[House Hearing, 113 Congress]
[From the U.S. Government Publishing Office]

PROTECTING THE RIGHTS OF PROPERTY OWNERS: PROPOSED FEDERAL CRITICAL
HABITAT DESIGNATIONS GONE WILD

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

OVERSIGHT FIELD HEARING

before the

COMMITTEE ON NATURAL RESOURCES
U.S. HOUSE OF REPRESENTATIVES

ONE HUNDRED THIRTEENTH CONGRESS

SECOND SESSION

__________

Wednesday, May 14, 2014 in Batesville, Arkansas

__________

Serial No. 113-71

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Printed for the use of the Committee on Natural Resources

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

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 Jared Huffman, CA
Rauul R. Labrador, ID Raul Ruiz, CA
Steve Southerland, II, FL Carol Shea-Porter, NH
Bill Flores, TX Alan S. Lowenthal, CA
Jon Runyan, NJ Joe Garcia, FL
Markwayne Mullin, OK Matt Cartwright, PA
Steve Daines, MT Katherine M. Clark, MA
Kevin Cramer, ND Vacancy
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
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CONTENTS

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Page

Hearing held on Wednesday, May 14, 2014.......................... 1

Statement of Members:
Crawford, Hon. Rick, a Representative in Congress from the
State of Arkansas.......................................... 5
Hastings, Hon. Doc, a Representative in Congress from the
State of Washington........................................ 3
Prepared statement of.................................... 4

Statement of Witnesses:
Creasy, Marcus, Arkansas Cattlemen's Association, Heber
Springs, Arkansas.......................................... 8
Prepared statement of.................................... 9
Day, Peter, Director, Camp Ozark, Mt. Ida, Arkansas.......... 10
Prepared statement of.................................... 11
Dohner, Cynthia, Southeast Regional Director, U.S. Fish and
Wildlife Service, Atlanta, Georgia......................... 12
Prepared statement of.................................... 14
Fox, Joe, State Forester, Arkansas Forestry Commission,
Little Rock, Arkansas...................................... 19
Prepared statement of.................................... 20
Hamilton, Gregory, Ph.D., Senior Research Economist,
University of Arkansas Little Rock, Institute for Economic
Advancement, Little Rock, Arkansas......................... 22
Prepared statement of.................................... 24
McDaniel, Roland, Principal, Senior Scientist, GBMc &
Associates, Bryant, Arkansas............................... 28
Prepared statement of.................................... 30
Pharr, Gene, Farmer, Lincoln, Arkansas....................... 26
Prepared statement of.................................... 27
Veach, Randy, President, Arkansas Farm Bureau, Little Rock,
Arkansas................................................... 35
Prepared statement of.................................... 37
Warner, Curtis, Director of Compliance and Support, Arkansas
Electric Cooperative Corporation, Little Rock, Arkansas.... 38
Prepared statement of.................................... 40

OVERSIGHT FIELD HEARING ON PROTECTING THE RIGHTS OF PROPERTY OWNERS:
PROPOSED FEDERAL CRITICAL HABITAT DESIGNATIONS GONE WILD

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Wednesday, May 14, 2014

U.S. House of Representatives

Committee on Natural Resources

Batesville, Arkansas

----------

The committee met, pursuant to call, at 10:00 a.m., in
Independence Hall, University of Arkansas Community College,
2005 White Drive, Hon. Doc Hastings [Chairman of the Committee]
presiding.
Present: Representative Hastings.
Also Present: Representative Crawford.
The Chairman. The House Committee on Natural Resources will
come to order. The committee is meeting here in Batesville,
Arkansas to hear testimony on ``Protecting the Rights of
Private Property Owners: Proposed Federal Critical Habitat
Designations Gone Wild.''
Since Mr. Crawford, your congressman, is not a member of
the Natural Resources Committee, without objection, he can sit
on the committee.
By way of introduction, I am Congressman Doc Hastings, and
I have the privilege of representing the 4th District in
Washington State. My district is in the eastern part of the
State, for those of you that are familiar with the State. It
runs from the Oregon border to the Canadian border. It is
largely rural in nature, very diverse agriculture, mainly
because of the irrigated crops that we grow, and I could make a
whole list of what those crops are. But I will say the slogan
``an apple a day keeps the doctor away'' is appropriate for my
district. So if you want to promote Washington apples, then you
are certainly welcome to do so.
But it is my privilege to be here, and I am here largely
because of the efforts of your congressman, Rick Crawford, and
because of the impact the Endangered Species Act may have on
this area with the potential listings that are being suggested.
So with that, let me turn it over to your congressman, Rick
Crawford, for the purposes of introduction.
Rick.
Mr. Crawford. Thank you, Mr. Chairman.
Again, I want to thank the Chairman not only for being here
but for allowing me the latitude to participate on the Natural
Resources Committee. I am not a member. However, this is very
important to our district.
Thank you all for being here today.
Being that this is a congressional hearing, we are going to
begin, as we do with every session of the House of
Representatives, with a prayer and posting of the colors and
the Pledge of Allegiance.
I would now like to recognize Pastor David Insell of
Believers Community Church of Batesville to offer today's
prayer.
[Prayer.]
Mr. Crawford. I would now like to recognize Cub Scout Pack
600, Trey Moody and Ben Gunderman, to post the colors.
[Colors.]
Mr. Crawford. If you would remain standing as our Cub
Scouts lead our Pledge of Allegiance.
[Pledge of Allegiance.]
[Applause.]
Mr. Crawford. Cub Scouts, don't go anywhere. I have a
presentation for you. If you want to come up here, we would
like to present our Cub Scouts Pack 600 with a flag that has
been flown over the House of Representatives to commemorate
their service today.
[Applause.]
Mr. Crawford. And I would like to recognize finally Mayor
Elumbaugh to say a few words before we get started.
Mr. Elumbaugh. Congressman, thank you very much, and
welcome everyone here to the city of Batesville. The city of
Batesville is the oldest city in the State of Arkansas. So,
guys, we are so thankful that you are here this morning.
Hopefully you will have the opportunity to go out and explore
our community, see some of the historic homes on Main Street,
as well as our beautiful White River.
With that being said, I would like to recognize a few of
the individuals in the audience today. We have Judge Robert
Griffin. I have a city councilman, I think, Mr. Tommy Bryant in
the audience; a Coram court member, Mr. Lackey Moody. So glad
to have you guys here today.
And, Congressman, we greatly appreciate you facilitating
this meeting, and your staff. It means a lot for us here in the
community. We believe in transparency, and like I said, welcome
here. I know we have individuals from Jackson County. Mr.
Lacey, I see you out there in the crowd. Glad to have our
neighbors over here.
So again, hope you enjoy your day. And committee, thank you
so much for taking time out of your busy schedule and being
here. Everyone enjoy. Thank you.
[Applause.]
The Chairman. Thank you very much.
Let me explain kind of how House committees work. The
committee starts generally with the Chairman and members making
an opening statement, and we try to keep those opening
statements to within a 5-minute time period.
Then after the members make their opening statement with
their observations, we will go to our panel, where they will
have an opportunity to present their statements. I will repeat
this later on, but they have all submitted a statement for the
record, and we will ask that they keep their oral statements
within 5 minutes.
Then after that, Mr. Crawford and I will ask questions as
may come up, and as long as there is interest, we will continue
with that process.
So that is the way the committee process works.
So with that, I will recognize myself for my opening
statement.

STATEMENT OF THE HON. DOC HASTINGS, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF WASHINGTON

The Chairman. As I mentioned, I am pleased to be here in
Batesville this morning with Congressman Crawford as part of
the committee's continued oversight of the Endangered Species
Act. That law is a law that has not been reauthorized for over
25 years. And it is a law that was designed to protect species,
but in its practice it has a recovery rate of less than 2
percent.
It is important that Congress and its committees listen
firsthand to how the Endangered Species Act impacts rural
communities.
While legitimate questions remain about whether listing two
mussels this year under ESA was warranted to begin with,
today's hearing has two specific purposes: first, to hear from
a variety of affected Arkansas private property owners and
other local interests about the potential impacts of the
Federal Government's critical habitat designations on private
property owners; and two, to explore concrete legislative
solutions, such as H.R. 4319, a bill that was introduced
several weeks ago that is sponsored by Mr. Crawford and the
other three members of the Arkansas delegation.
A little bit of background. The Obama administration has
allowed a ``sue and settle'' approach to dictate how Federal
taxpayer-funded resources are used to prioritize endangered
species activities. This happens when extreme environmental
groups sue the Federal Government, which in turn then settles
with that group behind closed doors. Now, that settlement
happens without input from the very people that are potentially
impacted by that settlement.
Nationwide, ramped-up ESA listings and habitat designations
through closed-door settlements are disrupting many facets of
American life including rural economies, recreation, energy
development, and private landowners' use of their own property.
Here in Arkansas and in other southeast States, the Fish and
Wildlife Service has proposed to designate 769 miles of rivers
and streams in 28 Arkansas counties as critical habitat for the
Neosho Mucket and the Rabbitsfoot Mussel. I am told that in
several areas these species haven't been seen for years, or at
all.
Now, the Fish and Wildlife Service, in response to several
groups' petition--and these several groups, by the way, in
their petition they say, and I quote, ``a Southeast freshwater
extinction crisis exists''--is also in the process of deciding
whether another listing is warranted for 370 more species of
crayfish, plants, mollusks, moths, flies, frogs, and fish. Now,
the geographic area for this is essentially the whole
southeastern part of the United States. It is not a small area.
Listing hundreds of new ESA species could significantly
alter hydropower-producing dams, agriculture, logging, mining,
fish aquaculture, and a host of other vital economic and
private interests.
I want to note that we invited those people that petitioned
to have these species listed to testify here in front of this
committee, but they declined to do so. Now, I think that is a
bit, honestly, irresponsible, because it was their petition
that caused the listing that has the potential negative impact
on people in this area, and they were invited to attend a
congressional hearing and refused to do so. Well, I just don't
think that is a very good policy, to be very honest with you.
Despite what some say, these policies do have costs. Last
year the Obama administration finalized a regulation that
effectively shut out Congress, States, and the American public
from accurately identifying the true costs of ESA listings.
Already, millions of acres of public and private property
nationwide have been included in habitat designations that will
dramatically impact the future of those lands.
I believe that the analysis put forward for these proposed
mussel designations vastly understates the costs to the
citizens of this State. Longer term, legislation is needed to
require more transparency for the true costs of these listings
and habitat designations, and to limit them to areas where the
costs do not outweigh the benefits.
So, I appreciate the efforts of my colleagues and others to
do just that and look forward to hearing from our witnesses
today on how to improve the outlook for maintaining these
species and to protect private property rights.
[The prepared statement of Mr. Hastings follows:]
Prepared Statement of the Hon. Doc Hastings, Chairman, Committee on
Natural Resources
I'm pleased to be in Batesville this morning with Congressman
Crawford as part of the committee's continued oversight of the
Endangered Species Act. It is a law which has not been reauthorized in
25 years, and it is a law that was designed to protect species but has
a less than 2 percent recovery rate. It is important that Congress
travel to listen firsthand how the Endangered Species Act impacts rural
America.
While legitimate questions remain about whether listing two mussels
last year under ESA was warranted to begin with, today's hearing has
two specific purposes: (1) to hear from a variety of affected Arkansas
private property owners and other local interests about the potential
impacts of the Federal Government's critical habitat designations on
private property owners and (2) to explore concrete legislative
solutions, such as H.R. 4319, a bill introduced several weeks ago by my
colleague, Congressman Crawford, and co-sponsored by Congressmen
Cotton, Womack and Griffin, to address this problem.
The Obama administration has allowed a `sue and settle' approach to
dictate how Federal taxpayer-funded resources are used to prioritize
endangered species activities. This happens when an extreme
environmental group sues the Federal Government, which in turn settles
with that group behind closed doors. That settlement happened without
input from the very people the decision affects. Nationwide, ramped up
ESA listings and habitat designations and closed-door settlements are
disrupting many facets of American life including rural economies,
recreation, energy development, and private landowners' use of their
own property.
Here in Arkansas and in other southeast States, the Fish and
Wildlife Service has proposed to designate 769 miles of rivers and
streams in 28 Arkansas counties as critical habitat for the Neosho
Mucket and the Rabbitsfoot mussel. I'm told that in several areas the
species haven't been seen for years, or at all.
The Service, in response to several groups' petition they call ``a
Southeast freshwater extinction crisis,'' is also in the process of
deciding whether listing is warranted for another 374 species of
crayfish, plants, mollusks, moths, flies, frogs, and fish. The
geographical area for this petition is in Arkansas, Alabama, Florida,
Georgia, Kentucky, Louisiana, Mississippi, North Carolina, South
Carolina, Tennessee, Virginia and West Virginia. Not a small area.
Listing hundreds of new ESA species could significantly alter
hydropower-producing dams, agriculture, logging, mining, fish
aquaculture, and a host of other vital economic and private interests.
I want to note that we invited the head of the Fish and Wildlife
and representatives of the petitioning groups to explain their views.
Each declined to be here, which unfortunately demonstrates how little
regard they apparently have for those most affected by their litigation
and the potential sweeping policies that follow. They are the ones
responsible for what we are hearing about today and their absence says
a lot.
Despite what some say, these policies do have costs. Unfortunately,
last year the Obama administration finalized a regulation that
effectively shut out Congress, States and the American public from
accurately identifying the true costs of ESA listings and critical
habitat designations. Already, millions of acres of public and private
property nationwide have been included in habitat designations that
will dramatically impact the future value and multiple uses of those
lands.
I believe the analysis put forward for these proposed mussel
designations vastly understates the costs to the citizens of Arkansas
and other States. Longer term, legislation is needed to require more
transparency for the true costs of these listings and habitat
designations, and to limit them to areas where the costs do not
outweigh the benefits.
I appreciate the efforts of my colleague and others to do just that
and look forward to hearing from our witnesses on how to improve the
outlook not just for species but for the American people. We can help
truly endangered animals but we cannot stand idly by when policies
mandated the Federal Government and their environmental friends stand
to make rural America THE endangered species.

______

The Chairman. With that, I will yield to Mr. Crawford for
his opening statement.

STATEMENT OF THE HON. RICK CRAWFORD, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF ARKANSAS

Mr. Crawford. I thank the Chairman again for coming to
Batesville today to hear firsthand from my fellow Arkansans
about the wide-ranging and direct impact that actions by the
Federal Government have on us, its citizens.
I would also like to thank the witnesses who have agreed to
appear today and share with us their knowledge and experience.
And last, I want to thank all in attendance for making the
time to be here as well.
Today's hearing asks a few simple questions. Should the
Federal Government measure the actual cost to lives and
livelihoods of designating a particular area as critical
habitat? And should the Federal Government weigh that cost
against the conservation benefit?
Last year I learned that a significant portion of the
waterways in my district could be designated critical habitat
for the Neosho Mucket and Rabbitsfoot Mussels. I also learned
at the time that the U.S. Fish and Wildlife's new method of
measuring the economic impact of such a broad designation, with
the potential to affect tens of thousands of my constituents
and countless farms, small and large businesses, and
municipalities, would be entirely made up of merely the cost of
Federal agencies consulting with each other on compliance.
Under this so-called incremental approach, now favored by
Fish and Wildlife Service, there would be no consideration for
the potential loss of the use of land and water and for
activities such as farming and manufacturing which use water or
the waterways falling under this designation. The Federal
Government would not examine how this broad designation could
cost the people and businesses of my district the loss of the
use of their land, the loss of their jobs, or the very real
threat of new, burdensome, and unexpected regulatory costs.
This incremental approach basically measures the cost of
paperwork and bureaucracy. It hides the real and true economic
impact of designating areas as critical habitat from the
American public and fails to provide the needed information to
measure and reveal the true cost to lives and livelihoods
weighed against the relative benefit gained.
It has not always been this way. The U.S. Fish and Wildlife
Service used an approach in the past for many years that
measured the true cost of designating particular areas in terms
of lost use, increased cost and loss of jobs. This so-called
cumulative approach gives a true picture of the cost of
designating a particular area as critical habitat and permits
an accurate and transparent measure of the true impact on
people, businesses, and municipalities, versus the benefits
gained.
In response, I have recently introduced legislation called
the Common Sense in Species Protection Act, or H.R. 4319, which
not only calls for the true measure of the cost of a
designation in lives and livelihoods but for that cost to be
considered when the Federal Government decides which areas will
and will not be covered. This legislation simply requires the
Federal Government to be more transparent, accountable, and
fair to those potentially impacted by critical habitat
designations.
I would like to point out that this legislation does not
change the actual listing process at all. The very last part of
the bill specifically states that. It does, however, say that
Fish and Wildlife Service should go back to using the
cumulative method and measure the real cost to those who live
and work inside proposed boundaries.
I am very happy that we are here in Batesville today to
hear firsthand from fellow Arkansans about their concerns on
this important issue. Even now, as Fish and Wildlife Service
reopens the comment period yet again, the economic analysis
only considers the cost of government bureaucracy and ignores
the true cost to the lives and livelihoods of those who live
across the proposed area.
Once again, thank you, Mr. Chairman, for coming here to
Batesville to hear the concerns of those who will be most
impacted not only by the critical habitat designation but by
the manner in which the economic impact is calculated. I
encourage all here today who have something to say to please
write down your thoughts on one of the comment forms in the
back. We will read all of them, and all will be submitted to
become part of the official record of this hearing.
And with that, I yield back.
The Chairman. I thank the gentleman very much, and I again
want to thank him for asking us to be here. I think this is a
very important hearing, and I will say that by way of
background. I mentioned I am from the Northwest, and the
Endangered Species Act for the last generation-and-a-half has
had an impact on the Northwest from the standpoint of logging
and fish, particularly salmon in the Columbia River system. So
we have been impacted for some time, but most of the impacts of
the Endangered Species Act nationwide, not entirely but most of
it, has been in the Pacific Northwest.
With this mega-listing that happened several years ago by
the Obama administration, it is now affecting other parts of
the country, and you are seeing now firsthand, and that is the
reason for this hearing, and I want to again thank Rick for
pressuring us hard to come here, and I am glad that we are
here.
Now we are going to hear from our witnesses, and as I
mentioned earlier, all of you were asked to submit a written
statement which will be part of the record. But I would ask you
to keep your oral remarks within the 5 minutes.
We have these little timing lights here. You have one in
the middle of your table. I will explain how that works. It is
kind of like a traffic light. When the green light is going,
you are just doing famously well because you have a total of 5
minutes. And then when the yellow light comes on, that is just
like when you are going through the traffic lights, you speed
up. Then comes the red light. If you could just wrap up your
remarks within that timeframe, we would very much appreciate
it.
Also, at the front of the room there are comment forms if
anybody here would like to comment on what we are talking about
here, which is principally the Endangered Species Act, or you
can go to the Natural Resources Committee Web site. It is
naturalresources.house.gov. If you press ``Contact Us,'' then
you can make your comments there. So I would invite you to do
that.
Our witnesses here today are: Mr. Marcus Creasy, who is
from the Arkansas Cattlemen's Association out of Heber Springs
here in Arkansas; Mr. Peter Day, Director, Camp Ozark from Mt.
Ida, Arkansas; Ms. Cynthia Dohner, the Southeast Regional
Director of the U.S. Fish and Wildlife Service from Atlanta--
thank you for being here; Mr. Joe Fox is the State Forester
from the Arkansas Forestry Commission in Little Rock; Mr.
Gregory Hamilton, Ph.D., Senior Research Economist from the
University of Arkansas Little Rock, Institute for Economic
Advancement; Mr. Roland McDaniel, Principal, Senior Scientist
at GBMc and Associates out of Bryant, Arkansas; Mr. Gene Pharr,
a farmer in Lincoln, Arkansas; Mr. Randy Veach, President of
the Arkansas Farm Bureau in Little Rock; and Mr. Curtis Warner,
Director of Compliance and Support for the Arkansas Electric
Cooperative Corporation out of Little Rock.
As I mentioned earlier, there were two individuals that we
did invite, Mr. Noah Greenwald, the Endangered Species Director
for the Center for Biological Diversity, one of those that was
pushing the petition to list these species from Portland,
Oregon; and Ms. Cyn Sarthou, Executive Director of the Gulf
Restoration Network of New Orleans, to testify in front of this
committee. Since the impact of their petition has such a huge
impact, I thought it would be only right that they attend. But
they did not, and I think their empty chairs, frankly, speaks
volumes about where we are in this.
So, with that, let me recognize Mr. Marcus Creasy with the
Arkansas Cattlemen's Association.
You are recognized for 5 minutes.

STATEMENT OF MARCUS CREASY, ARKANSAS CATTLEMEN'S ASSOCIATION,
HEBER SPRINGS, ARKANSAS

Mr. Creasy. Thank you, Mr. Chairman. First I would like to
thank you and the committee for coming to Arkansas to hold a
field hearing at Congressman Crawford's request. My name is
Marcus Creasy. I am a cattle producer from Drasco, Arkansas. I
am also the Immediate Past President of the Arkansas
Cattlemen's Association. We have been working with endangered
species since 2010/2011 with the notification of the Yellow
Cheek Darter. That has come into my part of the world,
personally touches our county, so we have been dealing with
this for just a little while.
Before I start right into my written testimony, I would
like to make note that we have some additional comments. When
friends from across the United States understood we were coming
in to give testimony, I have a paper that I would like to leave
to put into the official record from our friends.
The Chairman. Without objection, that will be part of the
record.
Mr. Creasy. Thank you, sir, from our friends from across
the West that have been dealing with endangered species and the
critical habitat designations, so I would like to include
those.
But for my comments, I feel this hearing today is
imperative for you to hear directly from the producers affected
by U.S. Fish and Wildlife's regulation overreach with
designations of critical habitat and economic impact studies
that are not all inclusive, as has been stated already. Many
times, critical habitat designations list cattle as being
detrimental to populations of species listed, as well as their
habitat. Also, many times critical habitat designations are
expanded to include private property owned by cattlemen even
when the primary constituent elements for the listed species'
habitat are not present; for example, the Yellow Cheek Darter
that we dealt with.
A prime example is that Darter in the 4 forks of the Little
Red and their tributaries above the Greers Ferry Dam. Not only
did this designation include language to list cattle ranching
as being a negative impact upon species population and habitat,
but initially a large percentage of the designation was outside
of those high-water marks for those streams, while all the
primary constituent elements that have to be present for the
healthy habitat lie within those high-water marks.
At this point, what is needed for the extra acreage to be
included in the designation, if not for control? And why would
the economic analysis not include the negative economic impact
from taking this acreage out of production or limiting the
landowner's property rights, as we have already kind of heard?
When we as cattlemen are listed as an adverse modification
within the critical habitat designation, why are those points
left out of the economic impact? Why are stakeholder meetings
not scheduled? Why are they not coming to we, as producers,
directly when they know that it is supposedly adversely
affecting these species?
These are questions we have with U.S. Fish and Wildlife's
overreaching regulations. We understand that they have a job to
do, we do understand that, but there needs to be adequate
transparency. There needs to be full and thorough economic
studies complete on all implications before designation is set,
and then open lines of communication with all involved so that
those designations have minimal impact to the established
economy inside the designation while allowing for protection of
the species and its habitat.
It is hard for us at the end of the day to believe the only
impact is agency consultation when cattle production keeps
being listed as an adverse modification. Therefore, we have
concerns with critical habitat designations and believe the
U.S. Fish and Wildlife should be more transparent with
information concerning listing of species and the critical
habitat designations, more complete with their economic
analysis and not just limit those economic impacts to agency
consultations, and more forthcoming with open lines of
communication to stakeholders' involvement.
Arkansas is a rural State. Farming and ranching are still
the lifeblood to a large percentage of our local communities
and their survival. Understanding that Fish and Wildlife has a
job to do, it would be nice if they would remember that point.
Again, on behalf of the cattlemen of Arkansas, I would like
to thank the committee for showing their concern of Federal
agency overreach and hosting this field hearing today, and
would also like to thank Congressman Crawford and his staff for
standing up for Arkansas agriculture.
I would be more than happy to answer any questions that the
committee might have at this time. Thank you again very much.
[The prepared statement of Mr. Creasy follows:]
Prepared Statement of Marcus Creasy, Arkansas Cattlemen's Association,
Heber Springs, Arkansas
First I would like to say thank you to the committee for coming to
Arkansas to hold a field hearing at Congressman Crawford's request. My
name is Marcus Creasy and I am a cattleman from Drasco, AR. I am also
the Immediate Past President of the Arkansas Cattlemen's Association.
I feel this hearing today is imperative for you to hear directly
from the producers affected by U.S. Fish and Wildlife's regulation
overreach with designations of Critical Habitat and economic impact
studies that are not all inclusive. Many times Critical Habitat
designations list cattle as being detrimental to populations of the
species listed as well as their habitat. Also many times Critical
Habitat designations are expanded to include private property owned by
cattlemen even when the primary constituent elements for the listed
species' habitat are not present.
A prime example would be Critical Habitat for the Yellow Cheek
Darter in the 4 forks of the Little Red River and their tributaries
above the Greers Ferry Dam. Not only did this designation include
language to list cattle ranching as being a negative impact upon
species population and habitat, but initially a large percent of the
designation was outside the high water marks for these streams while
all the primary constituent elements that have to be present for the
healthy habitat for species growth is not outside the high water mark.
At this point what is the need for the extra acreage to be included
in the designation if not for control, and why would the economic
analysis not include the negative economic impact from taking this
acreage out of production or limiting the land owner's property rights?
When we as cattlemen are listed as an adverse modification within the
Critical Habitat designation why are those points left out of the
economic impact, why are stakeholder meetings not scheduled?
These are the questions we have with U.S. Fish & Wildlife's
overreaching regulation. We understand they have a job to do, but there
needs to be adequate transparency, there needs to be full and thorough
economic studies complete on all implications before designation is
set, and then open lines of communication with all involved so that
designations have minimal impact to the established economy inside the
designation while allowing for protection of the species and its
habitat.
It is hard for us at the end of the day to believe the only impact
is agency consultation when cattle production keeps being listed as an
``adverse modification,'' therefore we have concerns with critical
habitat designations and believe the U.S. Fish & Wildlife should be
more transparent with information concerning listing of species and
critical habitat designations, more complete with their economic
analysis and not just limit economic impacts to agency consultations,
and more forthcoming with open lines of communication to stakeholders
involvement.
Arkansas is a rural State and farming and ranching are still the
lifeblood to a large percent of our local communities and their
survival. Understanding that U.S. Fish & Wildlife has a job to do, it
would be nice if they would remember this point.
Again on behalf of the cattlemen of Arkansas, I would like to thank
the committee for showing their concern of Federal agency overreach and
hosting this field hearing here today and would also like to thank
Congressman Crawford and his staff for standing up for Arkansas
agriculture.
I would be more than happy to answer any questions the committee
might have, again thank you for allowing me to give testimony.

______

The Chairman. Thank you very much, Mr. Creasy.
I will now recognize Mr. Peter Day, Director of Camp Ozark
from Mt. Ida, Arkansas.
You are recognized for 5 minutes.

STATEMENT OF PETER DAY, DIRECTOR, CAMP OZARK, MT. IDA, ARKANSAS

Mr. Day. Again, I would also like to thank Chairman
Hastings, Congressman Griffin for bringing this to Arkansas. I
am Pete Day. I work for Camp Ozark and Camp War Eagle, and we
are a residential summer camp. We are an educational and
Christian summer camp in Mt. Ida, Arkansas, specifically Camp
Ozark is. Camp Ozark is located along the banks of the Upper
Ouachita River, close to the RF4A. We are actually on that
section of designated habitat.
Every summer, Camp Ozark brings over 5,000 campers from 35
different States to Arkansas for a summer camp experience. We
have campers from many foreign countries that come to Arkansas
to participate in the summer camp experience. Our camp not only
gives kids an impact on their lives, but we are actually the
second-biggest employer in our county in Arkansas.
Our impact on our county is over $8.2 million a year, and
that has doubled from 10 years ago when we first did the study.
So we have a significant not only cultural impact but economic
impact on our area.
In addition to many summer staffers, we have year-round
employees who depend on the success of our camp to support
their families. We offer over 120 programs and classes to our
campers. And as you can imagine, many of them center around the
Ouachita River. We feel blessed to have our property along that
river and certainly appreciate the value of that resource.
Every summer, our campers look forward to fishing,
canoeing, and swimming in the river. We think it has truly been
a major factor in our camp's success, and it is certainly one
of the things that helps draw families to Camp Ozark every
year. It is why younger siblings can't wait to follow older
ones to camp, and why we now have former campers and staffers
that bring their children to our facilities. The picturesque
Ouachita River retreat truly has become a family tradition for
thousands of people across this country.
We are concerned that the proposed critical habitat
designation for the Rabbitsfoot Mussel along the Upper Ouachita
will interfere with many of our river activities, and it has
become a major part of our experience. In addition, the
designation on our portion of the river seems to be especially
burdensome since, to my understanding, it has not been
confirmed that in this section of river there is a mussel that
has actually been there.
Furthermore, we are disappointed that the Service is not
required to take into consideration the major economic impact
that such designation has on this area's businesses and local
economy. I, too, appreciate and applaud the efforts that are
underway to change that by requiring the Service to conduct
true economic impact studies. It only makes sense that when
considering the critical habitat designations, the agency
should have an accurate picture of how the proposals will
actually affect communities and the property owners who live
there.
As you know, once these designations are in place, they can
be extremely rigid and limiting on exactly what kinds of
activities are permitted. Even seemingly minor acts like
boating could conceivably be found to have an adverse impact.
We are concerned that the critical habitat designation
would greatly interfere with many of Camp Ozark's river
activities. If our campers are unable to enjoy the river as
they have for decades, it would be a blow to our recruitment
efforts, a potential blow to our operation, and our local
economy.
We think it is important to preserve our environment and
take care of our natural resources. We feel fortunate to be
along the Ouachita, and we feel a duty to protect it. However,
we do favor a commonsense approach, and we oppose the critical
habitat designation.
Again, thank you for coming to Arkansas, and thank you for
your time. We appreciate it.
[The prepared statement of Mr. Day follows:]
Prepared Statement of Peter Day, Director, Camp Ozark, Mt. Ida,
Arkansas
My name is Pete Day, and I'm with Camp War Eagle and Camp Ozark.
Camp Ozark is a residential and educational Christian summer camp in
Mt. Ida, Arkansas. We're located along the upper banks of the beautiful
Ouachita River.
We are proud to have been operating there for more than three
decades now, and we have grown into a world-class facility that every
summer draws 5,600 campers from 35 States and several foreign
countries. We have a major economic impact on our part of the State. In
fact, we are one of the top two employers in Montgomery County, and
have an estimated impact of $8.2 million on the Central Arkansas
economy every year. In addition to our many summer staffers, we have
many year-round employees who all depend on the success of our camp to
support their families.
We offer over 120 programs and classes to our campers. As you can
imagine, many of them center around the Ouachita River, which we feel
blessed to have along our property. Every summer, our campers look
forward to fishing, canoeing, and swimming in the river--we think it
has truly been a major factor in our camp's success, and it is
certainly one of the things that helps draw families to Camp Ozark
every year. It's why younger siblings can't wait to follow older ones
to camp, and why we now have former campers and staffers bringing their
children to our facilities. Our picturesque Ouachita River retreat
truly has become a family tradition for thousands of people across the
country.
We are concerned that the proposed Critical Habitat designation for
the rabbitsfoot mussel along the Upper Ouachita will interfere with
many of the river activities that have become a major part of our kids'
camp experience. In addition, a designation on our portion of the river
seems especially burdensome, since by my understanding, it has not been
confirmed that this section actually harbors the species. Furthermore,
we are disappointed that the Service is not required to take into
consideration the major economic impact that such designation has on an
area's businesses and local economy. I appreciate and applaud the
efforts underway to change that . . . by requiring the Service to
conduct a true economic impact study. It only makes sense that when
considering Critical Habitat designations, the agency should have an
accurate picture of how the proposals will actually affect communities
and the property owners who live and work there.
As you know, once these designations are in place, they can be
extremely rigid and limiting on exactly what kinds of activities are
permitted. Even seemingly minor acts like boating could conceivably be
found to have an adverse impact.
We are concerned that critical habitat designation would greatly
interfere with many of Camp Ozark's river activities. If our campers
are unable to enjoy the river as they have for decades, it would be a
blow to our recruitment efforts, and a potential blow to our operation
AND to our local economy.
We think it's important to preserve our environment, and to take
care of our natural resources. We feel fortunate to be along the
Ouachita, and we feel a duty to protect it. However, we favor a common-
sense approach, and we oppose this Critical Habitat designation.
Again, thank you for coming to Arkansas, and for listening to my
concerns regarding this important issue.

______

The Chairman. Thank you very much, Mr. Day, for your
testimony.
I now will recognize Ms. Cynthia Dohner, the Southeast
Regional Director of the U.S. Fish and Wildlife Service from
Atlanta.
You are recognized for 5 minutes.

STATEMENT OF CYNTHIA DOHNER, SOUTHEAST REGIONAL DIRECTOR, U.S.
FISH AND WILDLIFE SERVICE, ATLANTA, GEORGIA

Ms. Dohner. Thank you, sir. Good morning, Chairman Hastings
and Representative Crawford. I am Cindy Dohner, the Southeast
Regional Director for U.S. Fish and Wildlife Service, and I
appreciate the opportunity to testify on the Service's
experience with designating critical habitat under the ESA.
Here in the Southeast, we are committed to ensuring plants
and animals and their habitats stay forever wild while
accomplishing conservation in a way that keeps working lands
working. We are responsible for implementing the law as it
stands and are relying on its flexibilities to proactively
conserve species and gain control of our workload.
The Southeast is a hotspot of aquatic biodiversity, and
many of those species may be in trouble. We are encouraging
voluntary conservation to hopefully avoid the need to list and
provide regulatory certainty to landowners through agreements
when protection under the Act is needed.
Between our listing work plan and petitions, the Southeast
Region is required to determine if more than 400 species need
Federal protection over the next decade. Forty-eight are in
Arkansas. We need stakeholders to be engaged and help us in
this work as we move forward. We are working to raise awareness
that listing has consequences for landowners. The decision to
add a plant or an animal to the Endangered Species List
triggers all other ESA requirements, including the requirement
to consider if critical habitat is essential for species
recovery.
Critical habitat proposals are based on the best available
scientific and commercial information. Private landowners are
key to species conservation and providing that information.
There are a variety of tools we can use to encourage voluntary
efforts and assist landowners to use lands as needed in a way
that helps conserve species.
I know Arkansans are interested in our ESA actions for the
Neosho mucket and the rabbitsfoot mussels. We proposed listing
and critical habitat for the two mussels in October 2012. Since
then, we finalized their listing and provided 150 days for
public comment on a proposal that designates 783 river miles as
critical habitat in Arkansas. It is less than 8 percent of the
State's total stream miles. The proposed critical habitat is
limited to the river itself.
I believe that confusion over what critical habitat is and
what it is not is at the heart of many of the concerns we hear.
Critical habitat designations do not affect landownership and
do not impose liens. They do not allow the government to take
or manage private property. They do not establish a refuge or
other conservation areas. Designating critical habitat affects
those activities that are performed, funded, or authorized by a
Federal agency such as building a dam or a highway. If that
activity is likely to have an impact on a listed species or the
critical habitat, the Federal agency consults with the Service,
and then we develop conservation measures that allow the
activity to go forward while conserving the species.
The Service has consulted for decades on Federal actions in
Arkansas simply due to the presence of other listed mussels,
fish, in the same rivers, or proposed critical habitat with the
Neosho mucket and the rabbitsfoot. There are 37 species
currently listed in the State of Arkansas. Ninety-nine percent
of these informal consultations, 99 percent, were completed in
less than 30 days with no project delays.
I recognize that some stakeholders are concerned about the
economic impacts of critical habitat. The ESA does not allow us
to consider economic impacts in our listing decision, but does
require us to evaluate and consider probable economic impacts
resulting from critical habitat. Since critical habitat applies
only to Federal actions, the economic analysis identifies costs
primarily associated with interagency consultation.
For the two mussels, the average person should not incur
any additional cost associated with critical habitat
designation over and above what is required for the listing.
Last month, Director Ashe and I came to Little Rock and met
with numerous stakeholders, some of which are here today. I am
happy to say that the 60-day comment period opens today, as
committed during that meeting, and in June we will host two
public meetings, one in Batesville and another in Benton.
Raising awareness and requesting engagement on these issues
and all of these species that are imperiled began nearly 18
months ago when we met with groups in Hot Springs. I let them
know that it is not my goal to add plants and animals to the
Endangered Species List. Instead, in the Southeast we are
working with the States, industry, Federal agencies, and
private landowners to employ innovative conservation strategies
so Federal protection for many species is not needed. We want
State species to stay under the State management.
With the States leading the way, and sound science as our
guide, we are prioritizing species and pulling resources to
acquire the best science, documenting conservation activities
already taking place, and using voluntary, non-regulatory tools
to proactively conserve as many at-risk species as possible,
thereby preventing the need to list species under the ESA.
The results are promising. Together, we have determined
listing is not needed for nearly 40 species, and we are working
to put together conservation tools and put these tools in place
that provide landowners with stability and clear expectations.
This collaborative effort will help States maintain management
authority over the species.
I appreciate the opportunity to testify today and would be
glad to answer any questions.
[The prepared statement of Ms. Dohner follows:]
Prepared Statement of Cynthia K. Dohner, Southeast Regional Director,
U.S. Fish and Wildlife Service, Department of the Interior
Good morning Chairman Hastings and members of the committee. I am
Cindy Dohner, Southeast Regional Director for the U.S. Fish and
Wildlife Service (Service) within the Department of the Interior. As
Regional Director, I provide leadership and oversight for the Service's
conservation work across 10 southeastern States, Puerto Rico, and the
U.S. Virgin Islands. Mr. Chairman, I appreciate the opportunity to
discuss the Service's administration of the Endangered Species Act
(ESA), especially our experience with critical habitat designations and
the proactive work with States we are doing in the Southeast.
The Service is committed to making the ESA work for the American
people to accomplish its purpose of conserving threatened and
endangered species and protecting the ecosystems upon which they
depend. In passing the ESA, Congress recognized we face an extinction
crisis. Since that time, the ESA has prevented the extinction of
hundreds of species and promoted the recovery of many others. This
great conservation work has helped achieve Congress's call to preserve
the Nation's natural resource heritage, and it has happened alongside
sustained economic development. It is more important now than ever to
have an effective, collaborative approach to conserving imperiled
species.
The Service's biologists are working to complete the actions
identified in its 5-year listing workplan that was solidified in the
Multi-District Litigation settlement agreement. The workplan is
publicly available at www.fws.gov/endangered/improving_esa/
listing_workplan_FY13-18.html. At the same time, the Service is taking
proactive steps with multiple partners to limit the need to list
species where possible.
Here in the Southeast Region, we are working with States, industry,
Federal agencies, and large private landowners to employ creative,
innovative, and voluntary strategies in the implementation of the ESA
that are producing positive results for conservation, industry, and
local economies. The results of this State-led collaboration are
promising so far. Through these collaborative efforts, the Service has
determined that listing is not needed for nearly 40 species, and are
working with partners to put in place conservation tools that provide
landowners with stability and clear expectations.
Our objective is to conserve species in a way that comports with
the ESA, protects our southern way of life, continues to allow working
lands to work, considers the probable economic impacts where possible,
and ensures the enduring tradition of outdoor recreation that is so
important to many of our citizens. I look forward to adding my
perspective to this discussion today about the proposed critical
habitat designation for the federally listed Neosho mucket and
rabbitsfoot mussels.
listing and designating critical habitat
Listing a species under the ESA is initiated either by the Service
or through a petition from the public. This process is defined under
Section 4(a) of the ESA. If listing is warranted, the Service must
evaluate the information in its files and gather as much information on
the species as possible from States, conservation partners, industry,
and researchers, among others, to ensure we are using the best
scientific and commercial information available to develop a listing
proposal based on the factors described in Section 4(a) of the ESA. The
proposal identifies threats (e.g., modification of habitat) and
possible measures to address those threats, and any proposal must also
have a public comment period and stakeholder engagement. We need to
ensure that stakeholders such as landowners and businesses are engaged
in the process during the proposed listing because it is that action--
whether to list or not--that triggers the regulatory compliance under
the ESA and the other statutory requirements.
There are numerous species that are listed under the ESA that do
not have critical habitat designated at this time. For example, in
Arkansas there are 37 listed species, and only two have critical
habitat designated and two have critical habitat proposed.
When the Service proposes an animal or plant for listing, another
statutory requirement under Section 4 of the ESA is triggered to
consider whether there are areas of habitat determined to be essential
to the species' recovery and to designate any such areas as critical
habitat. The Service proposes critical habitat designations based on
the best available scientific and commercial information on what an
animal or plant needs to survive, reproduce, and recover. This proposal
is then evaluated by interested stakeholders and the public. It is only
after this public comment period and stakeholder involvement that the
Service makes a final determination on the boundaries of the critical
habitat.
Critical habitat designations do not affect land ownership or
impose liens on property. Designating critical habitat does not allow
the government to take or manage private property nor does it establish
a refuge, reserve, preserve, or other conservation area. It also does
not allow government or public access to private land. The designation
only affects those activities that are performed, funded or authorized
by permit of a Federal agency.
Under Section 7(a)(2) of the ESA, Federal agencies are required to
consult with the Service to ensure that their actions do not jeopardize
the continued existence of a listed species or adversely modify its
critical habitat that the species needs to recover. The Service works
with Federal agencies through the consultation process to avoid or
minimize impacts to a species and critical habitat by developing
appropriate conservation measures that can be incorporated into the
project or, if needed, a biological opinion. In most cases, these
conservation measures would be carried out regardless of whether
critical habitat is designated because the species is listed under the
ESA. Interagency consultation on critical habitat often does not result
in additional conservation measures beyond what would already be
required because of the listing itself in areas occupied by the
species.
The Service may exclude an area from critical habitat if it
determines the benefits of excluding the area outweigh the benefits of
including it as critical habitat, provided such exclusion will not
result in the extinction of the species. Critical habitat exclusions
are possible for lands that have secure, long-term conservation plans
in place that are being implemented and benefit the species, and/or
based on national security or economic impacts.
Just last week, the Service published a proposed policy to provide
greater predictability, transparency and consistency regarding how the
Services consider exclusions from critical habitat designations. Under
the ESA, the Service evaluates the economic, national security and
other impacts of a designation and may exclude particular areas if the
benefits of doing so are greater than the benefits of designation. This
proposal describes the general policy position of the Service for
considering different types of impacts (e.g., impacts to voluntary
conservation agreements, impacts to national security, economic
impacts) and is intended to provide greater predictability and
transparency to the process of considering exclusions within a critical
habitat designation.
considering economic impacts
The Service is required under section 4(b)(2) of the ESA to
evaluate and consider probable economic and national security impacts
along with other relevant factors resulting from the designation of
critical habitat. Since critical habitat applies only to Federal
actions, draft economic analyses identify costs primarily associated
with interactions (consultations) between Federal agencies.
The ESA does not allow the Service to consider economic impacts
when making listing determinations. For that reason, the Service
focuses its economic impact analyses on the incremental effects
resulting from a critical habitat designation. These impacts are over
and above economic impacts that result from the listing action itself.
This methodology is supported by Executive Order 12866, Office of
Management and Budget Circular A-4 (issued in 2003), a 2008 Memorandum
Opinion from the Solicitor of the Department of the Interior and
relevant case law. The Service has consistently used this approach for
economic analyses of critical habitat designations that occur in most
States, including those in the Southeast, since 2007. This approach was
codified in revisions to the ESA implementing regulations in October
2013.
Economic impacts of designating critical habitat are weighed
against the benefits of designating critical habitat. Based on our
experience and analysis with other listed mussels in Arkansas and the
Southeast Region, the data suggests that the average person will not
incur any additional costs associated with critical habitat designation
over and above that required by the listing unless they are required to
avoid adverse modification of critical habitat.
proposed critical habitat for neosho mucket and rabbitsfoot mussels
The Service proposed listing the Neosho mucket as endangered and
rabbitsfoot as threatened in October 2012 after identifying both
species as candidates in 1984 and 1994 respectively. Designating
critical habitat for the two mussels was proposed along with the
listing. The proposed designation totals approximately 783 river and
stream miles for both mussel species in Arkansas, as well as segments
of rivers and streams in Alabama, Kansas, Kentucky, Illinois, Indiana,
Mississippi, Missouri, Ohio, Oklahoma, Pennsylvania and Tennessee.
Notably, Arkansas is one of the remaining strongholds for rabbitsfoot
with many small and sizable populations, in part because of the Natural
State's legacy of conservation and its commitment to stewardship. The
proposed critical habitat is limited to the river itself, below the
normal high water mark and not the watersheds. In Arkansas this is less
than 8 percent of the State's total stream miles as defined by the
Arkansas Department of Environmental Quality. This proposed designation
underwent an independent peer review and was available for public
comment for a total of 150 days to ensure it was based on the best
scientific, commercial, and economic data available.
The benefits of the final critical habitat designation for the two
mussels will include public awareness of the presence of the mussels
and the importance of habitat protection, and, where a Federal nexus
exists, ensure there is no adverse modification of critical habitat.
According to the Service's economic analysis of the critical habitat
designation for both mussel species, the estimated cost for additional
Federal actions because of the designation will be between $4.4 million
and $5.9 million over 20 years. Most of those costs are administrative
(i.e., costs of determining effects to the critical habitat and
preparing a biological assessment) and will be borne largely by Federal
agencies during required consultations with Service on the impacts of
their actions.
Federal agencies that fund, permit or perform actions that could
negatively impact the protected mussels--or adversely modify their
critical habitat--are required agency to consult with the Service under
section 7(a)(2) of the ESA. Some of those activities might include
building a dam or a road, or allowing a private logger to harvest trees
from a National Forest. If the activity is likely to have an impact on
the mussels or their critical habitat, the Service and the Federal
agency work together through the informal or formal consultation
process to ensure that the activity does not jeopardize the species or
adversely modify the critical habitat and to find a reasonable
conservation measures that would accomplish the goal of the project and
conserve the species.
The Service understands that designating critical habitat for
Neosho mucket and rabbitsfoot has caused concerns for some Arkansans.
We are listening and considering the concerns expressed about the
proposed designation on the private sector in Arkansas, particularly on
small businesses, industry, and agriculture. A critical habitat
designation itself, without a Federal nexus, does not legally affect
private landowners. The Service provided the public with three
opportunities to submit comments on the proposed listing and critical
habitat designation since it was announced in October 2012. We received
49 comments and anticipate additional comments when the comment period
for the proposed critical habitat designation is reopened for a fourth
time. Public involvement into the Service's ESA actions ensures that we
have the best available scientific and commercial data available. In
the case of rabbitsfoot and Neosho mucket, we can substantiate that
public involvement in the rulemaking process is working. For instance,
the Association of Arkansas Counties provided the Service with
additional scientific information to the Service during a public
comment period. As a result, the Service evaluated the information and
is modifying the proposal as appropriate.
The Service has consulted with Federal agencies for decades on
actions in Arkansas because of the presence of other listed mussels,
such as the pink mucket and the winged mapleleaf, found in the same
rivers as proposed critical habitat for the rabbitsfoot. The vast
majority of the consultations were handled efficiently and informally
by the Service's Arkansas Field Office. In fact, 99 percent of the
consultations completed in the last 5 years with other Federal agencies
such as the Natural Resources Conservation Service (NRCS) and Farm
Service Agency were done in less than 30 days. These informal
consultations did not delay any projects. This is important trend data
that demonstrates a productive track record in Arkansas.
The Service does not expect to require additional conservation
measures for the proposed critical habitat for the two mussel species
beyond those generated by the listing. We have indicated the final
designation--expected later this year--would be smaller as a result of
information shared during comment periods. The Service will soon
announce an additional 60-day comment period on the proposed critical
habitat designation and associated draft economic analysis. A final
designation will consider all information received during the four
public comment periods.
The Service already is reviewing the direct, indirect and
cumulative effects of Federal projects on the Neosho mucket and
rabbitsfoot due to their listing in Arkansas rivers. For example, the
Service informally consulted with Peco Foods on its plans to build a
fully integrated poultry complex in Randolph and Clay Counties in
northeastern Arkansas. The project required an Arkansas Pollutant
Discharge Elimination System permit for the processing plant's proposed
sewer outfall. The original plans proposed to discharge into a reach of
the Black River where five federally protected mussel species are known
to occur, including the rabbitsfoot. Possible ammonia concentrations
below the outfall would likely have been too toxic for the mussels to
survive. The Service worked with Peco Foods to determine the occurrence
of federally protected mussels within the potential affected area.
Surveys discovered a previously undocumented rabbitsfoot mussel bed
near the proposed outfall and no federally protected species in an area
upstream. As a result, Peco Foods was able to relocate its outfall to
an alternate location 650 feet upstream of the original proposed
location, which minimizes the impacts on the listed species. The
cooperation between the Service and Peco Foods on the project's
potential impact to listed species resulted in no delays in the
permitting process and successfully avoided adverse effects to
federally protected mussels.
The Service has continued its communication with stakeholders in
Arkansas regarding the effects of the proposed critical habitat
designation for the two mussels since finalizing their listing in
September 2013. We have engaged stakeholders including the Governor of
Arkansas, county judges, industry associations, and others to further
clarify our species listing actions and critical habitat and what they
mean to Arkansans. The Service met with the staff of the entire
Arkansas congressional delegation last November on this matter, and I
personally met with Arkansas Attorney General and his staff in February
2014 to discuss the implications of the proposed designation.
Last month, the Director and I traveled to Little Rock to meet with
numerous stakeholders including the Agricultural Council of Arkansas,
Arkansas Chamber of Commerce, Arkansas Cattlemen's Association,
Arkansas Farm Bureau, Arkansas Forestry Association, Arkansas Game and
Fish Commission, Arkansas Secretary of Agriculture, Association of
Arkansas Counties, and the oil and gas industry, as well as several
county judges and State representatives. This meeting was a productive
dialog with stakeholders on ESA actions where we answered questions and
heard concerns about the size and implications of the proposed critical
habitat designation and the way we consider economic impacts.
We are committed to continuing this engagement with stakeholders in
Arkansas and other affected States as we move forward in finalizing the
critical habitat designation for the two mussel species. We are also
committed to continuing to work closely with the Arkansas Game and Fish
Commission on conservation actions for other species.
engaging landowners in esa listing and critical habitat actions
I first came to Arkansas to discuss many of these ESA-related
issues with stakeholders in October 2012. I met with farmers, industry
representatives, association groups such as the Association of Arkansas
Counties and the Arkansas Forestry Association in Hot Springs to
address concerns about impending listing decisions under our workplan.
At that time, I informed them of the Southeast Region's plan to
evaluate the need to list 61 candidates, including the Neosho mucket
and rabbitsfoot, as well as Mega-Petition, one of the largest petitions
ever received by the Service to list 404 aquatic and aquatic-dependent
species found in the Southeast. Since then, the Service has continued
to engage these stakeholders and others on not only the listing and
critical habitat designation for the two mussels, as well as other
listing actions.
Between our listing workplan and other petitions under the ESA, the
Southeast Region is required to evaluate whether more than 400 species
need Federal protection. Of this total, 48 species occur in Arkansas.
The Service's goal is to ensure, in working with partners, that
sufficient conservation measures are in place such that these species
would not warrant listing under the ESA. With the States leading the
way and sound science as our guide, the Service and our partners--State
agencies including the Arkansas Game and Fish Commission, other Federal
agencies, universities, industries, and large private landowners--are
prioritizing species and coordinating our resources. Partners are
acquiring the best science, documenting conservation activities already
taking place, and using voluntary, non-regulatory conservation programs
to proactively conserve as many of these species as possible, so
listing will not be necessary. The Service also is encouraging State,
Federal, and private landowners to use voluntary conservation tools
that protect private land interests and provide incentives and
regulatory certainty for landowners to manage lands and waters in ways
that benefit at-risk species. The Southeast Region is developing more
than 20 voluntary conservation agreements covering many species,
including one that would cover 28 at-risk cave species in Arkansas.
Another part of the Service's at-risk conservation effort is that
we are working closely with the Southeast Association of Fish and
Wildlife Agencies' Wildlife Diversity Committee and moving aggressively
to share expertise, available science and monitoring data that I
believe is crucial to our efforts to evaluate the status of fish,
wildlife and plants that are included in our listing workload. The
States are leading the way, and I believe this expanded partnership
will help us efficiently speed progress in our collective effort to
achieve the conservation needed to render the listing of as a many
species as possible unnecessary. Using the ESA proactively, it is
possible to manage species in need and secure conservation as well as
keeping working lands working.
If together we can address the need to protect additional plants
and animals without listing, landowners and the species benefit. From
the landowner perspective, proactive conservation is voluntary and
flexible while the ESA can be more rigid and includes regulatory
requirements. Fish, wildlife and plants benefit when we focus limited
resources where they are most needed. This helps species on a larger,
landscape scale. Another benefit is counted in savings to the American
taxpayer. In general, it costs less money to protect a species that is
beginning to face threats than it does to recover critically endangered
species.
This collaborative effort with Federal and State agencies,
industry, and private landowners is at work conserving at-risk species
in Arkansas. The Service is developing voluntary agreements with the
Arkansas Game and Fish Commission, NRCS, and The Nature Conservancy
(TNC), including a Candidate Conservation Agreement with Assurances
that includes 20 aquatic species. One example: The Service is part of a
coalition of a dozen organizations and associations led by TNC, the
Arkansas Farm Bureau, the Arkansas Game and Fish Commission and the
Association of Arkansas Counties, to work collaboratively to develop
simple best management practices to make it easier for the counties to
maintain and repair rural, unpaved roads while reducing costs and
improving water quality. This is important to us all because about 85
percent of Arkansas county roads are unpaved. These roads are
critically important to local economies and these actions may minimize
erosion and improve the health of lakes and rivers. Reducing
sedimentation, thereby improving water quality, from unpaved roads is
key to conserving many of the aquatic species that need to be evaluated
over next 5 years. We also support the use of voluntary conservation
programs like those offered by the NRCS and the Service's Partners for
Fish and Wildlife Program, to conserve and enhance fish and wildlife
habitat, which are essential for helping preclude the need to list at-
risk species in Arkansas.
This proactive conservation of at-risk species is starting to pay
dividends, and we have determined that listing is not needed for nearly
40 species--some based on new information, some on voluntary
conservation actions, and some are already secure. For example, the
Service recently announced that five southeastern crayfishes that occur
in parts of Alabama, Georgia and Mississippi will not require Federal
protection due to new scientific information. The crayfish species were
withdrawn from the Mega-Petition and precluded needing to be listed.
Our partnerships are growing, and we believe the ESA is working.
conclusion
In closing, Mr. Chairman, I would like to emphasize the importance
the Service places upon having a science-driven, transparent
decisionmaking process in which people and businesses in affected
communities can participate easily and effectively. The Service and I
are committed to conserving America's fish and wildlife by relying upon
strong partnerships and creative solutions to achieve conservation.
Thank you for your interest in endangered species conservation here
in Arkansas and the Southeast Region, and ESA implementation more
generally. I appreciate the opportunity to testify here today in
Batesville. I would be pleased to answer to any questions you and other
members of the committee might have.

______

The Chairman. Thank you very much for your testimony.
I will now recognize Mr. Joe Fox, State Forester with the
Arkansas Forestry Commission, from Little Rock.
You are recognized for 5 minutes.

STATEMENT OF JOE FOX, STATE FORESTER, ARKANSAS FORESTRY
COMMISSION, LITTLE ROCK, ARKANSAS

Mr. Fox. Thank you, Mr. Chairman. Thank you for coming to
Arkansas, and Representative Crawford, thank you for inviting
and having this committee here.
It is my pleasure to be here today to provide testimony on
behalf of the Arkansas Forestry Commission and the State's
private landowners, forest landowners, regarding the process of
designating critical habitat. The Forestry Commission is
dedicated to the conservation and wise development of the
natural resources of our Nation and of our natural resource-
rich State. We are firmly committed to the ideal that through a
strong partnership of public agencies and private citizens,
those conservation efforts can be furthered to achieve a
beneficial outcome for all.
However, to effectively develop these partnerships, an open
and candid dialog must occur between all parties that could be
potentially impacted. I am going to use two examples to show
where that process was not fully used and identify potential
impacts to private landowners.
The first example is the critical habitat designations for
the Neosho Mucket and Rabbitsfoot Mussel. These critical
habitat designations impact watersheds that include greater
than 40 percent of the surface area of the State. Ninety
percent of this land is privately owned. Approximately 75
percent of the land is productive timber land that contributes
in excess of $125 million annually to the economy of the State.
There is a typo in my written comments right there; $125
million is the correct number.
The U.S. Fish and Wildlife Service, in conducting their
economic impact analysis, concluded there would be limited cost
impact to the private landowner as a result of the critical
habitat designation. Fortunately, the Arkansas forest
landowners that are contributing the $125 million annually
mentioned previously will not experience any significant
impacts to their ability to conduct timber operations.
Through the use of the Arkansas Forestry Best Management
Practices, over 89 percent of private forest landowners
voluntarily promote and improve water quality when conducting
forestry operations on their property.
However, the second example I will use is the current
proposed guidance for conservation measures being developed for
the potential listing of the northern long-eared bat as an
endangered species. They include maintaining the spring and
summer, spring staging/fall swarming forested habitat within a
5-mile radius of known or assumed long-eared bat hibernacula;
the avoidance of clearing timber of suitable spring staging and
fall swarming habitat within a 5-mile radius of the
hibernacula; the avoidance of prescribed burning or other
sources of smoke in known or assumed hibernacula during that
swarming/staging season; and whenever possible, conducting
prescribed fire outside of the summer maternity season; the
avoidance of burning or other sources of smoke within a
quarter-mile of known northern long-eared bat hibernacula
during the hibernation season.
The Fish and Wildlife Service describes forest habitat
suitable for the northern long-eared bat as forest with trees
greater than 3 inches diameter at breast height and typically
greater than 66 percent canopy cover; although they also
indicate that a single tree, if less than 1,000 feet from a
known hibernaculum, is considered a potential roost. The NLEB
hibernacula are potentially found everywhere in Arkansas, but
especially in the Karst geology of North Arkansas.
A single hibernaculum has an associated buffer of 50,000
acres. A single hibernaculum has an associated annual timber
value income of over $1 million. A single hibernaculum has an
associated 625 potential private landowners. Logging could be
greatly curtailed between April 1st and November 30. That is
when we log in Arkansas, pretty much. And prescribed fire could
be eliminated.
Exclusion of logging and managing forest and prescribed
fire would have a negative impact on wild turkey or bobwhite
quail or the restoration of short-leaf pine forests. It could
affect the entire State. Ninety percent of Arkansas is part of
the range of the northern long-eared bat.
The northern long-eared bat is in trouble because of white
nose syndrome, which has nothing to do with critical habitat.
It is a disease transported from bat to bat.
This is a problem that really could sting the forest
industry in Arkansas and private landowners, and we are quite
worried about what could happen with the critical habitat
designation for northern long-eared bat.
Thanks for the opportunity to speak.
[The prepared statement of Mr. Fox follows:]
Prepared Statement of Joe Fox, State Forester, Arkansas Forestry
Commission, Little Rock, Arkansas
Mr. Chairman, members of the committee, it is my pleasure to be
here today to provide testimony on behalf of the Arkansas Forestry
Commission regarding the process of designating critical habitat. The
Forestry Commission is dedicated to the conservation of the natural
resources of our Nation and our State. We are firmly committed to the
ideal that through a strong partnership of public agencies and private
citizens those conservation efforts can be furthered to achieve a
beneficial outcome for all.
However, to effectively develop those partnerships an open and
candid dialog must occur between all parties that could be potentially
impacted. I am going to use two examples to show where that process was
not fully used and identify potential impacts to private landowners.
The first example is the recent critical habitat designations for
the Neosho Mucket and Rabbitsfoot Mussel.

These critical habitat designations impact watersheds that
include greater than 40 percent of the surface area of the
State.
90 percent of this land area is privately owned.
Approximately 75 percent of the land area is productive
timber land that contributes in excess of $325 million
annually to the economy of the State.

The U.S. Fish and Wildlife Service in conducting their economic
impact analysis concluded there would be limited cost impact to the
private landowner as a result of the critical habitat designation.
Fortunately, the Arkansas forest landowners that are contributing the
$325 million mentioned previously will not experience any significant
impacts to their ability to conduct timber operations. Through use of
Arkansas Forestry Best Management Practices over 89 percent of private
forest landowners voluntarily promote and improve water quality when
conducting forestry operations on their property.
The second example I will use is the current guidance for
conservation measures being developed for the proposed listing of the
northern long-eared bat (NLEB) as an endangered species.

Maintain spring staging/fall swarming forested habitat
within a 5-mile radius of known or assumed NLEB
hibernacula.
Avoid clearing of suitable spring staging and fall
swarming habitat within a 5-mile radius of known or assumed
NLEB hibernacula during the staging and swarming seasons.
Avoid prescribed burning or other sources of smoke in
known or assumed NLEB habitat during the swarming/staging
or hibernation season, or coordinate with the local FWS
office.
Whenever possible, conduct prescribed burns outside of the
summer maternity season. Burns conducted during the summer
maternity season should be low/moderate intensity to
minimize direct impacts to NLEB.
Avoid burning or other sources of smoke within 0.25 mile
of known or assumed NLEB hibernacula during hibernation
season, or coordinate with the local FWS office.

The Fish and Wildlife Service describes forest habitat suitable for
the NLEB as forest with trees greater than 3 inches diameter at breast
height and typically greater than 66 percent canopy cover. Although
they also indicate that a single tree, if less than 1,000 feet from a
known hibernaculum, is also considered a potential roost. NLEB
hibernacula are potentially found everywhere in Arkansas, especially in
the Karst geology of northern Arkansas.

A single hibernaculum has an associated buffer of
approximately 50,000 acres.
A single hibernaculum has an associated timber value of
$1.07 million in the buffer area.
A single hibernaculum has an associated 625 potential
private landowners being impacted.
Staging, maternity, and swarming season of the NLEB would
eliminate forest harvesting operations from April 1st
through November 30th.
Presence of a hibernaculum would effectively eliminate
prescribed burning within the recommended 5-mile buffer
year round.
The short seasonal migration distances of the NLEB and the
potential abundance of hibernacula could create a
continuous landscape that would be severely impacted by the
conservation measures proposed.
Exclusion of prescribed burning activity in this area
would have a negative impact on maintaining habitat for
species such as the wild turkey.
Exclusion of prescribed burning in this area would
significantly reduce efforts to restore native shortleaf
pine forests and associated species such as the northern
Bobwhite quail.
Restriction of harvesting activity during the recommended
timeframe would severely disrupt the forest economy valued
at approximately $400 million dollars annually.

The Fish and Wildlife Service is seeking to have the NLEB listed as
a direct result of population decline due to White Nose Syndrome (WNS).
The conservation measures proposed within the NLEB Interim Conference
and Planning Guide are not directly related to WNS, but rather, to
promote habitat conservation with a tenuous connection to increased WNS
resistance. These measures are unrealistic in light of the negative
impact they would have on forest landowners. The Arkansas Forestry
Commission would encourage the Fish & Wildlife Service to engage in a
dialog that would provide for development of conservation measures that
can be implemented in a manner mutually beneficial to the NLEB and the
forest landowners of the State of Arkansas.
Again, I would like to thank the committee for this opportunity to
provide comment regarding the process for designation of critical
habitat by the Fish and Wildlife Service.

______

The Chairman. Thank you very much, Mr. Fox, for your
testimony.
I will now recognize Mr. Gregory Hamilton, Ph.D., Senior
Research Economist at the University of Arkansas Little Rock
Institute for Economic Advancement.
The gentleman is recognized for 5 minutes.

STATEMENT OF GREGORY HAMILTON, Ph.D., SENIOR RESEARCH
ECONOMIST, UNIVERSITY OF ARKANSAS LITTLE ROCK, INSTITUTE FOR
ECONOMIC ADVANCEMENT, LITTLE ROCK, ARKANSAS

Dr. Hamilton. Mr. Chairman, committee members, one could
say that we have a conundrum because of the current
interpretation of the Endangered Species Act. Society is trying
to maximize the net social benefits of preserving endangered
species that have social values but not well-defined monetary
values, while considering only a select group of preservation
costs.
In such a situation, a counterfactual economic impact
analysis underestimates the impacts of critical habitat
designation, creating a potential misallocation of resources to
preservation activities. However, including the full costs of
preservation is to invalidate the Endangered Species Act.
The economic impact analysis is a tool that shows how an
event affects economic activity within an economy or between
economies. An economic impact analysis uses causal models that
trace the interrelationships between inter-industry
expenditures and final demand expenditures. Economic impact
models predict how a specific event or events can be expected
to change output, income, and jobs within communities.
An economic impact analysis of a critical habitat
designation requires a counterfactual analysis. A
counterfactual study simulates events that are contrary to the
present situation. In the case of a critical habitat
designation, the possible removal or limitation of economic
activity must be considered by simulating the effects upon a
study area by either removing or reducing the activity by an
appropriate magnitude.
Counterfactual questions that could be asked include: What
would be the economic effects upon the counties in Arkansas
that have a potential critical habitat designation if
restrictions are placed on the use of area rivers and their
surroundings? How could critical habitat designation effect
road improvements, bridge improvements, timber and agricultural
uses; recreational uses; water treatment and water quality
investments; and mining, oil and gas operations, for example?
Economic impact analysis must be defined in terms of some
location or at some level of geography. The choice of geography
is important since it establishes the study area, enabling a
distinction between events that occur within the study area
from those that are outside the study area. In the case of a
critical habitat designation, a restriction of an activity like
the loss of economic tourism can have economic impacts in a
study area, but at the national level there are offsetting
impacts.
Often, U.S. Fish and Wildlife Service analyzes the economic
impacts based upon Census-tract boundaries that include the
designated areas. However, these areas may exclude many
businesses and community interactions that are impacted by
potential restrictions that may be imposed under the Endangered
Species Act. In this case, a mis-specified study area results
in an underestimate of the true economic impact.
Regulations and restrictions have both allocative and
distribution effects. Critical habitat designations may cause
economic activity to simply relocate to other locations in the
Nation. This is a local allocative effect that is offset by
redistribution effect elsewhere, although there is no guarantee
that redistributional effects will equal the allocative
effects.
Economic impact studies of critical habitat designation
often presume that they are equal when they only consider
consultation and administrative costs in their analysis.
Road improvements and other economic development projects
create wealth and well-being. The benefit from these
improvements will not accrue to these communities if the
projects are not built, so this is a net loss to the community
regardless of whether or where the projects are eventually
located. Many economic activities cannot simply be moved to
alternative locations.
The Endangered Species Act prohibits the use of economic
considerations in the decision to list a species as endangered.
At the time of listing an endangered species, the Endangered
Species Act also requires the Fish and Wildlife Service to
propose to designate a critical habitat. This decision can take
into account considerations of probable economic impact
designations.
In the baseline incremental approach, the listing
establishes the baseline, and the incremental costs are a
consequence of the designation. The primary incremental costs
are the consultation costs with Fish and Wildlife Service.
Costs associated with the allocative and distribution effects
are considered to be a consequence of the listing decision and
are excluded from consideration.
The coextensive approach contends essentially that the
listing and the critical habitat designation are the same event
focused on preserving an endangered species. As such, the
resources committed to the preservation entail both the listing
and the critical habitat designation and should be the focal
point. An economic impact analysis based on the coextensive
approach would have a fuller accounting of costs by
incorporating both the designation and listing costs.
A problem with the coextensive approach is that the
Endangered Species Act requires listing decisions to be based
solely on the best available science and commercial
information. This is the same requirement that enables the
baseline incremental approach to reduce the full cost of
preserving endangered species by excluding the cost of listing
from the economic impact analysis. Hence, we have a conundrum.
Thank you.
[The prepared statement of Dr. Hamilton follows:]
Prepared Statement of Gregory L. Hamilton, Ph.D., Senior Research
Economist, University of Arkansas Little Rock, Institute for Economic
Advancement, Little Rock, Arkansas
What Would a True Economic Impact Analysis of a Critical Habitat
Designation Incorporate?
One could say that we have conundrum because of the current
interpretation Endangered Species Act. We are trying to maximize the
net social benefits of preserving endangered species that have social
values but not well defined monetary values while considering only a
select group of preservation costs. In such a situation a
counterfactual economic impact analysis underestimates the impacts of
critical habitat designation creating a potential over-allocation of
resources to preservation activities. However, including the full costs
of preservation is to invalidate the ESA.
The Purpose of Economic Impact Analysis
Economic impact analysis (EIA) is a tool that shows how an event
affects economic activity within an economy or between economies. An
EIA uses causal economic models that trace the interrelationships
between interindustry expenditures and final demand expenditures.
Economic impact models predict how a specific event or events can be
expected to change output, income, and jobs within communities.
The purpose of EIA is to analyze the effects of an event on a
particular study area. EIA is often used in policy modeling to predict
the consequences associated with a policy change such as tax rate
change, infrastructure investments, or changes in environmental
standards.
Counterfactual Economic Impact Analysis
An EIA of a Critical Habitat Designation (CHD) requires a
counterfactual impact analysis. A counterfactual study simulates events
that are contrary to the present situation. In the case of a CHD, the
possible removal or limitation of economic activity must be considered,
by simulating the effects upon a study area by either removing or
reducing the activity by an appropriate magnitude. Counterfactual
questions that could be asked include: What would be the economic
effects upon the 34 counties in Arkansas that have a potential CHD if
restrictions on the use of area rivers and their surroundings are
placed? How would CHD effect road improvements, bridge improvements,
timber and agricultural uses; recreational uses; water treatment and
water quality investments; and mining, oil and gas operations for
example.
Economic Impact of a Critical Habitat Designation: Considerations
EIA is an established method of analysis that traces it heritage
back to 1758 and the French economist Francois Quesnay and, in modern
times, Wassily Leontief in 1936 (Miernyk, W, 1966, pages 4-5). A
unifying theme between these two economists is the emphasis they placed
on economic interdependences. Economic interdependence results in
several considerations that have significant consequences on the
predictive power of an EIA. In an EIA the study area must be defined,
and distinctions must be made between events that effect the allocation
of resources as opposed to the distribution of resources.
Economic interdependence between economic agents occurs across
different geographical areas. Any EIA must be defined in terms of some
location or at some level of geography. The geography may be at a
county level, State level, national level, or combination of
subnational geographic units. The limiting factor is often the
availability of data. The choice of a geography is important since it
establishes the study area enabling a distinction between events that
occur within the study area from those that are outside the study area.
In the case of a CHD, a restriction of an activity like the loss of
economic tourism can have economic impacts in a CHD study area but at
the national level there are offsetting impacts. In such a situation,
at the national level there are no net economic impacts although the
CHD area has a loss of economic activity.
Often U.S. Fish and Wildlife Service analyzes the economic impacts
of CHD based on Census-tract boundaries that include the designated
areas. However, these areas may exclude many business and community
interactions that are impacted by potential restrictions that may be
imposed under the Endangered Species Act (ESA). In this case a
misspecified study area results in an underestimate of the true
economic impact. (HISTECON Associates, Inc., 2013, page 5)
Allocative effects are resource using effects. The allocation of
resources between alternative uses has economic costs in terms of what
is forgone. This is the concept of economic cost or opportunity cost.
Opportunity cost is the value of the best forgone alternative use for
the resources. A distribution effect on the other hand focuses on who
gets what. Concerns about fairness and equality are often the
consequence of uneven distribution effects.
Regulations and restrictions have both allocative and distribution
effects. As already noted restriction resulting from a CHD may cause
economic activity to simply relocate to other locations in the Nation.
This is a local allocative effect that is offset by redistribution
effect elsewhere. Although, there are no guarantees that distributional
effects will equal the allocative effects. EIA studies of a CHD often
presume that they are equal when they only consider consultation and
administration costs in their analysis.
Road improvements and other economic development projects create
wealth and well-being. The benefit of these improvements will not
accrue to these communities if the projects are not built, so this is a
net loss to the community regardless of whether or where the projects
are eventually located. Many of the economic activities cannot simply
be moved to alternate locations. Prime examples of these are bridges,
paving county roads, harvesting timber from previously cultivated tree
stands, parks and recreation areas, and ``highest-in-structure''
drilling sites for natural gas. In each of these cases, the lost
opportunity would be unavailable absolutely to any other location
because of the unsuitability or non-comparability of the alternatives.
They are foregone opportunities. (HISTECON Associates, Inc., 2013, page
9)
What is the Difference Between Coextensive Approach and the Baseline-
Incremental Approach?
The Endangered Species Act (ESA) prohibits the use of EIA in the
decision to list a species as endangered. The ESA also requires the
Fish and Wildlife Service to concurrently or up to a year later propose
to designate a critical habitat. The CHD decision can take into account
consideration of probable economic impacts of the designation. (U.S.
Fish and Wildlife Service, 2011)
In the baseline-incremental approach, the listing of the endangered
species establishes the baseline and the incremental costs are a
consequence of the CHD. (Sinder, 2004, page 163) The primary CDH costs
are the agencies consultation costs with the Fish and Wildlife Service.
CHD's cost associated with the allocative and distribution effects are
considered to be a consequence of the listing decision and are excluded
from consideration in an EIA.
The coextensive approach contends essentially the listing and the
CHD are the same event focused on preserving an endangered species. As
such the resources committed to the preservation entail both the
listing and the CHD and should be the focal point of the EIA. One
possible interpretation of the coextensive approach is that it views
the ESA as a process where the baseline is the way the world was before
the listing and the event would be the process of listing and obtaining
CHD. An EIA based on this coextensive approach would have a fuller
accounting of costs by incorporating both the costs of the CHD and
listing costs.
A problem with the coextensive approach is the ESA requires listing
decisions to be based solely on the best available sciences and
commercial information. This is the same requirement that enables the
baseline-incremental approach to reduce the full economic costs of
preserving endangered species by excluding the cost of listing from
EIA.
One could say that we have conundrum because of the current
interpretation ESA. We are trying to maximize the net social benefits
of preserving endangered species that have social values but not well
defined monetary values while considering only a select group of
preservation costs. In such a situation a counterfactual EIA
underestimates the impacts CHD creating a potential misallocation of
resources to preservation activities. However, including the full costs
of preservation is to invalidate the ESA.
References
HISTECON Associates, Inc. 2013, ``Economic Analysis of Proposed
Designation of Critical Habitat for Rabbitsfoot Mussels and Neosho
Mucket in Arkansas,'' Arkansas Association of Counties, Little Rock,
AR, September.

Miernyk, William, 1966. ``The Elements of Input-Output Analysis,''
Random House, New York.

Sinden, Amy, 2004, ``The Economics of Endangered Species: Why Less is
More in the Economic Analysis of Critical Habitat Designations,''
Harvard Law Review, Vol. 28, pages 129-214.

U.S. Fish and Wildlife Service, 2011, ``Critical Habitat--What it is?''
Endangered Species Program, Fact Sheet, http://www.fws.gov/midwest/
endangered/saving/CriticalHabitatFactSheet.html.

______

The Chairman. Thank you very much, Dr. Hamilton.
I would next recognize Mr. Roland McDaniel, but he, I
understand, has been delayed because of the weather and he is
on his way, and hopefully we can get his testimony in before we
break.
So I will then go next to Mr. Gene Pharr, who is a farmer
from Lincoln, Arkansas.
Mr. Pharr, you are recognized.

STATEMENT OF GENE PHARR, FARMER, LINCOLN, ARKANSAS

Mr. Pharr. Good morning, Chairman Hastings and
Representative Crawford. We appreciate you holding this meeting
so we can talk about our concerns.
I am Gene Pharr, and I raise poultry and beef in northwest
Arkansas, where Benton and Washington Counties are proposed as
critical habitat for the Neosho Mucket. We are the home to the
corporate headquarters of Wal-Mart, Tyson Foods, J.B. Hunt, and
a fast-growing population. Yet, Benton and Washington County
still rank number 1 and 2 in all livestock production in our
State.
We believe that critical habitat designation will lead to
unwarranted lawsuits and litigation against private landowners,
with little risk placed on those who filed the lawsuit since
the U.S. Government picks up the legal fees for those filing
the lawsuit.
There are several examples of this overreach despite the
declaration that private lands would not be overburdened by the
critical habitat designations. We have already seen several
examples of that, however.
The dusky gopher frog occupies habitat in Mississippi,
though frogs are not currently present in Louisiana, nor have
they been for more than 50 years. The Endangered Species Act
defines critical habitat as the specific areas within the
geographic area occupied by the species at the time it is
listed. Yet, the U.S. Fish and Wildlife Service designated more
than 1,500 privately owned acres in Louisiana as critical
habitat that just happened to be adjacent to the habitat in
Mississippi. While there are no current development plans for
that property, the forest is a managed farm. The private
landowners have been prohibited from harvesting timber due to
this critical habitat designation. This appears to be an
arbitrary attempt to stop the harvesting of timber on private
land under the guise of limiting potential future development.
In California, the Castaneda family raises irrigated row
crops, including strawberries. The family decided to convert
their farm into vineyards, which requires deep ripping of the
ground before they are able to plant their grapevines. Their
farm happened to be in a critical habitat area for the
California tiger salamander, which lives in burrows or holes.
Sonoma County advised the family to contact U.S. Fish and
Wildlife.
Consultation with U.S. Fish and Wildlife Service was not
part of the approved development permitting process, and since
the farmers had never seen the species on their property, they
proceeded with the ground preparation. A citizen's group saw
the family ripping up the ground and filed suit. The Castanedas
are now tied up in a legal battle and are bound up in what
could be years of permitting and litigation costs.
While several States have recently gained the right to use
the herbicide Enlist, Arkansas is still not included in the
EPA's approved list. We understand that one of the reasons
Arkansas has not been endorsed for the Enlist usage is because
of the pending critical habitat designations. We believe we are
at this point because of the close relationship between the
Center for Biological Diversity and the U.S. Fish and Wildlife
Service. They agreed to a stipulated settlement that not only
listed certain species as endangered but required the
designation of critical habitat as a part of the listing. This
new development essentially streamlines the overall listing
process, opening the door for non-government organizations,
like the Center for Biological Diversity and Wild Earth
Guardians, to come into Arkansas and the South and Southeast
and basically extort private landowners through litigation or
the threat of litigation.
Those of us who farm in northwest Arkansas operate under
some of the most significant regulatory constraints in the
country. You can likely understand that the threat of any
additional regulation would be viewed with skepticism and a
fair amount of concern.
Allow me in my conclusion to offer my additional support
for Congressman Crawford's bill, H.R. 4319, the Common Sense in
Species Protection Act of 2014. Thank you for your time and
consideration of these comments.
[The prepared statement of Mr. Pharr follows:]
Prepared Statement of Gene Pharr, Poultry Farmer, Board of Directors,
Arkansas Farm Bureau
Good morning. I appreciate the opportunity to be here this morning
and to share the concerns of some of the farmers and ranchers in my
part of the State.
I am Gene Pharr, and I raise poultry and beef in northwest
Arkansas, where Benton and Washington counties are proposed as critical
habitat for the Neosho Mucket.
We are home to the corporate headquarters of Wal-Mart, Tyson Foods,
J.B. Hunt and a fast-growing population. Yet Benton and Washington
counties still rank No. 1 or No. 2 in all livestock production in our
State.
We believe the critical habitat designation will lead to
unwarranted lawsuits and litigation against private landowners, with
little risk placed on those who file the lawsuit, since the U.S.
Government picks up the legal fees for those filing the lawsuit.
There are several examples of this overreach, despite declarations
that private lands would not overburdened by the critical habitat
designations. We have already seen several examples of that, however.
The Dusky Gopher Frog occupies habitat in Mississippi, though frogs
are not currently present in Louisiana nor have they been for more than
50 years. The ESA explicitly defines critical habitat as the ``specific
areas within the geographic area occupied by the species at the time it
is listed.'' Yet the USFWS designated more than 1,500 privately owned
forested acres in Louisiana as critical habitat that just happen to be
adjacent to the habitat in Mississippi. While there is no current
development plans for this property, the forest is a managed timber
farm. The private land owners have now been prohibited from harvesting
timber due to this critical habitat designation. This appears to be an
arbitrary attempt to stop the harvesting of timber on private land
under the guise of limiting potential future development. The cost of
the potential future development has been estimated to be upward of $30
million, according to USFWS.
In California, the Castaneda family raises irrigated row crops,
including strawberries. The family decided to convert their farm into
vineyards, which requires deep ripping of the ground before they are
able to plant their grape vines. Their farm happened to be in a
critical habitat area for the California Tiger Salamander, which lives
in burrows or holes. Sonoma County advised the family to contact USFWS.
Consultation with USFWS was not part of the approved development
permitting process, and since the farmers had never seen the species on
their property, they proceeded with ground preparation. A citizen group
saw the family ripping the ground and filed suit. The Castanedas are
now tied up in a legal battle and are bound up in what could be years
of permitting and litigation costs.
In Arkansas, we are excluded from the EPA's approved list for the
herbicide Enlist. While several States have recently gained the right
to utilize Enlist, EPA has cited the need for more studies in Arkansas
because of the critical habitat areas that have been designated.
We are at this point now because of the close relationship between
the Center for Biological Diversity and the USFWS. They agreed to a
stipulated settlement that not only listed certain species as
endangered, but required the designation of critical habitat as part of
the listing. This new development essentially streamlined the overall
listing process, opening the door for non-government organizations like
the Center for Biological Diversity and Wildearth Guardians to come
into Arkansas, the South and Southeast and, basically, extort private
land owners through litigation, or the threat of litigation.
Those of us who farm in northwest Arkansas operate under some of
the most significant regulatory constraints in the country. You can
likely understand then that the threat of any additional regulation
would be viewed with skepticism and a fair amount of concern.
Allow me, in conclusion, to offer my additional support for
Congressman Crawford's bill, H.R. 4319, the Common Sense in Species
Protection Act of 2014.
Thank you for your time and your considerations of these comments.

______

The Chairman. Thank you very much, Mr. Pharr.
I see that Mr. McDaniel has joined us.
Would you like me to go to another witness before you, or
are you absolutely prepared to proceed?
Mr. McDaniel. I am ready to proceed.
The Chairman. In that case, Mr. McDaniel, we will recognize
you. You are the Principal and Senior Scientist for GBMc &
Associates, from Bryant, Arkansas.
You are recognized for 5 minutes.

STATEMENT OF ROLAND McDANIEL, PRINCIPAL, SENIOR SCIENTIST, GBMc
& ASSOCIATES, BRYANT, ARKANSAS

Mr. McDaniel. Thank you, Representative. My name is Roland
McDaniel. I am a partner and senior scientist with GBMc and
Associates, an environmental consulting firm located in Bryant,
Arkansas. I have over 34 years of experience as an aquatic
biologist in the State of Arkansas, first as a regulator at the
State agency and the last 22 years as a private consultant. I
have a B.S. degree in wildlife and fisheries management and a
Master's degree in biology with a focus on aquatic ecology. My
Master's thesis was a comprehensive life study assessment of
the Yellowcheek Darter, Etheostoma moorei, which is now an
endangered species in Arkansas. So in some way, I have been
dealing with threatened and endangered species for over 38
years.
The U.S. Fish and Wildlife Service proposed critical
habitat for the Rabbitsfoot Mussel and Neosho Mucket in October
of 2012. The comment period for the proposed action was
extended and reopened for an additional 60-day comment period
to end October 28, 2013. The strains included in the critical
habitat units directly impact 30 counties, 28 for the
Rabbitsfoot Mussel and two for the Neosho Mucket. Should all
the proposed critical habitat units be adopted as proposed, the
targeted watersheds cover approximately 42 percent of the
geographical area of Arkansas as indicated by the map.
The Endangered Species Act defines a threatened and
endangered species as follows. Threatened species are any
species which are likely to become an endangered species within
the foreseeable future. An endangered species is any species
which is in danger of extinction throughout all or a
significant portion of its range.
As stipulated in the Environmental Species Act, the U.S.
Fish and Wildlife Service, herein referred to as the Service,
is required to identify critical habitat required to support
the designated species. Critical habitat is defined in Section
3 of the Endangered Species Act as: one, specific areas within
a geographic area occupied by the species at the time of the
listing in accordance with the Act and on which are found those
physical or biological features to points essential to the
conservation of the species and which may require special
management consideration or protection; two, the specific areas
outside the geographical area occupied by the species at the
time of its listing upon a determination that such areas are
essential for the conservation of the species. These two points
are quite critical, and we feel like the Service and the
designation of the critical habitat, particularly for the
Rabbitsfoot Mussel, went far outside the scope of those
indicated as required for critical habitat.
According to the Species Service Assessment Form, which
they use in designating a species, the Rabbitsfoot Mussel had
an LPN of 9, which indicates threats are moderate, and this was
first concluded in 1996 when it was first considered for
listing. That listing was rescinded, or the consideration was
rescinded, and additional information developed up to and
through 2010, that LPN of 9 did not change. Nine is the highest
number out of 12, with an LPN of 1 being the lowest, which
means the most critical.
The LPN assessment of 9 indicates threats are of a moderate
magnitude and the threats are non-imminent, most are ongoing,
and the threats are imminent overall. The listing of the LPN of
9 is the lowest in the imminent category. In other words, it is
the lowest of those which are determined to be a candidate for
listing.
The status report ultimately categorized the condition or
population of the Rabbitsfoot Mussel throughout the multi-State
range of the Rabbitsfoot Mussel, often an opinion comparing
limited qualitative data to determine population status. Butler
in 2005 categorized the extant population based on mostly
qualitative information, comparing recent survey data post-2000
largely to qualitative data provided in the historical
documentation.
Several stream segments in Arkansas that were once thought
to no longer harbor or support viable Rabbitsfoot Mussels have
recently been determined to harbor populations, and we will
talk more about that later. This information is currently in
press based on information from the Arkansas Game and Fish
State malacologist, and the new information really begs the
question: Was the Service justified in its designation of the
Rabbitsfoot Mussel as a threatened species, especially if there
are other populations one or more of the other States have not
yet determined to exist or accounted for?
The Neosho Mucket, on the other hand, identified as a
candidate in 1984--and we agree and had no comments related to
that listing.
The critical point of the species listing of critical
habitat----
The Chairman. Mr. McDaniel, I know you weren't here for the
opening, but we asked you to keep your oral remarks within 5
minutes. Your full statement will appear in the record, and
that is what that timing light is there for. So if you could
wrap it up here in another 10 seconds, I would appreciate it
very much.
Mr. McDaniel. OK. We think that the Service greatly
overstepped its boundaries. One of the key points that is not
indicated is the listing of the critical habitat provides a
roadmap not only for the Service but also for outside entities
such as the Center for Biological Diversity to bring lawsuits
against not only business entities but also individuals who
they think have resulted in a taking due to individual actions
on land that they own specifically.
Thank you.
[The prepared statement of Mr. McDaniel follows:]
Prepared Statement of Roland E. McDaniel, Senior Scientist, GBMc &
Associates, Bryant, Arkansas
1.0 INTRODUCTION

My name is Roland E. McDaniel. I am a Partner and Senior Scientist
with GBMc and Associates, an environmental consulting firm located in
Bryant, AR. I have over 34 years of experience as an aquatic biologist
in the State of Arkansas, first as a regulator with the State agency
(Arkansas Department of Environmental Quality) and the last 22 years as
a private consultant. I have a B.S. degree in Wildlife and Fisheries
management and a M.S. degree in biology with a focus on Aquatic
Ecology. My masters thesis was a comprehensive life history assessment
of the Yellowcheek Darter (Etheostoma moorei), which is now an
endangered species in Arkansas. So in some way I have been dealing with
threatened and endangered species for over 38 years.
The Arkansas Association of Counties contracted with GBMc and
associates to review the scientific basis and justification for the
proposed critical habitat (CH) designation. The following testimony is
a result of that effort and will focus on:

Background for the proposed CH designations,

A consideration of the service definition of Occupied
Habitat,

Physical and biological features required by the
Rabbitsfoot mussel,

Summaries the CHU proposed for the Rabbits foot mussel in
Arkansas,

Streams considered but not yet proposed as critical
habitat, and

Potential ramifications of the proposed action.

Additional details, maps and tables supporting this testimony can
be found in the document at the end of this written testimony. (GBMc,
2013, Review of Proposed Critical Habitat Designation for Rabbitsfoot
Mussel (Quadrula cylindrical cylindrical) and Neosho Mucket (Lampsilis
rafinesqueana).

2.0 BACKGROUND

The U.S. Fish and Wildlife Service (Service) proposed critical
habitat for the Rabbitsfoot Mussel (Quadrula cylindrical cylindrical)
and the Neosho Mucket (Lampsilis rafinesqueana) on October 16, 2012.
The comment period for the proposed action was extended and reopened
for an additional 60-day comment period to end October 28, 2013. The
proposed critical habitat for the Rabbitsfoot Mussel included 1,654
river miles across 15 States. The proposed action designating critical
habitat for these two mussel species proposed 13 habitat units across
Arkansas covering approximately 800 river miles (approximately 48
percent of the total proposed).
The streams included in the critical habitat units directly impacts
30 counties (28 Rabbitsfoot Mussel and 2 Neosho Mucket). Should all the
proposed critical habitat units be adopted as proposed, the targeted
watersheds cover approximately 42 percent of the geographical area of
Arkansas.
The Service Species Assessment and Listing Priority Assignment Form
are used by the Service to evaluate the species being proposed for
action under the Endangered Species Act (ESA). The form for the
Rabbitsfoot Mussel was approved on June 4, 2008 by the Regional
Director and concurred by the Acting Director on October 29, 2009. This
document provides a summary of information related to the distribution,
biology, threats to the species, rational for proposed listing and a
ultimately a ``listing priority'' number.
The Rabbitsfoot Mussel was first identified as candidate in
November 15, 1994 (59 FR 58982). At which time the species was assigned
a category 2 until 1996 (61 FR 7596) when the listing was discontinued
due to lack of information. The Rabbitsfoot Mussel was added to the
candidate list again in the November 9, 2009 (74 FR 57804) with a
Listing Priority Number (LPN) of 9 (out of 12), indicating threats
determined to be moderate magnitude but imminent overall. The notice
dated November 10, 2010 (75 FR 69222) again listed the Rabbitsfoot
Mussel as candidate species and again with a LPN of 9. Even with the
additional information developed after Butler (2006) from 2006-2010,
there was no change in the priority ranking of 9 out of 12, with a LPN
of 1 being the most urgent listing priority.
According to the Service Assignment form an LPN of 9 indicates
threats of a moderate magnitude; some of the threats are non-imminent,
most are ongoing, and the threats are imminent overall. An LPN of 9 is
the lowest in the imminent category. A LPN of 10 would indicate non-
imminent condition. This listing is rather subjective and has resulted
due to the ``reduction in range and most of its extant populations are
declining and /or isolated'' (77 FR 63476). This assessment was based
largely on Butler (2005), the status report for the Rabbitsfoot Mussel.
This status report ultimately categorized the condition of populations
throughout the multi-State range of the Rabbitsfoot Mussel often as an
opinion comparing limited qualitative data to determine population
status. Butler (2005) categorized extant populations based on
``qualitative information'' comparing recent survey data, post 2000, to
largely qualitative descriptors provided in the historical
documentation.
As provided later in this testimony, several stream segments in
Arkansas that were once thought to no longer support viable populations
of the Rabbitsfoot mussel, have recently (2012-2013) been determined to
harbor populations. This information is currently in press (personal
communication with Bill Posey, Arkansas Game and Fish Commission State
Malacologist, 2013). This new information begs the question. ``Was the
Service justified in its designation of the Rabbitsfoot mussel as a
threatened species, especially if there are other populations one or
more of the other 14 States not yet accounted for?''
The Neosho Mucket was first identified as candidate species on May
22, 1984 (49 FR 21664) status 2 category until 1996. The designation
was discontinued due to lack of information. It was relisted as a
candidate in October 30, 2001 (66 FR 54808). The 2001 listing priority
assigned was 5 (out of 12). Listing priority was reassessed in 2010 and
changed from 5 to 2, indicating threats to the conservation of the
species were imminent and high in magnitude.

3.0 OCCUPIED HABITAT

In the determination of critical habitat units, the Service chose
to expand the definition of critical habitat to include stream segments
which had not been demonstrated to harbor populations of the target
species (Rabbitsfoot Mussel and Neosho Mucket). As provided in the
proposed listing (77 FR 63475) the Service provides that:

``Therefore, where one occurrence record was known from a river
reach, we considered the entire river reach between the
uppermost and lowermost locations as occupied habitat except
lakes and reservoirs.''

These definitions and their application in the determination of the
proposed Critical Habitat Units (CHU) raised three primary
considerations that are not supported including:

The proposed CHU includes long distance stream segments,
large portions of some of which have not been documented to
harbor and/or support the target species,

Portions of selected CHU demonstrate conditions (e.g.
hypolimnetic releases and year round reduced water
temperatures) that are not conducive to mussel population
development and are not supportive of the target species
considered in this proposal, and

That the entire river reach provides critical habitat
ESSENTIAL to the conservation of the individual species
implies that critical habitat identified as necessary for
Rabbitsfoot Mussel (both substrate and flow refugia) occurs
in the entire proposed reach.

4.0 PHYSICAL OR BIOLOGICAL FEATURES OF CRITICAL HABITAT FOR THE
RABBITSFOOT MUSSEL

In describing the required habitat types, the proposed critical
habitat descriptions provide that:

``Although little is known of the specific habitat requirements
for the Neosho Mucket and the Rabbitsfoot Mussel it can be
determined that they require flowing water, geomorphically
stable river channels and banks with suitable substrate,
adequate food, the presence and abundance of fish hosts,
adequate water and sediment quality, and few or no competitive
or predaceous invasive (nonnative) species'' (page 3 of Draft
Environmental Assessment).

Comment: If little is known about the specific habitat
requirements for these species, critical habitat designations
may be too broad. There is simply not enough information to
make an accurate critical habitat designation.

Preferred hosts of the Rabbitsfoot Mussel based on Yeager and Neves
(1986) and Fobian (2007) are Cyprinella galacturus, Cyprinella
venustus, Cyprinella spilopterus, and Hybopsis amblops.

Comment: As illustrated in the Fishes of Arkansas (Robinson and
Buchanan, 1988) species distribution of these fish species is
predominately relegated to the northern portion of the State.
While populations of the Rabbitsfoot Mussel exist in the
Saline, Ouachita, and Little Rivers, it seems most appropriate
to designate critical habitat in areas where successful host
species and the Rabbitsfoot Mussel coexist in the northern
portions of Arkansas.

Several of the proposed critical habitats are located within the
influence of hypolimnetic (cold water) discharges from reservoirs or
spring dominated flows. Vaughn and Taylor (1999) reported extinction
gradients downstream of impoundments, contributing this reduction of
mussels to altered flow regimes and reduced water temperatures.

Comment: The critical habitats proposed in streams that are
impacted/controlled by hypolimnetic or other cold water
releases are not preferred habitats for the Rabbitsfoot Mussel
and should be removed for the proposed critical habitat units.

Additionally, Butler (2005) often used the condition of patchy
distribution of individual populations as a reason to characterize the
status as declining. This apparent patchy distribution does occur and
is routinely reported in survey results, often demonstrated as
collections of the Rabbitsfoot Mussel in clustered sites and excluded
from long reaches within the proposed CHU. The ``patchy distribution''
reflects the natural selection by the Rabbitsfoot Mussel to selectively
occupy habitats that allow ``rabbitsfoot to remain in the same general
location throughout their entire lives. These patches of stable habitat
may be highly important for the rabbitsfoot since it is typically does
not burrow, making it more susceptible to displacement into unsuitable
habitat'' (77 FR 63472). Therefore, the patchy distribution is not an
indication of population status but actually a function of habitat
selection by the Rabbitsfoot. The Rabbitsfoot mussel has been described
by as a ``habitat specialist'', roughly translated to mean that the
Rabbitsfoot prefers a very special habitat type and is not generally
distributed throughout the streams it inhabits.
Last, Butler (2005), and the public notice of proposed critical
habitat relied extensively and quoted frequently personal opinions in
the assessment of current population conditions which were not and
cannot be substantiated.

5.0 CRITICAL HABITAT UNITS (CHU) PROPOSED FOR ARKANSAS (LISTED FROM
LONGEST TO SHORTEST)

The Rabbitsfoot Mussel is fairly widespread in Arkansas streams.
Several ``robust'' populations are found throughout Arkansas: the White
River, Black River, Spring River, Ouachita River, Saline River, and
Little River. According to Harris et al. (2009), there are large
populations in the Spring and Black Rivers.
The proposed modifications seek to reduce the total critical
habitat less to approximately one-third of the 800 river miles that
proposed. After review of the basis for the proposed designation of the
12 CHU, comments are provided to modify 6 of the 12 proposed CHU
including:

Saline River......... Proposed CHU RF5, from 179.2 river miles (RM) to approx. 50 rm,

Ouachita River....... Proposed CHU RF4b from 98.1 rm to approx. 15 rm,

Black River.......... Proposed CHU RFb from 57.2 rm to approx. 25 rm,

Spring River......... Proposed CHU RF10 from 39 rm to approx. 20 rm,

Ouachita River....... Proposed CHU RF4a delete the total CHU of 13.6 rm, and

SF Spring River...... Proposed CHU RF11 delete the total CHU, 10.2 rm.

There are no comments or recommended changes to the other 6 CHU.

The following section provides highlights of each proposed
modification of the CHU. The summary provides percent ownership of
riparian habitats, an overview of the stated basis for the designation
as proposed critical habitat, and comments justifying proposed
modifications to the individual CHU.

5.1 Saline River Proposed CHU RF5 Reach Length--179.2 River Miles

92 percent of riparian areas privately owned;

Comment: Critical habitat should be reduced to account for the
area where populations identified with supporting
documentation, Propose a reduction of the Saline River critical
habitat unit modified from 179.2 river miles to approximately
50 river miles, where populations actually exist

5.2 Ouachita River Lower Reach--Proposed CHU RF4b--Reach Length 98.1
River Miles

100 percent of riparian habitat privately owned;

Comment: The hypolimnetic (cold water) releases from the 3
mainstem Ouachita River reservoirs (that is reinforced by
releases from Caddo River impoundment entering Ouachita River
at Arkadelphia), limits the development of the Rabbitsfoot
Mussel and does not represent critical habitat for the
Rabbitsfoot Mussel. Therefore the critical habitat of this
reach should be modified to include the Ouachita River where
populations of the Rabbitsfoot Mussel have been quantified.

5.3 Black River--Proposed CHU RF9--57.2 River Miles

86 percent of riparian habitat privately owned;

Comment: Documentation of existing populations in the Black
River but not downstream of Black Rock, therefore the CHU
should be modified to include the Black River from Pocahontas
downstream to Black Rock.

5.4 Spring River--Proposed CHU RF10--39 River Miles

Riparian Habitat 100 percent privately owned;

Rabbitsfoot routinely documented in Spring River
downstream of Ravenden, AR, but not upstream of that point;
and

Water temperatures of Spring River controlled by spring
fed source (reduced temperature adversely impacts
reproduction/development of warm water mussel species).
Water temperatures and flow conditions not supportive of
species upstream of Ravenden, AR.

Comment: Due to decreased water temperatures resulting for the
spring fed source and 2007 survey that identified upstream
extent of populations, the CHU for the Spring River should be
modified.

5.5 Ouachita River--Upper Reach--Proposed CHU RF4a--13.6 River Miles

Riparian Habitat approximately 82 percent privately owned;

AGF mussel database indicated three listed collections
from 1988 (one relic shell and 3 live mussels) nothing
before or after;

No other documented occurrence;

13.6 river mile CHU not essential for the conservation of
the species, and not confirmed as present at listing.

Comment: CHU should be eliminated based on lack of
documentation, limited population, not documented at time of
listing, and isolation by main stem reservoirs

5.6 South Fork Spring River--Proposed CHU RF11--10.2 River Miles

2002 initial documentation dead and relics only, no live
mussels;

2003 intensive survey failed to document presence (Marten,
et. al, 2009);

Single live specimen identified just upstream AR Hwy 289
(Harris, 2007 et. al); and;

Small watershed and limited reach size (10.2 river miles)
and lack of documented population prevents this CHU from
meeting the ``essential for conservation of the species''
requirement for being adopted as a CHU.

Comment: The CHU RF11 should be eliminated from further
consideration.

6.0 CONSIDERED BUT NOT PROPOSED AS CRITICAL HABITAT FOR RABBITSFOOT
MUSSEL

The following waterbodies were evaluated as potential critical
habitats for the Rabbitsfoot Mussel, however they were not included in
the previous proposed action for various reasons:

1. Illinois River

2. Current River

3. Cassatot River

4. Little Missouri River

5. War Eagle Creek

It is likely that some or all of these waterbodies will be proposed
as critical habitat in the new public slated for release in the near
future. The addition of these stream segments will only increase the
``footprint'' of the watersheds impacted by the proposed CH
designation.
Also, the addition of ``newly'' discovered viable populations
should call into the ultimate question related to the necessity of
listing at all.

7.0 NEOSHO MUCKET

The Neosho Mucket is estimated to be extirpated from approximately
62 percent of historical range with only 9 of 16 historical populations
remaining, and only one of those listed as the remaining large viable
population.

Comment: No proposal to modify the proposed CHU.

8.0 FACTORS NOT CONSIDERED IN THE INCREMENTAL COST ANALYSES

The following actions were not considered in the ``cost analyses''
but are true cost associated with the proposed action.

8.1 Cost to Small Business

There are several dischargers into the proposed CHU that are
regulated through the National Pollutant Discharge Elimination System
(NPDES) permit system as administered by ADEQ. As provided in there are
29 direct discharges and 91 indirect dischargers into the proposed CHU.
As a result of the designation of the CHU, these discharge permits will
be subjected to an increased level of regulation, including potential
need for formal and/or informal consultation with the Service to
determine the potential for effects on the listed species and the
critical habitats.

Comment: While the draft economic assessment (DEA) takes into
account potential costs to small businesses for consulting and
permitting purposes, the proposed critical habitat designation
does not take into account the full cost of project delays due
to permit issues and modifications or the cost for implementing
conservation measures determined necessary by the Service.

8.2 Blueprint for Litigation

The designation of the critical habitat over large reaches of
stream segments provides a road map or a blueprint for those
individuals and/or groups looking to profit from the government
regulation. Theses CHU designations will result in litigation against
private landowners and businesses for lawsuits claiming a ``take'' of
the protected regardless whether there is basis for the claim or not.
GBMc experienced this first hand in assisting an individual to defend
his actions in a tributary of the South fork of the Little Red River,
designated as habitat for the Yellowcheek darter.

______

The Chairman. Thank you very much, Mr. McDaniel, and I am
sorry I had to interrupt you, but we are trying to keep it on
track here.
I now would like to recognize Mr. Randy Veach, who is the
President of the Arkansas Farm Bureau based out of Little Rock.
Mr. Veach, you are recognized for 5 minutes.

STATEMENT OF RANDY VEACH, PRESIDENT, ARKANSAS FARM BUREAU,
LITTLE ROCK, ARKANSAS

Mr. Veach. Mr. Chairman, thank you for being here in
Arkansas, and thanks to Rick Crawford, Congressman Crawford,
for requesting the field hearing and getting it here in
Arkansas so that we could express our views to you.
My name is Randy Veach. I am a third-generation row crop
farmer from rural Mississippi County. I am serving in my sixth
term as President of Arkansas Farm Bureau, which is the State's
largest agriculture advocacy organization.
I appreciate the opportunity to speak to you this morning
on behalf of the farmers and the ranchers and private
landowners who will be adversely affected by the critical
habitat designation being proposed as part of the Endangered
Species Act.
I speak especially about the U.S. Fish and Wildlife
Service's over-protection of two aquatic species, the Neosho
Mucket and the Rabbitsfoot Mussel.
We want to express our support also for Congressman
Crawford's bill, H.R. 4319, the Common Sense--and really, that
is what we need to be looking at is common sense--in Species
Protection Act of 2014, which amends the Endangered Species Act
to require government agencies in charge of determining
critical habitat designation, such as Fish and Wildlife, to
perform a true analysis of how such a designation will affect
the areas, lives and livelihoods, and that is what we are
talking about.
This issue involving critical habitat is very important to
Arkansas, and I am going to tell you just exactly how important
it is. There are more than 700 miles of rivers and streams in
our State connected to this proposed critical habitat. Thirty-
one counties are affected. Roughly 90 percent of these river
miles pass through private property, and that is a
disproportionate impact on productive land.
In this area, Arkansas has more than 21,000 family farms,
7.4 million acres of farmland, more than $2.9 billion worth of
agriculture income, which accounts for over a half-a-million
jobs, a half-a-million jobs. Farmers in these areas produce
more than 78 million broiler chickens, more than 6 million
laying hens, 606,000 acres of rice, 780,000 acres of soybeans,
8.6 million acres of forestland, and thousands and thousands of
head of cattle.
This area in Arkansas represents almost half of the
Nation's proposed critical habitat area for these two species.
Last year, the U.S. Fish and Wildlife issued a final rule that
would implement an incremental approach to analyzing the
economic impact of critical habitat designation versus a full
analysis. This approach would require U.S. Fish and Wildlife to
only consider the direct cost of government agencies instead of
considering costs to all stakeholders. This is a short-sighted
approach.
A process that allows a full and complete economic impact
study before critical habitat areas are declared would clearly
be a better approach. Our farmers and ranchers and landowners
are often overloaded with unnecessary and burdensome
regulations. Designating that much critical habitat without
considering economic effects on the area will no doubt compound
that problem. Quite frankly, it will affect our lives and our
livelihoods, and that must be reflected in any evaluation of
critical habitat designation.
A recent analysis, economic analysis performed by the
Association of Arkansas Counties determined that the minimum
cost of the habitat designation statewide would be at least $20
million, more than $20 million, and that number we have already
been talking about is probably doubled or tripled when we
understand the full impact. That $20 million is five times the
impact that U.S. Fish and Wildlife has projected for Arkansas
and all of the other States involved, 11 other States.
But there is a more important fact. Let me tell you what
this really means. Every 6 seconds around the globe, a child
dies of malnutrition-related causes. Now, if we are restricted
or prohibited or diminished in the productivity of the farmers
and ranchers in this State, that number will only increase.
We recognize the Endangered Species Act is necessary for
the protection of legitimately threatened and endangered
species. However, its implementation through critical habitat
designation should not go without considering the true economic
impacts to the human species, the lives and livelihoods of
people in Arkansas. It should not be used as a mechanism for
environmental non-government organizations and law firms to
essentially extort from private landowners.
Director Ashe was in Arkansas recently, and we greatly
appreciate him being there, but he repeatedly said that the
critical habitat area would not mean any further restrictions.
In fact, he indicated that regardless of whether you were
inside or outside of a critical habitat area, that the
Endangered Species Act would still apply. In other words, any
activity that might impact endangered species would require
U.S. Fish and Wildlife permission or permit, regardless of
whether you were in a critical habitat or not.
In conclusion, I hope Congress takes control of this issue.
The men and women of Congress passed the Endangered Species
Act. In my view, the implementation of the Endangered Species
Act by the U.S. Fish and Wildlife Service amounts to rewriting
the law and implementing it in a way that is not consistent
with the intent of Congress.
Thank you for the opportunity, and God bless.
[Applause.]
[The prepared statement of Mr. Veach follows:]
Prepared Statement of Randy Veach, President, Arkansas Farm Bureau,
Little Rock, Arkansas
Mr. Chairman and members of the committee, I want to welcome you to
Arkansas. Thank you to Rep. Rick Crawford for requesting the field
hearing.
My name is Randy Veach, a row-crop farmer from rural Mississippi
County. I am serving my sixth term as president of Arkansas Farm
Bureau, the State's largest agriculture advocacy organization, with
more than 190,000 member families.
I am eager to speak to you this morning on behalf of farmers,
ranchers and private land owners who will be adversely affected by the
Critical Habitat Designations being proposed as part of the Endangered
Species Act. I speak specifically about the U.S. Fish and Wildlife
Services' (USFWS) overprotection of two aquatic species, the Neosho
Mucket and the Rabbitsfoot mussels.
We want to express our support for Congressman Crawford's bill,
H.R. 4319, the Common Sense in Species Protection Act of 2014, which
amends the ESA to require government agencies in charge of determining
a critical habitat designation--such as USFWS--to perform a true
analysis of how such a designation will affect an area's lives and
livelihood.
This issue involving critical habitat and the Endangered Species
Act is very important to Arkansas.
There are more than 700 miles of rivers and streams in our State
connected to this proposed critical habitat, and 31 counties in
Arkansas that could be impacted. Roughly 90 percent of these river
miles pass through private property, a disproportionate impact on
productive land.
In this area, Arkansas has more than 21,000 family farms, 7.4
million acres of farmland, more than $2.9 billion worth of agricultural
income, which accounts for a half million jobs. Farmers in these areas
produce more than 78 million broiler chickens, more than 6 million
laying hens, 606,000 acres of rice, 780,000 acres of soybeans, and 8.6
million acres of forestland.
This represents almost half of the Nation's proposed critical
habitat area for these two species.
Last year, the USFWS issued a final rule that would implement an
``incremental approach'' to analyzing the economic impact of critical
habitat designations versus a ``full analysis.'' This approach would
require USFWS to only consider the direct cost to government agencies,
instead of considering costs to all stakeholders. This is a short-
sighted approach.
A process that allows a full and complete economic impact study
before critical habitat areas are declared would, clearly, be a better
approach. Our farmers, ranchers and landowners are often overloaded
with unnecessary and burdensome regulations. Designating that much
critical habitat without considering the economic effects on the area
will, no doubt, compound that problem. Quite frankly, it will affect
our lives and our livelihood, and that MUST be reflected in any
evaluation of critical habitat designations.
A recent economic analysis performed by the Association of Arkansas
Counties determined the minimum cost of the habitat designation in our
State would be more than $20 million, five times the total impact USFWS
projected for Arkansas and 11 other States.
We recognize that the Endangered Species Act is necessary for the
protection of legitimately threatened and endangered species; however,
its implementation through critical habitat designation should not go
without considering the true economic impacts to the human species, in
other words our lives and livelihoods. It should not be used as a
mechanism for environmental Non-Government Organizations and law firms
to essentially extort from private land owners.
USFWS Director Dan Ashe was in Arkansas last month to meet with a
number of stakeholders on this issue, which we appreciated. He said
repeatedly that being in a critical habitat area would not mean any
further restrictions. He, in fact, indicated that regardless of whether
you were inside, or outside, of the critical habitat area that the
Endangered Species Act still applied. In other words, any activity that
might impact an endangered species would require USFWS' permission and/
or a permit, regardless of whether you were in the critical habitat
area or not.
If this is true, then why have critical habitat designation?
In conclusion, I hope Congress takes control of this issue. The men
and women of Congress passed the Endangered Species Act. In my view,
the implementation of the ESA by the U.S. Fish & Wildlife Services
amounts to rewriting the law and implementing it in a way that is not
consistent with the intent of Congress.
Thank you, and God bless America.

______

The Chairman. Thank you very much.
And certainly last but not least, we have Mr. Curtis
Warner, Director of Compliance and Support for the Arkansas
Electric Cooperative Corporation from Little Rock.

STATEMENT OF CURTIS WARNER, DIRECTOR OF COMPLIANCE AND SUPPORT,
ARKANSAS ELECTRIC COOPERATIVE CORPORATION, LITTLE ROCK,
ARKANSAS

Mr. Warner. Thank you, Chairman Hastings, Representative
Crawford. Thank you for this opportunity to testify on the
important issue of the Fish and Wildlife Service's critical
habitat designations under the Endangered Species Act.
I would especially like to thank Congressman Crawford for
requesting that the committee hold a field hearing on this
timely and important topic right here in Arkansas.
We also want to recognize Senator Pryor for his work to
address this important issue in the Senate.
My name is Curtis Warner, and I am the Director of
Compliance and Support for Arkansas Electric Cooperative
Corporation. I have worked for AECC for 35 years. The AECC,
which is based in Little Rock, is one of the Nation's leading
generation and transmission cooperatives. We have assets about
$1.6 billion. AECC provides wholesale electricity to the
State's 17 electric distribution cooperatives. Together, we
provide electricity to more than 500,000 homes, farms and
businesses. Altogether, the electric cooperatives of Arkansas
have assets of over $4.5 billion. These assets are in the form
of power plants, substations, transmission lines, and they form
the infrastructure that is needed to supply reliable and
affordable electric service to our members.
When most people think of the Endangered Species Act, they
think of the western parts of the country. However, this is
quickly changing. According to the Service's own listing plan,
every State in the Nation will be affected by at least one
listing decision within the next 5 years. Here in Arkansas, we
are already dealing with several species, including the Indiana
bat and the interior least tern.
The electric cooperative system covers about 62 percent of
the land area of the State. We serve members in all 75
counties. With these and so many additional species expected to
be listed in the upcoming years, AECC and its members will
continue to deal with Endangered Species Act issues for many
years to come.
Here is an example of an impact we have already had. AECC
has been a leader in developing clean, renewable energy in
Arkansas. We own three run-of-river hydroelectric projects in
the Arkansas River. If shown to be low impact, they can be
eligible for renewable energy credits, or RECs, which AECC can
then sell and use to reduce rates to our members. Well, our
projects are very low impact.
At our Dam 2 hydroelectric station near Dumas where these
RECs are currently worth about $350,000 a year, we had trouble
gaining low impact certification due to the nearby habitat of
the interior least tern. This caused about a year's delay and
lost revenue from the sale of those RECs.
We have been looking at developing additional sites on the
Arkansas River, but due to ESA concerns like this, it would be
very difficult to develop any more of these clean, renewable
resources.
Another example came when AECC was attempting to site a
wind project. Working with a major turbine vendor, AECC had an
opportunity to install the first prototype of a new, state-of-
the-art wind turbine at a very promising location in the
northern part of the State. Unfortunately, when the vendor
learned that northern Arkansas was also the territory of the
endangered Indiana bat, they backed out of the project, citing
the ESA concerns and the delay to the project that would be
caused.
AECC suffered an impact because we had the loss of a clean,
renewable energy resource. That particular landowner lost a
considerable amount of money and potential royalties he would
have gotten from the sale of the energy generated by those wind
turbines.
We are pleased that our congressional delegations are
looking to make more commonsense changes to the Act so that it
works better for both people and threatened, endangered
species. Representative Crawford's bill does just that. A key
feature of the legislation requires a draft economic impact
analysis be issued concurrently with a proposal to designate
the critical habitat.
As the current law is implemented, no real-life economic
analysis is produced by the Service when a critical habitat is
proposed. This leads people to believe that establishment of
critical habitat has essentially zero economic impact. However,
those that have tried to construct infrastructure projects like
ours within a designated critical habitat area know there are
significant economic impacts. Those impacts come from project
delays, environmental studies, cost of mitigation, land use
constraints, and simply the difficulty to site a new facility.
Whatever the form, these impacts raise the costs to our
projects and, in turn, raise the electric rates to our members.
Requiring a real economic analysis and having it available
for public review is a very important benefit of the Crawford
bill. This will give much-needed transparency to the process,
and the AECC supports this idea.
In conclusion, AECC greatly appreciates the work of this
committee and its efforts to reach out to a new generation of
stakeholders that would be affected by implementation of this
Act.
Finally, I want to thank Representative Crawford and our
congressional delegation for putting a national spotlight on
issues we face here in Arkansas as we are implementing the
Endangered Species Act.
Thank you for the privilege of providing this testimony,
and I look forward to answering any questions.
[The prepared statement of Mr. Warner follows:]
Prepared Statement of Curtis Q. Warner, Director, Compliance & Support,
Arkansas Electric Cooperative Corporation
introduction
Chairman Hastings, Ranking Member DeFazio, Representative Crawford,
members of the Natural Resources Committee, thank you for this
opportunity to testify on the important issue of the U.S. Fish and
Wildlife Service's (``Service's'') Critical Habitat Designations under
the Endangered Species Act (``ESA'' or the ``Act''). My name is Curtis
Q. Warner, and I am the Director of Compliance & Support for Arkansas
Electric Cooperative Corporation (``AECC'').
I would especially like to thank Representative Crawford for
requesting that the committee hold a field hearing on this timely and
important topic here in Arkansas. We also want to recognize Senator
Pryor for his work to address this important issue in the Senate.
As a result of these strong oversight efforts by Arkansas'
Congressional Delegation, the U.S. Fish and Wildlife Service recently
made the decision to reopen for public comment, the proposed critical
habitat designation for the Neosho mucket and rabbitsfoot mussels. This
will be the second time the proposal has been reopened for comment at
the request of our Congressional Delegation.
AECC would also like to thank the Delegation for providing the
opportunity to discuss issues in an open forum with Service Director
Dan Ashe. We were pleased that Director Ashe took time to travel to
Little Rock on April 17 and listen to our concerns about this important
rulemaking. With such a widespread critical habitat as is being
proposed for the two listed mussels, this rulemaking will have a very
significant impact in Arkansas. For that reason, AECC believes that
stakeholders be allowed as much time as necessary to provide input on
the proposal.
aecc background
AECC, based in Little Rock, is one of the leading generation and
transmission (``G&T'') cooperatives in the Nation with assets of about
$1.6 billion and annual energy sales of about $736 million in 2013.
AECC provides wholesale electricity, at some of the most competitive
rates in the Nation, to the State's 17 electric distribution
cooperatives. Those cooperatives own AECC and are its members. AECC and
its 17 members combine to provide electricity to more than 500,000
farms, homes, and businesses in Arkansas. All together, the Electric
Cooperatives of Arkansas have assets of over $4.5 billion dollars
invested here in Arkansas. These assets, in the form of power plants,
substations, and transmission and distribution lines, form the
infrastructure needed to supply electric service to our member-
consumers.
AECC generates and transmits electricity statewide and delivers it
to the distribution cooperatives. From there, the distribution
cooperatives own and operate a system of distribution lines to provide
electric service to their members. Both G&T and distribution
cooperatives were formed to provide reliable electric service to their
member-consumers at the lowest possible cost.
I have had the good fortune of serving AECC members for more than
35 years. Since I began work at AECC in 1979, I have participated in
performing environmental reviews and permitting for all of AECC's power
plants, electric l substations, and transmission lines. This includes
preparation of five Environmental Impact Statements, numerous
environmental and engineering reports, and testimony for 16 hearings
involving new utility projects before the Arkansas Public Service
Commission. Once a review is complete, my staff and I take part in
acquiring and maintaining the regulatory permits necessary to construct
and operate these facilities. Those permits are subject to many layers
of Federal, State, and local regulations and requirements. Often those
regulations overlap, and occasionally they conflict with each other.
And sometimes, as in the case of the Endangered Species Act, those
regulations can even conflict with themselves.
aecc's experience with esa
When most people think of the Endangered Species Act, they think of
the western parts of the country. We've all heard about the spotted owl
and the desert tortoise. However, given the 2011 settlement agreement
between the Service and environmental plaintiffs, this is quickly
changing. According to the Service's listing work plan, every State in
the Nation will be affected by at least one ESA listing decision in the
next 5 years. Here in Arkansas, we're already dealing with several
species including the Indiana bat, Arkansas fatmucket, pink mucket,
interior least tern and red-cockaded woodpecker.
The electric cooperative system covers about 62 percent of the land
area of Arkansas. We serve members in all 75 Arkansas counties. With
these and so many additional species expected to be listed in the next
few years, AECC and its member cooperatives will continue to deal with
ESA issues for years to come.
An example of a recent ESA impact is from siting a transmission
line in Saline County. AECC submitted its proposed line route to the
Service for review, and the Service requested a buffer zone around a
small unnamed tributary to the Saline River so that listed mussels that
might be present in that stretch of the river would not be impacted.
The small intermittent tributary itself wasn't designated critical
habitat--the proposed critical habitat was almost a mile away. (Note
that this is an overhead line. The only soil disturbance would be the
initial clearing of vegetation for line reliability and the area in the
immediate vicinity of pole placement.)
In order to comply with the Service's initial recommendation, the
route of the transmission line would have been moved to the middle of a
farmer's field. This would have caused delay for AECC and would have
created a physical and economic impact to the farmer for many years
having to avoid poles when working the area. Fortunately, AECC was able
to work with the Service's local office and move the line to a more
practical location.
AECC has been a leader in developing clean, renewable energy in
Arkansas. AECC owns three run-of-river hydroelectric projects on the
Arkansas River. If shown to be low-impact, which they are, they can be
eligible for renewable energy credits (``RECs'') which AECC can sell
and use to reduce rates to our members. At our Dam 2 hydroelectric
station, where these RECs are currently worth about $350,000 a year,
AECC had trouble gaining low-impact hydroelectric facility
certification due to the habitat of the interior least tern in the
area. This caused about a year's delay and lost revenue from the sale
of RECs. We have also been looking at developing additional sites on
the Arkansas River to harness more renewable energy; but, due to ESA
concerns like this one, it would be very difficult to develop any new
projects under the current regulatory environment.
Another specific example came when AECC was attempting to site
another type of renewable energy project--this time a wind project. A
few years ago, AECC had performed a 2-year wind study to determine the
best places to site utility-scale wind turbines in Arkansas. Working
with a major turbine vendor, AECC had an opportunity to install the
first prototype of a new state-of-the-art wind turbine at a very
promising location as part of a demonstration project. Unfortunately,
when the vendor learned that northern Arkansas was a territory of the
endangered Indiana bat, they backed out of the project citing ESA
concerns and the delay to the project which would occur.
Often times trying to protect one species could harm another,
effectively tying our hands as we try to develop a project. For
example, look at the measures to protect mussels verses the measures to
protect birds and bats. In the case of the two mussel species that
prompted this hearing, agencies such as the Corps of Engineers
recommend that to minimize siltation in runoff to wetlands and streams,
which could do harm to the mussels' habitat, we should restrict land
clearing to the drier months as much as possible--in Arkansas that
would be in the summer. Farmers and landowners prefer that we build
power lines during drier periods; this reduces rutting and damage to
farm fields and property. However, other agencies such as the Service
have recommended that we delay the clearing of trees until the winter
months in order to protect roosting birds and bats. Clearing trees in
winter is the worst time to clear due to the soggy ground and rainy
weather--both of which would tend to increase siltation of area streams
potentially harming the mussels to protect birds and bats.
And after October of this year, this will become an even bigger
constraint as another species--the northern long-eared bat--is listed.
At that point any clearing of trees will have to be coordinated through
the Service. In many cases field surveys will have to be conducted, at
no trivial expense, to determine if any of the species are present in
the area. This will cause delays and extra costs to almost every new
power line construction project, no matter how small. It will also be a
significant impact to private landowners and the timber industry.
the importance of transparency and consistency in esa listing decisions
AECC's mission is to provide reliable and affordable power to our
members in a responsible manner.
As part of the Nation's electric grid infrastructure, many of
AECC's projects cost in the millions of dollars. In the case of new
generating stations, it can be in the hundreds of millions of dollars.
As an electric cooperative, all of these costs are passed directly on
to our members. So, in order to meet our requirements of reliability
and affordability, it's very important that our projects are within
budget and on time.
As you know, every action and new regulation by the Federal and
State government can make permitting and compliance even more
difficult, costly and time-consuming than it already is. This extends
to something seemingly as benign as a ``threatened or endangered
listing'' of a relatively unfamiliar plant or animal species by the
Service, which is the subject of this hearing today. The consequences
of listing a species can be very far reaching, so the process needs to
be done with care, and in an open and transparent manner.
We are pleased that our Congressional Delegation is looking to make
common sense changes to the ESA so that it works better for both people
and threatened species. Representative Crawford's Common Sense in
Species Protection Act of 2014 (H.R. 4319) does just that. But in so
doing, the bill avoids any changes to the ESA listing process itself.
A key feature of this legislation requires that a draft economic
impact analysis be issued concurrently with a proposal to designate
critical habitat under the ESA. It will also ensure that the
methodology used in designating critical habitat under the ESA properly
reflects the true economic impact to people and businesses, including
electric cooperatives and our members.
This economic analysis needs to include the real costs of a
critical habitat designation, not just the costs that government
agencies incur to administer an ever increasing bureaucracy. Requiring
a real economic analysis and having it available for public review is a
very important benefit of the Crawford bill that will give transparency
to the process, and AECC supports this idea.
Capturing the real costs of a critical habitat designation is
paramount to this reform effort. However, in order to capture the real
costs, you have to get the methodology correct. AECC's national
association, the National Rural Electric Cooperative Association
participates in a broad-based coalition supporting reasonable
improvements to the ESA, such as this bill. The National Endangered
Species Act Reform Coalition has noted that this bill makes several key
improvements by:

clarifying the scope of the economic analysis by requiring
the Secretary to examine both the ``incremental and
cumulative'' effects of ``all actions to protect the
species and its habitat,''
expanding the scope of the area to be analyzed to include
each State and locality that is ``the subject of, or
affected by, the proposed designation,''
requiring the assessment of economic effects on a
``quantitative and qualitative basis,''
requiring the economic impact analysis to specifically
address public and private economic effects on possible
uses of land and property values, provision of water, power
and other public services, employment, and revenues
available for State and local governments, and finally
mandating that the economic impact analysis comply with
the guidelines issued pursuant to the Data Quality Act.

AECC strongly supports these provisions.

These modifications to current law are important because, as the
ESA is currently implemented, no real-life economic analysis is
produced by the Service when critical habitat is proposed. This leads
people to believe that establishment of critical habitat has
essentially zero economic impact. However, those that have tried to
construct infrastructure within designated critical habitat know that
there are significant economic impacts.
These impacts come in different forms: project delays, additional
environmental studies, cost of mitigation, land use constraints, and
difficulty in siting new facilities. Whatever the form, these impacts
raise the costs of projects--which in turn raise electric rates to our
co-op members. And finally, it's important for an entity like AECC that
needs to schedule and budget for such projects to have transparency
from the beginning so we have a clear understanding of what those
impacts may be.
But these impacts aren't just felt by businesses such as AECC; they
also affect individual landowners. Take my earlier example where a new
transmission line almost got moved into the middle of a field. Being in
or even near a designated critical habitat is a burden that can cause
land use constraints on property owners and decreases their property
values. We know this because in Arkansas many of these property owners
are the rural property owners that we serve in our cooperative service
territories.
To address this issue, Representative Crawford's bill, H.R. 4319,
will mandate the exclusion of property from a critical habitat
designation where the economic impacts analysis shows that the benefits
of the parcel's exclusion outweigh the benefits of including the parcel
within the critical habitat designation. This is obviously common
sense; but, it is also a protection rural property owners need, and
AECC strongly supports this idea.
I would note that the U.S. Fish and Wildlife Service has announced
a draft policy prioritizing the types of properties that may be
excluded from a critical habitat. As this draft policy was just
announced on Friday, May 9, we are still reviewing this proposal.
However, from initial review, while well-intentioned, the draft policy
is inadequate and only reinforces the need for certainty that would be
provided by H.R. 4319.
conclusion
AECC greatly appreciates the work of this committee in its efforts
to reach out beyond the interior West to the new generation of ESA
stakeholders that will be affected by implementation of the Act. We
look forward to partnering with you as you continue your work to make
common-sense changes to the ESA.
Finally, I want to thank Rep. Crawford and our Arkansas
Congressional delegation for putting a national spotlight on the issues
we face as the ESA is implemented at home here in Arkansas. Legislation
such as that proposed by Rep. Crawford and Senator Pryor seek to make
modest but significant changes to the ESA that can provide the
transparency we need while protecting the species that inhabit the
Natural State.
Thank you for the privilege of providing this testimony. I look
forward to receiving your questions at the appropriate time.

______

The Chairman. Thank you very much, Mr. Warner, for your
testimony.
We will now go into the part where we as Members get to ask
questions and follow up on some of the comments. So I will
start first by recognizing our host, Mr. Crawford.
Mr. Crawford. Thank you, Mr. Chairman.
Section 3 of the Endangered Species Act explicitly requires
that critical habitat not include an entire geographical area
for species but rather should only include specific areas
within a geographical area occupied by the species that are
essential to the conservation of the species.
For just Arkansas, the Fish and Wildlife Service's proposed
critical habitat designations for the Rabbitsfoot Mussel and
the Neosho Mucket would impact 30 counties, most of which is
privately owned property.
First, Mr. Creasy, in your opinion, are the critical
habitat designations specific and essential? And to your
knowledge, did the Fish and Wildlife Service consult with you
about specific areas of your land that would be included in the
proposal before it was issued?
Mr. Creasy. Obviously, again, as stated earlier, they have
a job to do. Basically put, no, we received no notification, we
received no consultation. Going forward, obviously that is what
we request and that is what we are looking for you guys as
legislators to try to change up some of the regulation that
occurs.
Cattle producers obviously are going to be affected by more
than just the stream that this mussel lives in. We have
property that borders those, and our concern, of course, is if
you have cattle drinking from those streams, how does that
actually affect, and what regulations are going to come into
play? Again, they are talking about only governmental
interaction. But should something occur on the ground, how does
that actually affect the economy if we have to take land out of
production because of a mussel in a stream that lies next to
those?
But at the end of the day, no, we have not received
consultation from cattle producers. We are concerned that that
gets missed somehow in the big picture of things.
Mr. Crawford. OK, thank you.
Mr. Veach, would you like to weigh in on that?
Mr. Veach. Well, I think that there are all kinds of
effects that are hard to even weigh out and to put a finger on.
I think that any time you restrict the activity--and, as Mr.
Pharr said in his comments, there are already burdensome
regulations going on in these areas. They are complying, all
the producers are complying to these regulations. And when you
continue to add more onto that, you end up taking the
profitability out of the farmers' and ranchers' pockets. Once
you do that, when you take the profitability away, then we are
not sustainable. The farmers and ranchers are not sustainable
when they are not profitable. That is a basic definition of
sustainability is to be profitable. When we are not, we are not
sustainable. When we are not sustainable, neither is the
abundant, affordable, safe supply of food that we have all
become so used to.
Mr. Crawford. Thank you.
Mr. Day, you have a kind of a unique situation. We have
heard from farmers, but what are your thoughts regarding that
same question?
Mr. Day. Well, we have the same concerns. I mean, we are
just very worried that we won't be able to do what we have been
able to do over the last--since 1949 in our location. So, yes,
we are exactly in the same boat, and I would echo what these
guys have said, for certain.
Mr. Crawford. OK. It is my understanding that Congress,
originally concerned with how Federal agencies were
interpreting critical habitat in the original Endangered
Species Act, amended it in 1978 to limit its designation to
specific rather than broad areas.
Mr. Pharr, do you believe that Fish and Wildlife Service is
designating critical habitat in a limited manner intended by
Congress?
Mr. Pharr. It does not appear to me that it is in a limited
manner. It appears to be very widely spread, much more so than
is needed.
Mr. Crawford. Obviously, we are here talking about the most
pressing issue for us right now, the Rabbitsfoot Mussel and the
Neosho Mucket. But, Mr. Fox, you had some interesting testimony
regarding a bat.
But the same question to you. Do you believe the Fish and
Wildlife Service is designating critical habitat in a limited
manner intended by Congress?
Mr. Fox. Well, I would have to answer no. I think it is a
general manner rather than a limited manner. But I would say on
the mussels issue, as far as forested land, current forest
practice and management and logging practices would protect
both the mucket and the mussel, leaving trees. Trees clean the
water in several ways. Our forests clean the air. So healthy
forests, good forest management, which includes logging and
prescribed fire, would actually be good for clean water and in
this case I think would also be good for the bat as well.
So I think it is more about our practices in the forest
than the extent of the habitat. I think the habitat--I think we
could coexist I guess is what I am trying to say.
Mr. Crawford. Thank you.
I yield back.
The Chairman. Thank you all for testifying. It has been
alluded to several times that the Northwest or the West has
been hit. I think, Mr. Veach, you alluded to that, and
certainly Mr. Pharr with the statements that you mentioned. I
will just say on a personal note I have been living kind of
through that in the time that I have been in Congress.
Let me ask, then, in that vein a question to six of you, or
five of you. Mr. Creasy, Mr. Day, Mr. Fox, Mr. Pharr, and Mr.
Veach, I want to ask you this question.
In a January 10, 2014 news bulletin that was issued by the
Arkansas Office for Fish and Wildlife Service they state, and I
will quote--and it is a long quote, but I think you will get
the sense of it--``For most landowners, the designation of
critical habitat will have no impact. For example, it will not
prohibit a farmer from allowing cattle to cool down in a river
or from driving a vehicle through a stream on their property.
Critical habitat is primarily a tool to alert Federal agencies
that they are required to make a special effort at conservation
when they work in an area designated as critical habitat or
fund others to work there or permit work by others.''
Now, you heard the testimony today from the Fish and
Wildlife, testimony that the average person will not incur any
costs associated with that. Do you agree that that would be the
case?
And we will start, Mr. Creasy, with you.
Mr. Creasy. I don't agree with that. I think that if a
landowner, a cattle producer is not under an NRCS contract or
within government scope of anything--we are the ultimate
conservationists. At the end of the day, we depend upon the
land, we depend upon the water to be able to produce cattle for
a growing world. So at the end of the day, if we are not
engaging the Federal Government with anything, we simply want
to be left alone.
But if you have a cattle producer who has cattle going out
to drink from a stream and they disturb some of the constituent
elements of either the mussel, the fish, or whatever that
endangered species may be, the question I sometimes have asked
back to Fish and Wildlife is what is the economic impact if
that ranger down the river sees that cow go in and disturb
water, and now all of a sudden he has disturbed the constituent
elements of a species, and all of a sudden an animal has took--
--
The Chairman. OK. I want to get others to answer that
question.
Mr. Creasy. OK.
The Chairman. But the point is--and I don't want to put
words in your mouth, but you are not necessarily comforted by
the fact that that statement is out there.
Mr. Creasy. No, sir, not at all. Not at all, sir.
The Chairman. OK. All right.
Mr. Day?
Mr. Day. Yes. We are not comforted by that statement either
based on what we have observed and seen. The examples that have
been shown to us through the situations that have happened out
West, that would certainly cause us great concern as well, just
the evolution of the process. Our specific part of it is a
little more unique because we are not just crossing through the
stream. We are using the stream. We are canoeing, we are
fishing. It is a part of what we do.
So we don't know how we fit into a statement like that, and
that is a big concern for us.
The Chairman. Mr. Fox?
Mr. Fox. Sure. There is definitely a cost to forest
landowners to leave trees in the riparian zone beside the creek
or the stream. There is definitely a cost. But I would add that
for the last 20 years Arkansas has had our best management
practices for forestry, which are pretty much water driven for
protection of the streams, and 89 percent of our forest
landowners, by our monitoring effort at the Forestry
Commission, conform to the voluntary best management practices.
I much prefer a voluntary system as we have in our forestry
community, but there is a voluntary cost that our forest
landowners practice, and it is usually in the leaving of those
trees beside the stream.
The Chairman. I want to finish up with Mr. Pharr.
Mr. Pharr. Mr. Chairman, I don't agree with the statement
either. I think all you would have to do is look at the
forester, the people in the Pacific Northwest that were
affected by the Spotted Owl. I think that would pretty much
answer what could happen to us.
The Chairman. And Mr. Veach?
Mr. Veach. Yes, I disagree with the statement as well. I
think the U.S. Fish and Wildlife are the only ones that
actually do believe that statement. I think that if that is the
statement, why not do an economic impact to see exactly what
the impact will be? Why shut that door? Why don't we do a
complete economic impact and let's make sure if they are right
or not? But we don't believe that they are.
I think one of the things that is not taken into
consideration there is civil lawsuits. Once these habitats are
designated, then we have to face civil lawsuits for individuals
that can get all those charges paid for by the U.S. Government.
But those lawsuits could amount to a lot and actually shut
farms down.
The Chairman. I will have a follow-up to that. My time has
expired.
I recognize Mr. Crawford.
Mr. Crawford. Thank you once again, Mr. Chairman.
Last summer the Obama administration finalized a rule,
ignoring opposing comments, a 10th Circuit Court of Appeals
opinion, letters from Members of Congress on how it must
conduct economic analyses for critical habitat designations.
The rule requires Federal agencies administering ESA to only
analyze costs of the actual habitat designation but ignore all
other costs associated with listing a species.
Mr. Warner, in your view, is the executive order the best
way to implement ESA? And why is it important to accurately
document the costs of ESA and what the impacts of the rule on
rural areas would be?
Mr. Warner. Well, in general, my personal opinion is that
ruling the country by executive order is not the way to do
things on something as diverse as the Endangered Species Act.
[Applause.]
Mr. Warner. I think decisions like that should be dealt
with by Congress, where there is a lot of input from across the
country on decisions like this.
As far as the economic analysis, certainly if you don't
know the true cost of what you are doing, you are going to be
making some pretty stupid mistakes.
Mr. Crawford. Thank you.
Mr. McDaniel, in your written testimony you point out that
Fish and Wildlife Service chose to expand critical habitat to
include an entire river reach where populations of these
mussels are not now present. Can you elaborate why this is
problematic?
Mr. McDaniel. Well, it goes against the definition and the
designation of what critical habitat is supposed to be. The
Rabbitsfoot Mussel has been described to me by my mussels
experts as a habitat specialist. What that means is they select
very specific habitats to choose to live in. As you have shown
on that map, for the 180 miles of the Saline River, there are
large stretches in that proposed critical habitat that are not
conducive and would never harbor Rabbitsfoot Mussel because the
habitat is not what they like.
So by expanding from the uppermost to the lowermost point
of where they have historical record is a complete misuse of
the occupied habitat that is required for the critical
designation.
Mr. Crawford. Thank you.
Serial litigants often say the litigation saves species
from extinction. They point to the mega-settlements and mega-
petitions that could add over 757 species to the list in the
next few years, an increase of over 50 percent of the current
listings that have taken 40 years.
Mr. Veach, do you agree with that?
Mr. Veach. I don't know. I know that there are, I think, 47
or so more species that are being submitted for endangered
species in Arkansas alone. As you go around the States, other
States, it is that many and more. I think that this thing is
actually exploding on us, and I think the more that it grows,
then the bigger problem that it becomes. I think, just like Mr.
McDaniel was saying a while ago, some of these areas are not
even the habitat that they would like to be in anyway.
So I think that we just keep expanding this, and it has
kind of taken on a life of its own and growing, and if we don't
get a handle on it, if Congress doesn't get a handle on it,
then it is going to put all of us out of business.
Mr. Crawford. Thank you.
Mr. Warner, do you want to weigh in on that one?
Mr. Warner. Well, I really don't have anything else to add.
I think that that says it.
Mr. Crawford. Thank you.
I yield back.
The Chairman. Let me follow up on my last line of
questioning.
Ms. Dohner, I want to ask you on this because you heard
what your fellow panelists said about the statement that was
issued by the Arkansas Fish and Wildlife Department. To be
kind, there is suspicion that it won't work. Like I say, that
is being kind, and I have lived through that in the Northwest.
Now, as I understand it, a couple of years ago, and I don't
know if you were involved with this, but the Fish and Wildlife
teamed with the Florida Fish and Wildlife Conservation
Commission in an attempt to streamline the permitting processes
within the States to give the States more authority on ESA
consultation.
Now, this follows in line, in a way, with what Mr. Fox
said. Mr. Fox suggested that voluntary compliance--or to put it
a different way, those that are affected should be part of the
decisionmaking process, and it appears to me this is what the
attempt was by Fish and Wildlife, trying to team with Florida.
However, last year the Center for Biological Diversity and
the Conservancy of South Florida, two environmental groups,
threatened a lawsuit against Fish and Wildlife to prevent this
from happening.
Now, it just seems to me that when there is an effort for
you to do the right thing, somebody sues, and that has been
brought up several times. As a matter of fact, the subject of
legislation that we passed out of my committee within the last
month was more local control.
But wouldn't you say, as somebody who is tasked with
administering this law, that the effort with Florida was a good
effort, but that these continuous lawsuits slow down the
desired idea of saving species?
Ms. Dohner. Yes, sir, I would say that is a good effort,
and I was involved with that. That was an agreement between
Fish and Wildlife and the Florida Conservation Commission. We
are currently still working on those agreements. We have to
develop step-down plans. We are currently working through that.
The Chairman. What is the basis of the lawsuit that denies
you from doing that? Is there something in the law that says
you can't consult, you can't enter into agreements?
Ms. Dohner. Sir, what we did is we developed an agreement
under the----
The Chairman. No. What is the basis of the lawsuit? What is
the reason why you had to stop this process?
Ms. Dohner. The agreement we have with the Fish and
Wildlife Conservation Commission allowed them to manage more of
the species and allowed them to work with private landowners as
needed to issue permits and things like that, as long as it
follows a plan that we both work on for an individual species
or a suite of species.
The Chairman. Right. I just want to make sure I understand.
So what you were doing, then, your effort was to consult with
local people that are affected on the ground to try to effect
an outcome that would be good for all parties involved with
local input. Is that correct?
Ms. Dohner. Right, and it would give the State more
authority over the management of the species, sir.
The Chairman. OK. Now, the Center for Biological Diversity,
which is one of those that brought this mega-suit in the first
place, didn't like that why?
Ms. Dohner. They didn't like that because they said they
didn't believe we had the authority to work with the State in
this manner through the Section 6 agreement. But like I stated
earlier, we are continuing on that effort in developing these
step-down plans, either for individual species or a suite of
species, to allow them to go forward to manage the species.
The Chairman. Well, I thank you for your answer, and that
is very enlightening, and it is the reason why we had
legislation that passed out of our committee, to deal with more
local consultation. The frustration that I have heard at home
for a number of years is they will ask and then ignore whatever
solutions. In fact, there are efforts--in front of our
committee we had testimony that there are more people on the
State level actively involved in managing wildlife and saving
species on the State level than these national environmental
groups are doing any place, any place in the country.
Now, we have found in our committee that ESA, frankly, has
become a litigious dream, and I will say that very bluntly.
Well, I thank you for your statement, and I encourage you
to continue to try to do that. I will tell you, you have
support from our committee precisely on getting more local
people involved in the whole process, including listing and
including managing.
So, with that, I will yield again to Mr. Crawford.
Mr. Crawford. All right. Thank you, Mr. Chairman.
Recently, the Committee on Natural Resources passed
legislation requiring the Fish and Wildlife Service to post its
scientific data that formed the basis for its listing decisions
online so that independent commenters and American citizens can
review them in advance.
Mr. Creasy, would you support that concept?
Mr. Creasy. Yes, sir, I would. The more transparency, the
better.
Mr. Crawford. Mr. Day?
Mr. Day. Yes, absolutely, of course.
Mr. Crawford. Mr. Pharr?
Mr. Pharr. Yes, sir, I would.
Mr. Crawford. Mr. Veach?
Mr. Veach. Yes, yes.
Mr. Crawford. Ms. Dohner, would you support that?
Ms. Dohner. Sir, I believe we need to be as transparent as
possible and provide the information when we can. Yes, sir.
Mr. Crawford. OK. That is good news. I appreciate that.
Mr. Pharr, in your written testimony you alluded to
examples in California where citizen groups have sued farmers
for using their own land that also had been part of a critical
habitat designation. Do you fear the same thing might happen
here in Arkansas?
Mr. Pharr. Yes, sir, I think it certainly could.
Mr. Crawford. Can you see any specific areas of concern for
you and your operation?
Mr. Pharr. Not particularly in my operation since I don't
have any rivers or creeks through my operation. But certainly
my family owns farms where a creek goes through the farm, and I
could see having to do things along the creek to prevent cattle
getting in it or whatever.
Mr. Crawford. Mr. Creasy?
Mr. Creasy. We have some operations within the watershed
proposed up here that would fall within creeks and boundaries.
So I could see things going forward.
Mr. Crawford. Mr. Veach?
Mr. Veach. Yes, I think so. I think that one of the
examples that Mr. Pharr brought up is some of those
consequences that you don't think about all the time in these
designations, that the herbicide Enlist has not been cleared
for Arkansas because of those critical habitat designations.
That is one of the tools we will certainly need going forward
with the agriculture production.
Mr. Crawford. Thank you.
Ms. Dohner, I have had some experience working on some
projects that obviously were subject to public comment. I am
just curious, how heavily weighted are these public comments
toward other Federal agencies as opposed to citizens who want
to weigh in and be heard? Because it has been my observation
that some of these public comments really have no interest in
hearing from citizens but rather other Federal agencies that
support their position. Is that common?
Ms. Dohner. Sir, I wouldn't agree with that, no. I believe
that during the comment period we received quite a bit of
information, including detailed comments from the Arkansas
Association of Counties, and we are looking at those, and
because of that we are responding in a letter that says that we
will make changes to this critical habitat designation that
will result in a reduction in the amount of area proposed.
So I believe that we have to consider all comments that we
receive to make sure that we have the best science in the
commercial data, including the information from private
landowners to other Federal agencies.
Mr. Crawford. Excellent. Thank you.
Yield back.
The Chairman. This will be the final question. Then I will
turn it over to Mr. Crawford to kind of wrap it up.
I just have three questions here, first for Mr. Day.
A number of panelists testified about the economic impact
that has been a common theme, which I totally agree with. Could
you be very specific with where your camp is and what the
economic impact is in that local area specifically, if you have
knowledge? Can you talk about that?
Mr. Day. Yes, certainly. We are in Montgomery County,
Arkansas, which most of the land in Montgomery County is U.S.
Forest Service land. So we have very limited opportunities for
business in Montgomery County. We are the number two employer
in the county. Our direct economic impact is about $5 million
just as far as what we spend on employees and hiring staff that
spend money in a two-county area. I have worked with Mr.
Hamilton, actually, and have done some multipliers and some
modifications to that, and the actual multiplied economic
impact approaches $10 million. So it is very significant to a
rural economy that doesn't have any real opportunities for
other businesses to come into this area. So it is a big deal.
The Chairman. Not to be redundant, but you feel that these
listings would adversely affect that economic activity?
Mr. Day. Oh, absolutely. We are very, very concerned about
it. We have operated along the banks of the Upper Ouachita
since 1949, and it has been an integral part of what we do.
Looking at the things that have happened, yes, we are very
concerned about how that would affect us, our ability to have
continued impact not only on the economy but just on the kids
that we impact from 35 States and multiple foreign countries.
So, yes, very concerned.
The Chairman. Mr. Warner, you mentioned briefly in your
oral statement about the renewable energy and the impact there.
Could you elaborate a bit? Because of the non-permitting, the
potential indirect costs that may accrue to your ratepayers
because of that activity?
Mr. Warner. Well, we have invested in renewable energy over
the years primarily because it was economical for us to do so.
These Arkansas River hydro projects were very beneficial, good
for our State, and a good source of clean, renewable energy.
The fact that we may lose--basically a lost opportunity to
take advantage of that in the future is what concerns me. If we
are trying to develop additional sites on the Arkansas River or
wind turbines up in the northern part of the State but we can't
because of the proximity to critical habitat or it is just too
difficult to site a facility, the State, our members, the
environment loses because we can't develop those renewable
energy resources.
In the case of the Arkansas River, the river is going
downstream. It is considered a low-impact hydro facility on the
river. But I don't know that we could permit and build those
facilities today with the current regulatory environment. I
know that in the northern part of the State, with the northern
long-eared bat and Indiana bat and the other species that are
in that area, wind developers, if you look across the State,
all the wind farms that have ever been built, there aren't any
in Arkansas. Part of the reason is the Endangered Species Act
issues in the northern part of the State. Our wind is not as
good as most places, but we do have that concern compounding
our problem.
The Chairman. Finally, Mr. Fox, I have a question for you.
The Center for Biological Diversity--there is that organization
again; it keeps coming up--in its petition to the Fish and
Wildlife Service, said that in listing the mussels, they fault
the loggers for, and I will quote, ``failing to follow best
management practices.''
Now, my understanding of best management practices for
forests is multiple use, obviously harvesting, obviously
thinning, obviously prescribed burning, whatever the case may
be. Did they ever say--or are you familiar with that, that that
is part of what their petition said, that you were at fault?
Mr. Fox. I was not familiar with that, no.
The Chairman. OK. Well, what would your response be to
that?
Mr. Fox. Well, I would strongly, strongly disagree with
that. Farmers and foresters are the original conservationists.
If we can't come back, in our case, in the woods every 5 to 7
years, sometimes it is once every 30 years, and harvest again,
then we are out of business. It would be the most ignorant
thing we could do to ruin our environment.
Having said that, the forestry community, much because of
the Northwestern problem with the Spotted Owl, girded ourselves
several years ago so that we did have best management
practices. We monitor those practices for their efficiency, to
see if they are doing what they are supposed to do, their
effectiveness. We monitor behind a certain amount of loggers
every year on a random sample to see if they are being followed
on public land and private land, and our current monitoring
shows 89 percent compliance with voluntary best management
practices.
I strongly disagree with that statement, and I think we are
the conservationists that can protect the mussels, the quality
of the streams, and the quality of our air.
The Chairman. Well, thank you, and thank all the panelists.
Let me turn it over to my colleague, Mr. Crawford, again,
our host, for his closing statement, and then I will wrap it
up.
Mr. Crawford. Thank you, Mr. Chairman.
Again, I want to thank the Chairman for coming and for the
committee.
I think what we have seen here today is a demonstration of
a marked contrast between environmental activism versus active
environmentalism. And farmers, as we have heard here today, and
ranchers and foresters, are active environmentalists. They
derive their livelihood from the land, and I believe they can
be trusted because of that to be good stewards of that land
without an overreach of the Federal Government.
I want to thank them for the testimony.
Thank you for being here.
I also want to thank the University of Arkansas Community
College at Batesville, Chancellor Deborah Frazier; Heath
Wooldridge, Director of the Physical Plant; Mark Cartwright,
the Events Coordinator; and for all the assistance from our
maintenance team, Joshua Bishop, Bill Jackson, Christian
Bernard, and Lori Bell; and Independence County Sheriff's
Department. Sheriff Steve Jeffery, if you are here, we
appreciate you. And finally, State Representative James McLean.
I saw him earlier. I don't know if he has left or not, but I
appreciate him being here.
And with that, thank you all very much.
And once again, thank you, Chairman Doc Hastings.
The Chairman. Thank you very much.
[Applause.]
The Chairman. Let me just wrap up a couple of thoughts
here. First of all, many times questions arise after the panel
has been dismissed, and you may get a letter from one of us
asking a follow-up, and if that happens I wish you would be
able to respond as timely as you can.
I want to make the tie-in with what several members of the
witnesses said and what I said earlier, that those of us in the
Northwest have been more greatly affected by ESA in the long
term. I would just tell you right now, with this multiple
listing and with the potential listings and critical habitat
designations here in the Southeast, this issue is not going to
go away. In fact, I believe it is going to get worse for you,
and I would encourage all of you--your presence here today I
think is certainly aware of that.
But I will tell you just from our experience, it is going
to get worse. I will cite one case in point because we had a
member here from the forest industry. Forestry used to be a big
industry in the Northwest. But since the listing of the Spotted
Owl, which supposedly its demise was because of the lack of old
growth, although now science says it is because of a predator
and not the lack of old growth--at any rate, the economic
activity on Federal forest lands is that harvesting has gone
down by 90 percent--that is 9-0--in 20 years. Equate that to
the jobs and the mills that are no longer there. So that is an
effect of having a listing.
Mr. Veach, you said Congress should take control. That is
precisely what the committee I have the privilege to chair is
trying to do with the four bills that we have passed out right
now that we think will highlight some of what the Endangered
Species Act badly needs, and that is more transparency, more
local control, and we have to get a handle on the litigation.
Those are three themes that are wrapped up in those pieces of
legislation.
So, once again, I want to thank you. On a personal note,
this is the first time that I have had the privilege to visit
Arkansas. I am from the dry part of Washington State, but
because of the rain I am sure people will associate this with
Seattle. But at any rate, in fact, my part of the State is so
dry that when it rains, we call it inventory.
[Laughter.]
The Chairman. So, at any rate, again, I thank the witnesses
very, very much for your testimony.
Rick, thank you very much for being honest to have this
hearing here. I think it was a very, very valuable hearing.
But I would just again simply say for all of you here that
took time to come, this issue is not going to go away, and you
should engage yourself in this issue as much as you can.
If there is no further business before the committee, the
committee stands adjourned.
[Applause.]
[Whereupon, at 11:44 a.m., the committee was adjourned.]

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