guidelines and best management practices on siting and operations to
avoid and minimize the take of eagles, other migratory birds, and bats.
We are working to educate and communicate these guidelines to the
industry so they are broadly implemented, and so that companies are
aware of the potential enforcement consequences of not following these
guidelines.
eagle conservation plan guidance and land-based wind energy guidelines
In 2003, the Service issued Interim Guidance on Avoiding and
Minimizing Wildlife Impacts from Wind Turbines. This Guidance addressed
the responsible development of wind energy projects and suggested best
management practices in the selection, siting, and operation of wind
farms that would earn the agency's forbearance of enforcement of
unavoidable takings. The Interim Guidance was in place until 2012, when
it was replaced by voluntary Land-based Wind Energy Guidelines,
developed during several years of consultation between the agency,
industry and other stakeholders. In 2013, the Service issued Eagle
Conservation Plan Guidance for wind energy developers that complemented
the voluntary Land-based Wind Energy Guidelines. Together, these two
recent documents guide the process for wind energy development and
provide information on how to prepare conservation plans for eagles and
other species of concern. The process focuses on assessing project
risks to eagles and other species and identifying modifications that
would reduce those risks. These guidance documents benefited from input
provided by the public, other agencies, nongovernmental organizations,
and wind energy operators.
The Service uses its voluntary Eagle Conservation Plan Guidance and
Land-based Wind Energy Guidelines to assist project developers in
minimizing impacts to avian and bat species and in developing permit
applications for eagle take that cannot be avoided. The Service is also
actively engaging numerous stakeholders (agency staff, States, wind
energy companies, nongovernmental organizations, and other interested
citizens) in wind energy training, which began with a major workshop
held at the National Conservation Training Center in fall 2012, and
continues with regularly scheduled national broadcasts that include a
wide variety of wind energy issues, including the Wind Energy
Guidelines, eagle conservation planning, facility siting and
operations, and research and monitoring. In general, wind energy
operators have been very receptive to these efforts and are
collaborating with the Service to minimize the impacts of wind
facilities on wildlife.
enforcement of the migratory bird treaty act and bald and golden eagle
protection act
As outlined in the Chief's Directive, the Service has long employed
a policy of encouraging industry and agriculture to utilize best
management practices aimed at minimizing and avoiding the unpermitted
take of protected birds. To promote compliance with the law and protect
migratory birds from ``take,'' the Service's Office of Law Enforcement
will look for opportunities to foster relationships with, and provide
guidance to, individuals, companies, and industries during the
development and maintenance of their operational plans. We recognize
that the take of migratory birds may occur even when individuals and
companies consult with the Service, comply with best management
practices, and follow the Service's recommendations. Our goal is to
focus Office of Law Enforcement investigative efforts on bird take that
is foreseeable, avoidable, and proximately caused by industry or
agriculture.
The Office of Law Enforcement pursues potential violations of the
MBTA and the Eagle Act regardless of the industry, individual, or
agency at issue. There is no preferential application of the statutes
to the wind energy industry compared to traditional energy development.
However, industrial-scale wind facilities are relatively new on the
landscape. As we learn more about how to avoid and minimize the effects
of these facilities on migratory birds and other wildlife, the Service
will continue working with the wind energy industry to develop
guidelines and best management practices on siting and operations. This
effort will include education and communication components to ensure
these guidelines are broadly implemented across the wind energy
industry so that companies are aware of the potential law enforcement
consequences of not following these guidelines and taking eagles and
migratory birds.
Additionally, the first prosecution under a law sets a precedent
for future cases and is a cautionary example for other potential
violators of the law. To strike a balance between energy production,
conservation of migratory birds, and the effective use of limited law
enforcement resources, it is important to work with industry to develop
and communicate guidelines broadly and promote best management
practices that minimize the accidental take of migratory birds and also
avoid the necessity for law enforcement action. The Service took a
similar approach decades ago with the oil and gas industry. Best
management practices were developed for open oil pits that attracted
and killed waterfowl. The practices were communicated to industry, and
enforcement actions were taken against those who did not follow them
and took migratory birds. The Service continues to follow this
approach. We anticipate a similar future for the wind industry, where
most entities are following the guidelines and those who are not are
priority investigative targets and are prosecuted when take occurs.
Currently, 17 wind energy cases are under investigation by the
Service. Seven cases have been referred to the Department of Justice
for future investigation and possible prosecution for violating either
the Endangered Species Act, BGEBPA or the MBTA. The Service
investigated golden eagle and other migratory bird fatalities at Duke
Energy's ``Campbell Hill'' and ``Top of the World'' wind facilities in
Wyoming. Despite prior warnings from the Service, Duke Energy failed to
make all reasonable efforts to build its wind facilities in a way that
would avoid the risk of avian deaths by collision with turbine blades.
After lengthy discussions between the Service, the Department of
Justice, and Duke Energy, the company pleaded guilty to violating the
MBTA in connection with the deaths of protected birds, including golden
eagles, at the two Wyoming projects. The settlement requires Duke
Energy to: (1) develop eagle conservation plans and apply for eagle
take permits at its facilities; (2) institute extensive monitoring
programs; and (3) curtail operation of certain high-risk turbines
during eagle migration seasons; and (4) support a variety of eagle
conservation measures in Wyoming. This case is significant because it
establishes a precedent for the prosecution of other violations;
because eagle take will be reduced through implementation of best
management practices; and because Duke Energy cooperated in getting to
a speedy and effective solution.
conclusion
In closing, the Service works diligently and effectively with
industries, agencies, and other stakeholders to ensure fish and
wildlife conservation and compliance with the law. We appreciate the
committee's oversight role, and we look forward to continuing to
cooperate with the committee to provide information that is responsive
to your concerns and inquiries about the MBTA and the Eagle Act.
Thank you for the opportunity to present testimony today. I will be
pleased to answer any questions that you may have.
______
Questions Submitted for the Record to The Honorable Daniel M. Ashe
Questions Submitted for the Record by The Honorable Doc Hastings
Question. The final 30-year Eagle Tenure Rule issued in December
2013 and the earlier 2009 5-year Eagle Tenure Rule make clear that
older wind farms, existing transmission infrastructure, and other
industrial facilities are potentially liable--and in fact have been
liable during the course of their operational lifetimes--for the
unauthorized take of protected eagles. However it is also clear that
the Service does not on a regular basis take enforcement actions
against these older facilities, even though some of them are notorious
for the number of eagles and other protected birds that they take. Do
older wind facilities that went into operation prior to 2009 face the
same potential legal liability as a facility that has gone into
operation in 2009 or later? Please explain.
Answer. Wind facilities that went into operation prior to 2009 face
the same potential legal liability as do facilities that began
operation in 2009 or later. The U.S. Fish and Wildlife Service
(Service) Office of Law Enforcement [OLE] responds to and investigates
reports of violations of laws that protect eagles without regard for
the date that a facility has gone into operation.
Question. Have any wind facilities that went into operation prior
to 2009 applied for an eagle take permit? If yes, what is the status of
any such applications?
Answer. The Service has received eagle take permit applications for
two wind facilities that were operational prior to 2009. One of the
applications is under initial application review. For the other, the
Service prepared a draft environmental assessment [DEA] of the effects
of, and alternatives to, issuing the permit as required under the
National Environmental Policy Act [NEPA]. The public comment period for
the DEA closed in November 2013, and the Service is reviewing public
comment and preparing a Final Environmental Assessment.
Question. How many wind farms that went into operation in 2009 or
later have applied for an eagle take permit? What is the status of any
such applications?
Answer. The Service has received eagle take permit applications for
six wind facilities that went into operation in or after 2009. One of
the sites is part of a joint application with a second facility already
addressed in response to Question 2 and is under NEPA review. Four of
the remaining five applications are in NEPA review (developing the
Environmental Assessment) and one application is in the final stages of
the NEPA process (final review of Environmental Assessment).
Question. Would you agree that voluntary agreements by wind
operators for mitigating their environmental impacts do not constitute
take permits and as such do not immunize the companies from liability
for unauthorized take?
Answer. Voluntary agreements by wind operators for mitigating their
environmental impacts do not constitute take permits and do not
immunize the companies from liability for unauthorized take. However,
the Service has long employed a policy of encouraging industry to
utilize best practices aimed at minimizing and avoiding the unpermitted
take of protected birds. We have examples of successful partnerships
like the Avian Power Line Interaction Committee, which is a partnership
with the electric transmission line industry. With regard to the wind
industry, in 2007 the Secretary of the Interior chartered and the
Service convened the Wind Turbine Guidelines Advisory Committee in
accordance with the Federal Advisory Committee Act to develop
guidelines for siting and operating wind turbines. The Service's Eagle
Conservation Plan Guidance and Land-based Wind Energy Guidelines are
intended to guide the process for development of conservation and
implementation plans which significantly benefits eagles and other
species.
When the Service has identified and communicated best management
practices that are effective we anticipate they will be used. The
Service focuses a considerable amount of its limited resources on
developing partnerships with industries and government agencies where
the greatest benefit for migratory bird conservation can be
accomplished.
Question. For older, pre-2009 facilities seeking a permit, please
describe the range of mitigation measures that could be implemented and
explain whether they would be different from the ones for newer
facilities?
Answer. In 2009, the Service published sustainable take levels for
both bald and golden eagles based on current population status and
predicted ability of each species to withstand additional mortality.
For bald eagles, we determined that most populations could withstand
some additional mortality, and we established regional take thresholds
(quotas) for permitting purposes. We determined that golden eagle
populations were stable with existing survival rates, but might not be
resilient to increased mortality levels. Accordingly, for golden eagles
we determined that any added mortality over that already occurring
would have to be offset by compensatory mitigation that reduced another
existing source of mortality by a commensurate degree. Thus, post-2009
activities seeking an eagle take permit for golden eagles are required
to offset their take directly through compensatory mitigation aimed at
reducing an ongoing form of mortality, whereas activities that were
operational prior to 2009 are not required to offset their take because
that mortality was accounted for in the determination that the
populations were stable. The range of offsetting mitigation measures
that can be implemented by a permittee for a post-2009 activity include
any actions that have been demonstrated to reduce another existing
source of golden eagle mortality, such as power pole retrofits to
reduce ongoing electrocutions and highway road kill removal to reduce
ongoing mortality due to vehicle collisions.
Operating and planned facilities may differ in their ability to
implement avoidance and minimization measures. Alternative siting
considerations are generally not feasible for operating facilities. The
Eagle Conservation Plan Guidance places great emphasis on appropriate
siting as being one of the most effective ways to reduce risks to
eagles, but for a facility that is already built, moving turbines is
generally not feasible. We have no proven methods to reduce eagle take
at operating facilities, but the range of experimental measures we have
considered can be applied at both operating wind projects and those
being planned for which siting does not remove all risk of eagle take.
For example, curtailing operations of turbines that are identified as
risky during periods of high eagle use is an experimental measure
applicable to both pre-2009 operating and future planned wind
facilities.
Question. Please explain the circumstances under which such
unpermitted, pre-2009 wind facilities would be ordered to discontinue
operation in connection with their take of protected eagles, migratory
birds, or endangered species?
Answer. The Service does not issue permits for the operation of
wind energy facilities; that authority lies with other permitting
agencies. For this reason, the Service does not have the authority to
order a facility to discontinue operation in connection with take of
species protected under the Bald and Golden Eagle Protection Act
[BGEPA], the Migratory Bird Treaty Act [MBTA], or the Endangered
Species Act [ESA]. Instead, if the conditions of an eagle take permit
or endangered species incidental take permit are not met, the permit
may be suspended or revoked, and penalties for violations of the BGEPA,
MBTA, and ESA may potentially include monetary fines and imprisonment.
Question. What kind of economic considerations if any would be
taken into account in developing a take permit and mitigation measures
to ensure that the continued operation of the wind facility remains
economically viable and not so onerous and burdensome that the only
economically viable option would be to shut down?
Answer. The Service considers the same factors with regard to
economic viability when evaluating take permits for wind facilities as
it does for other types of industries. With regard to eagle permits,
the regulations at 50 CFR 22.26 require avoidance of take to the
maximum extent practicable. The term ``practicable'' is defined as:
``capable of being done after taking into consideration, relative to
the magnitude of the impacts to eagles, the following three things: the
cost of remedy compared to proponent resources; existing technology;
and logistics in light of overall project purposes''.
As noted in the response to the previous question, the Service
believes the best course of action is to work with industry to develop
conservation measures for wind projects and other activities as part of
adaptive management associated with the permit process. The triggers
that would initiate operational response will be described in each
permit after being negotiated with project developers prior to permit
issuance. Unless the Service determines that there is a reasonable
scientific basis to implement conservation measures, potentially costly
measures would be deferred until such time as a predefined trigger,
such as a threshold of eagle use of a defined area or an eagle
fatality, in the permit is reached. At that point, consistent with the
adaptive management process, the permittee would be required to
implement the additional conservation measures. The permit would also
be amended at that time to allow the permittee to discontinue any
ineffective conservation measures under the conditions of the
programmatic eagle take permit. In this way, a project developer or
operator will not be required to expend funds to implement measures
shown to be ineffective.
Question. The most recent version of the eagle conservation plan
guidance released in April 2013 recommended that abandonment or
modification measures be implemented for those wind sites that have a
high probability of eagle take and are unable to maintain a
preservation standard. Would this remedy be applicable to all sites, or
only older sites without take permits?
Answer. The Eagle Conservation Plan Guidance presents a tiered
approach to applying for an eagle take permit. The Service considers
many factors, including the status of projects when evaluating
potential eagle take permits, and would consider whether a project is
in the planning stage or operating. Based on the Eagle Conservation
Plan Guidance, when evaluating potential eagle take permits for
projects that are in the planning phase, the Service could recommend
that a project be abandoned at a particular site or modified if the
Service predicts that the likelihood of eagle take at that project is
so high that it could not meet the BGEPA preservation standard. This is
similar to what we recommend in the Service's Land-based Wind Energy
Guidelines.
When the Service works with potential applicants of currently
operating projects, we have to consider the likelihood of eagle take at
the project and ways to minimize that take to a level that is
compatible with the BGEPA preservation standard. When we can agree to
measures to meet that standard, we are likely to issue an eagle take
permit. For operating projects for which the Service has issued an
eagle take permit, the Eagle Conservation Plan Guidance speaks to the
possibility that when take of eagles is at a higher rate than
predicted, and the permittee cannot implement measures to reduce that
eagle take, they risk having their eagle take permit rescinded.
Rescinding a permit would be necessary if the take associated with a
permitted activity would violate the preservation standard in the
BGEPA, as interpreted by the Service in the 2009 Eagle Permit Rule.
This applies to both any pre-2009 facility that has a permit, as well
as any post 2009 facility with a permit. The Service has adopted
conservative measures in the models we use to predict eagle take to
minimize the possibility that eagle take rates are underestimated,
therefore we do not expect this to be a common occurrence. Any take of
eagles that is not authorized under an eagle take permit is potentially
in violation of the BGEPA, regardless of when a facility was
constructed.
Question. Please explain what potential legal liability a company
would face if it has an eagle take permit but takes other migratory
birds for which it is not permitted to take?
Answer. A company holding an eagle take permit that takes other
migratory birds is violating the MBTA (16 U.S.C. 703 et seq.) The
unauthorized take of migratory birds is a Class B misdemeanor with
fines of not more than $15,000 or imprisonment of not more than 6
months, or both.
Question. On October 17, 2012, a two-page directive was issued by
Chief William Woody of the Fish and Wildlife Service's Office of Law
Enforcement. This directive states ``unpermitted takings of permitted
birds outside of the hunting context . . . to be potential violations
of the statute. Despite the MBTA's `strict liability' standard, the
Service has long employed an unwritten policy of encouraging industry
and agriculture to employ `best practices' aimed at minimizing and
avoiding the unpermitted take of protected birds.'' The memo goes onto
state: ``OLE will look for opportunities to foster relationships with,
and provide guidance to, individuals, companies, and industries during
the development and maintenance of their operational plans.'' What is
meant by ``fostering relationships''?
Answer. The OLE has a long history of attempting to work with
industry to promote compliance with the Federal laws that protect
wildlife, including those that protect eagles and other migratory
birds. Most often this is done through personal face-to-face meetings
to educate and inform individuals, companies, and industries about the
laws and how best to comply. The Service strives to build partnerships
with industry to conserve our Nation's fish and wildlife. However, if
and when those attempts fail, we then seek to enforce the provisions of
the law as efficiently and equitably as possible.
Question. The enforcement policy suggests that the Service will
take enforcement actions only against companies that do not try to
cooperate with the Service. Is there a number threshold for the number
of birds killed that would trigger enforcement?
Answer. The MBTA prohibits unauthorized take of migratory birds.
The take of a single migratory bird may trigger enforcement. However,
the Service views the term ``enforcement'' to be expansive and to
encompass outreach, education, and attempts to secure compliance.
Question. If a company has engaged in communications and sought to
cooperate with the FWS consistent with FWS guidance and this directive,
then under what circumstances would it be subject to enforcement?
Answer. A company may be subject to enforcement in the form of
referral for prosecution when the company fails to comply with the law.
Compliance is achieved by avoiding continued unauthorized take of
eagles or by obtaining take authorization via permit for take that is
unavoidable.
Question. If a company does not have a take permit but has a
demonstrated record of communicating with the FWS and has engaged in
mitigation, would it be immune from enforcement for the unpermitted
take of protected eagles?
Answer. No. The plain language of 16 U.S.C. 668 et seq., commonly
referred to as the Bald and Golden Eagle Protection Act [BGEPA],
prohibits the take of eagles without a permit.
Question. After the development of the 2009 eagle rule and its
envisioned permitting system, the Service went about developing the
eagle guidelines. Indeed, the guidelines seem to exempt two types of
wind developers from obtaining eagle permits: those developing new wind
farms that are deemed low-risk to eagles; and those with existing
facilities regardless of the threat posed to eagles. What constitutes
an existing facility is undefined, but it appears that a facility that
went into operation before the 2009 rule was finalized would be
considered one. If a company was in compliance with the guidelines but
did not have a take permit, would it be immune from liability?
Answer. As noted in response to a previous question, any activity
that takes eagles, whether in operation prior to 2009 or since, needs
to have an eagle take permit to cover that take or else it is a
violation of the BGEPA. While the response to question 5 indicates that
pre-2009 facilities are exempt from the requirement that they implement
offsetting compensatory mitigation for any take of golden eagles, it
does not imply they do not need a permit. In fact, the Eagle
Conservation Plan Guidance provides information for operating
facilities on how to develop an application for an eagle take permit.
The only activities the Eagle Conservation Plan Guidance suggests may
not need a permit are those for which conservative models predict that
no eagle take will occur over the life of the project when adequate
eagle exposure information is available. The Eagle Conservation Plan
Guidance does not exempt or imply that any activity that might take
eagles should not seek an eagle take permit.
Question. The Service did not conduct a NEPA analysis on the
environmental impacts of 30-year Eagle Tenure Rule pursuant to a
categorical exclusion for rules involving technical or administrative
amendments. The Service explained in its response to comments that NEPA
analysis would instead need to be conducted for individual projects.
However, the Service has provided a February 5, 2013 email from FWS
employee Mike Johnson to FWS employees Sarah Mott and Brian Millsap
that indicates Service staff were in fact considering conducting a full
environmental impact statement in connection with an eagle program
rulemaking but that the final EIS would not be completed until 2015 and
policymakers in the Department were looking to complete the rulemaking
in 2014. Please explain what rulemaking this email discussion refers to
and what role time pressures played in the Service's decision to take
advantage of a categorical exclusion for the 30-year Eagle Tenure Rule
rather than to conduct an EIS.
Answer. While the referenced email was not provided for review, it
appears that the email exchange relates to developing an EIS for the
revision of the 2009 Eagle Rule as contemplated in the Advanced Notice
of Proposed Rulemaking published April 13, 2012 (77 FR 22278). The
Service always planned to utilize a categorical exclusion rather than
an EIS for the 30-year tenure rule, and time constraints did not play a
role in this decision.
Question. When the original Eagle Take rule was released in 2009,
the Service wrote in its response to comments that ``there was not
enough time to fully engage any tribes in formal government-to-
government consultation during the rulemaking period.'' Then, with the
release of the 2013 rule, the Service again held no formal
consultations with tribes, stating in the response to comments that the
2013 rule was ``a technical amendment to [Service] regulations . . .
[and] merely extend[ed] the approved duration of a permit from 5 to 30
years.'' The Service also wrote that while some tribes ``may perceive
further negative effects from these proposed changes,'' the Service
determined ``eagles would be sufficiently protected under this rule.''
Is it appropriate under Executive Order 13175 and Service policy to
``perceive'' what tribes think on significant matters, rather than
actually ask their opinion in formal consultations? Please explain.
Answer. In the case of the 2013 Permit Duration Rule amendment, the
Service did not believe that the amendment to the rule was significant
and the amendment provided the same level of assurance for protection
of eagles that consecutive 5-year permits would provide. Thereby, the
effect of the amendment on eagles remained the same as the effects of
consecutive 5 year permits. The Service is now reviewing the entire
rule for possible revision, and as part of that process we are
conducting consultations with tribes on possible future changes to the
regulation including revisiting the provision of the 2013 Permit
Duration Rule.
Question. Why was the Service unwilling to engage in formal
consultations with the tribes, when it was available to meet with wind
industry representatives and select environmental groups throughout the
process for developing the Eagle Tenure Rule?
Answer. As stated in the previous response, the Service did not
believe the amendment to the 2009 Eagle Take rule was significant and
did not therefore request formal consultation with tribes. Several wind
industry representatives and environmental groups requested formal
listening sessions with the Office of Management and Budget's [OMB's]
Office of Information and Regulatory Affairs [OIRA] under Executive
Order 12866 during and after the comment period and prior to the
regulations being finalized. The Service attended but did not
participate in these listening sessions. Additionally, the Service
attended similar sessions requested by these groups with the office of
the Deputy Secretary.
Question. On August 22, 2012, a letter was sent to Secretary
Salazar from representatives of the wind industry and environmental
organizations--the so-called ``Group of 16'' seeking a meeting to
discuss the development of the bald and golden eagle permit process and
the revisions to the 2009 Tenure Rule. What role did the Department
have in selecting groups and participants to attend these meetings?
Answer. The Department of the Interior (Department) worked through
the American Wind Energy Association [AWEA] contact and representatives
of the environmental organizations that signed the letter to arrange
the meetings.
Question. Were any invites extended to groups and interests beyond
those that signed the August 22 letter?
Answer. No. The Department invited representatives of the
environmental groups that had signed the August 22, 2012 letter to
attend. The American Wind Energy Association coordinated participants
representing wind industry.
Question. Were all interested groups invited or allowed to
participate? In other words, were there any groups that requested to
participate that were not allowed to do so? If yes, please explain why.
Answer. The meetings the Department held on February 11, 2013 and
March 27, 2013 were not open, public meetings. They were meetings held
at the request of signatories to the August 22, 2012 letter. The
American Bird Conservancy [ABC] requested to attend the meeting. As ABC
was not a signatory to the August 22, 2012 letter, the Department did
not invite them to the meetings.
Question. The Service has provided the committee with a November
15, 2012 email from FWS employee Jerome Ford with the subject line
``hotel (Holiday Inn)'' that discusses a request from the American Bird
Conservancy to participate in these meetings, as well as tribal
consultation requirements. The email states that if additional groups
are allowed to participate then all interested groups will need to be
invited. Please explain the concern with not allowing other interested
groups, including tribes, to participate in these meetings.
Answer. While the referenced email was not provided for review, it
appears that the email chain expresses the concern that any meeting
with outside parties needed to have a specific purpose. At the time,
there was uncertainty about whether the purpose of the proposed meeting
was to discuss the letter that had been sent by the 16 groups or to
discuss revisions to the 2009 Eagle Rule. The concern was based upon
the need to have all stakeholders present if the purpose was to discuss
revisions to the 2009 Eagle Rule.
Question. Please explain why these meetings were not publicly
noticed and open to the public to attend.
Answer. Representatives of the Department often meet with
constituents and stakeholders. Some of those meetings are public, some
are not. The meetings on February 11, 2013 and March 27, 2013, were
with senior Departmental officials and representatives of organizations
that signed a letter to the Secretary requesting such a meeting with
Departmental officials. They were not public meetings. Accordingly,
there was no need to publicly announce them.
Question. The Department has provided the committee with a February
20, 2013 email string from FWS employee Albert Manville with the
subject line ``Letter to Hayes'' concerning a letter from the American
Bird Conservancy to Deputy Secretary David Hayes concerning these
meetings. The email states in part: ``Dan argued that the NGO's didn't
have the economic resources to sue us so not to worry'' and that ``ex
parte communication'' with the Gang of 16 was ``ostensibly violations
of (the Federal Advisory Committee Act), (the Administrative Procedure
Act) and DOI ethics rules.'' Please explain what is meant by the
statement: ``the NGO's didn't have the economic resources to sue us so
not to worry.''
Answer. While the referenced email was not provided for review, it
appears that the email relays second-hand information related to a
discussion of possible legal concerns associated with ex parte
communications.
Question. Please explain whether these meetings were held in
accordance with the Federal Advisory Committee Act, the Administrative
Procedure Act, and DOI ethics rules.
Answer. The meetings the Department held on February 11, 2013 and
March 27, 2013, were with environmental organizations and the American
Wind Energy Association who had gotten together to suggest ways the
Department and the Service might alter the substance and process by
which the Department and Service were implementing the BGEPA. The
Department did not ask them to form a group or solicit recommendations
from them. That group was committed to working constructively together
to address those topics. It would not have been appropriate for the
Department to tell them who or what organizations should have been part
of their discussions.
Question. Were these meetings planned in a way to prevent their
triggering the public meeting process under the Federal Advisory
Committee Act?
Answer. As noted in response to the previous question, the
Department did not establish the group, ask the organizations to form a
group, or solicit recommendations from the group. Therefore Federal
Advisory Committee Act requirements were not applicable to the
meetings.
Question. There was a recent study by the Administrative Conference
of the United States that suggested certain high-profile, costly, or
controversial rules were delayed because of a concern within the White
House about the effect such rules would have on the President's
reelection. A draft of the Eagle Conservation Plan Guidance was sent to
the White House Office of Management and Budget for review in January
2013 and the final version was released in April 2013. What role, if
any, did the 2012 Presidential election have in the timing of the
publication of the Eagle Conservation Plan Guidance, which was released
in April 2013? In other words, was the timing of the guidance's release
purposefully delayed until after the election?
Answer. The Eagle Conservation Plan Guidance is not a regulation,
and its issuance was not subject to any statutory or legal deadlines.
Instead, the focus was on getting it right. As the country continued to
increase its production of domestic energy through both conventional
and renewable means, the Service, along with wind energy developers and
other wildlife agencies, recognized a need for specific guidance to
help make wind energy facilities compatible with eagle conservation and
the laws and regulations that protect eagles.
As a matter of agency discretion and good management, the bureau's
technical experts were given the time necessary to work through and
address complex issues raised during the public comment period and that
are reflected in Version 2. Furthermore, there was a high degree of
Federal interagency interest. Accordingly, we consulted and coordinated
with other interested agencies. The Service also views this as an
iterative process and plans to ensure that Module is updated as new
information, such as population data, conservation strategies, and
advanced conservation practices, becomes available.
Question. Among the documents that have been provided to the
committee were a couple of internal emails concerning OMB's review. For
example, in a November 12, 2012 email, FWS employee David Cottingham
wrote: ``Now that election is over, what should we expect for ECPG and
West Butte permit?'' In a second email dated November 13, Mr.
Cottingham wrote: ``Last I knew both of those documents [the West Butte
permit and eagle guidance] had cleared us and ASFWP and were awaiting
6th floor approval to send to OMB. When I inquired of Jerome last week
if they were moving post-election, he had heard nothing.'' Please
explain whether the Eagle Conservation Plan Guidance intentionally was
not sent to OMB until after the 2012 election.
Answer. The Service transmitted the Eagle Conservation Plan
Guidance to OMB when it was ready for submission. The Service worked
with Federal agencies and other stakeholders to inform the Guidelines.
Given that the Eagle Conservation Plan Guidance is a non-binding
guidance document, we were attentive to stakeholder concerns in the
development of these Guidelines as their buy-in is critical to
conserving bald and golden eagles in the course of siting,
constructing, and operating wind energy facilities. The Service allowed
the time for appropriate deliberation, coordination, collaboration, and
scientific debate to ensure the development of reasoned and balanced
Guidelines.
Question. Was the Service or the Department instructed not to
transmit the draft eagle guidance to OMB until after the election? If
yes, who give this instruction?
Answer. OMB established a process sometime before March 2012, that
requires agencies to provide a pre-briefing to the EOP prior to
transmitting a document for E.O. 12866 review. OMB then informs the
agency when it is ready to accept the document for review.
Question. The guidance was not identified as economically
significant and as such would not ordinarily undergo interagency review
under Executive Order 12866 as amended. Please explain why the Guidance
was designated for interagency review.
Answer. OMB frequently reviews actions for reasons other than
significant economic impacts. In fact, of the 13 E.O. reviews of
Service documents during fiscal year 2013, the only economically
significant rule promulgated by the Service was the Migratory Game Bird
Hunting regulations, which generate over $100 million annually.
Under Executive Order 12866, OIRA is responsible for determining
which agency actions are ``significant'' and, in turn, subject to
interagency review. Significant actions are defined in the Executive
order as those that:
1. Have an annual effect on the economy of $100 million or more or
adversely affect in a material way the economy, a sector of
the economy, productivity, competition, jobs, the
environment, public health or safety, or State, local, or
tribal governments or communities;
2. Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
3. Materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs or the rights and obligations
of recipients thereof; or
4. Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set
forth in this Executive order.
The E.O. requires that such significant actions be reviewed by OIRA
before they are published in the Federal Register or otherwise issued
to the public.
Question. The draft of the 30-year Eagle Tenure Rule was sent to
the White House Office of Management and Budget for review in April
2013 and the final rule was released in December 2013. What role, if
any, did the 2012 Presidential election have in timing of when the
draft Eagle Tenure Rule was sent to OMB? In other words, was the timing
of the Guidance's transmission to OMB purposefully delayed until after
the election?
Answer. The Eagle Tenure Rule and the Eagle Conservation Plan
Guidance are different documents and were reviewed at different times.
The Service transmitted the Eagle Tenure Rule to OMB when it was ready.
The rulemaking process typically takes about 1 year from proposal to
issuance of a final rule as agencies consider and address public
comments. The public comment period for the April 13, 2012 proposed
rule closed on July 12, 2012. The Service submitted the draft Final
Rule to OIRA for E.O. 12866 review on April 18, 2013, roughly 1 year
from publication of the proposed rule.
Question. Was the Service or the Department instructed not to
transmit the draft rule to OMB until after the election? If yes, who
gave this instruction?
Answer. As noted in response to a previous question, OMB
established a process sometime before March 2012, that requires
agencies to provide a pre-briefing to the EOP prior to transmitting a
document for E.O. 12866 review. OMB then informs the agency when it is
ready to accept the document for review.
Question. Can you explain why the eagle guidelines were sent to the
White House for review in the first place?
Answer. As explained in the response to Question 29, OIRA has broad
discretion to make a determination about what agency actions are
significant and thus reviewed under E.O. 12866. For those matters
determined by OIRA to be significant within the scope of section
3(f)(1), the Service must then comply with section 6(a)(3)(B) and
section 6(a)(3)(C).
Question. Were these guidelines economically significant? If not,
what interest did the White House have in the guidelines?
Answer. As described more fully in previous responses, OMB
frequently reviews actions that it has determined are significant for
reasons other than economics. The Eagle Conservation Plan Guidance is
non-binding. Any costs would be assumed voluntarily and might result in
long-term savings as legal risk is minimized. OMB/White House interest
can be understood via the stated objectives of E.O. 12866 and E.O.
13563 (http://www.reginfo.gov/public/jsp/Utilities/faq.jsp).
Question. Similarly, the 30-year Eagle Tenure Rule was not
designated as economically significant under Executive Order 12866 as
amended and the Service has described the rule as technical amendments
not warranting environmental review under NEPA. Please explain why the
rule was sent to the White House for review if it was not economically
significant and was only a technical amendment that did not raise novel
legal or policy issues.
Answer. As described in previous responses, OMB frequently reviews
actions that it has determined are significant for reasons other than
economics. OIRA has broad discretion to make a determination about what
agency actions are reviewed under E.O. 12866. OMB/White House interest
can be understood via the stated objectives of E.O. 12866 and E.O.
13563.
Question. What role did the Secretary's Counselor Steve Black have
in developing the 30-year Eagle Tenure Rule and the Eagle Conservation
Plan Guidance?
Answer. Mr. Black participated in meetings about the 30-year Eagle
Tenure Rule and the Eagle Conservation Plan Guidance. He reviewed both
documents as they went through routine internal departmental review and
approval. The Service considered his review and comments.
Question. Among the documents that have been provided by the
Service to the committee were a couple of internal email exchanges
among FWS senior staff and between the Secretary's Office:
a. A November 15, 2012 from FWS Chief of Staff Betsy Hildebrandt
to Associate Deputy Secretary Liz Klein states: ``Steve
[Black] has been very aggressive in wanting specific info
on FWS ops plan. I really feel like that is way outside his
lane and told him so. He then went on to ask Pam for the
same info. I will back off if told but this seems
problematic and Dan agrees.'' Please explain what this
email is referring to, specifically what Mr. Black was
``very aggressive in wanting specific info on,'' why these
issues were ``way outside his lane,'' and how these
concerns were resolved.
Answer. While the referenced email was not provided for review, it
appears that it refers to inquiries from Mr. Black about the Service's
fiscal year 2013 Operating Plan. Ms. Hildebrant's comment in the email
was suggesting that she believed that inquiring about the specifics of
the agency's Operating Plan that was under development was outside of
the scope of Mr. Black's responsibilities as counselor to the
Secretary. The concerns were resolved on their own when the Operating
Plan became public.
b. A November 26, 2012 from David Cottingham to Betsy Hildebrandt
states: ``Last week we talked about pressure Steve is
exerting on [Region 8] for [the Draft Renewable Energy
Conservation Plan]. . . . The attached edits from Steve
show the concerns he is raising.'' Please explain the
``pressure'' Mr. Black was exerting on FWS, whether these
concerns were raised to Mr. Black or anyone else at the
Department, and how were they resolved.
Answer. Throughout the fall of 2012, the Service and Bureau of Land
Management staffs in California were working diligently with their
counterparts in the California State government to develop a Desert
Renewable Energy Conservation Plan [DRECP]. The DRECP is a 22 million
acre habitat conservation plan [HCP] under the ESA (section 10) as well
as a Natural Communities Conservation Plan [NCCP] under the California
Endangered Species Act. Service regulations implementing the BGEPA
allow the Service to authorize incidental take permits for eagles, even
though they are not listed as threatened or endangered under the
Federal ESA, through a HCP. Mr. Black was the co-chair of the inter-
agency Renewable Energy Policy Group. The Renewable Energy Policy Group
had a goal to publicly release a DRECP plan in December 2012. Mr. Black
was interested in the Service developing a process to authorize limited
incidental take of eagles via the DRECP for that release.
______
Questions Submitted for the Record by Paul C. Broun, a Representative
in Congress From the State of Georgia
Question. During the preparation of the biological opinion for the
Cape Wind project, FWS recommended reasonable and prudent measures that
would require the developer to shut down the turbines at certain times
of high bird activity in order to reduce bird deaths. Cape Wind
objected and submitted a letter which said that such a requirement
would make it difficult to get financing. The U.S. Department of the
Interior supported Cape Wind and pressured FWS to remove the
requirement. FWS did not conduct its own economic review and instead,
within days, accepted the Cape Wind/Interior position and withdrew the
shutdown requirement.
A Federal court has now ruled that FWS broke the law by failing to
conduct an independent analysis and is now under a court order to
conduct the independent review that should have already been performed.
How will FWS conduct this economic analysis to ensure its
independence and sufficiency given the complexity of offshore renewable
energy economics?
Answer. The Service completed its remand, concluding with
correspondence to the Bureau of Ocean Energy Management, on June 27,
2014. The U.S. Department of Justice filed a Notice of Completed
Remands with the U.S. District Court for the District of Columbia on
July 2, 2014. The Service has an economist on staff who reviewed the
Cape Wind Associate's and the Bureau of Ocean Energy Management,
Regulation and Enforcement (BOEM's) submission regarding the economic
feasibility of the originally proposed reasonable and prudent measure
[RPM]. The Service considered the economist's perspective as it
conducted its independent analysis of the reasonableness and prudence
of the RPMs associated with the 2008 Cape Wind Biological Opinion.
Question. Does FWS have an in-house economic expert with the
credentials to review energy project economics?
Answer. The Service has in-house economics expertise and experience
in addressing energy issues, including oil and gas, renewable energy
and non-renewable and extractive energy issues. Staff includes two
employees with Ph.D.s in economics with over 50 years of experience in
resource economics issues and analysis. The Service economics staff
also has access to energy economics expertise through interagency
agreements with other Federal agencies and contracts with private
economic consulting firms.
Question. Does FWS plan to seek assistance from an outside expert?
What will be done to ensure transparency through public review?
Answer. Given that the Service has economic and biological
expertise on staff, we did not seek assistance from an outside expert.
While neither section 7 of the ESA nor its implementing regulations
require the Service to solicit public input on its decisionmaking
during consultation, in order to complete the remand the Service filed
its independent determination with the Court and those documents are
public record.
Question. Please provide examples of any other instances where FWS
has withdrawn reasonable and prudent measures at the request of a
project applicant or the action agency.
Answer. The Service does not maintain records pertaining to the
withdrawal of reasonable and prudent measures. During consultation, our
staff coordinates closely with project proponents and the action agency
to develop reasonable and prudent measures that are compatible with the
expected project outcomes and the conservation needs of the species. As
a result of this coordination, the reasonable and prudent measures in a
final biological opinion may differ from what was originally proposed
in a draft shared with an action agency and applicant.
Question. At any time during its review of the Cape Wind project,
did FWS have communications from the Interior Secretary's Office, other
agencies, or the White House on the need to take action favorable to
this project?
Answer. During formal consultation with BOEM, there were regular
communications regarding the applicable regulatory timeframes and the
need to complete the final biological opinion on a timely basis. We are
not aware of any communications or directives from the Department,
other agencies, or the White House about the substance or outcome of
the Service's decisionmaking regarding Cape Wind.
Question. Has FWS received any communication from any Federal
official about the March 14, 2014, U.S. District Court's ruling? How
about from Cape Wind officials?
Answer. The Service has discussed the District Court's ruling
internally, with the Department of Justice, and with the Department of
the Interior's Solicitor's office. A Cape Wind official has contacted
the Service by phone three times to inquire about how the Service plans
to respond to the Court's ruling and the Service's expected timeline.
The conversations were brief and the Service indicated to the Cape Wind
official that we could not identify a timeframe to complete the remand
nor reveal the approach or possible outcomes.
Question. The environmental impact statement for Cape Wind
estimated that thousands of migratory birds would be killed by this
project, including endangered species. What steps will FWS take to
enforce the take prohibition of the Migratory Bird Treaty Act [MBTA],
and the Endangered Species Act [ESA], against this offshore wind
project, especially considering the more aggressive stance that has
been applied to oil and gas and power line facilities?
Answer. The OLE strives to respond to all alleged instances of take
in a similar manner regardless of industry. As noted in responses to
previous questions, the Service has long employed a policy of
encouraging industry to utilize best practices aimed at minimizing and
avoiding the unpermitted take of protected birds. When these efforts at
partnerships with industry fail, we then seek to enforce the provisions
of the law as efficiently and equitably as possible. The OLE
investigates suspected instances of take with available resources. If
supportive evidence is discovered, the OLE refers the matter to either
prosecutors with the Department of Justice (for violations of the
MBTA), or to Solicitors of the Department of Interior (for some [i.e.
non-criminal] violations of the ESA).
Question. Why did FWS wait until years after the Cape Wind lease
had been issued and the project operating plan had been approved, to
specify an avian and bat monitoring plan?
What is the value in developing those requirements after the
project has already been approved?
Answer. The requirement for an Avian and Bat Monitoring Plan [ABMP]
is stipulated in the Service's Biological Opinion, the BOEM Final
Environmental Impact Statement, its Record of Decision of its lease,
and the Environmental Assessment for the Cape Wind Construction and
Operations Plan. According to BOEM's decisionmaking documents, the ABMP
must be completed prior to construction of the project. The project has
not yet been constructed and BOEM approved Cape Wind's ABMP on November
20, 2012. Though the greatest potential for avian impacts occurs from
operations, completion of the ABMP prior to construction was necessary
to ensure that any additional baseline data is collected in a timely
manner.
Question. What steps will FWS take to enforce the prohibition on
taking migratory birds against this project?
Answer. As noted in response to a previous question, the OLE
strives to respond to all alleged instances of take in a similar manner
regardless of industry. The OLE investigates suspected instances of
take pursuant to the MBTA with available resources. If supportive
evidence is discovered, the OLE refers the matter to prosecutors in the
Department of Justice.
Question. Will it require shut down when a prescribed level of
mortality has occurred?
Answer. BOEM's April 2011 Environmental Assessment [EA] for its
approval of the Cape Wind Construction and Operations Plan details the
strategy to address impacts to birds. In particular, the EA identifies
an adaptive management strategy that contemplates new minimization or
mitigation measures, such as operational changes. The ABMP is a
monitoring plan and does not prescribe courses of action based on the
data collected. Nevertheless, the ABMP is structured as an adaptive
management tool. The parameters of the ABMP can be adjusted based on
analyzed data to retarget monitoring, or make it more effective in the
future.
Question. FWS repeatedly asked for 3 years of radar studies to
evaluate bird impacts, but Cape Wind continually refused and
ultimately, then-Interior Secretary Salazar approved the project
despite this refusal and signed a lease years before an avian
monitoring and mitigation plan had been developed.
Has the Secretary ever approved another project where the
applicant refused to gather the information requested by FWS during the
permitting phase?
Answer. The Service commonly recommends to the Department and non-
DOI agencies ways to monitor for wildlife and practices to avoid and
minimize impacts to migratory birds and other wildlife as part of those
agencies' environmental review of projects subject to their permitting
requirements. Those agencies often, but not always, follow the
Service's recommendations.
Question. Can you refer to any non-renewable energy company that
will kill tens of thousands of protected species over the term of its
existence that has been given similar treatment?
Answer. A very clear example of this would be the transmission of
electricity by the electric utility industry that is generated by both
renewable and non-renewable electrical energy sources. The Service has
worked with this industry since the early 1970s, formalized in 1989 as
the Avian Power Line Interaction Committee in efforts to avoid and
minimize the take of migratory birds. Cooperatively, we have developed
best management practices that include guidelines for reducing
electrocutions at distribution and transmission powerlines and
infrastructure (most recently updated in 2006), guidelines for reducing
powerline collisions (updated in 2012), and recommendations for siting
of transmission corridors (updated in 2012).
Even with these efforts to avoid or minimize take, it is estimated
that the unpermitted take associated with this industry may still
exceed 50 million birds each year in the United States due to
collisions and electrocutions combined. We work closely with this
industry, and when individual utility companies do not cooperate with
Service staff, we may pursue and have pursued enforcement actions
against them.
Question. The 2010 DOI IG's report on Cape Wind contains statements
that FWS felt political pressure to rush its review of Cape Wind.
What steps are you taking to ensure that, on remand after the
court's ruling against the project; FWS will not once again be subject
to political pressure as it conducts its independent review?
Answer. As noted in response to a previous answer, the Service
completed its remand, concluding with correspondence to the Bureau of
Ocean Energy Management, on June 27, 2014. The U.S. Department of
Justice filed a Notice of Completed Remands with the U.S. District
Court for the District of Columbia on July 2, 2014. The Service
conducted this review independently and in full compliance with the
District Court's ruling.
______
Questions Submitted for the Record by The Honorable Cynthia M. Lummis,
a Representative in Congress From the State of Wyoming
Question. In December 2013, the State-Federal Interagency Grizzly
Bear Committee recommended delisting the Grizzly Bear as it has
exceeded recovery goals. When is the U.S. Fish and Wildlife Service
[FWS] going to propose a grizzly bear delisting? If there is a
timeline, even an aspiration of a timeline, please provide it. If not,
please provide specific reasons why the Service is delaying a proposal
to delist the grizzly bear.
Answer. The Service is evaluating the biological status of the
Greater Yellowstone Area [GYA] population in light of recent scientific
analyses and legal considerations to determine whether this population
is a distinct population segment that meets the definition of
threatened or endangered. The ultimate legal status of this population
under the ESA would be assessed in a proposed rule, which may include
consideration of a proposal to remove the GYA population of grizzly
bears from the List of Endangered and Threatened Wildlife. We currently
anticipate such a rulemaking to be published in the Federal Register
later this year.
Question. The gray wolf first met Federal recovery goals in 2002.
Eleven years and numerous lawsuits later, FWS proposed national
delisting in June 2013. By law, the FWS is supposed to finalize the
proposal within a year. Is the FWS going to meet this deadline, and if
not, please explain why?
Answer. To clarify, the 2002 recovery goals to which this question
refers were specific to the population of gray wolves in the Northern
Rocky Mountains [NRM]. Our June 13, 2013, proposal has no effect on any
of these conservation successes. On June 13, 2013, the Service proposed
to list the Mexican wolf as an endangered subspecies and delist gray
wolves elsewhere. Anticipating significant public interest in this
issue, the Service focused on ensuring that all interested parties had
the opportunity to provide comments on the proposed rule. The Service
has received over 1.5 million comments to date during the nearly 8
month public comment period. The statutory deadline for the proposal
was June 13, 2014, but due to the unprecedented number of comments
received and administrative delays associated with the October 2013
lapse in appropriations, the Service will likely issue a final
determination on the proposal by the end of the 2014 calendar year.
Question. Does the FWS intend to or otherwise anticipate that the
FWS will miss any listing decision deadlines established in the 2011
settlements with the Center for Biological Diversity and Wild Earth
Guardians?
Answer. No, the Service does not intend to miss any listing
decision deadlines agreed upon under the multi-district litigation
settlement agreements and corresponding work plans. The Service has in
the past and may in the future seek to modify deadlines established in
the original agreements.
Question. The FWS's FY15 budget request includes a $4 million
increase to Ecological Services for the Greater Sage Grouse [GSG]. The
FWS is describing this request as part of its ``Sage Grouse
Initiative'' [SGI]. It is intended to fund 38.75 full time employees.
Please detail the specific activities denoted by ``ecological
services.'' Please detail the specific activities that the 38.75 full
time employees will perform, including whether or not any of their work
will implement Wyoming's FWS-approved ``core area'' conservation plan
for the GSG. In your response, please indicate clearly whether this
work will be performed at a desk or out in the field on GSG
conservation.
Answer. The fiscal year 2015 budget request supports additional
capacity across 3 regions of the Service and 11 States. The majority of
these positions will be on-the-ground support to implement conservation
on private lands and to provide technical assistance for State and
Federal conservation planning and implementation. Currently, the
Service has dedicated approximately 30 FTE to collaborating with the
BLM, USDA Forest Service, NRCS, State and private land conservation
efforts. We anticipate adding an additional 35 FTE over the next 6
months to double these efforts. Staff will be working in the field with
partners and landowners to develop conservation agreements, implement
actions identified in those agreements, and restore sage steppe
habitat. Staff in Wyoming will continue to work closely with Federal,
State, and local partners, as we have over the last 7 years, to support
the State of Wyoming's core area strategy for greater sage-grouse. The
Wyoming staff will continue their efforts to implement Candidate
Conservation Agreements [CCAs, CCAAs] that facilitate on-the-ground
proactive, strategic conservation effort as well as provide the staff
support to meet the administrative requirements associated with these
efforts.
Question. The FWS has a history of allowing the ecologically
responsible acquisition of Golden Eagles for falconry, an activity
explicitly recognized and allowed by the Bald and Golden Eagle
Protection Act (Eagle Act). However, I have fielded concerns from my
constituents engaged in the practice that the FWS has been refusing to
grant permits for this activity. I would note that these permits are
being sought in federally established depredation areas, where eagles
have been injurious to wildlife, agriculture, personal property, or
human health or safety. Moreover, the FWS's own 2008 Environmental
Assessment [EA] found that removing a small number of eagles per year
for falconry purposes was ecologically acceptable. Yet my constituents
have reported that the FWS's recent amendments to 50 CFR 22.23/22.24
have resulted in a de facto moratorium on the issuing of permits for
Golden Eagle falconry. In light of these developments, please address
the following items:
How do you reconcile 50 CFR 22.23/22.24 and the de facto moratorium
on falconry permits with the findings of the 2008 EA that Golden Eagle
acquisitions for falconry purposes are ecology responsible?
Answer. There has not been a moratorium on take of golden eagles by
falconers. The BGEPA provides that ``only golden eagles which would be
taken because of depredation on livestock or wildlife may be taken for
the purposes of falconry'' (16 U.S.C. 668a). Pursuant to the BGEPA, the
Service has established regulations to determine when it is ``necessary
to permit the taking of such eagles for the protection of wildlife or
of agricultural or other interests in any particular locality'' and to
determine that such take ``is compatible with the preservation of the .
. . golden eagle'' (16 U.S.C. 668a). Under 50 CFR 22.23, the Regional
Office in Denver has permitted actions to address eagle depredation
short of removing eagles from the wild, and in recent years has
received no reports that these implemented actions have failed to
resolve eagle depredation problems in Wyoming.
We recognize that the Environmental Assessment finalized in 2009
found that permitting take of depredating golden eagles by falconers,
at the limited rate these permits were used from 2002-2007, would not
result in national population-level effects. However, consistent with
the BGEPA and its implementing regulations, the Service strives to
resolve depredation issues while limiting the need to remove golden
eagles from the wild. Consequently, no take of golden eagles from the
wild has been permitted in recent years, because information reported
to the Service has not indicated that such actions have been necessary
to address eagle depredation.
The Migratory Bird Office in Denver has been working with USDA--
Wildlife Services in Wyoming to better ensure that livestock producers
are aware of what activities have been permitted, that reports of
actions to address depredation as well as reports of any continued
depredation problems are submitted, and that a process can be
streamlined so that permits authorizing take of depredating eagles from
the wild, if necessary, may be issued efficiently.
Question. Are you willing to commit to a meeting with the falconry
community, including the Wyoming Falconer's Association, in order to
address their concerns about the revised 50 CFR 22.23/22.24?
Answer. The Assistant Regional Director for Migratory Birds in
Denver has committed to meet with members of the Wyoming Falconers'
Association at their request.
Question. More broadly, can you commit to working toward a
resolution of these concerns about a de facto moratorium so as to
ensure falconers are able to secure the small amount of permits they
are seeking to perpetuate their historic and legally recognized
practice?
Answer. We commit to working to ensure that processes to address
depredation are effective, understood, and consistent with the BGEPA.
We cannot ensure that golden eagles will be available to falconers in
any given year or in any given number. As described above, the BGEPA
provides that falconers may take golden eagles for falconry, but that
``only golden eagles which would be taken because of depredations on
livestock or wildlife may be taken for purposes of falconry'' (16
U.S.C. 668a). Falconers are not entitled to take golden eagles from the
wild just because their falconry certification authorizes them to
possess golden eagles. However, we continue to review opportunities to
streamline responses to eagle depredation. In doing so, we intend that
effective implementation will address both Congressional goals of
addressing eagle depredation and--where depredation permits may be
authorized--allowing eagles to be available to falconers so that they
can practice their sport.
______
Questions Submitted for the Record by The Honorable Niki Tsongas, a
Representative in Congress From Massachusetts
I believe that we need a comprehensive strategy for American energy
independence that decreases our reliance on fossil fuels and helps move
us to a new energy future built on American manufacturing of clean,
renewable energy. This, of course, includes wind energy.
Thanks to the wind industry, my home State of Massachusetts has
seen an influx of over $200 million in capital investment and is home
to 9 wind-related manufacturing facilities. In the past 2 years, clean
energy jobs in Massachusetts have grown by 24 percent, and are
projected to grow another 11 percent in 2014. Last summer,
Massachusetts and Rhode Island were proud to be part of the Bureau of
Ocean Energy Management's first ever competitive lease sale for
offshore wind development.
We all know that no form of energy production has zero
environmental impact, including wind energy production. However, the
claim being made today by the Majority that Fish and Wildlife Service
unfairly relaxes certain wildlife protection standards to promote wind
energy development is unfounded. Documents submitted to the Committee
by the Fish and Wildlife Service and the Department of Justice show
that there is no biased enforcement policy of wildlife laws for the
wind energy industry.
Director Ashe, we all acknowledge that the Fish and Wildlife
Service should monitor the impact of wind turbines on bird mortality
and take action when appropriate.
Question. What steps are you taking, in coordination with the wind
industry, to reduce bird mortality?
The FWS Land-Based Wind Energy Guidelines provide 82 pages of
detailed recommendations for safely developing a wind energy
project, including recommendations on communicating with the
Service early on the project development process, duration of
pre- and post-construction studies and monitoring, methods for
conducting such studies, and ways to avoid, minimize and
mitigate impacts.
Answer. The Service works with the wind industry in a number of
different ways in an effort to reduce bird impacts. The Service
developed the voluntary Wind Energy Guidelines in 2012, which outlines
an approach developers can use to reduce the impacts of construction,
operation, maintenance, and decommissioning of wind facilities.
Currently, the Service is providing technical assistance and training
to wind energy proponents--specifically with recommendations for proper
project siting and the implementation of conservation measures to
reduce project-related impacts. Service biologists are involved with
the National Wind Coordinating Cooperative and also work with some
industry proponents on research aspects of wind turbines/wildlife
interactions (especially collisions) primarily for Bald and Golden
Eagles. The Service is developing tools that will allow better
management of bird injury and mortality data from wind facilities and
working with these facilities to implement sound monitoring programs to
fully understand the impacts to birds and bats.
Question. Has the Service issued similarly comprehensive guidance
on avoiding wildlife impacts for oil and gas facilities?
Answer. The Service has worked with the oil and gas industry to
develop and implement best practices for avoiding bird mortalities. One
example is the Service-developed best practices for avoiding bird
``oiling'' at oil and wastewater pits through the use of pit netting.
We have also developed guidance for the Management of Oil and Gas
Activities on National Wildlife Refuge System Lands (2012).
The Service has also provided technical assistance on a project-by-
project basis for the development of several pipeline projects
including the recommendation of conservation measures that reduce the
impacts of pipeline construction, operation, and maintenance to
migratory birds and their habitats.
The Wind Energy Guidelines and the Eagle Conservation Plan Guidance
for Wind Energy both essentially require multiple years of pre- and
post-construction wildlife monitoring to predict potential impacts,
monitor the actual impacts, and impose mitigation to offset impacts if
necessary.
Question. How many years of pre-construction wildlife studies does
the Service require or recommend for oil and gas facilities to study
potential direct and indirect mortality impacts before they are
constructed?
Answer. There is no prescribed duration or frequency for pre-
construction surveys for oil and gas projects. The need for pre-
construction surveys should be determined in pre-siting planning and
based on available data and identified risk of the project. In areas
where risk of project-related impacts is high or uncertain, more
rigorous surveys would be recommended. In areas where there is current
resource data or where risks are determined to be low, few surveys
could be recommended. Recognizing that each project site, project
hazards, and species potentially affected varies, recommended project-
specific monitoring needs (e.g., < 1 year, 4 full seasons, 2 years, or
> 2 years) will also vary. Like the Wind Energy Guidelines, these
recommendations would be voluntary.
Question. What are the penalties for companies that you find are
not in compliance with wildlife laws, such as the Migratory Bird Treaty
Act?
Answer. By statute, the MBTA establishes the unauthorized take of
migratory birds as a Class B misdemeanor with fines of not more than
$15,000 or imprisonment of not more than 6 months, or both.
Question. How does the number of cases brought against of wind
energy companies compare to the number of cases brought against oil and
natural gas companies?
Answer. There have been fewer cases brought against wind energy
companies compared to the number of cases brought against oil and
natural gas companies. The emergence and growth of the wind energy
industry is relatively recent compared to the oil and natural gas
sectors. Accordingly, the opportunities to investigate have been fewer.
Additionally, investigations that have been initiated and are ongoing
have had less time to conclude.
Question. How do the environmental impacts of wind energy
production compare to those of oil and natural gas production?
Answer. Regardless of the energy generation technology, energy
production facilities will result in environmental impacts, including
possible habitat loss, degradation, and fragmentation, and may also
cause certain species to avoid areas or alter their behavior in ways
detrimental to their survival. Wind energy facilities can also result
in bird and bat fatalities via direct strikes with the turbines and
associated infrastructure. Oil and gas facilities often use open pits
filled with waste fluids that can attract and poison wildlife,
including migratory birds. Waste fluids can leak from pipes, holding
tanks and injection wells, contaminating local surface waters and
aquifers. The use of fossil fuels results in air and water pollution
and contributes to climate change, which all have large-scale, long
term impacts on wildlife and their habitats. It should be noted that
the number of oil and gas wells far outnumbers the number of wind
turbines in the United States and therefore have a generally larger
impact on the landscape.
______
The Chairman. Thank you, Director Ashe, for your testimony.
Let me, for the record, just so everybody knows, we started
this process last year on May 16, when we first asked for
documents. That is nearly a year ago. And while you said it is
destructive, the Ranking Member talked about the extraordinary
cost to comply, I just want all the members of the committee to
know that the vast majority of what we are asking, as far as
documents, were documents that you submitted to us that were
redacted.
I just want to emphasize that. It took a lot of effort to
redact. We didn't ask for that. We didn't ask for them to be
redacted within your agency, I don't know how much the cost was
to redact all of the stuff that we are asking about. And so,
the subpoena, largely, not exclusively, but the subpoena
largely asked you to give us the unredacted information. That
is what we are asking. Now, I don't know how that could be a
huge, huge cost. The big cost was redacting.
So, I just want everybody to understand that this argument
that is costing all of this, and you are taking people out of
the field, to do what? I have a hard time understanding that.
So I just want to, Director Ashe, make that point.
Let me ask one question here. Do you agree that the two
laws, the two statutes that we are dealing with here, the
migratory bird and the eagle statutes, are strict liability
statutes?
Mr. Ashe. They are strict liability----
The Chairman. They are strict liability statutes. Now, you
didn't mention this in your oral statement, but you alluded to
it in your written statement, about how you had gone through
with Duke Energy, and how because of Duke Energy, that
hopefully would be a template for others that are in the
industry. Did I read that correctly in your statement?
Mr. Ashe. The template for the energy industry really is in
the voluntary wind energy guidelines that we have developed, in
cooperation with the industry. I think the settlement with Duke
Power was reflective of the cooperative relationship that we
are developing with the wind industry. Duke Energy brought to
us the information concerning those eagle mortalities. And Duke
Energy was cooperative in the settlement that we reached with
the Justice Department.
The Chairman. Well, see, that goes to the heart of the
issue here. You acknowledge this is strict liability statutes
that we are under, you admitted that there was an agreement, a
settlement, if you will, with Duke Energy in Wyoming. All we
are trying to find out, all we are trying to find out here, at
this hearing, is the process that led to the guidelines that
Duke Energy is following. That is all we are asking. It is
nothing more complicated than that.
And why, even with the subpoena for example, when we sent
you the subpoena, you have not fully complied with that. Would
you agree with that?
Mr. Ashe. We have not complied with the subpoena.
The Chairman. Let me ask what should be the obvious follow-
up question. When will you comply with all of that?
Mr. Ashe. Mr. Chairman, I think that we are, as I said in
my testimony, we have put forth extraordinary effort to try to
comply with the subpoena, but----
The Chairman. Well, let me be pretty specific. If we are
asking for unredacted reports, how hard is that to respond to
us?
Mr. Ashe. Well, first, Mr. Chairman, the redactions that
you refer to, the principal redactions, were made in a FOIA
document. And so, the----
The Chairman. Right.
Mr. Ashe. The document that we provided to the committee
with extensive redaction was a document that was created in a
FOIA request from an external, non-congressional party.
The Chairman. I understand that, I understand that. And you
redacted it for the FOIA. FOIA does not apply to us.
Mr. Ashe. And we provided it to the committee as a
courtesy, because it was related to your earlier document
request. We are now working on the process of going through
that document and determining which unredacted documents we can
give to the committee, and we have given you, in response to
the subpoena, unredacted documents.
The Chairman. Again, for the record, has executive
privilege been asserted in any of this, not complying with us?
Mr. Ashe. I am not a lawyer, and I am not familiar, and I
am not here to, I guess, present you with any legal opinion or
determination about the basis of redactions. All I can say to
you, Mr. Chairman, is I do not make those decisions,
personally----
The Chairman. Who makes those decisions?
Mr. Ashe. Those decisions are made in the process of review
within----
The Chairman. But who makes the decision, then?
Mr. Ashe. I do not know.
The Chairman. You don't know who? I don't know how to
follow up with that. I mean we seem to have come to a--how do
you have transparency in government, when I ask the head of a
department who is responsible, and the response I get is, ``I
don't know''?
Mr. Ashe. Mr. Hastings----
The Chairman. Am I misunderstanding something here?
Mr. Ashe. Those decisions are made during a process of
review within the Department of the Interior. There are many
people who are involved in those decisions about reviewing
documents and then determining, on the basis of--some of those
documents contain personally identifiable information. Some of
those documents contain confidential industry information. Some
of those documents contained pre-decisional material. And so
all of those decisions----
The Chairman. My time is out. I just want to say, in your
response to us, in all of the responses that we have had, at no
place that I can remember, and if I am wrong, I will be
corrected, have you said, ``This is why we have not provided
this document, because of this.'' You have not given us that
explanation, whatsoever. Not at all. So, how do we know how to
respond to that, other than to say, ``We would like to have the
documents?''
My time is way over here, and I apologize to my colleagues
for that, and I recognize the Ranking Member.
Mr. DeFazio. Director Ashe, do you criminally prosecute
each and every endangered species, let's say eagle death, or
migratory bird death in the case of golden eagles, which are
not endangered? Do you prosecute each and every one of those,
criminally?
Mr. Ashe. No, we do not.
Mr. DeFazio. OK. Do you prosecute each and every one of
those against the oil and gas industry?
Mr. Ashe. No, we do not.
Mr. DeFazio. OK. So there are incidental takes, or whatever
you call them, that are occurring on a regular basis across the
energy sector, which are not prosecuted.
Mr. Ashe. That is correct. There are approximately 876,000
oil wells in the Continental United States. It is estimated in
the peer-reviewed literature that those wells take
approximately 1 to 2 million birds per year, we are currently
investigating 21 cases involving the oil and gas industry.
Mr. DeFazio. OK. How about the wind industry?
Mr. Ashe. We are currently investigating 17 cases involving
the wind industry. There are about 48,000 wind turbines in the
Continental United States.
Mr. DeFazio. It seems that, in emphasizing that this is a
strict liability statute, that the committee is urging that you
should prosecute each and every one of those millions of
takings against the oil and gas industry, and the tens of
thousands, or whatever it is, against the wind industry.
Mr. Ashe. And there is, from a practical standpoint, there
is no way that we can do that. And, from a common sense
standpoint, there is no way that we should do that. Any strict
liability law has to involve the exercise of enforcement
discretion.
Much the same as you or I, if we are driving on the New
Jersey Turnpike, and the speed limit is 55 miles an hour, that
is a strict liability. We know the speed limit is 55 miles an
hour. If we are driving 56 miles an hour, we are violating the
law. But we don't expect a State Trooper to write us a ticket
for 56 in a 55. Each mile per hour that we go faster than that,
we increase the likelihood that a State Trooper would use their
enforcement discretion. But we hope that our State Police, and
they, our State Police do, in large measure, reasonably
exercise their enforcement discretion. Likewise, our agents
reasonably use their enforcement discretion in----
Mr. DeFazio. OK. So, generally, you have, after you develop
best practices, and we are still working on that with the wind
industry and some of the early sitings were not well thought-
out, in terms of bird strikes, which I believe was the case
with Duke, and then there is big problems down in California,
with those turbines in the Altamont Pass, et cetera.
But after you have developed best practices, or made,
entered into agreements on how to avoid these, if the industry
in question, whether it is oil and gas or wind, follows those
best practices, and makes every attempt, but inadvertently
birds are killed, you don't prosecute them, right?
Mr. Ashe. That is correct.
Mr. DeFazio. But when you do prosecute them, it would be
like someone who didn't cover a spill pit and migratory birds
landed in it. That sort of a thing, which was intentional or
negligent, you would prosecute.
Mr. Ashe. That is correct.
Mr. DeFazio. And in the case of the wind industry, if they
didn't follow guidance or best practices that has been
developed, you would prosecute them.
Mr. Ashe. That is correct.
Mr. DeFazio. And, in the case of Duke, did you extend
special favoritism? It seems like the committee here is kind of
on a rampage to have millions of prosecutions against every
kind of energy development in the United States, because that
is the only conclusion I can come to here. Did Duke get some
kind of special deal, here?
Mr. Ashe. Not at all. With Duke Energy we had advised Duke,
with their Campbell Hill and Top of the World facilities, we
had advised them against construction on those sites, and we
had advised them to take mitigation measures in construction of
those sites because of our concern about bird take.
And so, then, when they actually did take birds, again,
they came to us with that information, and they sought a
reasonable solution. And they committed to applying for an
eagle take permit, they committed to remedial measures. And, in
fact, in the first year after they reported the bird takes to
us, they achieved no take of golden eagles, and they did that
by implementing some relatively simple best management
practices, but they were in violation of the law, and they had
ignored our previous recommendations to them about both of
those sites.
Mr. DeFazio. And did they pay a fine?
Mr. Ashe. They did. They paid a $1 million fine.
Mr. DeFazio. OK, thank you. My time has expired.
The Chairman. Will the gentleman yield real quickly?
Mr. DeFazio. Certainly.
The Chairman. I just want to make a point. The gentleman
made an observation about best practices. You see, that is what
we are trying to find out, is exactly how those best practices
were developed by Fish and Wildlife. That is really what this
whole hearing is about, is to find that out. And that is why we
were looking for these documents. So I think the Ranking Member
and I are, I don't want to put words in his mouth, but I think
we are on the same page.
We want to find out how those best practices were
developed, and give them to us. That is what we are asking
about with our requests going way back to last May. So I thank
the gentleman----
Mr. Ashe. Mr. Chairman, I am here to say I can tell you how
those were developed, and I am happy to do that.
The Chairman. Well, that is what we have been asking. I
just want to make that point. That is what we have been asking.
Maybe you are not getting information from people, I have no
idea.
My time has expired. I will recognize Mr. Fleming, Dr.
Fleming is recognized.
Dr. Fleming. Thank you, Mr. Chairman. I would ask the staff
to bring up Exhibit No. 7 on the screen. And while we are
waiting for that--ah, there it is.
[Slide]
Dr. Fleming. Yes, Dr. Ashe, on February 14, 2013, President
Obama said, ``This is the most transparent administration in
history. Every law we pass and every rule we implement, we put
online for everyone to see.''
Now, what is up there is a document that was provided as a
result of our subpoena from your office. Can you interpret what
that says?
Mr. Ashe. What you are seeing is a redacted document
covered by the subpoena. That was, again, I believe that was a
document that was produced in response to a FOIA request, and
not in response to the committee's subpoena.
Dr. Fleming. OK. Either way, whether it is a FOIA request
or a subpoena, what does that tell us?
Mr. Ashe. [No response.]
Dr. Fleming. You are not going to answer. Does it tell us
anything?
Mr. Ashe. What do you want to know, Congressman?
Dr. Fleming. Well, we have provided numerous requests, both
FOIA and subpoena. The subpoena was issued March 11, 10 months
after the committee sent its initial document request. So we
sent FOIA requests, then we sent, as I understand it, a
subpoena. And again, this is the kind of non-information that
we are receiving.
Now, when the Chairman asked you, you said that, and
correct me if I am wrong about this, but I am sensing that you
said this was not your decision to be non-responsive. Was that
decision above you, someone above you in the Interior
Department?
Mr. Ashe. My response was that I am not the one who is
making determinations about redactions. The job of the Fish and
Wildlife Service in the case of these all-document requests is
to produce documents that we believe are responsive. And then
that has to go through a process of review, and that involves--
--
Dr. Fleming. But, as Director, you are obviously at the top
of that bureaucracy, unless someone ahead of you is above you
in the chain of command in the Department of the Interior.
So, my question is, is that final decision made by someone
above you?
Mr. Ashe. The decisions about redactions are made through a
process of review at many levels between the Fish and Wildlife
Service----
Dr. Fleming. But----
Mr. Ashe [continuing]. And the Department of the Interior--
--
Dr. Fleming. Mr. Ashe, somebody has to make the final
decision. Someone has to make the final call. And so, we sent
FOIA requests, it is non-responsive.
Mr. Ashe. If----
Dr. Fleming. You have already admitted that, even to the
subpoena, you have been non-responsive. You say that it wasn't
your decision. And you are diffusing it with this idea that it
is a huge bureaucracy out there. Somebody has to finally, at
the end of the day, make the call. All I am asking is, is that
person above you in the Interior Department bureaucracy?
Mr. Ashe. When I send the committee a document, and when I
respond to a request from the committee, I am responsible for
any redactions or exclusions that are in the documents.
These redactions were not responsive to the committee.
These redactions were responsive to a FOIA request that came
from a non-congressional responder. We provided that to the
committee as a courtesy.
Dr. Fleming. Right. But let me correct you on something.
That is right, this came as a FOIA request to the public. But
then we requested in the subpoena to have this information, and
we are still being refused----
Mr. Ashe. And and as I said, Mr. Fleming, I think I have
made superhuman efforts, as have my law enforcement agents and
my agency in general, to respond to the subpoena. The time that
you gave me to respond to that subpoena is completely
unreasonable. We cannot physically respond----
Dr. Fleming. Well, I am running out of time, so let me jump
in here.
So, really, what I am hearing today is that you are
unresponsive to the questions about the unresponsiveness of
both the subpoena and the FOIA requests. Are you claiming
executive privilege?
Mr. Ashe. I am not claiming anything.
Dr. Fleming. You are not asserting executive privilege.
Well then, can you explain to this committee why you should not
be held in contempt?
Mr. Ashe. Again----
Dr. Fleming. Contempt of Congress.
Mr. Ashe. Congressman, I am not a lawyer. And so, I guess
contempt is an issue that the committee will have to judge
based upon its own advice and interpretation. What I would say
to you, again, is I have a personal record with this committee
and with the Congress, as a whole.
As I said in my opening statement, I make myself available.
I have never refused a request from this committee. I have
never refused a request from any member of this committee or
this body to come up here and meet and provide information and
be responsive, and----
Dr. Fleming. Well, I am running out of time. But just to
respond to that, yes, you have never refused to come up and
speak with us. But you and your Department are obviously
refusing to give the information that Congress and the American
people are entitled to. And, with that, I yield back.
The Chairman. The time of the gentleman has expired. The
Chair recognizes the gentleman from California, Mr. Huffman.
Mr. Huffman. Thank you, Mr. Chair. And thank you, Director
Ashe, for being here. I want to just get my head around this
controversy, this tempest that we are dealing with here today.
My understanding is you provided an awful lot of documents
to this committee by way of a FOIA request, as a courtesy. The
Chair acknowledged in his letter to you that courtesy
production of documents had occurred. Correct?
Mr. Ashe. Correct.
Mr. Huffman. There was redaction in those, as is
appropriate in response to a FOIA request.
And then, on March 11, the subpoena was issued. And there
were all sorts of new materials requested in that subpoena that
went beyond, well beyond, the scope of the FOIA request.
Correct?
Mr. Ashe. That is correct. And, in particular, the law
enforcement documents that I mentioned in my oral statement
were completely new. That was a completely new request, and a
significant request by the committee.
Mr. Huffman. So you had the task of not only determining
which of the redactions in the appropriately redacted FOIA
documents may or may not need to continue to be redacted, but
you also had to assess these additional requests in the
subpoena, and assess your ability to comply with those. And
that was by way of a March 11 subpoena.
The deadline for production was March 24. So you were given
13 days to do all that. Is that correct?
Mr. Ashe. That is correct.
Mr. Huffman. Would you like to perhaps speak to the burden
that imposed upon you and your agency?
Mr. Ashe. Yes. As I said, I think that it is physically
impossible for me to comply with the subpoena. So, the previous
question about contempt, I feel like I have no way to meet the
committee's expectations.
What I would suggest is that we sit down with the committee
and find a reasonable pathway forward. And rather than
exchanging letters and subpoenas, that we sit down, eyeball to
eyeball, as good public servants, and find a way forward to get
the committee the information that it needs. But with this
subpoena, and especially a subpoena that gives us 2 weeks and
raises substantial new issues, we simply can't comply.
Mr. Huffman. I will just say that manner of collaborative
problem-solving and information sharing would be really
refreshing, if it was reciprocated by the committee. And I hope
your suggestion is accepted by the Chair, because I think that
is the way this committee ought to do business. Unfortunately,
it hasn't done business that way with this administration.
There has never been any attempt to resolve these things
informally. Fights are picked, show hearings are held, like
this one, and that is what leaves us where we are today.
I want to sort of go to the very premise of this particular
show hearing, which is that you are giving some kind of special
preference to the wind energy industry over fossil oil and gas.
And it does seem to me that is rather preposterous, on its
face. But let's just review some of the context of that.
You have 825,000 oil and gas wells in the United States
versus 48,000 wind turbines. Correct?
Mr. Ashe. Correct.
Mr. Huffman. And, given that overwhelming size advantage,
magnitude difference, you are, nevertheless, investigating 17
wind facilities versus 20 oil and gas operations. Correct?
Mr. Ashe. Correct.
Mr. Huffman. And of the 17 wind facilities you have
investigated, you have referred 7 of those to DOJ. And that
certainly would suggest, when those numbers are considered,
that you are actually enforcing much more vigorously, relative
to the size of the wind industry, than you are against the
fossil fuel. Wouldn't that be a natural conclusion, just on the
numbers alone?
Mr. Ashe. That is a reasonable conclusion, sir.
Mr. Huffman. All right. Well, thank you for your testimony,
and I am sorry that it has to be in the manner of one of these
gotcha hearings, instead of a----
The Chairman. Would the gentleman yield?
Mr. Huffman [continuing]. Want to do business with each
other.
The Chairman. Would the gentleman yield?
Mr. Huffman. Certainly.
The Chairman. For the record, the gentleman asserted that
there hasn't been patience or cooperation from the committee
standpoint. For the record, just want to say this. Everything
that was in that subpoena that we asked for on March 11 has
been asked for before. There is nothing new, regardless of what
the Director has said. There is nothing new that has been
asked.
Second, I want to make this point. We started this process
in May of 2013. May of 2013. The first response, the first
response we got from the Fish and Wildlife was in September.
Now, that does not suggest to me that is cooperation and trying
to work in a collaborative way. I am willing to work in a
collaborative way. But when I look at the evidence and see the
slow rolling that is even acknowledged in the response to me, I
get pretty frustrated.
I thank the gentleman for yielding. I recognize Mr. Cramer,
North Dakota.
Mr. Cramer. Thank you, Mr. Ashe, for being here. Thank you,
Mr. Chairman.
Frankly, I don't find these investigations for truth to be
``mindless,'' as depicted by the Ranking Member. Frankly, I
find it quite offensive, the terminology that we ``dragged a
woman in here last year.'' This has become the language of the
angry left. And if you want comparisons, I find the Ranking
Member's behavior today to be very similar to that of the
Majority leader of the U.S. Senate lately.
I want to get to the bottom of this line of questioning,
and we just heard the Chairman's clarification. I would be
interested in your clarification. Were there extra documents
requested that were not previously requested? In other words,
does the subpoena include documents that were not part of the
original redacted information that was provided?
Mr. Ashe. From my standpoint, Congressman, it certainly
does. I mean we were not asked for case files in the previous
document request. The subpoena requests all of our law
enforcement case files, going back to 2009. Those are hundreds
of files. And so to be responsive to the committee, we have to
take all of those files and break them into separate documents.
It is an extraordinarily time-consuming effort.
I wish we had the capability to just push a button and
produce all this stuff, but people have to go through it, and
they have to put it in the right format.
Mr. Cramer. Sure.
Mr. Ashe. It is an extraordinarily----
Mr. Cramer. How long would it take to get every document
unredacted that has been redacted? How long would that take?
Somebody has collected it, somebody must have it. Somebody in
this room might even have it. How long would that take?
Mr. Ashe. I do not know. Well, I said just to comply with
that one request, the third item in the committee's subpoena
request on the law enforcement documents would take us 3 months
of the effort that I described to provide for that one item.
Mr. Cramer. Mr. Ashe, previous to getting elected to
Congress, I spent nearly 10 years as an energy regulator in
North Dakota. I oversaw 1,500 megawatts of new wind development
in a State that is the second leading producer of oil. The very
famous migratory bird case in North Dakota is very familiar to
me.
And we want to talk about diverting agents from important
international crime rings, and we talk about responding to a
request for information as a gross diversion from that very
important work of finding international criminals, your agents
scoured Western North Dakota to find seven dead ducks, and then
brought charges through the Justice Department against three
oil companies, only to be thrown out, thank God, by a common-
sense Federal judge in North Dakota, who, quite frankly, raised
a very important point about the definition and the
interpretation of what a ``taking'' is. What is your
understanding of what a take is, given this new ruling that, to
my knowledge, has not been challenged?
Mr. Ashe. Again, I am not an attorney. What I can tell you
is our belief is that we have one district court, Congressman,
we have dozens of prosecutions that have been upheld in the
United States court about the take of migratory bird, and
migratory birds in oil pits.
And so, we have won a district court decision which is
anomalous to dozens of other court decisions over the history
of implementation of the Migratory Bird Treaty Act. It is a
strict liability statute, as the Chairman said. And if a bird
is taken, then it is a violation of the law.
Mr. Cramer. Except that, according to the judge's ruling,
``taken'' is not as easily described, or as defined as perhaps
it once was. And has that been clarified, or are we still
dealing with this sort of broad definition of interpretation
based on some single agent's view, or perhaps a political view?
Mr. Ashe. As I said, there is one court that has taken that
interpretation, many, many courts which have seen the Migratory
Bird Treaty Act as we believe it is, a law that applies to all
take of migratory birds, intentional and unintentional.
Mr. Cramer. Well, one of the things that has frustrated me
already today, and a lot of it comes from the opening statement
of the Ranking Member, he references the lack of a single
secretary policy, along with other things, as evidence that
somehow our investigation for truth is ``mindless''--again, to
use his language. And that, somehow, that lack of a policy is,
and we have heard this a lot in here, is a lack of evidence of
the lack of transparency.
And I would submit to you the lack of these policies and
the lack of the clarity is the evidence of the lack of
transparency. And we are just trying to have a much more
transparent process.
When I was a regulator in North Dakota, if we provided
redacted documents to the legislature, it would have been our
last day on the job. I yield back, my time is up.
The Chairman. The time of the gentleman has expired. The
Chair recognizes the gentlelady from Hawaii, Ms. Hanabusa.
Ms. Hanabusa. Thank you, Mr. Chair. Welcome, Director Ashe.
You know, it is a very curious position that I am in,
because you and I have had many discussions, not necessarily on
this specific issue, but on issues of take and of issues of
endangered species. And I just would like to share with
everyone that whenever I have asked for a meeting with you on
those issues, you have always been more than willing to be
there, and you have been always very willing to sit and discuss
the plight of the various individuals affected.
And I would like to share with my colleagues here that on
the Island of Kauai, for example, we have a bird that flies
into the lights and it is a threatened species. And, as a
result, every time it does that, it becomes a take. And what
people may not know here is that in that particular situation,
it has stopped all high school football games on evenings. And
that may not sound like much, but it is a big deal.
And I do want to say that, in that context, you have been
willing to discuss it, willing to discuss how we work around
that. And, for that, I find it very difficult to comprehend why
there seems to be the sense that what we are dealing with here
is some kind of an unfair treatment. Because I do know that
part of the policies of the Department is to protect those
endangered species.
And on the same island we have issues with our State bird
that is eating the taro, which is considered to be sacred to
our native people. And you have also been willing to sit and
discuss that. And those are endangered species, so you can
imagine what the take issue is there, where, even if you put up
a fence and they walk into the fence, it is a take.
I just share that as a background, because, as I read the
testimony that we are discussing here, these are situations
where permits have been issued on takes, and that is something
that you and I have talked about as a possible resolution for
what is going on. So I am kind of perplexed as to why there
seems to be the sense that the Fish and Wildlife Service and,
in particular, you and your Department, are not willing to deal
with that, because that is absolutely contrary to my
experience.
And I just wanted to ask you, Director Ashe, I assume that
I am not getting any special treatment. So if anyone else has
this concern and wants to discuss with you the issues of the
take and the permits, I assume that you also make yourself
available for those kinds of discussions, as well. Am I
correct?
Mr. Ashe. You are correct. When I come to your office, I
hope, when I leave you always feel like I have shown you some
special aloha, perhaps.
Ms. Hanabusa. That is right.
Mr. Ashe. But any member of the committee, I believe I have
provided the same level of courtesy and attention. And when I
am asked, I come. And I bring, as I have in your office, my
Assistant Director for Endangered Species, I bring the people
who can answer your questions and address the concerns of your
constituents. And I believe we extend that courtesy, regardless
of geography or party representation.
Ms. Hanabusa. So, getting to the issue at hand, which is
really the idea about this, the birds and the eagles, in this
case, the bald and the golden eagles, and the fact that there
seems to be some kind of implication, or inference that they
are being given special treatment when it comes to the wind
producers. Do you have, and I apologize for being late, I was
at another event, do you have any information as to how many
``takes'' are at issue here?
Mr. Ashe. The issue of how many birds are taken from wind
turbines is an issue that many researchers have been involved
in the last several years. But I think the general estimate
that seems to be accepted in the literature is somewhere around
or above half a million birds a year. So that is 48,000 wind
turbines, half a million birds. I guess if I do some quick
math, that is about 10 birds per turbine per year.
In the oil and gas industry, the oil pits and stock tanks
associated with the oil and gas industry, again, the literature
says about 1 million to 2 million birds per year. Compare that
to power lines, transmission power lines. The literature
estimates the average of about 40 million birds per year.
And then something that is familiar to all of us, like
automobiles and trucks, about 70 million birds per year.
So, lots of sources of take on migratory birds. And, as the
Chairman has pointed out, these are strict liability laws, so
we have to use our enforcement discretion. In looking at a
take, we have a capable but small organization, and we have to
put our resources in the field where we see the most
significant take, and places where people are ignoring or not
applying pretty simple and accepted best-management practices.
Ms. Hanabusa. Thank you.
The Chairman. The time of the gentlelady has expired. The
Chair recognizes the gentleman from Colorado, Mr. Lamborn.
Mr. Lamborn. Thank you, Mr. Chairman.
Director Ashe, your agency announced in December that you
were going to start issuing licenses to kill for eagles. And
these will be good for 30 years. How many of these licenses to
kill have been issued so far?
Mr. Ashe. Since 2009, we have had a permit framework in
place for the Bald and Golden Eagle Protection Act. And we did
this as a necessary pre-condition to delisting the bald eagle.
So in delisting the bald eagle, we had to demonstrate that we
had a conservation framework going forward.
So, since 2009, we have had a permit process in place for
people to get authorization for take of bald and golden eagles.
And we have issued many permits since 2009 for airports, for
scientific take, for industrial take, for religious take of
bald and golden eagles. And so what we do, in exchange for
that, is we get commitments for conservation.
So, the idea is that we have a net benefit to the eagles--
--
Mr. Lamborn. OK, thank you. Let me change subjects now, and
ask about a memo. Director Ashe, on October 17, 2012, a 2-page
directive was issued by Chief William Woody of the Fish and
Wildlife Service's Office of Law Enforcement. This memo
provides guidance for agents of the Office of Law Enforcement
when investigating possible violations of the Migratory Bird
Act arising from the take of protected birds in connection with
industry and agriculture. And could staff please pull up
Exhibit 1?
Are you familiar with this memo?
Mr. Ashe. I am roughly familiar with it.
Mr. Lamborn. Thank you. And you are familiar with our
committee's May 16, 2013 request, right?
Mr. Ashe. I am.
Mr. Lamborn. OK. Now, the memo states, as you read it down,
that OLE, Office of Law Enforcement, will look for
opportunities to foster relationships with and provide guidance
to individuals, companies, and industries during the
development and maintenance of their operational plans.
Why did it take the Fish and Wildlife Service until
December 13, 7 months after the request was sent, for this memo
to be provided to us?
Mr. Ashe. Because it was wrapped into a massive request for
documents. Congressman, if you or Chairman Hastings or any
member of this committee simply picked up the phone and called
me or called Chief Woody, who is sitting right behind me, and
asked us for that document, I would send it to you today. But
when you wrap it into this massive request for documents, all
the sudden I become unresponsive to you. And I understand that
frustration. And that is a simple request. If you ask me for
it, you will get it.
Mr. Lamborn. OK. Director, what bothers me most about this
particular document is that representatives of the wind
industry told staff that they were given a copy of this memo
right after it was issued.
Mr. Ashe. And if you had asked----
Mr. Lamborn. And that is a year before we ever saw it.
Mr. Ashe. And if you had asked for it, you would have
gotten it. But instead it gets wrapped up into this massive,
unreasonable request for emails and all documents and all
correspondence and--so you wrap up a very simple----
Mr. Lamborn. So why did they get it? Did they ask for it?
Mr. Ashe. They asked for it. If you had asked for it, you
would have gotten, hopefully, better treatment.
Mr. Lamborn. Well, it is a year later, and now we are
finally getting it. Something is wrong here.
Mr. Ashe. What is wrong is the way the request was made. It
was made in the context of this massive, all documents, all
emails, all correspondence request. And all you had to do is
ask me for the document.
The Chairman. Will the gentleman yield?
Mr. Lamborn. Yes.
The Chairman. Director Ashe, I appreciate the willingness
to do that. But I will go back to the timeline here, where the
frustration leads in. When I asked Mr. Huffman to yield to me,
I will repeat again. We started asking for information on May
16, 2013. Now, that is when we made the first request. It may
have been seen, I guess, as massive is in the eyes of the
beholder.
The first response, however, the first response we got from
you was in September, for goodness sakes. Now, if we sent a
request in, one would think, OK, there might be a timeline
here, or maybe some correspondence from you. What are you
really asking for, and so forth. We didn't get anything like
that, anything like that. So, we start this process, then, with
a bit of, I guess, uncertainty, at least from our standpoint.
So, I just want to make that point, and I know the
gentleman's time has expired. All right, his time has expired.
I just want to make that point.
The Chair recognizes the gentlelady from New Hampshire, Ms.
Shea-Porter.
Ms. Shea-Porter. Thank you. And I have to say that, from
what I have heard you say, it seems as if there is equal
treatment for the wind industry and all the other industries
that you actually prosecute, about the same number, and there
doesn't seem to be any great difference there.
So, I am sure, Director Ashe, that you have other things
that you would like us to know. And so, let me also say that
you have come to my office, and I have found that when I have
had a question, you have been forthright there. And I
appreciate that.
And so, I would like to ask you what you want us to know
about this that we haven't asked you. And I would like to hear
what you want to say about this issue now.
Mr. Ashe. Thank you, Congresswoman. I guess I would say on
this general question of the Migratory Bird Treaty Act and the
Bald and Golden Eagle Protection Act, I think we have an
extraordinarily good record of what the Congress expects, which
is common sense enforcement of the law, where we put our first
priority on collaboration and communication with the affected
industry, whether it is the oil and gas industry, or the
communication tower industry, or the electric transmission
industry, or the renewable energy industry, that our first step
is always to begin a dialog with them, and identify and define
best management practices.
Then, in a case like the oil industry, the practices for
oil pits are fairly simple. You put nets over the top of the
oil pits. Enforcement then becomes relatively simple, and we
usually do it in conjunction with other enforcement, like
easement-based enforcement, where we are flying over. It is
pretty easy to see, there is an oil and gas facility, the pit
is not netted. We will send our enforcement agents out.
Our enforcement agents, if they find birds in the oil pit,
they advise the operator of their obligation to employ best
management practice. ``Put a net over the pit.'' We come back 6
months later. If they haven't done it, then we write them a
ticket. This is a misdemeanor violation. And so we issue them a
ticket with a small fine. We again remind them of their
obligation. Then we come back in another 6 months, and if they
still haven't taken action, then we would begin a criminal
prosecution.
And that is the way we have approached the wind industry.
And, again, the Chairman's request for how we have worked with
the wind industry is much the same way. We have sat down with
the wind and the environmental community. We formed a Federal
Advisory Committee, completely transparent, with the public
having the opportunity to participate and see every aspect of
that discussion. And we sat down and we worked out voluntary
wind guidelines for the industry to follow in the siting and
the design and the construction and operation of wind
facilities. So we have a practice, a best practice, for the
industry to follow.
And so, in the future, we will know if a wind facility, as
it is constructed, has followed that template or not. We will
know if they have a migratory bird conservation plan in place
or not. And we will have an expectation about how that facility
is going to perform, and that will guide our enforcement.
And so, I think we have followed a very transparent, very
cooperative framework that has brought all parties to the
table. And I expect that is how we will continue in the future.
Ms. Shea-Porter. Thank you. And it sounds like they have a
year. They have two opportunities, they hear from your agency
twice. If they are not in compliance before they actually have
a real punishment, right?
Mr. Ashe. That is correct.
Ms. Shea-Porter. So that----
Mr. Ashe. And again, as I said in my statement, law
enforcement and criminal prosecution is always our last resort.
Our goal, our principal goal, is always to provide people with
information first, and to do that in the context of
recommending best management practices.
Ms. Shea-Porter. And can you tell me what percentage of
organizations manage to fix the problems within a year?
Mr. Ashe. Oh, the vast majority. We would start with
probably hundreds of investigations on an annual basis. We end
up with, probably, 20 to 30 where we would be taking some kind
of enforcement action, writing a ticket or some other
enforcement action, and probably 5 or 6 in the course of any
one year that we would recommend prosecution on.
Ms. Shea-Porter. Thank you very much. I yield back.
The Chairman. The time of the gentlelady has expired. I
recognize the gentleman from Utah, Mr. Bishop.
Mr. Bishop. Mr. Ashe, thank you for being here. As you said
to one of the other questions that was given to you, the manner
in which we ask impacts the way you respond. So, just assume
anything I ask has the word ``pretty please'' after it.
For the record, I want to once again re-emphasize that when
we asked last May 2013, there was a large group of both closed
and open cases that were requested. The subpoena is actually a
subset of that, narrowed down just to the closed cases. So I
would, once again, I realize that you made a complaint that you
are spending millions of dollars not giving us the information.
I think if you would spend those millions giving us the
information, or working closer with us, it would expedite that
process.
I believe it was yesterday, it may have been a couple of
days ago, the Western Governors Association, in a bipartisan
resolution, passed a resolution that simply said the Endangered
Species Act need to be reviewed. And, in view of that, there is
a whole lot of questions that deal with the ESA. I know Western
States are looking on sage grouse, and many of them are
spending a great deal of money, and complain that the Fish and
Wildlife Service is not necessarily helpful in that process.
But today's committee is looking at a very specific issue
that deals with birds and taking issues, so I want to limit my
comments to that. However, there are these other issues that
are still out there.
I guess the question I would ask is, would it be possible
for you to attend and meet with us again, that we could talk
about the larger view of endangered species issues? Sometimes I
realize that you are doing outreach with some of the folks over
on the Senate side. I would appreciate it if we could invite
you to join us again some time for a larger view of the issues
of the Endangered Species Act.
Mr. Ashe. I would enjoy doing that.
Mr. Bishop. Thank you. I appreciate that. Let me ask you
specifically. You issued the 30-year eagle take rule last year.
Did you conduct a NEPA analysis to determine the environmental
impact of that rule?
Mr. Ashe. We complied with the National Environmental
Policy Act in promulgation of that rule.
Mr. Bishop. Did you do the NEPA analysis, or take a
categoric exclusion on it?
Mr. Ashe. We made use of a categorical exclusion, which is
compliance.
Mr. Bishop. So, yes. I appreciate that, but there are some
regulations or limitations on that, going from a 5-year period
under the old rule to a 30-year period. That is a sixfold
increase in the permit duration. And that means the agency
determined that to be a technical amendment, housekeeping,
administrative changes.
Mr. Ashe. If we write a 5-year permit for a wind facility
that is going to be on the ground for 30 years, what we are
going to have to do, then, is we are going to have to renew
that permit on 5-year cycles. What we have done is just changed
the timetable and say, ``When we write a permit, we will write
a permit for the operational life of the project, and we will
do 5-year reviews.''
Mr. Bishop. OK.
Mr. Ashe. And so that is simply a change, a technical
change, in the way we are writing the permit for that facility.
Mr. Bishop. And I appreciate that. I am not actually
challenging the validity of it. The process is the question I
am after.
So, if we are doing a categorical exclusion, as you just
talked about, it means you have to determine there is no
extraordinary circumstances, no significant impacts on the
resources of migratory birds, yada, yada, yada.
So I just would like to ask you a scenario. Since we are
dealing with birds that are covered in the Migratory Bird
Treaty, as well as protected birds under the Eagle Act, and
something else, birds that are significant to cultural groups
in the United States, to say that this did not require an
administrative review is something that I think could be
subject to some lawsuit in the future. So I am going to ask you
a scenario.
Let us assume that this is challenged in a court, that we
didn't go through the entire NEPA analysis, we only did a
categorical review, and that if, at some time, it is challenged
in the court, and the court would rule, that what you did was
do something that required a NEPA analysis, but did not happen.
What then happens to the permits that would have been granted
during that period of time?
Mr. Ashe. I am not a lawyer. It would depend upon the
ruling of the judge, and specifically how they ruled. What they
would probably do in that case, my guess is, that they would
remand the rule back to us and they would ask us to do some
higher level of NEPA review, either an environmental assessment
or an environmental impact statement.
Mr. Bishop. Thank you, I appreciate that. I hope that the
avoidance of the full NEPA review doesn't come back to haunt us
at some time in the future.
Mr. Ashe. We----
Mr. Bishop. Thank you, Mr. Director.
Mr. Ashe. Thank you.
The Chairman. The time of the gentleman has expired. The
Chair recognizes the gentleman from Idaho, Mr. Labrador.
Mr. Labrador. Thank you, Mr. Chairman. I have been really
confused by your answers to some questions. And you seem like a
very nice person.
Mr. Ashe. Thank you, sir.
Mr. Labrador. You seem like somebody who wants to work with
people. But yet you keep complaining about the way that your
questions have been asked. And I guess when we are in a
process, and maybe I don't understand this process as well, I
am just in my second term here, but it seems to me that the
committee has tried to work with your staff. Is that not
correct?
Mr. Ashe. I think there is a better way for us to work.
Mr. Labrador. I understand that you think there is a better
way. But they have called your staff, you have had meetings
with the committee staff. Has your staff not had meetings with
the committee staff?
Mr. Ashe. We have had meetings and we have had phone
conversations.
Mr. Labrador. OK. And have you expressed to the committee,
for example, you said that you would love to have an
information-sharing arrangement. When you received this
subpoena, and I am looking at it right here, it is four pages
long, three of the four pages are specific requests, so not
these broad allegations that you are making. Only one page is
broad. Three pages are specific requests. Did you call the
Chairman, or did you call the committee and say, ``Hey, I can
get you these documents, can you give me a little bit more time
to get you all the additional documents?''
Mr. Ashe. I did not make the----
Mr. Labrador. Did somebody on your staff do that?
Mr. Ashe. I do not know. I will have to ask that question.
Mr. Labrador. So it seems to me that it is great to come
here before a hearing and claim that you want to work with us,
but then to make the kinds of allegations that the people on
the other side and yourself have made, I don't see how this has
to be the kind of exchange that you are describing, when they
have been trying to work with you and your staff.
Mr. Ashe. That is a fair point, Congressman. I do
appreciate that. Although I would say I was not called and told
that I was about to get a subpoena. And so, I will bear my part
of the responsibility. And I think we can have a better
relationship----
Mr. Labrador. And I don't disagree with that. I just think
that, subpoenas usually, in this committee, especially under
this Chairman, have been a last resort. This Chairman has not,
in my experience, started with a subpoena. He has ended, after
a long, frustrating process.
I do have some specific questions. Recent wind-mapping
studies show that Idaho has approximately 25,000 megawatts of
wind generation potential, it is the 13th largest potential in
the United States. At present, wind plants provide
approximately 8 percent of the electric energy consumed in
Idaho. The taking of migratory birds and eagles is obviously an
issue that is important to my State.
Mr. Ashe, what standard do you use when deciding whether
someone should be prosecuted for a bird crashing into a
building, an airplane, or even a wind turbine?
Mr. Ashe. I think the general practice that we follow is,
was the take avoidable? Were there best management practices
available to the individual in minimizing or avoiding that
take? Have we communicated the obligations under Federal law to
the individual, so they understand what their obligations are?
Mr. Labrador. So, in 2012, the Fish and Wildlife Service
issued an 85-page document intended to help mitigate the
negative effects of wind turbines on wildlife. If a wind
company follows the 2012 guidance document, even if the project
was constructed prior to 2012, will the company be a lower
priority for enforcement and prosecution under the Migratory
Bird Treaty Act?
Mr. Ashe. If they followed the voluntary wind turbine
guidelines, our commitment is that they will be a low priority
for law enforcement.
Mr. Labrador. So you set out a series of standards based on
what you think is appropriate, and then those are the people
you are giving low priority to. Is that correct?
Mr. Ashe. Well, we set out a process that was jointly
determined through the Wind Federal Advisory Committee
process----
Mr. Labrador. And that is for the wind turbines. Has the
Fish and Wildlife Service developed a similar guideline for the
oil and gas industry to help mitigate any birds taken that are
covered under the Migratory Treaty Act?
Mr. Ashe. We have. We have best management practices that
were developed in cooperation with the industry about the
operation of oil pits, oil reserve pits.
Mr. Labrador. OK. And how will a company know if it is has
sufficiently followed the applicable guidance documents to
avoid prosecution?
Mr. Ashe. They are very clear. With regard to an open pit,
oil waste pit, they are supposed to net the facility so birds
won't land in it and be oiled and killed. And so, they are very
explicit and very simple measures that the operator can take.
Mr. Labrador. All right, thank you. I have no further
questions.
The Chairman. And the time of the gentleman had expired,
the timing is everything. The Chair recognizes the gentleman
from Colorado, Mr. Tipton.
Mr. Tipton. Thank you, Mr. Chairman. Mr. Ashe, thank you
for taking the time to be here. In your written testimony you
did mention that the service's focus is on developing
partnerships with industry and other stakeholders in order to
be able to minimize the take of migratory birds. Could you
describe a little bit? What role does that cooperation between
the administration play with industry in terms of enforcing
violations?
Mr. Ashe. With which industry, sir?
Mr. Tipton. With industry.
Mr. Ashe. Oh, industry in general.
Mr. Tipton. Yes.
Mr. Ashe. I mean that is the principal approach that we
take. I just spoke about the oil and gas industry, I will use
the electric utility industry, the transmission industry.
We worked with the industry to develop best management
practices, again, a voluntary framework for best management
practices to avoid collision, which is the principal source of
mortality, and electrocution, which are the principal sources
of mortality associated with that industry. So the industry
itself worked to work with us to develop those voluntary
measures. And the industry, by and large, is implementing those
measures.
And so, then potentially we have available mitigation
measures to apply to other uses, because we know not just how
to avoid migratory bird take and eagle take in the context of
building transmission corridors, but we know how to reduce the
take, or eliminate the take, by retrofitting existing
facilities.
Mr. Tipton. Great. I appreciate that. It is interesting. I
am pleased to be able to hear the comments that we need to be
able to work a little more closely, and to be able to have some
better communication going back, because we have had some
complaints that we have been made aware of from a variety of
different industries that, when they are trying to be able to
comply with the law, that there seems to be a real disconnect,
in terms of being able to find the direct answers that they
need to make sure that they are truly complying and trying to
be able to eliminate, as best possible, any taking of birds
from any kind of activities that are going on.
I am a little curious, given that we have talked to
different industries. Are you aware of that disconnect, that
there is some frustration out there?
Mr. Ashe. I guess there is always some frustration,
sometimes at a project level, for whatever reason. I am not
aware, and when you say ``industry,'' in general, that is a
pretty general statement.
Mr. Tipton. We have some of our oil and gas operators that
are saying that there is a disconnect that is going on when
they are trying to be able to do it, because----
Mr. Ashe. I would be happy----
Mr. Tipton. I guess frustration, as you say, it is very
clear, apparently, some of the people that are trying to be
able to get information doesn't feel it is very clear.
Mr. Ashe. With regard to----
Mr. Tipton. Are you taking some efforts to be able to reach
out to them for clarity?
Mr. Ashe. I would be happy to meet with you, Congressman,
to better understand that, and figure out what we can do to
address it. And maybe, their concern may be not with the
Migratory Bird Treaty Act, it might be with Endangered Species
Act, or some other aspect of the work that we do. But I would
be happy to meet with you and better understand that, to see if
we can address the issue.
Mr. Tipton. We will be happy to follow up on that, because
when we are talking about some of the migratory bird end of it,
we are still also then getting into the Endangered Species Act,
obviously, as well, and we are seeing impacts not only on some
of the public lands, but then the encroachment now, in terms of
a taking, effectively regulating some of the private lands, as
well, which is critical to the Western United States, that we
need to be able to seek some good, positive moves forward on.
So, with that, I yield back, Mr. Chairman.
The Chairman. OK, the gentleman yields back. The Chair
recognizes the gentleman from California, Mr. LaMalfa.
Mr. LaMalfa. Anyway, thank you. I come from northern
California. Here we have many, many concerns in our forested
areas, but also cover a lot of flood zones that I will address
here in my questions and comments that we have.
In the valley, there has been a listing that is proposed to
be delisted of the valley longhorn elderberry beetle in
northern California that has had a very detrimental effect on
the ability to execute and complete levee repairs, levee
construction along the Sacramento River, or other river systems
that really need a lot of help from the levee neglect over a
lot of years.
We even, so far as to, some years ago, in Yuba County, a
levee broke after having known for many years it needed
repairs, but inability to get permits, hold-ups on things such
as the elderberry beetle. The elderberry bushes that you would
find in some of these areas make it very difficult to execute
any kind of repairs, maintenance, or new construction, where
you might have an elderberry bush. So it has made it very
expensive, very slow, very cumbersome to have this listing of
the beetle, because of the habitat of the bush.
And so, California lost a $450 million lawsuit a few years
ago, because the levee that had broken, three lives were lost,
hundreds of millions of dollars worth of damage, the neglect by
government cost State government money on that.
So what we are looking at here is that the flood risk is
still there, levee work needs to be done desperately, and a lot
has been spent to set aside, for example, 50,000 acres of
habitat for the beetle that really should not be listed any
more. In 2006, the scientists from Fish and Wildlife have
proposed delisting the beetle. Two years the Wildlife Service
itself has proposed the delisting, and it has been a year since
the comment period has closed.
So, what I am asking for, Mr. Ashe, as well as two lawsuits
currently are underway, or have been brought, to get the job
done. When will the Service act on the recommendation of its
own scientists, and also in response to the lawsuits that are
pointing out that this, the valley longhorn elderberry beetle,
should be removed from the endangered species list, and we move
forward for all the projects that are needed, et cetera?
Mr. Ashe. I know that, sir, that we are working on the
delisting rule for the elderberry beetle. I don't know the
current status of it, but I can find that out quickly, and I
can call you today with that information, in terms of the
latest status. And I will do that today.
Mr. LaMalfa. Why do you think it has been held up as long
as it has on making the rule, as you say?
Mr. Ashe. Our endangered species program, in general, is a
deadline-driven program. We have many, many deadlines to meet,
and----
Mr. LaMalfa. Going in which direction, listing or
delisting?
Mr. Ashe. Both.
Mr. LaMalfa. The listing seems to move fairly quickly.
Mr. Ashe. Well, actually, I mean, we just delisted the
first fish ever, due to recovery, the Oregon chub in the State
of Oregon. And so we are, I think, working rapidly, as rapidly
as we can on delisting. I think we can do more with delisting.
And let me check on the status of that, and I will get back
with you today, sir.
Mr. LaMalfa. And what can we do more to help that process,
if you find that there is some additional hold-up----
Mr. Ashe. One thing is, the President's budget has
increases in our budget for our conservation account, which is
where we support recovery and delisting, and that is a high
priority for the U.S. Fish and Wildlife Service----
Mr. LaMalfa. Well, focused on the areas where delisting has
been pursued or requested, et cetera.
Mr. Ashe. What we call ``move the needle.'' What we are
trying to do is identify places where we can really move the
needle and, with fairly small investment, get species off of
the list. And there actually are some great opportunities to do
that. Hopefully, elderberry beetle is one of those.
Mr. LaMalfa. OK. Well, I appreciate that. There has been a
huge success----
Mr. Ashe. Right.
Mr. LaMalfa [continuing]. With the bald eagle, for example.
We have them in my backyard. We have eight of them in the
immediate area, either adults or juveniles there. So it has
been pretty amazing to have that in rice country, where I live.
But now, if we could just move the ball a little bit on the
beetle, because we have extremely important levee work that
needs to be done, and I don't want to see us risking people
unnecessarily, and losing lawsuits on, really, their
responsibility to get it done. So I would appreciate those
answers----
Mr. Ashe. Thank you, sir.
Mr. LaMalfa [continuing]. Work with you on that.
Mr. Ashe. Thank you.
Mr. LaMalfa. Thank you.
The Chairman. Director Ashe, thank you very much for being
here. I do appreciate it. And, as I mentioned in my opening
statement, there is a sense of frustration. I think you saw
that come out.
You mentioned, I don't think you used this word, I will use
it, and correct me if I am wrong, that you were somewhat blind-
sided by the subpoena. At least you characterized it that way,
that is the way I took it.
Mr. Ashe. I did.
The Chairman. For the record, I just wanted to say, now,
maybe this didn't get to your level, but on February 14 we did
send you a letter, and we did reiterate all of the requests we
had, going way back to May, and so forth. The last sentence of
that letter, this was on February 14, we asked for full
compliance by February 25. And the last letter, the last
sentence of that letter said, ``Should the information not be
provided by February 25, its production may be compelled.''
So you have said many times that you are not a lawyer. I am
not a lawyer, either. But I think we all know that when we say
something is going to be compelled, that the natural extension
of that is a subpoena. Now, maybe it didn't get to your level,
and so I will acknowledge that. But your Department was told
that on February 14.
Now, in line with that, in your willingness to work on a
case-by-case basis, there is another issue that has been
completed. It happens to be in my State, and it deals with the
White Bluff bladderpod. Now, that is pretty specific. On March
7, we sent you information, or sent a request for how that
final determination was made, and that determination was made
in December, so it can't be too complex, just come from the
timeline of it. And we asked for that information, like, last
Friday.
Last Friday came and went, or came and gone, whatever the
proper English is on that. And we did not receive the
information. Now, Director Ashe, I was walking into this
hearing. I was prepared to tell you that we will subpoena that
information. But in view of your willingness to work with us on
a case-by-case basis, and this is pretty specific, it is the
White Bluff bladderpod, you know, it doesn't go much farther
than that, I will tell you this. If we don't receive that
information in a week, which would be April 2, then I will
subpoena that.
So, I will just tell you, you don't have to respond, you
have the copy of the letter, you know the issue, it deals with
DNA, you know that issue. So if that information is not
forthcoming by April 2, I will tell you right now, so you won't
be blind-sided, we will subpoena for that information. I would
hope that you would have a voluntary compliance with that.
So, Director Ashe, once again, sometimes, as you know, you
used to work here, and sometimes Members have follow-up
questions that something has prompted. That may happen.
Obviously, we welcome your timely response to the committee, so
that all committee members can have it.
So, I will yield to the gentleman.
Mr. DeFazio. Thank you, Mr. Chairman. Are you aware how
many requests have been made by this committee to the
Department of the Interior in this Congress?
Mr. Ashe. It is my understanding----
Mr. DeFazio. For production of documents?
Mr. Ashe. Congressman, there are 16 requests pending before
the Department.
Mr. DeFazio. OK. So my understanding is there has been more
than two dozen requests; apparently eight, perhaps, have been
complied with.
Mr. Ashe. Yes.
Mr. DeFazio. Have you seen any prioritization? I have had
numerous conversations with the Secretary, she is very
frustrated and has expressed, as you have, she is willing to
produce specific information for a specific objective, but the
fishing expeditions she feels, are just sopping up too much
time and energy, just as we discussed earlier----
Mr. Ashe. The Secretary has told me that on several
occasions she has spoken with the Chairman and asked to work
with the committee to identify the priorities for the committee
so that we could do a better job of being responsive.
Mr. DeFazio. Right, yes. It is my understanding there has
been no prioritization. So if you have 16 pending requests, it
is hard to determine which should go first.
Let me be more specific on this memo we were discussing.
The memo from Mr. Woody, internal guidance for addressing
possible violations Migratory Bird Treaty Act by industrial and
agricultural facilities. Guidance states, ``Fish and Wildlife
has long employed an unwritten policy of encouraging industry
and agriculture to employ best practices aimed at minimizing
and avoiding the un-permitted take of protected birds, service
agents refer for prosecution those takes that occur after the
responsible party becomes aware of the condition or practice
causing the take and fails to remediate it.'' That is----
Mr. Ashe. That is our policy, and we follow that policy.
Mr. DeFazio. And you have done that with the oil industry?
Mr. Ashe. We have done that with the oil industry, we have
done that with----
Mr. DeFazio. The gas industry?
Mr. Ashe [continuing]. With the gas industry.
Mr. DeFazio. And now with the wind industry.
Mr. Ashe. Now----
Mr. DeFazio. Now that you have developed guidance that is--
--
Mr. Ashe. Correct. Cell tower, the communications tower
industry, the utilities industry, the buildings industry, all
of the above. The commercial fishing industry.
Mr. DeFazio. OK. So, in the case that one Member just
raised, I think it was the gentleman from Colorado, where they
feel that it is unclear what they need to do, will you, I don't
know exactly how your agency works, is it like OSHA, can you
ask for someone to come out and look and give an advisory
opinion without giving you a ticket? Will you do that, and say,
``Well, you are complying,'' or, ``You are not complying;
please make these changes''?
Mr. Ashe. We do that quite often.
Mr. DeFazio. And you would be willing to do that----
Mr. Ashe. We would be willing to do that.
Mr. DeFazio [continuing]. For Colorado. That is great. So,
if, of course, your people aren't tied down to their desks,
answering subpoenas. Yes, OK, that would be good.
So, I am a bit puzzled. Are you going to engage in more
aggressive enforcement now against the wind industry? It seems
to me that is kind of the point of this hearing, or these
requests, is that they feel it has been discriminatory, have
been too tough on oil and gas, which is putting them at a
competitive disadvantage, and we should get tougher on wind.
That seems to be where the Majority is headed with this. They
feel you have really cut some slack to wind that you haven't
cut to oil and gas. Are you going to go out now and go after
the wind industry more rigorously and say ``We don't care you
are trying; you are killing too many birds''?
Mr. Ashe. Our enforcement agents go, as I said, where the
facts take them, and the evidence takes them. And if we see
cause to bring prosecution against wind or solar operators, we
will. If we see cause to bring action against a utility
operator, we will. But our first approach is cooperation.
And I think, going back to the example of the oil and gas
industry, we have seen tremendous cooperation within the oil
and gas industry, and that is why we bring as few cases as we
do, because there is widespread compliance within the oil and
gas industry. And the wind industry has been a very good and
communicative partner. There are instances where bird take in
wind facilities is substantial, as in the Duke Energy case.
But, as I had said, in that case Duke took responsible action.
They brought the information to us, and they were engaged in
the process of coming to resolution in discussions with the
Department of Justice.
Mr. DeFazio. OK. So your actions are not going to change.
You will continue to go for advice, voluntary compliance, and
then negligence or knowing non-compliance will be the standard
for prosecution.
Mr. Ashe. That is correct. Yes, sir.
Mr. DeFazio. Glad to hear that. Thank you, Mr. Chairman.
The Chairman. Reclaiming my time, I do want to say this in
regards to the discussion here of taking so much time. I find
it hard to believe that part of the budgeting process is such
that you have to know that your agency has been sued. You must
set money aside because you have to respond to the courts and
so forth. So I find it hard to believe that you know that you
are going to have requests all the time, and you should budget
for that, and there should be a plan for that. I just find that
hard to believe, that the only problem, the only entity you
have a problem responding to is the Congress.
And yet, it is the Congress's responsibility to have
oversight of the executive branch. That is a long-held
tradition. In fact, when I became Chairman of this committee I
said, I think in the first meeting I had, that we are going to
do more oversight, and I said I think the committee has been
negligent in that with administrations on both sides of the
aisle. We haven't done that.
Mr. Ashe. May I?
The Chairman. Yes, you certainly can.
Mr. Ashe. And I appreciate that. And I guess I would say to
you what I feel like is you are setting me up for failure. When
you say, like with the White Bluffs bladderpod, if I can't
comply in a week, then you are going to send me a subpoena.
Well, you are setting me up for failure. And I guess I would
say----
The Chairman. Well, Director Ashe----
Mr. Ashe [continuing]. Can we--I will come here, and I will
assign a senior official in my agency to work with you and your
staff to try to find a better way forward.
The Chairman. Well----
Mr. Ashe. But if you lay down a gauntlet for me that I
can't comply with, then I am just going to disappoint you. I am
going to continue to----
The Chairman. Director Ashe, reclaiming my time, I just
simply want to say we sent a letter on March 4. There has been
absolutely no correspondence whatsoever from----
Mr. Ashe. Sir----
The Chairman [continuing]. From Fish and Wildlife. None at
all. So what conclusion am I going to draw?
And I will say it from this standpoint. This decision was
made in December. For goodness sakes, the evidence ought to be
pretty darn fresh. It can't be hidden someplace in an archive.
This decision was made in December. I don't understand how that
is so hard, because we are pretty specific.
I don't know how your system is set up, but press
``bladderpod.'' There is not a whole lot. I would guess that
everything dealing with bladderpod had to deal with the White
Bluffs. But if you want to be specific, press ``White Bluffs
bladderpod.'' Everything should be there. I just want to know
how that decision was made, because there is serious, serious,
serious issues, as it relates to DNA. And you know that issue.
I just want to know how that decision was made, that is all.
And so, that is why I tell you. It shouldn't be hard to figure
that out, in my view.
Mr. Gohmert. Mr. Chairman? Just one more----
The Chairman. All right, I will yield to the gentleman from
Texas.
Mr. Gohmert [continuing]. Mentioned that he was being set
up for failure. I couldn't help but think about the companies
that have strict liability, when they never intend any harm,
they follow the services directly of your Department, and then
you go after them anyway. You talk about being set up for
failure. You haven't felt a fraction of what you have put and
your Department has put other people through. So I hope you
will keep that in mind in the future.
I yield back.
The Chairman. So, Director Ashe, you can sense the
frustration here. And I take my responsibility as a Member of
Congress and as Chairman of this committee and on the Oversight
Committee. And again, I will go back. We started this process
last May. The first response we got was in September, and it
was only 66 pages of information.
Now, Director Ashe, maybe you haven't been served as well
as you should be by those, and I will let you draw that
judgment. But I just want to say it. This is important. I think
the American people need to know. When we have questions, those
questions come, generally, from our constituents, those people
that we have the privilege to represent. I guess there is
always going to be tension between the executive branch and the
legislative branch.
Frankly, I will be very honest with you. I think that
tension is good for the Republic, I really do. I think that is
good. But, nevertheless, I think that we have the obligation to
try to get all the information that we need.
Now, getting back to the bladderpod issue, again, that
shouldn't be hard to get that information. So, with that,
again, I thank you very much, and I will acknowledge that, as
other Members have, that you have been open, trying to deal
with us. You have a lot of responsibilities. But the
information that we have asked for simply has not been
forthcoming, I will just simply say that.
If there is no further business coming before the
committee, the committee stands adjourned.
[Whereupon, at 11:36 a.m., the committee was adjourned.]
[Additional Material Submitted for the Record]
Prepared Statement of the Honorable Kevin Cramer, a Representative in
Congress From the State of North Dakota
Mr. Chairman, thank you for holding this hearing.
While representing the people of the United States in Congress
means important oversight of the Government agencies they create, it
should also mean full cooperation of these agencies to ensure full and
timely disclosure of requested documents and evidence. The U.S. Fish
and Wildlife Service has repeatedly demonstrated a lack of both
transparency and responsibility in their slow response to this
committee's request for documents and in their excessive redaction of
information in the small amount of documents they did provide.
Like many in North Dakota, I am concerned the Obama administration
is being selective in determining which energy producers are
investigated or prosecuted, and why, under the Migratory Bird Treaty
Act and the Bald [MBTA] and Golden Eagle Protection Act [GEPA].
Previous to being elected to Congress I spent nearly 10 years as an
energy regulator in North Dakota. I oversaw 1,500 megawatts of new wind
development in a State that is the second leading producer of oil. The
famous migratory bird case in North Dakota is very familiar to me. Fish
and Wildlife Service agents scoured western North Dakota to find seven
dead ducks, and then brought charges through the Justice Department
against three oil companies. Fortunately a common sense Federal judge
threw the case out, but not until the Government wasted thousands of
dollars prosecuting lawful commercial activity by corporate citizens
who had to spend thousands of dollars defending themselves against
arbitrary and frivolous charges.
To contrast, a 2013 study suggested up to 573,000 birds are being
taken each year by wind farms and a 2013 Fish and Wildlife Service
study found at least 85 eagle mortalities at wind farms between 1997
and 2012 with only one enforcement case brought against a wind farm
operator so far.
I hope to find answers today as to why a well-funded and well-
staffed agency as demonstrated by their prosecution efforts in North
Dakota cannot respond to a congressional committee's request for
documents essential to their oversight responsibilities. Further, I
hope to gain an understanding of the agency's policies and procedures
for enforcing the MBTA and GEPA.
Thank you Mr. Chairman.
______
Prepared Statement of the American Wind Energy Association
The American Wind Energy Association [AWEA] appreciates this
opportunity to submit a statement regarding the wind energy industry's
wildlife impacts, our strong history of cooperation with wildlife
agencies, and our long history of proactively working to reduce and
mitigate our modest impacts. AWEA is the national trade association
representing a broad range of entities with a common interest in
encouraging the expansion and facilitation of wind energy resources in
the United States, including wind turbine manufacturers, component
suppliers, project developers, project owners and operators,
financiers, researchers, utilities, marketers, and customers.
Wind energy is becoming mainstream energy. In the last 5 years,
wind energy has represented 31 percent of all newly installed capacity,
second only to natural gas. There are more than 61,000 megawatts of
wind energy installed in 39 States and Puerto Rico. These wind turbines
provide electrical output equivalent to 53 average coal plants or 14
average nuclear plants.
This deployment of wind energy has contributed to over $20 billion
of investment in the United States annually, 550 manufacturing
facilities in 44 States serving the industry, support for 80,000 U.S.
jobs, $400 million in annual property taxes nationally to support
schools and other community needs, and lease payments to landowners of
around $120,000 per turbine over its lifetime to support family farms
and ranches, with 95-98 percent of the land remaining available for its
original use.
Wind energy is affordable. Due to growing innovation, wind energy's
costs have fallen 40 percent over just the last 5 years, with both the
Energy Information Administration and Lazard, a widely respected
private economic consulting firm, finding that wind energy is one of
the most affordable options for new electric generation, second only to
a natural gas combined cycle plant. Further, contracted wind energy is
guaranteed to remain affordable years into the future because it offers
long-term fixed price contracts for 15-25 years, something not
available for traditional energy sources due to volatile fuel costs.
Wind energy offers a hedge against such volatility in the same way a 30
year mortgage protects homeowners from rising interest rates.
Wind energy is reliable. Wind energy produces more than 25 percent
of the electric generation in Iowa and South Dakota, 12 percent or more
in 9 States and 5 percent or more in 17 States. Even higher levels of
wind energy have been integrated by grid operators in the lower plains
and Texas, 33 percent and 35 percent, respectively. In Chairman
Hastings' home State, wind energy provides nearly 6 percent of the
electric generation and 10 percent in Ranking Member DeFazio's State.
Grid operators in the upper Midwest and in Texas have confirmed that
integrating large amounts of wind has led to limited impact on the need
for reserve power.
All forms of energy production have some impact on wildlife and
their habitats. Wind energy is no exception. However, wind energy's
impacts are modest. Wind farms are responsible for the mortality of
less than 200,000 birds per year based on currently installed capacity.
This estimate is based on 109 post construction studies from 71 wind
energy facilities. The National Academy of Sciences found that less
than three in 100,000 (i.e., .0003 percent) human-caused bird
fatalities are attributable to wind energy. By contrast, buildings,
high tension lines, communications towers, vehicles and environmental
toxins kill millions to hundreds of millions of birds per year.
With respect to eagles, eagle fatalities occur at only a very small
number of facilities. Collisions with wind turbines are responsible for
less than 2 percent of all reported human-caused golden eagle
fatalities; and only a handful of bald eagle fatalities ever. Vastly
greater levels of mortality are attributable to power lines, vehicle
strikes, lead poisoning, drowning in water tanks, and illegal
shootings, among others.
The wind energy industry does more to study our impacts,
collaborate with wildlife agencies, make project adjustments to avoid
or reduce impacts, and mitigate for those that are unavoidable than any
other industry of which we are aware.
The wind energy industry began the National Wind Coordinating
Collaborative with State and Federal wildlife agencies and conservation
organizations in 1994. The NWCC focuses on wind and wildlife research
and site evaluation tools. In 2003, the wind industry joined Bat
Conservation International in founding the Bats and Wind Energy
Cooperative, which also includes support from Federal agencies, to
focus on research and mitigation to reduce impacts from wind energy to
bats. Industry representatives participated for more than 3 years along
with State wildlife officials, conservation organizations and
scientists on a Federal advisory committee established under President
George W. Bush that concluded by making by unanimous recommendations on
wind turbine siting guidelines to then Secretary Salazar. And, in 2007,
the wind energy industry and eight conservation organizations
established the American Wind Wildlife Institute to focus on wind and
wildlife research, mapping, mitigation and education.
The wind energy industry has widely embraced the Land-Based Wind
Energy Guidelines finalized by the U.S. Fish and Wildlife Service in
March 2012. These guidelines help ensure that the wind industry adheres
to a higher standard for wildlife protection than other industries. The
guidelines go beyond what is required by Federal law through
commitments to study and protect unlisted bat species and habitat for
unlisted species. The 71 pages of detailed guidance provide
recommendations on duration, scope and methodology of pre-construction
and post-construction monitoring (depending onsite risk, but generally
one year or more); best management practices for construction,
operations and decommissioning; and recommendations on adaptive
management, mitigation and research.
In April 2013, the Service finalized the Eagle Conservation Plan
Guidance for Land-Based Wind Energy. This 118 page document also
provides detailed recommendations for multiple years of pre-
construction research and post-construction monitoring, calculating
estimated impacts, and fully mitigating any impacts such that there is
no net loss to regional eagle populations.
The eagle take permit program process is more onerous than the
permit process under the Endangered Species Act, which covers species
that are more imperiled than the Bald and Golden Eagle Protect Act.
Congress authorized permits for take under the Bald and Golden Eagle
Protect Act decades ago. The original draft permit program for non-
purposeful take was proposed during the administration of President
George W. Bush in 2007. The permit is available for any non-purposeful
activity that could take eagles. It is not specific to wind energy.
Finally, with respect to law enforcement actions, the Service and
the Department of Justice Office have said they focus their resources
on investigating and prosecuting those who take migratory birds,
including eagles, without identifying and implementing reasonable and
effective measures to avoid the take. With respect to prioritizing
these enforcement efforts, both the Service and the Department of
Justice have stated that they consider a company's level of cooperation
and communication with the Service, as well as other agencies, as
appropriate means of identifying and implementing reasonable and
effective measures to avoid the take of species. Wind energy project
developers talk to State and Federal wildlife officials as they're
developing a project. They study the potential for wildlife impacts for
a year or more before deciding whether to continue pursuing a project.
They discuss the results of the studies with wildlife officials. If
wildlife officials make recommendations, the developer will to the
maximum extent practicable implement those recommendations, and
maintain internal records sufficient to document responses to
communications from officials. And, if issues arise after a project is
built, the project owner and operator will provide the information to
the Service and discuss ways to address the issue. Given this level of
engagement, transparency, and effort to reduce and mitigate impacts on
migratory birds, the wind energy industry has not been a high
enforcement priority in the past and should not be one in the future.
Wind energy is an important part of a diverse energy portfolio. The
industry takes our wildlife responsibilities seriously and will
continue to strive to reduce our modest impacts, including through
collaboration and cooperation with the Service, State wildlife
agencies, and other stakeholders.