[House Hearing, 113 Congress]
[From the U.S. Government Publishing Office]
EXAMINING THE ENDANGERED SPECIES ACT
=======================================================================
HEARING
before the
SUBCOMMITTEE ON ENERGY POLICY,
HEALTH CARE AND ENTITLEMENTS
of the
COMMITTEE ON OVERSIGHT
AND GOVERNMENT REFORM
HOUSE OF REPRESENTATIVES
ONE HUNDRED THIRTEENTH CONGRESS
SECOND SESSION
__________
FEBRUARY 27, 2014
__________
Serial No. 113-107
__________
Printed for the use of the Committee on Oversight and Government Reform
Available via the World Wide Web: http://www.fdsys.gov
http://www.house.gov/reform
______
U.S. GOVERNMENT PRINTING OFFICE
87-950 WASHINGTON : 2014
____________________________________________________________________________
For sale by the Superintendent of Documents, U.S. Government Printing Office,
http://bookstore.gpo.gov. For more information, contact the GPO Customer Contact Center, U.S. Government Printing Office. Phone 202�09512�091800, or 866�09512�091800 (toll-free). E-mail, [email protected].
COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM
DARRELL E. ISSA, California, Chairman
JOHN L. MICA, Florida ELIJAH E. CUMMINGS, Maryland,
MICHAEL R. TURNER, Ohio Ranking Minority Member
JOHN J. DUNCAN, JR., Tennessee CAROLYN B. MALONEY, New York
PATRICK T. McHENRY, North Carolina ELEANOR HOLMES NORTON, District of
JIM JORDAN, Ohio Columbia
JASON CHAFFETZ, Utah JOHN F. TIERNEY, Massachusetts
TIM WALBERG, Michigan WM. LACY CLAY, Missouri
JAMES LANKFORD, Oklahoma STEPHEN F. LYNCH, Massachusetts
JUSTIN AMASH, Michigan JIM COOPER, Tennessee
PAUL A. GOSAR, Arizona GERALD E. CONNOLLY, Virginia
PATRICK MEEHAN, Pennsylvania JACKIE SPEIER, California
SCOTT DesJARLAIS, Tennessee MATTHEW A. CARTWRIGHT,
TREY GOWDY, South Carolina Pennsylvania
BLAKE FARENTHOLD, Texas TAMMY DUCKWORTH, Illinois
DOC HASTINGS, Washington ROBIN L. KELLY, Illinois
CYNTHIA M. LUMMIS, Wyoming DANNY K. DAVIS, Illinois
ROB WOODALL, Georgia PETER WELCH, Vermont
THOMAS MASSIE, Kentucky TONY CARDENAS, California
DOUG COLLINS, Georgia STEVEN A. HORSFORD, Nevada
MARK MEADOWS, North Carolina MICHELLE LUJAN GRISHAM, New Mexico
KERRY L. BENTIVOLIO, Michigan Vacancy
RON DeSANTIS, Florida
Lawrence J. Brady, Staff Director
John D. Cuaderes, Deputy Staff Director
Stephen Castor, General Counsel
Linda A. Good, Chief Clerk
David Rapallo, Minority Staff Director
Subcommittee on Energy Policy, Health Care and Entitlements
JAMES LANKFORD, Oklahoma, Chairman
PATRICK T. McHENRY, North Carolina JACKIE SPEIER, California, Ranking
PAUL GOSAR, Arizona Minority Member
JIM JORDAN, Ohio ELEANOR HOLMES NORTON, District of
JASON CHAFFETZ, Utah Columbia
TIM WALBERG, Michigan JIM COOPER, Tennessee
PATRICK MEEHAN, Pennsylvania MATTHEW CARTWRIGHT, Pennsylvania
SCOTT DesJARLAIS, Tennessee TAMMY DUCKWORTH, Illinois
BLAKE FARENTHOLD, Texas DANNY K. DAVIS, Illinois
DOC HASTINGS, Washington TONY CARDENAS, California
ROB WOODALL, Georgia STEVEN A. HORSFORD, Nevada
THOMAS MASSIE, Kentucky MICHELLE LUJAN GRISHAM, New Mexico
C O N T E N T S
----------
Page
Hearing held on February 27, 2014................................ 1
WITNESSES
Mr. Samuel Rauch, Deputy Assistant Administrator for Regulatory
Programs, National Oceanic and Atmospheric Administration
Fisheries Service, U.S. Department of Commerce
Oral Statement............................................... 5
Written Statement............................................ 7
Mr. Michael Bean, Counselor, Fish and Wildlife and Parks, U.S.
Department of the Interior
Oral Statement............................................... 11
Written Statement............................................ 13
APPENDIX
Opening Statement of Chairman James Lankford..................... 50
Opening Statement of Rep. Lujan Grisham submitted for the record. 52
Feb. 27, 2014, Statement of the U.S. Chamber of Commerce
submitted for the record by Chairman James Lankford............ 53
Statement of Mr. William L. Kovacs............................... 55
Responses from the Dept. of the Interior to questions by Rep.
Speier, submitted for the record............................... 61
U.S. Fish and Wildlife Service Endangered Species information.... 66
``Lesser Prairie Chicken; A Technical Conservation Assessment''
Prepared for the USDA Forest Service........................... 70
EXAMINING THE ENDANGERED SPECIES ACT
----------
Thursday, February 27, 2014
House of Representatives,
Subcommittee on Energy Policy, Health Care, and
Entitlements,
Committee on Oversight and Government Reform,
Washington, D.C.
The subcommittee met, pursuant to call, at 2:47 p.m., in
Room 2154, Rayburn House Office Building, Hon. James Lankford
[chairman of the subcommittee] presiding.
Present: Representatives Lankford, Chaffetz, Walberg,
Woodall, and Speier.
Also Present: Representative Lummis.
Staff Present: Joseph A. Brazauskas, Counsel; Sharon Casey,
Senior Assistant Clerk; Ryan M. Hambleton, Senior Professional
Staff Member; Matt Mulder, Counsel; Jessica Seale, Digital
Director; Jaron Bourke, Minority Director of Administration;
Courtney Cochran, Minority Press Secretary; and Juan McCullum,
Minority Clerk.
Mr. Lankford. Ladies and gentlemen, we are going to go
ahead and start. I know Jackie is on her way here. We have
three Members here, so technically we can begin. And I am going
to do an opening statement, so let me go ahead and get started.
The committee will come to order.
I would like to begin this hearing by stating the Oversight
Committee mission statement.
We exist to secure two fundamental principles. First,
Americans have the right to know the money Washington takes
from them is well-spent. And, second, Americans deserve an
efficient, effective government that works for them. Our duty
in the Oversight and Government Reform Committee is to protect
these rights.
Our solemn responsibility is to hold the government
accountable to taxpayers, because taxpayers have the right to
know what they will get from their government. We will work
tirelessly in partnership with citizen watchdogs to deliver the
facts to the American people and bring genuine reform to the
Federal bureaucracy.
This is the mission of the Oversight and Government Reform
Committee.
I will walk through a quick opening statement, and then I
will yield the floor to our ranking member to do the same.
We are here today to discuss the Endangered Species Act,
which is now in its 40th year. Happy birthday.
The ESA was enacted to conserve habitats and species that
are considered endangered or threatened. President Nixon signed
it into law with the support of 99 percent of Congress. At the
time, there were high expectations for the Endangered Species
Act, President Nixon saying this new law will protect an
irreplaceable part of our national heritage and threatened
wildlife.
However, over the years, some flaws of the Endangered
Species Act have surfaced. There is a significant concern that
some are using the act to advance other policy goals, such as
stopping development, instead of for its intended purpose of
protecting threatened animal and plant species.
Concerns also abound over whether or not the law gives the
implementing agencies enough time to properly process the
candidates for species listing. In one instance, Fish and
Wildlife Service was asked in a petition to examine 374
separate aquatic species, all from 1 petition, in the statutory
90-day timeframe. As a result, the Agency admitted that it was
only able to conduct cursory reviews of the information in
their files and the literature cited in the petition.
This put the Agencies in a very difficult position: Process
the enormous work brought in by a petition within 90 days or
face a lawsuit for missing the deadline from the same groups
bringing the petition in the first place.
The mass amount of petitions lead to a transition toward
sue-and-settle agreements. Whether by choice or not, the
Federal Government faces lawsuits that are very often settled
to the financial benefit of environmental groups and their
lawyers. In many of these cases, States and other affected
stakeholders are not even aware of the negotiations or what is
being discussed until they are resolved.
Also, there have been instances where much of the basis of
these settlements remains sealed. Thus, communities and
stakeholders affected by these listings don't have a full view
of what all occurred. In general, the lack of transparency of
the data used to justify a species' listing remains a major
problem. In some cases, data gathered at taxpayer expense has
not been publicly released.
Transparency is essential to public faith in government.
The less information the public has to understand the
Endangered Species Act and how it is carried out, the less
support the act will have, and it will be even more difficult
to process in the future.
The general success rate of the ESA has also come under
criticism, as well: only a 2-percent recovery rate of the
approximately 2,100 species listed on the endangered/threatened
list since 1973. As I discussed previously, we have seen how we
get species on the list. However, the above statistic begs the
question, how do species graduate off the list? Is 2 percent
enough for success?
Like all Federal agencies in this time of belt-tightening,
Fish and Wildlife Service and NOAA Fisheries have finite
resources. They are spending all their time and resources
getting species on the list. It is unclear if they are able to
spend the time necessary and the finances necessary to get
species off the list, which was the reason this law was passed
in the first place 40 years ago.
Some claim that success can be measured by adding species
to the list, as their prospects will benefit once they get
there. I hope that is the case. However, the goal of the law
enacted 40 years ago was to rehabilitate species and to move
them off the list, not perpetual staying on it.
If Americans are going to have faith in the Endangered
Species Act, they need to see how it works and that it works at
all. Constantly heaping more species on the listings while
barely moving any off of it will undermine that faith and raise
questions about the act's effectiveness.
We also have to deal with the issues of: How do we
determine if the act is being effective? And when things are
moved off, are they moved off because of habitat or because of
population numbers? Are those goals set in advance? And do the
different communities even know how to have those goals
achieved at all?
The ESA is jointly administered by Fish and Wildlife
Service, the Department of the Interior, the National Marine
Fisheries Service, and the National Oceanic and Atmospheric
Administration at the Department of Commerce. I am pleased that
we have representatives of both agencies here today as
witnesses, and I thank them for coming and look forward to
hearing their answers to the subcommittee questions and to the
conversation we will have today.
And I recognize our ranking member, Mrs. Speier, for her
opening statement.
Ms. Speier. Mr. Chairman, thank you for holding this very
important hearing.
And thank you to the witnesses who are here to testify.
You know, 40 years ago, the Endangered Species Act was
passed with overwhelming bipartisan support from Congress. As
President Nixon signed it into law, he said, ``Nothing is more
priceless and more worthy of preservation than the rich array
of animal life with which our country has been blessed.''
The Endangered Species Act, or ESA, has preserved our
country's rich natural heritage, preventing the extinction of
99 percent of the plants and animals it protects. Without this
landmark legislation, scientists estimate that as many as 227
U.S. species would have disappeared. My own State of California
would be much poorer without our brown pelicans, our sea
otters, and our bighorn sheep, all of which were saved by the
ESA.
Too often in Congress, the ESA is invoked as some kind of
legislative boogeyman. My colleagues on the other side of the
aisle have on occasion been known to imply we would all be
better off if we didn't have to protect this insignificant bird
or that ugly flower.
During the debate over the recovery package in 2009, the
salt marsh harvest mouse, anendangered species found around San
Francisco Bay, was blamed for an entirely fictitious spending
boondoggle. Now, I do not want to find a salt marsh harvest
mouse inhabiting my kitchen, but when they are living where
they belong, these lesser-known species act as sentinels for
the health of our ecosystems. When these species decline, they
act as an early-warning system for problems that will harm us,
as well.
Species like the salt marsh harvest mouse or the endangered
San Francisco garter snake that also lives in my district
simply need healthy wetlands. This is a win-win since the
people of the Bay Area also need healthy wetlands to filter out
pollution, buffer homes and businesses from storm surge and
floods, and support thousands of fishing, tourism, and
recreational jobs around the bay. This holds for other
threatened ecosystems, too, from the heights of the Sierra
Nevada to the Great Plains shortgrass prairie.
The ESA is also protecting future technological and
biomedical advances. Bacteria found in a hot spring in
Yellowstone National Park led to the discovery of an enzyme
that underpins all basic genetic research and forensic
techniques. Protein from a jellyfish supports advances in
almost every aspect of biomedical science.
To be clear, the bacteria and jellyfish that I mentioned
are not listed under the ESA. But we do not know where the next
discovery might come from. An endangered species could lead to
the next medical breakthrough. By preventing extinction, the
ESA preserves a natural medicine chest for the coming
generations.
Frequently, the ESA is blamed for tying up the courts in
wasteful litigation. My colleagues on the other side of the
aisle claim that the Department of Justice litigates an average
of at least three cases a week dealing just with citizen suits
under the ESA. However, Department of Justice data shows that
civil litigation filed by industry and nonprofit organizations
is far less than that rate. A hundred and nineteen lawsuits
were filed in 2009, 111 in 2010, 57 in 2012, and only 23
through April 2012.
Let's stick to the facts. The implementation of the ESA has
not been perfect. ESA programs have been chronically
underfunded. The fiscal year 2013 appropriation approved by
Congress for endangered-species work at the Fish and Wildlife
Service was $45.7 million less than the administration's 2013
request. This has led to a substantial backlog of candidate
species which continues to decline, making recovery more
difficult and expensive.
Species also can't recover if there is no place for them to
live. Since the passage of the ESA in 1973, 25 million acres of
land have been converted from undeveloped to developed and 22
million acres have been converted from forested to nonforested,
areas roughly the size of Virginia and South Carolina
respectively. But the answer to the limited resources is
cooperation and coordination, not rolling back protections for
vulnerable species.
You know, when I was on the Board of Supervisors in San
Mateo County way back in the 1980s, I helped to develop what
was then called the Habitat Conservation Plan. It was the very
first in this Nation, and it was an experiment, in part. But we
had endangered butterflies: the Mission Blue, the San Bruno
Elfin, and the Callippe Silverspot. They were inhabiting an
area where a developer wanted to build homes. So we came up
with a habitat conservation plan, created an opportunity for
all of those endangered species to live and to thrive, and were
able to build homes as well.
So we worked with the developer and with the environmental
community to achieve both housing and habitat conservation.
These are the kinds of win-win situations that the ESA can help
facilitate when we commit to protecting species instead of
arguing about whether species should be protected.
Thank you, Mr. Chairman, and I yield back the balance of my
time.
Mr. Lankford. I would love to discuss at a future date how
local leadership could make decisions about how to protect
species, as well. So we will continue that maybe throughout the
course of the day, as well.
Members will have 7 days to submit opening statements for
the record.
Mr. Lankford. We will now recognize our first and only
panel of the day today.
Mr. Sam Rauch is the--it is ``Rauch,'' right? Okay, I said
it wrong the first time--Rauch is the Deputy Assistant
Administrator for Regulatory Programs at the National Oceanic
and Atmospheric Administration's National Marine Fisheries
Service in the Department of Commerce. It is a very long
business card, by the way.
Mr. Michael Bean is the Counselor to the Assistant
Secretary for Fish and Wildlife and Parks at the Department of
the Interior.
Gentlemen, thank you both for being here. Look forward to
our conversation.
And pursuant to committee rules, all witnesses are sworn in
before they testify. So if you would please stand, raise your
right hand, please.
Do you solemnly swear or affirm that the testimony you are
about to give will be the truth, the whole truth, and nothing
but the truth, so help you God?
Thank you. You may be seated.
Let the record reflect the witnesses have answered in the
affirmative.
In order to allow time for discussion, I would like you to
limit your initial testimony to 5 minutes. You have a clock in
front of you there. Your entire written statement--thank you so
much for submitting that--will be a part of the permanent
record. And then we will go into a dialogue from that point.
Mr. Rauch?
WITNESS STATEMENTS
STATEMENT OF SAMUEL RAUCH
Mr. Rauch. Good afternoon, Mr. Chairman and members of the
committee. Thank you for the opportunity to testify before you
today.
My name is Sam Rauch, and I am the Deputy Assistant
Administrator for Regulatory Programs for the National Oceanic
and Atmospheric Administration's National Marine Fisheries
Service. We co-administer the ESA with the Fish and Wildlife
Service.
The purpose of the Endangered Species Act is to conserve
threatened and endangered species and their ecosystems.
Congress passed this law on December 28th, 1973, recognizing
that the natural heritage of the United States was of
aesthetic, ecological, educational, recreational, and
scientific value to our Nation and its people. It was
understood that, without protection, many of our Nation's
living resources would become extinct.
The Endangered Species Act has been successful in
preventing species extinction. Less than 1 percent of the
species listed under the law have gone extinct, and over 30
species have recovered.
The National Marine Fisheries Services has recently
delisted the eastern population of Steller sea lion. This is
the first delisting that has occurred because of recovery for
the National Marine Fisheries Service since 1994 when we
delisted the now-thriving eastern population of Pacific gray
whales.
Actions taken under the Endangered Species Act have also
stabilized and improved the downward population trend of many
marine species. For example, in 2013, we saw record returns of
nearly 820,000 adult fall Chinook salmon passing the Bonneville
Dam on their way up the Columbia River to spawn. This is the
most fall Chinook salmon to pass the dam in a single year since
the dam was completed in 1938, more than twice the 10-year
average.
Recovery of threatened and endangered species is a complex
and challenging process. We engage in a range of activities
under the Endangered Species Act that include listing species
and designating critical habitat, consulting on Federal actions
that may affect enlisted species or its designated habitat, and
authorizing research to learn more about protected species.
We also partner with a variety of stakeholders, including
private citizens; Federal, State, and local agencies; tribes;
interested organizations and industry, that have been critical
to implementing recovery actions and achieving species recovery
goals.
For example, several NMFS programs provide support to our
partners to assist with achieving recovery goals. From 2000 to
2012, the Pacific Coastal Salmon Recovery Fund provided $1.02
billion in funding to support partnerships in the recovery of
listed salmon and steelhead. From 2003 to 2013, the species
recovery grants to States awarded $37 million to support State
recovery and research projects for our listed species. And from
2001 to 2013, the Prescott Program awarded over $44.8 million
in funding through 483 grants to Stranding Network members to
respond to and care for stranded marine mammals.
The National Fisheries Service is dedicated to the
stewardship of living marine resources through science-based
conservation and management. The Endangered Species Act is a
mechanism that helps guide our conservation efforts and reminds
us that our children deserve the opportunity to enjoy the same
natural world we experience.
Thank you again for the opportunity to discuss
implementation of the Endangered Species Act, and I am
available to answer any questions you may have.
Mr. Lankford. Thank you, Mr. Rauch.
[Prepared statement of Mr. Rauch follows:]
[GRAPHIC] [TIFF OMITTED] T7950.001
[GRAPHIC] [TIFF OMITTED] T7950.002
[GRAPHIC] [TIFF OMITTED] T7950.003
[GRAPHIC] [TIFF OMITTED] T7950.004
Mr. Lankford. Mr. Bean?
STATEMENT OF MICHAEL BEAN
Mr. Bean. Thank you, Mr. Chairman, Ranking Member Speier,
members of the committee. It is a pleasure to appear before
you. My name is Michael Bean. I am Counselor for Fish and
Wildlife and Parks at the Interior Department.
Rather than read my statement, sir, I would like to simply
summarize what I think are some of the key points for you.
Congress set an ambitious goal when it passed the
Endangered Species Act, and that was simply to halt the slide
toward extinction and to provide a more secure future for the
wildlife and plant life that comprise our Nation's natural
heritage. And, to perhaps a surprising degree, it is working.
A recent example that I included in my testimony concerns
the Oregon chub, a fish, one of four species that the Fish and
Wildlife Service in this month has proposed to delist from the
endangered species list. I want to note three aspects of that
particular fish and its recovery that I think are noteworthy.
First, that the listing and recovery of that fish generated
little controversy. There were no major headlines, there were
no major conflicts. Like most endangered species, the work that
was done to recover it was done in a way that was both
successful and generated few conflicts.
Secondly, the recovery of that species benefited greatly
from the help of private landowners who took advantage of new,
administratively created mechanisms to work with the Fish and
Wildlife Service to cooperate in conserving that fish. Those
agreements, called safe harbor agreements, are the same sorts
of agreements that ranchers in Texas have used to help
reintroduce the Aplomado falcon to that State after an absence
from the U.S. of more than 50 years. Those same safe harbor
agreements are akin to the ones that over 300 forestland owners
in the Southeast, including some 28 forestland owners in
Georgia, Mr. Woodall's State, who are in effect laying out the
welcome mat on their property for an endangered species, the
red-cockaded woodpecker. And as a result of their efforts, that
species is growing in numbers on private land for the first
time in a very long time.
The third thing I want to note about the Oregon chub
recovery is that it took over 2 decades to happen. And that is
actually rather speedy, because, unfortunately, for many
endangered species, by the time we start efforts to conserve
them, they are so reduced in numbers that the prospects of
recovering them will inevitably take a very long time.
I will give you a few examples: the whooping crane. This
country has, since the mid-1940s when the numbers of that bird
were fewer than 20, been engaged in a steadfast effort to
recover it. And that has been successful, although it has taken
some 70 years. We now have a wild population of roughly 400 or
so whooping cranes in 3 populations, 2 of which were created
through conservation actions.
The California condor, in Ms. Speier's home State and is
now also in Utah and Arizona due to a translocation effort, is
a species that, like the black-footed ferret, was once extinct
in the wild. That is to say, all the wild specimens were gone.
The only specimens of those two species that survived were in
captivity. And those two species became the subject of
successful reintroduction--captive rearing and reintroduction
programs. They are both now reintroduced in the wild. They are
both reproducing in the wild. They both have a better shot at
recovery than ever in their history.
These and other examples of clear progress being made show
that recovery is possible, even for species that only a few
decades ago seemed to face inevitable extinction.
A few lessons that I draw from these experiences are:
First, don't wait until species are in extremis. Get started
early. That is when you have the best chance and you have the
most options to succeed.
And, secondly, take advantage of what I argue will be the
inherent flexibility of the Endangered Species Act to craft
innovative solutions, like the safe harbor agreements I have
described; like the candidate conservation agreements that have
made possible the decision not to list the dune sagebrush
lizards in Texas; like the experimental population provisions
of Section 10(j) of the act that have helped restore both the
whooping crane and the California condor; and like the
flexibility provided through Section 4(d) of the Endangered
Species Act to tailor requirements to the needs of threatened
species.
If we can learn from these lessons and if we can heed
Congress' own admonition when it passed this law to temper our
economic growth and development with adequate concern and
conservation, then we can continue to make progress in
reversing the slide toward extinction and getting on the road
to recovery.
Thank you, sir.
Mr. Lankford. Thank you.
[Prepared statement of Mr. Bean follows:]
[GRAPHIC] [TIFF OMITTED] T7950.005
[GRAPHIC] [TIFF OMITTED] T7950.006
[GRAPHIC] [TIFF OMITTED] T7950.007
[GRAPHIC] [TIFF OMITTED] T7950.008
[GRAPHIC] [TIFF OMITTED] T7950.009
[GRAPHIC] [TIFF OMITTED] T7950.010
Mr. Lankford. I recognize myself for a line of questioning.
As I mentioned to both of you in advance, we will do the 5
minutes of questioning, and then when we get into our second
round we are going to open it up for more open colloquy.
Let me just ask a couple quick questions. Species at this
point, how are they identified for concern? I know that is not
an official term, but how does the initial process come out in
both of the agencies to say, we now recognize this species as
something we need to look at closer? Can you tell me the
process of how it gets into that?
Mr. Bean. I would be happy to give an answer to that to
start.
Two ways the Fish and Wildlife Service addresses species
that may be in need of the act's protection. First, the Service
itself sometimes generates its own priorities of species based
on the information it has----
Mr. Lankford. So I am asking, where is that information
coming from?
Mr. Bean. Oh----
Mr. Lankford. So you don't have a population count of every
species of plant and animal and fish in North America, I would
assume, that there is not some such listing somewhere, correct?
Mr. Bean. That is correct. Instead, what----
Mr. Lankford. Then there has to be some way to be able to
identify a certain plant, fish, or animal to say, okay, this is
something we want to look at.
Mr. Bean. Yes. There are a variety of published and
unpublished studies about the status of species. Certainly,
every State has a fish and wildlife agency that tends to keep
careful track of the trends of species in the State. And the
Fish and Wildlife Service utilizes and accesses that
information to determine whether any of those species may be
declining or facing threats that warrant protection of the act.
So that is a very common mechanism.
Secondly, the act provides for citizen petitions, and any
person can petition the Fish and Wildlife Service to consider
for listing a species. And if the petition presents substantial
evidence, the Service then does a status review to determine,
based upon all the evidence that is available from all sources,
whether a proposal to list is appropriate.
Mr. Lankford. Okay. I am going to a couple quick questions,
and then we will move on to Mr. Rauch on that, as well.
What percentage do you think come from State agencies that
are saying that there is a concern here? And what percentage of
those currently--and you can take the last couple years. And I
know it is going to be an estimate. What are coming from State
agencies identifying and what are coming from citizen
petitions?
Mr. Bean. We have in the last several years been heavily
weighted toward citizen petitions. As you noted in your opening
statement, we have received some petitions to list multiple
species, and those have occupied the great majority of the
attention of the Fish and Wildlife Service.
Mr. Lankford. So, in the past, if you go back, were the
species that were citizen suits coming, they would bring one or
two species at a time, and you have seen a trend difference,
where now they are bringing hundreds at a time?
Mr. Bean. We, beginning 5 or 6 years ago, began to receive
multi-species petitions, which were atypical prior to that.
Mr. Lankford. I know Ms. Speier had mentioned that the
number of lawsuits is dropping dramatically, but you are saying
the number of species included in each of those lawsuits, in
those petitions, seem to be much higher?
Mr. Bean. I am not talking about lawsuits, sir. I am
talking about petitions.
Mr. Lankford. Okay. So the actual petition to request to
get into it, you are seeing this big jump of the number?
Mr. Bean. There have been a few large petitions that have
required a fair amount of attention from the Fish and Wildlife
Service because of the number of species protected.
Mr. Lankford. Okay. So how many do you think right now of
the citizen petitions that are sitting out there that citizens
have brought in the last couple of years even? Are we talking
200? Are we talking 700?
Mr. Bean. Species subject to petition?
Mr. Lankford. Yes.
Mr. Bean. I don't have that number. It is probably in the
hundreds, but I don't have a precise number.
Mr. Lankford. Okay. So we have 2,100 total that are
currently threatened or endangered at this point, and we are
having hundreds coming in citizen petitions at this point
asking to be listed in additional?
Mr. Bean. Yes. A petition does not mean a species will
become listed.
Mr. Lankford. Correct. But it starts your review process.
Mr. Bean. It starts the review process, that is true.
Mr. Lankford. Okay.
Mr. Rauch--thank you, by the way.
Mr. Rauch, what is the process for you all?
Mr. Rauch. Thank you, sir.
We follow much the same process that the Fish and Wildlife
Service follows by looking at different sources of information.
The petition process in recent years has largely driven our
listings.
But before we get to the listing process, we do maintain a
species-of-concern list, which we look at--as Mr. Bean said,
the time to act to protect these species, when you can do it at
the least cost to the greatest effect, is before they get
critically imperiled. And so the point of our species-of-
concern list is it identifies issues where we can work with the
States and our partners well before the Endangered Species Act
kicks in to try to deal with that.
The one difference between us and the Fish and Wildlife
Service is we do maintain a series of marine surveys of marine
life in Federal waters, and oftentimes our own surveys can feed
into some of our analysis.
Mr. Lankford. So it is not necessarily a State bringing
species that are specific to that. It is more often your own
population counts. Because that is what I am trying to
determine; how do they get on this species of concern? It is
something you are tracking, a certain number in a population?
Mr. Rauch. That is something that we track. I am not aware
that a State has petitioned us in recent memory.
Mr. Lankford. Okay.
Then the big question we will deal with as we come through
this is obviously getting on and then it is a matter of getting
off in the process.
And I want to yield to my ranking member, Mrs. Speier, for
her questioning.
Ms. Speier. Thank you both for your service and for your
participation here today.
I guess I would love to have an understanding of how we can
measure the success of the Endangered Species Act. Some might
suggest that you have to either prevent extinction or you have
to delist a species to show that there has been some kind of
success.
And, as you have mentioned, in many cases, they don't even
get to the list until they are truly almost extinct, which
makes it that much more difficult to recover. And I am
thinking, in part, of the bald eagle and the American alligator
and their status.
So I guess to each of you I would like to ask you, what
would you count as success?
Mr. Bean. I would be happy to begin. Thank you for the
question.
Clearly, the examples that I gave earlier of the California
condor, the whooping crane, the black-footed ferret, we are
making extraordinary progress in giving those species a more
secure future. But they are still endangered, and they will
remain endangered probably for many more years. And so anyone
who suggests that that is a failure, because they have not been
recovered yet, is really blind to the major progress that has
been accomplished. So, for me, I think an important indicia is
simply: Are they more secure? Are they more abundant? Are they
more widespread? Have the threats to them been reduced?
Clearly, we would like to get and hope to get and intend to
get to a point where we can take these species off the list
because they are no longer endangered. But, as I suggested in
my testimony, that is often a very long process, and what is
important is that we make progress over the course of the
years, as we have done for a great many of these species.
Ms. Speier. Mr. Rauch?
Mr. Rauch. For the Fisheries Service, the Marine Fisheries
Service, we currently have 94 species on the list that our
Fisheries Service is managing. Of those, only one of them has
gone extinct over the time, and it may well have been extinct
at the time of listing in 1973.
Since then, we do measure our success in terms of the
number of stable or increasing populations. The species are
critically imperiled, and many of them are in a steep decline
at the time that they are listed. If we can stabilize them at
all, that is a sign of success. And the majority of our species
are either stable or increasing. We only have a few of those 94
that still are exhibiting a decline.
And so I think that is how we--that is how we measure our
success at this point. I would love to measure it in terms of
more recovered species, like the Steller sea lion that we just
did, but, as Mr. Bean said, that is a long process.
Ms. Speier. So, of these citizen petitions, how much time
is afforded the review of these petitions?
I think, Mr. Rauch, you indicated that most of your
listings now come from citizen petitions, not from anywhere
else. So is that a lion's share of the time that you spent
doing your work, is reviewing these petitions?
Mr. Rauch. No. We do spend a substantial amount of time
reviewing petitions, and most of our listing work does come
through the petition process. But we spent a substantial amount
of resources working on recovery. I listed at the beginning
some of the resources working on salmon recovery in the western
United States. We have made great strides in recovering monk
seals and right whales. All of that is done post-listing.
And so, I don't have a breakdown. We don't calculate our
resources in terms of how much time on listings versus others.
But we do spend a substantial amount of resources and time on
recovery efforts.
Ms. Speier. Let me just spend a couple minutes on habitat
conservation plans, since I cut my teeth on them decades ago.
How many are there in the country now?
Mr. Bean. I don't have a precise number, but it is well
over 500.
Ms. Speier. Is that right.
Mr. Bean. Yes. And they have been very widely used in
California, they have been widely used by other local
governments as a way of integrating concerns about endangered
species with local land-use planning decisions. And they have
been quite successful, particularly in California, but they are
increasingly in use elsewhere, as well.
Ms. Speier. Now, how do they compare to the safe harbor
agreements?
Mr. Bean. Well, habitat conservation plans, as you know
from your experience in San Mateo County, are designed for
situations in which there is some development or other project
that is planned that is going to cause some degree of harm to
an endangered species. And what those plans do is to offset
that harm with a mitigation program, typically by protecting
certain lands from development.
Safe harbor agreements are intended for landowners who are
willing to voluntarily do things that improve or create or
restore habitat on their land, thus attracting endangered
species to it, or hopefully attracting endangered species to
it, or allowing species already there to expand. And those
agreements protect those landowners from any additional
regulatory burden for having laid out the welcome mat on their
land for endangered species.
So that is the key difference.
Ms. Speier. Thank you.
My time has expired.
Mr. Lankford. Thank you.
I recognize the gentleman from Utah, the home of the Utah
prairie dog, Mr. Chaffetz.
Mr. Chaffetz. I thank the chairman. We will have to get you
such a shirt. You will enjoy it.
Mr. Bean, you are obviously a very accomplished individual.
Where did you grow up?
Mr. Bean. I grew up in a small town in Iowa.
Mr. Chaffetz. Oh, very good. And at some point, I am sure,
you will look towards retirement, way, way in the future. Where
would--do you have any idea where you might retire?
Mr. Bean. I haven't the foggiest.
Mr. Chaffetz. My guess is it is probably not in Utah,
right?
Mr. Bean. Utah is a great place. I would consider it.
Mr. Chaffetz. Oh, well, thank you.
I guess one of the things we are concerned about is Utahans
feel like they have lived there--they have lived there for
generations, they will live there in the future. They want what
is best for the land, and wildlife is part of that.
Why is it that there is so much resistance to taking State
data and information under consideration when you are making
these types of decisions?
Mr. Bean. Respectfully, sir, I don't think there is much
resistance to taking State data. I think the Fish and Wildlife
Service routinely uses information from the States in making
its decisions.
Mr. Chaffetz. We don't feel like that in Utah, quite
frankly.
Let me ask you this. The 2010 decision by Fish and Wildlife
Service that the greater sage grouse warrants an ESA listing
was based, as I understand it, on a 2009 taxpayer-funded Fish
and Wildlife Service study. The study was cited 62 times in the
listing decision, yet the data used in the study has still not
been made publicly available. Do I have that right?
Mr. Bean. I don't know whether you have it right or not. I
do know as a general matter that some of the underlying data
for studies that the Fish and Wildlife Service relies upon is
not publicly available.
Mr. Chaffetz. Why not?
Mr. Bean. Because the--as I understand it, because the
researchers who collected that data have it as a proprietary
source of data.
Mr. Chaffetz. Isn't that patently unfair? You are making a
decision that affects people's lives and dramatically affects
their way of living, and yet they can't see it?
Mr. Bean. Well, sir, the decision made in 2010 was not a
decision to list the species. It had no effect upon anyone's
life. There will be a decision forthcoming about whether to
list----
Mr. Chaffetz. It is going to be part of the decision-making
process, is it not?
Mr. Bean. Well, there will be a decision made in 2015 on
the sage grouse----
Mr. Chaffetz. And they are going to rely upon some of that
data, right?
Mr. Bean. Well, I don't know.
Mr. Chaffetz. But why can't we look at it? I mean,
taxpayers paid for it.
Mr. Bean. It is not as though the Fish and Wildlife Service
is withholding it. The Fish and Wildlife Service doesn't have
it to give, as I understand.
Mr. Chaffetz. Who paid for it?
Mr. Bean. I don't honestly don't know.
Mr. Chaffetz. The taxpayers. Taxpayers paid for it. Why
can't we see the information? It is not about some North Korean
nuclear bomb that the military is--we are talking about data
that should be made publicly available.
Mr. Bean. Sir, I can tell you that I am currently aware
that the Fish and Wildlife Service is working quite closely
with the State of Utah. Mr. John Harja, representing Governor
Herbert, is involved on a regular basis in dialogue with
respect to Utah's efforts to protect the sage grouse. And any
information from Utah or other sources relevant to whether that
species should be listed will be fully taken into account by
the Service, I can assure you of that.
Mr. Chaffetz. It seems to be a one-way street. And it
shouldn't be. We have spent time with Mr. Harja. He is a very
good, talented individual. I don't feel like there is a good,
two-way communication.
This is a taxpayer-funded study with data and information
that we should be able to review and challenge. That is part of
the open and transparent process where we are ultimately going
to make some sort of decision.
I am running short of time here. I really don't understand
the philosophy behind this. I don't think it is fundamentally
fair. I think you are hiding something. And I think it should
be made publicly available.
And if you would please get back to this committee and try
to articulate why you are hiding this information, we can't see
it, I would greatly appreciate it, because I really don't
understand it.
The other part I want to ask about is, for instance, with
the prairie dogs, how you count them on public lands but not on
private lands, but then if they are deemed to get on the list,
then you have to manage them also on the private lands. Explain
that philosophy to me.
Mr. Bean. I think the Fish and Wildlife Service recovery
plan for the prairie dog relied primarily upon recovering the
species on public lands. And that was done, I believe, in part,
in recognition of the fact that, for the most part, private
landowners regard the Utah prairie dog as not a desirable thing
to have on their lands, and therefore the prospects for
recovery really depend upon securing its survival on public
lands.
Mr. Chaffetz. But when you are assessing--when you are
assessing how endangered they might be, you don't take into
account what is on the private property.
Mr. Bean. Respectfully, sir, I do not think that is
correct. I think the Fish and Wildlife Service takes into
account all the prairie dogs in assessing whether or not they
belong on the list.
Mr. Chaffetz. All right. Well, that is a question that I
would like to further explore with you.
My time is expiring here, but I can tell you in general
that the good people of Utah, they care deeply about their
land. They pass this on from generation to generation. It is
highly offensive when we have people who come in and make
fundamental decisions about the longevity of the State and
don't properly, I think, can take into account the State plans.
The State data is not necessarily used with the consistency we
would like it to. And it seems to be a one-way street, because
when we ask for data from the Federal Government in how they
are making these decisions before they are finally made--
because once they are finally made, it is very difficult--we
can't get our hands on that information.
And that is the frustration. And it should be an open and
collaborative process. I believe the States are in a much
better position to draw up the plans, come to these
conclusions, and gather this information.
But, Mr. Chairman, I appreciate the time. I am well over.
Yield back.
Mr. Lankford. Thank you.
Mr. Woodall?
Mr. Woodall. Thank you, Mr. Chairman.
I appreciate you all being here.
I would encourage you to come look at the great State of
Georgia when you are thinking about retirement, Mr. Bean. We
have everything from close proximity to the oceans to close
proximity to the mountains and wonderful folks and flora and
fauna in between.
I have great frustration about these ESA debates that we
have, because I look around my community and I can't find
anybody who loves native species more than we do. It is the
hunters and the fishermen, it is the hikers and the bikers who
are invested. I share Mr. Chaffetz's observation that I can't
believe there is anybody in the Nation that cares more about
preserving the God-given benefits of Utah more than the folks
who live in Utah.
Why do you think here 40 years after a bipartisan effort,
not just bipartisan agreement but really a bipartisan effort,
to get the ESA passed into law, why are we arguing about it
instead of celebrating it?
Mr. Rauch, do you have a--is it obvious to you, from where
you sit?
Mr. Rauch. I don't have an opinion on why we continue----
Mr. Lankford. The light should come on there when you hit
the ``talk'' button.
Mr. Rauch. Oh, sorry. Thank you.
I don't have an opinion about why we continue to argue
about it. I do think that both services have done in recent
years a--have undertaken a significant effort to look for
flexibilities in the current law, to forge partnerships. I
think we both agree that if you are going to recover the
species, it cannot be solely on the part of the Federal
Government acting as a regulatory entity but as a conservation
partner. And I know that both services have tried in many
instances to do that. And where we have been able to do that
successfully, I think it has worked.
Mr. Woodall. Well, I think about how suspicion gets
created. And it is very tough to get anything done around here
without trust, and you need that basis of trust.
I am an attorney by training, but I look at the lawsuits in
this area, where attorneys are suing the Federal Government. I
mean, you are talking about having a partnership with private-
sector entities. I mean, I am just asking us to have a
partnership with one another as a Federal Government.
If this is the law of the land, if we are not only
personally invested as public servants in making this happen
but personally invested as citizens in making this happen, is
having the process driven by attorneys rather than by
individuals, Mr. Bean, a part of what undermines public
confidence in whether our goal is to preserve species or
whether our goal is to manipulate a process to achieve yet a
different goal?
Mr. Bean. Mr. Woodall, I think that the most successful
efforts at conservation are ones that are carried out in
cooperation with the local landowners. And in your State of
Georgia, as I indicated, many of the landowners in the Red
Hills area in the southwest part the State are voluntarily
participating in a Fish and Wildlife Service agreement, known
as a safe harbor agreement, to improve the habitat on that land
for red-cockaded woodpeckers and other wildlife. Because, as
you know, they care a great deal about their land and about the
wildlife on it. And that has been a remarkably successful
effort. It has been replicated next-door in South Carolina and
in Florida.
So I think that is the best way to do things. And where the
Fish and Wildlife Service has been able to sit down
successfully with landowners and strike these agreements, great
progress is being made. And we are committed to doing more of
that, just as we have been committed to doing much of it in the
past.
Mr. Woodall. Well, but if you and I are invested in getting
this done, if at a government level we are invested in getting
this done, and if, as I would ask that we stipulate is true, if
public trust is being undermined by not just the amount of
litigation on the issue but the size and scope and direction of
the litigation on this issue, what would be the harm in
eliminating attorney-fees recovery, say, here?
Because, again, we are invested as individuals, we are
invested as public servants. What if we took that small step to
say, you know what, let's find the right answers, but let's not
finance attorneys who might be doing the wrong thing under the
guise of helping to protect native species that we care so much
about?
Any harm in removing those attorney-fees awards today, Mr.
Rauch?
Mr. Rauch. I can't speak to that. The Justice Department
would be better.
I think that----
Mr. Woodall. Well, let me just--I mean, you have these
issues come across your desk. If what you are saying is that
your job would be much harder to do without private litigators,
you would know the answer to that. But if private litigators
are not value-adds here, then it seems, you know, we have
limited resources, limited opportunities, it is--I know of no
one better than you to make the determination of whether or not
this is mission-critical or whether or not this is a case of
misapplied resources.
Mr. Rauch. I know that the Fish and Wildlife Service has
significantly more Endangered Species Act litigation than we
do. We do have some. We believe that it is--we do devote
resources to it, but it is not constraining our overall effort
towards recovery.
And I am from Georgia, by the way. I was born and raised
there.
Mr. Woodall. And will we get you back?
Mr. Rauch. In the--probably so.
Mr. Woodall. I am glad to hear it.
Mr. Rauch. But it was the Ninth District. Sorry.
Mr. Woodall. We move the lines around frequently. You and I
may be teammates yet again down the road.
Mr. Bean?
Mr. Bean. Congressman Woodall, I am a bit worried I am
looking older than I am because you are all talking about my
retirement here already.
With respect to the litigation, the Fish and Wildlife
Service is an equal-opportunity defendant. We get sued not just
by environmental groups, but in the last year or 2 we have been
sued by the National Association of Homebuilders, by
Weyerhaeuser Corporation, American Forest Resources Council,
which is a timber industry group, and numerous others.
We don't like be sued by anybody, but I will say this: The
fact that people are looking over our shoulder, our left
shoulder and our right shoulder, does make us pay careful
attention to dotting our i's and crossing our t's and getting
it right as best we can.
So there is a salutary benefit, as much as I hate to admit
it, to being sued sometimes, because that forces you to pay
careful attention to what you are doing. So I think that is
something that should not be lost sight of.
Mr. Lankford. Ms. Lummis?
Mrs. Lummis. Mr. Bean, have you ever been the one who was
looking over the agency's left shoulder?
Mr. Bean. I have certainly been one who has closely
followed the agency's implementation of the Endangered Species
Act, yes.
Mrs. Lummis. Were you the director of wildlife conversation
at the Environmental Defense Fund from 1977 to 2008?
Mr. Bean. Yes, I was.
Mrs. Lummis. During those years, was the Environmental
Defense Fund party to at least 138 lawsuits, most of them
against the Federal Government and some involving the
Endangered Species Act?
Mr. Bean. To my recollection, during the time I was there,
there were two or three lawsuits involving the Endangered
Species Act.
Mrs. Lummis. Has the Environmental Defense Fund been
involved in any litigation that was ESA-related since then,
since you joined the administration?
Mr. Bean. Not to my knowledge.
Mrs. Lummis. Has it been party to almost 90 lawsuits
against the Federal Government?
Mr. Bean. Since I left, I have no idea what has happened
since I have left.
Mrs. Lummis. Do you know what year the gray wolf met
Federal recovery goals in Wyoming?
Mr. Bean. I don't know the precise year, but it was some
years ago, yes.
Mrs. Lummis. It was 2002. So here we are, 11 years,
numerous lawsuits later. The Fish and Wildlife Service proposed
national delisting in June 2013, correct?
Mr. Bean. I believe that is correct, yes.
Mrs. Lummis. Now, the extended public comment period, now
twice, ends on March 27th of 2014; is that correct?
Mr. Bean. Again, I don't know for sure. That sounds like it
is in the ballpark, however.
Mrs. Lummis. Do you have a deadline for final decision on
delisting the gray wolf?
Mr. Bean. The statute requires the Fish and Wildlife
Service to make a final decision within 1 year after publishing
a proposed rule.
Mrs. Lummis. With the gray wolf having first been
introduced under Section 10(j) of the Endangered Species Act,
which is the nonessential experimental populations, having met
its first recovery goal in 2002, here it is 2014 and it is
still not delisted, does that seem like a reasonable amount of
time?
Mr. Bean. Just for correction, it has been delisted not
only in Wyoming but throughout the North Rockies.
Mrs. Lummis. But not a national delisting.
Mr. Bean. That is correct.
Mrs. Lummis. Is Wyoming's management plan still being
litigated?
Mr. Bean. I believe there is a lawsuit pending against the
decision to delist. I don't think there is a challenge, that I
am aware of at least, to the Wyoming management plan.
Mrs. Lummis. Were you aware that Secretary Salazar promised
Wyoming a delisting decision of the grizzly bear by 2014?
Mr. Bean. I am not aware of what Secretary Salazar may have
said about----
Mrs. Lummis. Are you aware that in December of 2013 a panel
of State and Federal wildlife officials recommended delisting?
Mr. Bean. What was the date again?
Mrs. Lummis. December 2013.
Mr. Bean. Yes.
Mrs. Lummis. When can we expect a proposal to delist?
Mr. Bean. I don't know precisely when, but I suspect you
will see a proposal to delist reasonably soon.
Mrs. Lummis. Do you think that a 1 percent delisting rate
is indicative of a successful program?
Mr. Bean. I don't think it is an appropriate measure of the
success or failure of the program.
Mrs. Lummis. The Endangered Species Act passed over 40
years ago, and the last time it was amended, even tweaked, was
in 1988. I have never heard a Republican or a Democrat suggest
that the Endangered Species Act should be repealed. But I have
heard people suggest in testimony before the Natural Resources
Committee and before a committee which Doc Hastings, who is
chairman of the Natural Resources Committee, and I co-chair,
that it should be amended and tweaked.
And let me give you some ideas about some of the areas that
we heard about from people testifying. We heard that local,
State, and tribal governments should be involved in species
management listing decisions. Do you agree with that?
Mr. Bean. They should be, and they are.
Mrs. Lummis. We heard that they aren't at least adequately
involved at the front end and that they were not party to the
multi-species listing petitions and the resultant settlement
agreements that set the priorities and the time periods for
delisting the hundreds of species that were included in the
multi-species listing petitions.
Is that true? Were they involved or not? Were they part of
the discussions in the settlement agreements?
Mr. Bean. Only the parties to the litigation were involved
in those settlement agreements.
Mrs. Lummis. And why was that, since the law says that they
should be involved?
Mr. Bean. Well, every opportunity that the law provides for
States and tribes and citizens, for that matter, to have a say
in whether or not species should be listed or not listed will
be, in fact, carried out. Because what the settlement agreement
simply did was to set a schedule----
Mrs. Lummis. But the schedules were set without involving
State, local, and tribal governments. So they were excluded
from settlements that the Fish and Wildlife Service made with
agencies that were suing them or nonprofit entities that were
suing----
Mr. Bean. They were not involved in setting the schedule,
that is correct. They will have every right to be involved and
will be involved in any proposals that may come pursuant to
that schedule.
Mrs. Lummis. Thanks, Mr. Chairman, for running a generous
clock.
Mr. Lankford. Thank you.
Second round, I had informed everyone that we will just
open this up for more of a colloquy setting. And so it is
entirely appropriate to be able to interject, during this
round, any line of questioning with anyone that is running a
line of questions, so let's feel free. Let's get answers and be
able to walk through the dialogue.
Let me kick it off. There is a question on the data. And
Mr. Chaffetz brought this up, as well. How common is it that
data is withheld for the research at the beginning part of
that?
So I understand this is not the listing, but this is part
of--the beginning part of actual research--the emphasis to be
able to look at these species.
Mr. Bean. Honestly, sir, I don't know how common it is. It
is my understanding that the Service typically relies upon
published studies----
Mr. Lankford. Right.
Mr. Bean. --that are done by researchers who have collected
data. And those researchers have invested their time, effort,
energy, and so forth in collecting that data and want the
ability to publish additional studies with that data. And,
therefore, it is not made available by them either to us or to
other parties.
So I think that situation is reasonably common, just as
businesses, when they enter into agreements with the Fish and
Wildlife Service, often seek to protect some of their data as
proprietary.
Mr. Lankford. All right, but here is the concern. You take
a--we have discussed before, you and I, the lesser prairie
chicken. The lesser prairie chicken--five States are dealing
with significant financial changes. It has not been listed, as
you have mentioned before. It is not listed as threatened, it
is not listed as endangered. Just being studied, just being
evaluated. Oklahoma alone has spent millions of dollars trying
to adjust around it, just with the threat hovering.
Now, you deal with the sage grouse in Utah. I know you can
say it has not been listed, but there is data that exists
somewhere that no one can look at that a State and private
landowners are going to spend millions of dollars trying to be
able to protect a species on there, but no one also has access
to the data.
Do you see what the problem may be? So I am spending
millions of dollars fighting against data that I have no idea
what it is, how accurate it is, how well-researched it was, if
it was even peer-reviewed. I don't know what I am fighting
against. So I am now suddenly fighting a ghost, and my own
Federal Government is bringing the cost on me.
Mr. Bean. Well, sir, my understanding is that the Fish and
Wildlife Service, before it makes any decision on the sage
grouse or, for that matter, the lesser prairie chicken, will
rely upon all the information from all the sources, the States
and others.
And the studies I think that Mr. Chaffetz is referring to
were peer-reviewed studies----
Mr. Lankford. So they were available to other people, just
not to the State?
Mr. Bean. Well, peer reviewers don't necessarily review
underlying data. They review, as I understand it----
Mr. Lankford. Well, that would be--just to dialogue, how do
you peer-review something without actually looking at the
underlying data? Because you then have to rely on their opinion
of the data rather than the data.
Mr. Bean. I think, sir, as I understand this, the typical
peer-review situation--peer-review process, rather, involves
reviewers analyzing the methodologies and the conclusions based
upon the summaries of the data but not the raw data themselves.
Mr. Lankford. See, I am familiar with peer reviews. It
typically goes back to evaluate--they are checking their math,
not just their grammar. They are actually looking back into the
documents, as well, to say, is this conclusion correct based on
the data itself.
And so, if you have a reviewer that is reviewing based on
their--they are really doing a grammar check at that point, not
a mathematical check. And that becomes a big issue. Again, you
have people spending millions of dollars, and it is one person
that has drawn conclusions that I won't let you see where I got
those conclusions from.
Mr. Bean. Well, if I have misstated the situation, I will
happily correct the record later, but I have described to you
what my understanding is.
Mr. Lankford. I understand. Is there a way that we can
actually get some transparency, though, into the operation so
that people can see it?
Because you can understand the situation, if someone were
to come and say, I believe that Fish and Wildlife Service or
NOAA should look at this particular species, that there is a
major problem here and I think you should do a review, which is
very costly to the American taxpayer and very time-consuming to
Fish and Wildlife and NOAA, you should do this review, they are
going to bring a citizen suit on it, but they are going to tell
you, ``I think there is a major problem, but, by the way, I am
not going to give you our data, you can't look at it, you are
just going to have to trust me on this one that there is a
major problem,'' you then have to kick in and engage. All the
people have to then mitigate something that may or may not even
be a problem.
Mr. Bean. Well, I can assure you, it really doesn't work
like that. The Service does not simply act upon somebody coming
to it and saying, ``Here is what I think; I am not showing you
any data.'' Rather, the Service responds to situations in which
there are published, peer-reviewed studies, there are maybe
data from the States. I mentioned that the States themselves
are frequently a source of information from----
Mr. Lankford. Right, but the majority are citizen suits
still, not from the States.
Mr. Bean. They may be citizen petitions----
Mr. Lankford. All right, petitions.
Mr. Bean. --but even those rely upon State-generated data
frequently. Because, keep in mind, virtually every State has
its own endangered species laws----
Mr. Lankford. Sure.
Mr. Bean. --and so every State has data, has information
about the status of species in that State. Frequently, that
information is woven into the petitions----
Mr. Lankford. Could that data originate from someone doing
a graduate study in their master's or doctoral work and that
becomes the study that is then proposed?
Mr. Bean. It could be.
Mr. Lankford. So the publishing is not necessarily
publishing in a research journal; it could be just publishing
their dissertation?
Mr. Bean. I think, again, it could be.
Mr. Lankford. Okay.
So, again, we are back to the same issue. A graduate
student--and I have nothing against graduate students--could do
a study which could be even fairly recent into the studies of
different animals and different biology and such. The best that
they know and understand as a graduate student, there is a
limitation on this, they write a paper, they publish it. And
then suddenly a State goes into millions of dollars of expenses
and a tremendous amount of effort.
It goes back to this conversation that we have as a Nation,
balancing the issue of data and this term that I have heard
before, ``best professional judgment.'' How do we balance those
two?
Because the statute seems to lean towards this requirement
that we get data. And, you know, we talked about from NOAA that
they are actually going out and scanning it; they know they
have a baseline. With Fish and Wildlife, there is just no way
to be able to get a baseline of every single species of plant,
animal, and fish. We just don't have any way to possibly do
that.
So how do you balance between data and best professional
judgment when there is no baseline number to come from, when
you can actually have someone that is a graduate student
someplace say, ``I only see 20 of them in this area,'' and then
extrapolate from that, ``I assume there used to be millions of
them in this area,'' when we really don't know at that point?
Mr. Bean. Well, to address your hypothetical,
hypothetically, that could happen. In actuality, I am not aware
of any examples like that. So I----
Mr. Lankford. You know the first study from the lesser
prairie chicken, where it came to attention from? Was it from a
published or was it from a doctoral thesis?
Mr. Bean. The first study, I don't know.
Mr. Lankford. Or the first attention that came to Fish and
Wildlife on the lesser prairie children.
Mr. Bean. I don't know.
Mr. Lankford. I believe it was from a doctoral dissertation
that came.
Mr. Bean. Okay.
Mr. Lankford. It is this route. This is a route that is
occurring. And our State has spent millions of dollars and
other States have spent millions of dollars, and it is not
listed. So it is a matter of, how do we manage this at this
point? How do we manage the difference between data--and I want
to pass this--I want others to be able to engage in this
conversation.
How do you manage from day to day the difference between
having hard data, the science of it, and best professional
judgment, where you may have some species that there are very
few people that actually study that particular species, so the
best available judgment may be three people that are scientists
that study this particular species?
Mr. Bean. Well, the Fish and Wildlife Service seldom has
perfect data or all the data that it needs to make a decision,
so it has to rely upon professional judgment in interpreting
data often. The Service does not use judgment to create data,
but it uses judgment to interpret and understand the data that
it has.
Mr. Lankford. No, I am not accusing you of creating that.
It just goes back to, if you have very limited data and you
have very limited number of people that study that particular
species, now you have a situation where someone is going into
the--trying to determine and then trying to figure out how to
mitigate all the issues around it, when we really don't have
data and we have very few people that have looked at it. You
are managing hundreds of things that are coming on with the
citizen petitions; you don't have time to manage this either.
But we are quickly moving an issue that was designed to be able
to protect species, but we don't have time to study it, we
don't have enough people to look at it, and we don't have
enough data to evaluate it. It puts us all in a very difficult
position, both the species and the people that live around it.
You and I have talked about the American burying beetle,
and we can discuss about that more. We can't really study the
American burying beetle much; they live underground. But there
is a tremendous amount that happens in construction that is now
slowed--pipeline construction, bridge construction, wind power
construction, utility construction that now can't build in
certain times of the year because we think maybe, possibly, but
we don't have data, that the American burying beetle may be in
that area.
Mr. Bean. The Fish and Wildlife Service has a pretty good
sense of the areas that may be occupied by the beetle, for
example, and it has some techniques to determine presence. You
are right, the beetle lives underground much of its life, but
it spends some of its life above ground and is routinely
attracted to lights. So there are ways to determine whether it
is present in an area or not.
Mr. Lankford. Right.
Mr. Bean. The Service, to the extent of its ability, bases
its decisions upon the best available information that it has.
And it puts a heavy emphasis upon peer-reviewed and high-
quality data and analysis, and primarily published data. That
isn't always available, but the standard that Congress has
given the Service to guide its decisions is that of best
available scientific information.
Ms. Speier. Can----
Mr. Lankford. Go ahead, Jackie.
Ms. Speier. Can we talk a little bit--well, first of all,
let me point out that we just had a discussion about the gray
wolf in Wyoming. It is presently delisted----
Mr. Bean. That is correct.
Ms. Speier. --which means the population can be
exterminated.
Mr. Bean. Well, what it means is that the population is
managed by the State of Wyoming. The State of Wyoming does not
intend to exterminate the wolf. They do intend to manage it----
Ms. Speier. ``Exterminate'' was not the right word. They
can be shot.
Mr. Bean. They can shoot--they can hunt it, yes.
Ms. Speier. So I have been told that, since delisting, the
gray wolf population has declined by some 16 percent in
Wyoming, 4 percent in Montana, and 11 percent in Idaho. Now, I
don't know what that percent means. Is that a percent that
should be of concern to us, or is that healthy?
My understanding, also, is that there are fewer than 1,600
of these animals in those 3 States. So I realize they are
predatory animals and that, you know, if they are killing your
herd or your cattle that that is problematic. But I also would
like to have a better understanding of, now that it has been
delisted--Ms. Lummis is concerned about the length of time it
is taking, but it is already delisted, the numbers have been
declining.
Is this anything that we should be concerned about?
Mr. Bean. Representative Speier, since the wolf was
delisted not only in Wyoming but Idaho and Montana, all of
those three States--each of those three States has managed the
wolf and has allowed hunting and has reduced somewhat the
populations, although the populations are still well above a
level that the Fish and Wildlife Service regards as safe, in
the sense that the Service doesn't need to reconsider putting
it back on the endangered species list. They are well above
that number.
Ms. Speier. Okay.
So let's move on to the lawsuit issue, which, you know, by
numbers that I mentioned in my opening statement would suggest
there is--the numbers have declined dramatically. But even if
you do file a lawsuit, it does not mean that if you win the
lawsuit that the Fish and Wildlife Service will delist or list
the creature. Is that correct?
Mr. Bean. I think you are referring to the deadline
lawsuits, of which there have been many filed against the Fish
and Wildlife Service for its failure to meet the statutory
deadlines for responding to petitions. The statute has some
explicit statutory deadlines for responding to a petition. And
because of the volume of petitions, the Service has sometimes
missed those deadlines, and then the petitioner has sued the
Fish and Wildlife Service for the purpose of getting a court-
ordered deadline.
So you are right that those lawsuits do not result in
decisions to list species. They result in decisions to either
propose or not propose the listing of the species by a certain
date.
Ms. Speier. And, finally--and, Mr. Chairman, I am going to
have to leave to go to another meeting, so I thank you for
indulging my questions here.
If everyone is supportive of retaining the Endangered
Species Act, which is what I was hearing from some of my
colleagues, and there are opportunities to allow for
development and protection of the endangered species, habitat
conservation plans being a great way of doing so and I guess
been used very successfully, what things should you have, what
tools should you have to create greater flexibility so that we
can protect endangered species, development can happen, hunting
can happen, and we can all sing Kumbayah?
Mr. Bean. Well, thank you for the question.
And I certainly agree with the premise that habitat
conservation plans have been a very effective way of
reconciling development interests with conservation interests.
I think, frankly, more understanding of the potential
application of that tool to solve various problems and more
understanding of the availability of tools like safe harbor
agreements that Georgia landowners are using, California
landowners are using, and others, will be helpful in bringing
to the attention of the public, particularly the landowning
public, the whole panoply of tools that are potentially
available to help them live compatibly and successfully with
endangered species on or near their land.
Ms. Speier. Well, I guess I am asking if you want any
additional tools. Would it be helpful to give you any
additional tools of flexibility beyond those that exist?
Mr. Bean. I think the Fish and Wildlife Service is
currently exploring some administrative initiatives much like
safe harbor agreements and candidate conservation agreements
which were administratively developed.
It is exploring the use of mitigation banking in a more
aggressive manner to allow some landowners to basically invest
in conservation on their land as a way of offsetting the
impacts of development on others' lands. That is an idea that
has been used widely in California, as well. It is something
the Fish and Wildlife Service is currently exploring ways to
improve or expand the availability of that. So that would be
one example.
Ms. Speier. And you could do that without legislation?
Mr. Bean. Yes, I believe we could.
Ms. Speier. Okay. Thank you.
Mr. Lankford. Can I ask a quick follow-up? I don't want to
interrupt. I know others want to be able to--when will we be
able to see those proposed ideas? Will that come out through
the rulemaking process, or will that just appear?
Mr. Bean. No, it will come out as a proposal in the Federal
Register. There will be opportunity for any interested person
to weigh in it.
Mr. Lankford. Okay. Can you give me a timeframe on that?
Are we talking 2014? 2015? 2016?
Mr. Bean. We are definitely--well, I very strongly belive
it will be 2014, and probably early 2014.
Mr. Lankford. Okay. Thank you.
Other Members who want to contribute?
Mrs. Lummis. Mr. Chairman?
What percentage of species for which listing petitions have
been filed have been listed?
Mr. Bean. I don't know the precise percentage.
Mrs. Lummis. More than not?
Mr. Bean. Of those for which decisions have been made, yes,
more than not, a majority. Well, actually, I am not certain. I
will have to----
Mrs. Lummis. The information I have is that it is about 85
percent.
Mr. Bean. Of all petitions since the act was passed? I
don't really know.
Mrs. Lummis. The mitigation banking that you mentioned,
that is something we are using in Wyoming that the private
sector is using pretty substantially. Is Federal land going to
be allowed to participate in mitigation banks?
Because you know about our irrational, I would call it,
landownership patterns in Wyoming, where you have private land
commingled with Federal land, with State land. And so it does
make some sense if you have a landscape-sized mitigation
project----
Mr. Bean. Uh-huh.
Mrs. Lummis. --that where there is BLM land, for example,
interspersed with private land, that the BLM land should be
considered part of the mitigation bank.
Mr. Bean. Ms. Lummis, I met with some of your Wyoming
constituents just this week to discuss mitigation banking, and
they are developing a proposal, as I understand it, that would
include both private and BLM and maybe State lands. And I think
the Fish and Wildlife Service will, when it is presented with
that proposal, assuming it is, be sort of welcoming of that
idea. Until we see the details, we can't say for sure whether
it will be approved or not, but it certainly, on the face of
it, seems like a good idea.
Mrs. Lummis. Well, since we do know that on a landscape
scale we can probably achieve better results for protection of
habitat, which equals protection of species a lot of the time,
it seems to make a lot of sense to me that the Federal
Government would cooperate with private landowners who wish to
provide mitigation banking lands at a landscape scale. It seems
to be working pretty well.
Our science, our ability to understand science has
improved, in your opinion, since the Endangered Species Act
passed, correct?
Mr. Bean. I suppose so, yes.
Mrs. Lummis. You suppose so? Do you not really believe
that?
Mr. Bean. I am not sure how you would measure it, but I
suppose it would be, yes.
Mrs. Lummis. Okay. Well, let me ask it this way: Do you
think science has been static since 1973?
Mr. Bean. Of course not.
Mrs. Lummis. Do you think that people's environmental ethic
has been static since 1973?
Mr. Bean. Probably not.
Mrs. Lummis. Do you think that people in general are more
attuned to their stewardship responsibilities to the
environment than they were in 1973?
Mr. Bean. Probably so.
Mrs. Lummis. I think so, too. In fact, I think it has
become embedded, it is cultural now, much more so than it was
when the Endangered Species Act was passed. I think that the
culture has grown in its sensitivity and its stewardship
obligations to species, to clean water, clean air, clean land.
And I think that is why things like our compliance with the
Kyoto protocols for clean air have been met. And we are the
only country that met those Kyoto protocols, even though we
didn't sign on to the Kyoto protocols.
Americans have a marvelous stewardship and an environmental
sensitivity that is cultural; it is embedded. And, to that
extent, litigation, in my opinion, that puts briefcases in
courtrooms but not species on conserved habitat isn't the
answer in the 21st century. To me, the answer in the 21st
century is boots-on-the-ground conservation by people who are
culturally attuned to preserve species, be they tribal members
or State government employees or private landowners working
together to conserve species.
So to take an act that passed in 1973 and was last amended
in 1988, where the people, the culture has gone far beyond the
ethos of the act, and expect that act and its litigation-driven
model to be the way we should administer the law in the 21st
century is a lot like driving an Edsel in 2014 and thinking
that it ought to perform like a 2014 car. The performance of
automobiles is better. The performance of the American people
with regard to science and culture and the ethics of species
conservation have improved.
So I would really like to see the Endangered Species Act
updated to acquaint it with and harmonize it with the culture
and the ethos and the ethics and the stewardship that the
American people are quite capable of providing. It doesn't need
to be done in the courtroom anymore. Those funds that are so
difficult to come by can be spent on habitat conservation and
boots-on-the-ground species recovery without lawyers in the
courtroom earning the money and taking that precious financial
resource that is so hard to come by away from the very species
that the Endangered Species Act was designed to protect.
Mr. Chairman, thank you. I yield back.
Mr. Woodall. Mr. Chairman, if I could follow up on that? I
want to ask, because listening to both Ms. Lummis and the
chairman, it felt oddly adversarial to me. I am thinking, for
Pete's sakes, the chairman's talking about millions of dollars
that are being spent that are not directed at something that we
have come together on and tried to unify our might to solve but
directed towards ambiguities.
Ms. Lummis doesn't just live this every day back home but,
you know, isn't talking through her hat when she talks about a
conservation ethos. And, obviously, things have changed over
the last 40 years. Obviously, what President Nixon envisioned
is not where we are today. Are we close, are we further? We
could have that conversation, but, obviously, we are not
exactly where folks thought we would be 40 years later.
Why does it feel adversarial? Why isn't it a big Kumbayah
session to say, let's make some changes and let's refocus our
resources on those most critical missions?
I can't think of the last time I was involved in an ESA
problem-solving session that was on its way to fruition. I can
think of many ESA arguments that I have been involved in. Tell
me why that is. Why aren't we moving closer to a common goal
today?
Mr. Bean. Well, sir, I will be happy to offer my own
experience in answer to your question.
My own experience is I have worked with landowners in your
State; I mentioned the forest landowners in the Red Hills area.
I have worked with forest landowners in North Carolina in the
Sandhills area. I have worked in ranchland in Texas. In
particular, I mentioned to Mr. Lankford yesterday a gentleman
named Bob Long, who was chairman of the Republican Party of
Bastrop County, Texas--local bank president, fundamentalist
minister, extreme conservative, but somebody who was willing to
manage his land to help recover an endangered amphibian called
the Houston toad.
And what I learned from that work with him and those other
landowners is that a lot of this acrimony or contention that
has been talked about today in this room doesn't really exist
at that level. People are willing to roll up their sleeves and
work together with the Fish and Wildlife Service, with the
organization for which I work which Mrs. Lummis mentioned. And
one doesn't get that sense often out on the ground talking to
people where these efforts are ongoing.
So I can only answer based on my experience, but my
experience is that when you offer landowners an opportunity to
work constructively with the Fish and Wildlife Service in a way
that each understands the needs of the others and tries to
accommodate them, you can have success.
Mr. Woodall. I am afraid you are making my point exactly.
That is my experience on the ground, too.
So when the chairman says he sees millions of dollars being
wasted on efforts that we are not directing together, why
aren't we equally incensed about that?
When Ms. Lummis says that there are dollars being errantly
directed to litigation instead of mitigation, and you talk
about your successful experiences one-on-one on the ground, why
aren't we rushing to agree with Ms. Lummis and talk about
proposed changes to the statute to foster what is the most
hard-fought commodity in this Nation, not the all-precious and
incredibly too limited American dollar, but the all-precious
and incredibly limited trust that goes between citizens and
their government?
What you say I will stipulate is true. So what next? Why
isn't the next conversation, then, that collaborative sitting
around the table making changes to the statute to amplify those
successes and mitigate these failures?
Mr. Bean. Well, sir, perhaps the answer is that all the
examples I gave--or none of the examples I gave required
amending the law. All of the examples I gave required
creatively interpreting and applying the law.
And I think what this act has shown, despite the fact that
it has remained unchanged by Congress since 1988, it has been
changed substantially by the Fish and Wildlife Service in its
implementation, in its use of new tools that didn't exist in
1973 or 1988 in order to engage landowners as partners, in
order to better engage States, in order to make use of the
flexible authorities I described.
The act has been, in my judgment, remarkably flexible and
adaptive. I don't for a minute mean to suggest that there
aren't controversies, but as I tried to make the point with
respect to the Oregon chub at the outset, most of the species
most of the time don't generate those controversies. Progress
is being made without lots of headlines, without lots of heat,
without lots of rancor.
Mr. Woodall. If I could just take one last stab at it. You
are absolutely right; the successes that you mentioned don't
require changing the statute at all, but the failures that my
colleagues mentioned did.
I don't know why it is that somehow we have to choose
between having both the successes and the failures or having
neither the success nor the failures. I don't think that is the
world that we live in. I think we can have the successes, and
even greater successes, and eliminate those failures.
But, again, just one last effort: Am I wrong about that?
Again, you are talking about successes that don't require
changes. My colleagues are talking about failures that do
require changes. Why aren't we coming together around
eliminating the failures and amplifying the successes?
Mr. Bean. We may have a disagreement about the failures. In
Mr. Lankford's case, I don't think the money that is being
spent is being wasted. I think the money is being invested to
find out what the status of the lesser prairie chicken really
is. And I think that will be very helpful to us in deciding
whether we need to protect it and, if so, how we need to
protect it.
So I don't for a minute suggest that it isn't oftentimes
difficult and sometimes expensive in order to get answers to
these questions, but I think investing in finding out the
answers is not necessarily a waste of resources or money or
time.
Mr. Woodall. Mr. Chairman, I thank you.
Mr. Lankford. No, it is most--thank you, Mr. Woodall--but
it is most certainly not a waste of time to able to protect
species. We wholeheartedly agree with that.
A couple of challenges just on the intensity of it. One is
this sense of, as you mentioned, the creative interpretation of
the law and how flexible the law is and how many times it has
changed in its application over the past 40 years brings some
concerns to individuals that just want consistency. They just
want to know, here is the law and here is how it is applied and
I know what it is. When it changes at different points, then
there is great consternation. People just want to know, here is
the law, here is how it is going to be applied.
That is some of the conversation up here, as well, to say--
and there may be needs for fixes in the law, because it seems
to change often, though it hasn't actually changed. Does that
make sense?
Mr. Bean. I understand your point. However, the examples I
gave are all examples in which the law was made to be more
flexible and accommodating to landowner or regulated interest
concerns. So I think, as a practical matter, nobody objected to
those changes, people welcomed those changes.
Mr. Lankford. It is the how they are coming out and how the
species are being identified and put up in front of landowners.
Let me just read part of a statement here. And I know every
State has its own unique species that they get a chance to have
significant conversations about. Let me read you a document. It
is the summary of key components--this is an official Federal
document coming out--summary of key components for conservation
of lesser prairie chicken. And here is just the summary of it,
from the executive summary.
The primary threats dealing with the lesser prairie
chicken. There are five areas here--six. Inappropriate timing
and intensity of livestock grazing. In other words, grazing in
the wrong place, wrong time. Conversion of native prairie for
development in crop production, which I thought was
interesting. In other words, we are having issues with this
because we are planting crops there instead. Alteration of fire
regimes. By the way, if you go into the details of the study,
the study assumes that in Oklahoma there used be wildfires all
the time and no one stopped them and that was good for the
chicken. I would assume--I have had very well-cooked chicken
over a fire before, and I don't know if that was good for it,
but that is a whole different issue. Introduction and expansion
of noxious weeds; fragmentation of habitat with roads, utility
corridors, fences, towers, turbines, or energy development; and
the planting of trees.
So when folks in Oklahoma read this, here is what they read
as the next paragraph. ``Features associated with human
development'' is the quote here. And then the quote before that
is the issue being, ``Returning the situation to prior European
settlement status.''
So I want you to understand that people get a little
concerned when a document comes out and says, if we are going
to protect the lesser prairie chicken, we need to return
western Oklahoma to a situation that looks like prior European
settlement status, and that there may be a problem with
planting of trees, building roads, planting crops, or grazing
cattle. Those are, kind of, things that people do.
And so you understand the situation here and why the
immediate frustration comes up when you--if you were to read
this and think, that is my land, there would be a concern
immediately.
Mr. Bean. Yes, indeed. I don't know what document you are
referring to, but I can assure you that the Fish and Wildlife
Service has no intention of trying to return to pre-European
conditions in Oklahoma or elsewhere. We recognize that isn't
going to happen, and that isn't going to be the strategy that
the service pursues.
Mr. Lankford. I will bring you the document. I won't add
this to the record, but I will bring you the document and be
able to walk through it. But if you go through the original
study that triggered this, it is loaded throughout the entire
study.
There are also great statements in there about that lesser
prairie chickens are concerned about anything taller than 13
feet, and so they don't want have any construction in western
Oklahoma taller than 13 feet. I am not sure how they knew that
lesser prairie chickens were okay with something 12 feet but
not 14 feet, but it is loaded throughout the entire study.
This becomes a big issue for individuals as we spend
millions of dollars based around a study that is not based on--
as it comes through this over and over again, that is not based
on population count, it is based on habitat. And that is an
issue I want to be able to deal with both of you on.
How do we balance this issue? When a species comes to
light, there is an assumption always, we have only found so
many, and so you assume there used to be more, though
oftentimes there is not a count. Now, you have mentioned NOAA
occasionally, you all have done population counts and you are
tracking those, and in certain areas at certain times you are
aware of a certain population count. Many times in Fish and
Wildlife, that is just not possible with every plant species to
know what was the population count 100 years ago based on what
it is right now.
But some assumptions are made. So we need to protect this
habitat, but then there is also--correct me if I am wrong here.
Oftentimes when we have listing, we are not listing it and
saying, to come off delisting, we need to go to a certain
population. It seems to state that this species is listed
because the habitat is diminishing. The only way to be able to
delist them, it would sound like, would be for the habitat to
increase.
Tell me where I am wrong on that.
Mr. Bean. The way to delist a species once it is listed is
to remove the threats. And those threats may be addressed in
manners other than what you suggest.
Mr. Lankford. Could those threats be a road or a utility
pole or a house taller than 13 feet?
Mr. Bean. Likely not, in the sense that simply--well, in
the sense that what needs to be done is to remove enough
threats in enough places in order to ensure that the species
has a good chance of surviving. That may mean protecting some
land in perpetuity. It may mean securing cooperative agreements
with willing private landowners to manage their lands in ways
compatible with the needs of the species.
It certainly doesn't mean removing all trees, removing all
development, and what have you. As I said a moment ago, this
notion of returning to pre-European conditions is not the goal
or strategy or intent of the Fish and Wildlife Service.
Mr. Lankford. Okay.
Mr. Rauch, you have been graciously quiet on this. We have
had a lot of conversations with Mr. Bean. Let's talk a little
bit about the habitat issue and numerical counts. How are you
tracking that, as far as dealing with a species and getting
them delisted?
Mr. Rauch. Thank you, Mr. Chairman.
We do, when we set recovery plans, we try to set standards
for recovery, and many of those do have numerical counts. We do
have----
Mr. Lankford. Is that typical at the beginning, that
everyone kind of knows, we think the population is decreasing;
if we get to this number, we are going to delist?
Mr. Rauch. No. It is typical when we do a recovery plan,
which is often not when we do the listing. Sometimes it takes a
while to do the recovery plan after the listing, and we do it
in consult with some of our State partners. Private landowners
and other kinds of people are all involved in that process.
Mr. Lankford. Can you just help me--``it takes a while.''
Is that 6 months? A year? Is that 10 years? How long is that?
Mr. Rauch. It can vary. Sometimes it is quicker.
Mr. Lankford. ``Quicker'' meaning?
Mr. Rauch. More than 6 months.
Mr. Lankford. Okay. So give me some timeframes here. A
year? Ten years?
Mr. Rauch. A year to 10 years would--somewhere in there.
And it varies by species. And we have some species,
particularly foreign species, since there is very little the
U.S. can do about them, that we don't prioritize in our
recovery plans. For the U.S., we tend to prioritize them
higher.
But there is no particular deadline for doing a recovery
plan. Because it is designed and we try to maximize the
participation of landowners and States in that, we often can't
dictate the timeframe. We come to the table when they come to
the table, and we have these discussions. And sometimes that
takes a while to get to a common vision of what it needs to
recover the species.
But it is often--it is almost certainly longer than a year.
Hopefully it is less than 10 years in most instances.
Mr. Lankford. Is it the same thing for Fish and Wildlife,
Mr. Bean? The recovery plan may take a year to 10 years, and
that is where the numerical population goal is set?
Mr. Bean. I think the Fish and Wildlife Service informal
goal is to try to have recovery plans done within 3 years of
listing, which it is able to do in most instances.
Mr. Lankford. Population goals attached to that?
Mr. Bean. Sometimes, but rarely, if ever, is a recovery
plan goal expressed solely in terms of population. There are
almost always other objectives, as well, beyond population
goals.
Mr. Lankford. Let's go back to Mr. Chaffetz's comment
earlier when we were talking about the fabulous Utah prairie
dog. The last thing that I read on it, it was estimated the
population is somewhere around 40,000. Is that number correct,
not correct? I don't know how your----
Mr. Bean. I----
Mr. Lankford. --quick facts and figures on prairie dogs
here, but----
Mr. Bean. Yes, sir. I don't know, but I believe it is much
lower than that, sir.
Mr. Lankford. Okay. We will try to pull the number. The
last thing I saw here, around 40,000 total on that. That may be
the issue between public lands and private lands. Larger survey
done with both at 40,000. Public lands may be lower than that.
And that becomes still the study of we are trying to recovery
them in public lands, where they may or may not prefer to be;
they may prefer to be more in someone's flower bed than they
would in public lands, where it is not necessarily a flower
bed, as well, based on the preference of it.
How do they know when that animal is coming off?
Mr. Bean. I don't know the recovery goals and the recovery
plan, but there is a recovery plan for the Utah prairie dog,
and it does set forth goals for delisting. And the Fish and
Wildlife Service will keep track of trends with respect to both
population, habitat condition, and so forth. And either when
those goals are met or when the Fish and Wildlife Service has
other reason to conclude that the species no longer is
endangered, it would initiate a status review and a proposal to
delist.
Mr. Lankford. Yeah, it is a challenge with a species like
the prairie dog, obviously, that is a nuisance creature, quite
frankly. Cute as can be on someone else's yard, but in yours it
is a problem.
Mr. Bean. Most landowners in Utah look at it that way, but
not all. I worked with one named Allen Henrie, who entered into
a safe harbor agreement basically to allow Utah prairie dogs to
occupy some of his land. And there were other landowners, as
well. So while what you say is generally true, it is not true
of all of the landowners.
Mr. Lankford. At my house in Oklahoma, a couple years ago I
distinctly remember complaining to my next-door neighbor about
armadillos, which will shred your yard, and in my particular
yard was absolutely shredding them overnight. And he chastised
me for saying that and said, armadillos are so slow, you can
just get a trash can, load them up, go get them because they
are so slow, and go haul them out in the country and drop them
off. And about 2 weeks later, at about 9 o'clock at night, I
heard a shotgun blast next door and walked outside and found my
neighbor standing over a dead armadillo who was shredding his
yard.
And so, yeah, at times, there is this perception of that. I
get that. But there is something unique when we are dealing
with how we are trying to recover a species. And I don't want
to talk about shooting armadillos, but there are some serious
issues that we deal with in recovering a species, that once
landowners are pushing back significantly, saying, we are being
overrun, how do we manage that, whether that be a gray wolf
that is taking down significant parts of a herd or whether that
is a prairie dog that they are being overrun with in certain
communities and can do nothing about.
I am going to run through a couple things quickly. I want
to be attentive to our time, as well. I want to go through
solutions. I am interested in two sets of things: One that I
can bring to say, what do you think about this? One is ideas
that you have.
You have already mentioned one of those, Mr. Bean, as well,
of ways to be able to create an environment for more
collaboration that you said is going to be an issue that will
be put out in the Federal Register in the coming days.
Can we form a clear definition of the difference between
``threatened'' and ``endangered'' and how they are handled with
landowners and status? Because we seem to have an emerging,
from my understanding--and, really, I am no professional on
it--from its history, is that ``threatened'' and ``endangered''
used to be really distinct. And now there seems to be a third
category that is created with, ``We are looking at listing
this,'' and so it kicks in a whole series of things. And then
we have a threatened listing and an endangered listing.
It appears to me that ``threatened'' used to be this other
status that was created in the past, that now we have grown
into three statuses. Am I correct or not correct on that,
historically?
Mr. Bean. Well, for listed species----
Mr. Lankford. Can you pull the microphone a little closer,
as well?
Mr. Bean. Yeah, excuse me. For listed species, there have
always been just two categories: threatened and endangered.
Recently, the two services, I believe, have utilized this
notion of candidate species----
Mr. Lankford. Right.
Mr. Bean. --species under consideration for possible----
Mr. Lankford. Has ``threatened'' always meant the same
thing, though? ``Threatened'' seems to be candidate level now,
and candidate seems to be something new that has been added to
it.
Mr. Bean. I wouldn't characterize it that way. I would say
that threatened species have always been species that aren't
yet endangered but they are likely to become so in the
foreseeable future. Candidate species are species for which
there is concern that they may warrant listing as threatened or
endangered.
It is worth pointing out there are no regulatory
requirements that attach to candidate species, no Federal
regulatory requirements.
Mr. Lankford. And that is one of my questions on it, is,
where did that come from, the candidate-type listing? Is that
from statute? Is that from regulation or----
Mr. Bean. It originated as a response to the fact that the
Fish and Wildlife Service responded to petitions by
acknowledging that certain species that had been petitioned may
warrant listing but there were higher priorities to deal with
first. And so, those basically were put in queue, and those in
queue were considered to be candidate species.
I think the word ``candidate'' now appears in the statute,
but it did not originally appear in the statute.
Mr. Lankford. In the statute or the regulations?
Mr. Bean. I think in the statute, if I recall correctly.
Mr. Lankford. Mr. Rauch, do you know in that one, or how
you are handling that, where this--the candidate has risen up?
Mr. Rauch. I cannot recall where it has risen up. But I can
confirm that we do, as well as the Fish and Wildlife Service,
use those species to try to engage with landowners in a
nonregulatory fashion ahead of the listing so that we can avoid
listing. There are a lot more options that you can do while the
species is not----
Mr. Lankford. Uh-huh. Are we having a better recovery of
species in the candidate phase or in the threatened phase?
Mr. Rauch. I am not sure that we completely track recovery
in the threatened phase, because recovery means, under the
statute, recovery to the point where the ESA mandates are no
longer needed. Since the candidate species did not become
listed in the first place----
Mr. Lankford. Right.
Mr. Rauch. --they are technically--the distinction doesn't
really apply.
Mr. Lankford. We are back to Mr. Bean's comment earlier; it
is better to catch it earlier and to be able to go after it.
Mr. Rauch. I completely agree with that.
Mr. Lankford. Sure. But at that point, it is the State that
is also managing it, is that correct, other than in Federal
waters?
Mr. Rauch. Yes.
Mr. Lankford. Okay. So we need some clarification what
``candidate'' means, because that is one of the areas that
there is some concern nationwide in different entities, that
when something suddenly becomes a candidate, no one really
knows what that means fully. They just know the hammer is
coming down quickly on them, and they are trying to figure out
what do we do. And that is a nebulous threat, so we do need
some clarification on that in the days ahead.
Making data publicly available, I know we have had some
conversation about this in the research part of it. I am trying
to figure out why that is still a bad idea, that we can peer-
review data, and if someone is going to bring an issue and say,
I have studied this, but no one else can second-guess me on it,
and because this data is proprietary, there is a major problem
with that, when individuals and States, counties, and tribes
are going to spend millions of dollars mitigating for a risk
that they can't actually verify.
Any disagreement on that? Or any solutions on how we
resolve that?
Mr. Bean. All I would say beyond what I have said already
is I will be happy to explore this further within the agency to
see, first of all, if my understanding is correct and,
secondly, if there are reasonable solutions.
Mr. Lankford. Mr. Rauch, anything you can share with that?
Mr. Rauch. I can't speak to the discussions about the sage
grouse or the specific instances you are talking about. We do
value public and peer-reviewed data. We recently, when we were
dealing with the core listing, we put all our science out in a
broad peer-reviewed document, to the extent that we had it, and
made it available.
I can confirm that there are instances in which we would
like to release data but we don't have it, because the
researchers won't give it to us. So that appears to be what is
happening to the Fish and Wildlife Service. That does happen to
us on occasion; it does create issues. But we would prefer, and
where we can, we try to make all of our data publicly
available.
Mr. Lankford. I can tell you what you we do with anonymous
letters, where people don't give us backup. We don't take them
seriously. If I can't verify your number, if I can't verify
your information, I am not going to take it seriously. Because
I am not going to take ``trust me'' as an answer.
Even if you are you a respected researcher, every person
makes mistakes and every bit of data should be peer-reviewed
and should be public. And if States and individuals are going
to be put into a status where they have to spend millions of
dollars to mitigate for something, they should be able to back
it up and to be able to disagree or disagree, and you can't do
that.
That is the basic American principle of I should be able to
face my accuser, and if suddenly the accuser says, no, there is
a problem, but I can't tell you why, we have a problem as a
Nation. That is one we have to resolve.
States getting involved and the affected parties being
involved, they need, kind of, the consent decree or the
research of an entity at the start rather than finding out much
later. How do we get affected parties involved at the very
beginning of this and accelerate that process?
And you have mentioned several times, Mr. Bean, that States
are made aware of this and they are engaged. How do we get them
at the very beginning engaged? Any ideas on that?
Mr. Rauch. I will say that we are currently engaged in a
joint State-Federal task force with the States to talk about
their involvement. We have a series of ongoing meetings--the
next one is coming up next month in Denver--where we talk with
them about that exact question, about how they can be not just
engaged but meaningfully engaged in this process.
There are many roles, as Mr. Bean said, for the States to
become involved in the process, the substantive decision. And
we do take that seriously and look to make sure that that is
meaningful and that we can fully take account of the data, that
they have the expertise and that they have them bring that to
the decision.
Mr. Lankford. Right. Again, you are going back to a basic
American principle: The Federal Government exists to be able to
serve the people. And affected parties should be at the table
and should be very aware of that. So getting them there at the
very beginning makes a huge difference.
Mr. Bean, any comments on that? We will move on to other
things if not.
Mr. Bean. Just one comment. The Interior Department has
provided support to the western States to develop what are
known as crucial habitat assessment tools; the acronym is
CHATs. These are Internet-accessible databases of the most
important areas in those western States for a variety of
purposes--wildlife habitats, wildlife migratory corridors, and
the like.
So that investment by the Federal Government to assist the
States in developing that data is proving very useful in
identifying those places on the map where conflicts are likely
to be most acute and, conversely, those places on the map where
conflicts are likely to be least likely. So I think that is a
good way to further your goal of having State and Federal
cooperation.
Mr. Lankford. Right. And you are fully aware, once we get
into the western United States, my State included, that the
push is on in many areas to be able to protect where we are
now. And it leaves the implication that right where we are in
the level of development we are is the right level of
development. And we are pushing through habitat. And it has the
feeling in the western part of the United States of, ``We don't
want you to grow. You are going to stay right where you are.''
Now, I understand the words are that we can coexist, but
when the focus is on habitat erosion rather than population
counts, it sends the clear signal: Not developing energy in
this area, not developing wind power in this area, not
developing homes or cities or roads in this area. Sends a
pretty clear signal, you have to stay at this spot. And that
becomes a concern, when the focus is habitat rather than
population.
A couple things. Is there a way to be able to move to an
arbitration system for the citizen petitions to expedite this
process, to be able to help clear the deck? If you have a high
number of these that don't end up going through the rest of the
process that are cleared, is there a faster route to do this
and be more efficient for the services to take care of this?
Mr. Bean. That is an idea I have not heard discussed, so I
don't have--I haven't given it much thought, but I will be
happy to give it some thought.
Mr. Lankford. Okay.
Mr. Rauch?
Mr. Rauch. I have not thought about it either. And as I
mentioned I think earlier, we do have listing petitions, not
merely as many as Fish and Wildlife Service. So we believe we
are able to perform our work and stay in general on schedule.
We don't have the backlog that they have had.
Mr. Lankford. Right. Because there is nothing to stop a
group coming to you with 2,000 species in a petition at this
point. I mean, the continual ramp-up is larger and larger,
which becomes more irrational and unachievable. There has to be
a way to be able to manage and to be able to mitigate this in
the days ahead.
Last piece on it I want to--I have a couple other quick
notes on it. The issue of data versus best professional
judgment, how do we manage between the two to be able to create
the maximum amount of trust?
Because, again, if individuals and businesses and cities
and States and tribes are going to spend millions of dollars in
mitigation and they don't have data on it, they have someone's
best professional judgment, and it may be species where there
is a very small group of individuals that are specialists in
that species, how do we manage that to be able to create trust?
Mr. Bean. Mr. Chairman, I think that it is rarely the case,
and is probably never the case, that the Fish and Wildlife
Service makes decisions just based upon somebody's opinion,
devoid of reference to published studies or other real data.
As I indicated in an earlier answer, there is often an
absence of definitive data on many of the questions the Service
has to answer, and, thus, it has to use judgment in how its
interprets or applies the information and data that exists. But
the Service takes seriously the statutory command to base its
decisions on the best available scientific information and
tries to do that consistently.
Mr. Lankford. Yeah. That is the grand challenge again. When
you are dealing with a species, when you are dealing with
someone who has published a paper that no one else has tracked
before, and it, again, assumes it used to be higher than what
it is now, ``It is only this; certainly it was larger than that
at some point,'' no one knows. And how do you track that? And
now what do we do as a reaction to that?
Again, no one is looking to be able to wipe out a species,
but neither are we looking for all of our lives to be turned
upsidedown because someone wrote a research paper that was
published. We have to be able to find a balance between those
two.
Mr. Bean. Certainly.
May I just offer the observation that, while it is
obviously impossible to say what the population may have been
at some point in the past, it is possible to determine that a
species was present in certain places in the past where it is
no longer present today. We have that from collection records,
from museum records, from accounts from explorers and others.
So it is possible to document loss of range for many of these
species.
Mr. Lankford. Right. And we also have a documentation of
loss of range for dinosaurs that we can document, as well, that
was not due to human activity or whatever it may be. And so
species come and go; we are very aware of that. And we have
every obligation to be able to protect a species. As an
Evangelical Christian myself, I have this overwhelming sense
that we have a responsibility to take care of what God has
given us. But it is also a challenge to be able to do that, in
an economic sense, that also allows for the movement of people
to be able to process through that.
There is a statement and there are several questions that I
wanted to be able to put in the record. I think both of you all
may have heard of a group called the U.S. Chamber of Commerce.
They occasionally have disagreements on some of the ESA
applications. I would like to ask unanimous consent, which I am
pretty confident I will get, to be able to put this into the
record, as well, and some of the other questions and thoughts
that they had as a part of this.
Mr. Lankford. Final statements that either of you gentlemen
would like to make, or observations or ideas?
Mr. Bean. Just thank you for your interest. As you
indicated when I talked to you yesterday, you wanted to have,
you know, an honest, candid discussion, and I think we have had
that. So I appreciate that very much.
Mr. Lankford. You bet. Thank you.
Mr. Rauch?
Mr. Rauch. Thank you for the opportunity to come here and
share our views with you.
Mr. Lankford. Thank you.
Obviously, this conversation is not done. We will continue
to work on solutions and how we resolve some issues to be able
to make this as clear as possible in the days ahead.
With that, this hearing is adjourned.
[Whereupon, at 4:31 p.m., the subcommittee was adjourned.]
APPENDIX
----------
Material Submitted for the Hearing Record
[GRAPHIC] [TIFF OMITTED] T7950.011
[GRAPHIC] [TIFF OMITTED] T7950.012
[GRAPHIC] [TIFF OMITTED] T7950.013
[GRAPHIC] [TIFF OMITTED] T7950.014
[GRAPHIC] [TIFF OMITTED] T7950.015
[GRAPHIC] [TIFF OMITTED] T7950.016
[GRAPHIC] [TIFF OMITTED] T7950.017
[GRAPHIC] [TIFF OMITTED] T7950.018
[GRAPHIC] [TIFF OMITTED] T7950.019
[GRAPHIC] [TIFF OMITTED] T7950.020
[GRAPHIC] [TIFF OMITTED] T7950.021
[GRAPHIC] [TIFF OMITTED] T7950.022
[GRAPHIC] [TIFF OMITTED] T7950.023
[GRAPHIC] [TIFF OMITTED] T7950.024
[GRAPHIC] [TIFF OMITTED] T7950.025
[GRAPHIC] [TIFF OMITTED] T7950.026
[GRAPHIC] [TIFF OMITTED] T7950.027
[GRAPHIC] [TIFF OMITTED] T7950.028
[GRAPHIC] [TIFF OMITTED] T7950.029
[GRAPHIC] [TIFF OMITTED] T7950.030
[GRAPHIC] [TIFF OMITTED] T7950.031
[GRAPHIC] [TIFF OMITTED] T7950.032
[GRAPHIC] [TIFF OMITTED] T7950.033
[GRAPHIC] [TIFF OMITTED] T7950.034
[GRAPHIC] [TIFF OMITTED] T7950.035
[GRAPHIC] [TIFF OMITTED] T7950.036
[GRAPHIC] [TIFF OMITTED] T7950.037
[GRAPHIC] [TIFF OMITTED] T7950.038
[GRAPHIC] [TIFF OMITTED] T7950.039
[GRAPHIC] [TIFF OMITTED] T7950.040
[GRAPHIC] [TIFF OMITTED] T7950.041
[GRAPHIC] [TIFF OMITTED] T7950.042
[GRAPHIC] [TIFF OMITTED] T7950.043
[GRAPHIC] [TIFF OMITTED] T7950.044
[GRAPHIC] [TIFF OMITTED] T7950.045
[GRAPHIC] [TIFF OMITTED] T7950.046
[GRAPHIC] [TIFF OMITTED] T7950.047
[GRAPHIC] [TIFF OMITTED] T7950.048
[GRAPHIC] [TIFF OMITTED] T7950.049
[GRAPHIC] [TIFF OMITTED] T7950.050
[GRAPHIC] [TIFF OMITTED] T7950.051
[GRAPHIC] [TIFF OMITTED] T7950.052
[GRAPHIC] [TIFF OMITTED] T7950.053
[GRAPHIC] [TIFF OMITTED] T7950.054
[GRAPHIC] [TIFF OMITTED] T7950.055
[GRAPHIC] [TIFF OMITTED] T7950.056
[GRAPHIC] [TIFF OMITTED] T7950.057
[GRAPHIC] [TIFF OMITTED] T7950.058
[GRAPHIC] [TIFF OMITTED] T7950.059
[GRAPHIC] [TIFF OMITTED] T7950.060
[GRAPHIC] [TIFF OMITTED] T7950.061
[GRAPHIC] [TIFF OMITTED] T7950.062
[GRAPHIC] [TIFF OMITTED] T7950.063
[GRAPHIC] [TIFF OMITTED] T7950.064
[GRAPHIC] [TIFF OMITTED] T7950.065
[GRAPHIC] [TIFF OMITTED] T7950.066
[GRAPHIC] [TIFF OMITTED] T7950.067
[GRAPHIC] [TIFF OMITTED] T7950.068
[GRAPHIC] [TIFF OMITTED] T7950.069
[GRAPHIC] [TIFF OMITTED] T7950.070
[GRAPHIC] [TIFF OMITTED] T7950.071
[GRAPHIC] [TIFF OMITTED] T7950.072
[GRAPHIC] [TIFF OMITTED] T7950.073
[GRAPHIC] [TIFF OMITTED] T7950.074
[GRAPHIC] [TIFF OMITTED] T7950.075
[GRAPHIC] [TIFF OMITTED] T7950.076
[GRAPHIC] [TIFF OMITTED] T7950.077
[GRAPHIC] [TIFF OMITTED] T7950.078
[GRAPHIC] [TIFF OMITTED] T7950.079
[GRAPHIC] [TIFF OMITTED] T7950.080
[GRAPHIC] [TIFF OMITTED] T7950.081
[GRAPHIC] [TIFF OMITTED] T7950.082
[GRAPHIC] [TIFF OMITTED] T7950.083
[GRAPHIC] [TIFF OMITTED] T7950.084
[GRAPHIC] [TIFF OMITTED] T7950.085
[GRAPHIC] [TIFF OMITTED] T7950.086
[GRAPHIC] [TIFF OMITTED] T7950.087
[GRAPHIC] [TIFF OMITTED] T7950.088
[GRAPHIC] [TIFF OMITTED] T7950.089
[GRAPHIC] [TIFF OMITTED] T7950.090
[GRAPHIC] [TIFF OMITTED] T7950.091
[GRAPHIC] [TIFF OMITTED] T7950.092
[GRAPHIC] [TIFF OMITTED] T7950.093
[GRAPHIC] [TIFF OMITTED] T7950.094
[GRAPHIC] [TIFF OMITTED] T7950.095
[GRAPHIC] [TIFF OMITTED] T7950.096