[House Hearing, 114 Congress]
[From the U.S. Government Publishing Office]



 
      FEDERAL AGENCIES' SELECTIVE ENFORCEMENT OF ESA CONSULTATION

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

                           OVERSIGHT HEARING

                               before the

                     COMMITTEE ON NATURAL RESOURCES
                     U.S. HOUSE OF REPRESENTATIVES

                    ONE HUNDRED FOURTEENTH CONGRESS

                             FIRST SESSION

                               __________

                        Wednesday, July 29, 2015

                               __________

                           Serial No. 114-18

                               __________

       Printed for the use of the Committee on Natural Resources
       
       
       
       
       
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                     COMMITTEE ON NATURAL RESOURCES

                        ROB BISHOP, UT, Chairman
            RAUL M. GRIJALVA, AZ, Ranking Democratic Member

Don Young, AK                        Grace F. Napolitano, CA
Louie Gohmert, TX                    Madeleine Z. Bordallo, GU
Doug Lamborn, CO                     Jim Costa, CA
Robert J. Wittman, VA                Gregorio Kilili Camacho Sablan, 
John Fleming, LA                         CNMI
Tom McClintock, CA                   Niki Tsongas, MA
Glenn Thompson, PA                   Pedro R. Pierluisi, PR
Cynthia M. Lummis, WY                Jared Huffman, CA
Dan Benishek, MI                     Raul Ruiz, CA
Jeff Duncan, SC                      Alan S. Lowenthal, CA
Paul A. Gosar, AZ                    Matt Cartwright, PA
Raul R. Labrador, ID                 Donald S. Beyer, Jr., VA
Doug LaMalfa, CA                     Norma J. Torres, CA
Jeff Denham, CA                      Debbie Dingell, MI
Paul Cook, CA                        Ruben Gallego, AZ
Bruce Westerman, AR                  Lois Capps, CA
Garret Graves, LA                    Jared Polis, CO
Dan Newhouse, WA                     Wm. Lacy Clay, MO
Ryan K. Zinke, MT
Jody B. Hice, GA
Aumua Amata Coleman Radewagen, AS
Thomas MacArthur, NJ
Alexander X. Mooney, WV
Cresent Hardy, NV
Vacancy

                       Jason Knox, Chief of Staff
                      Lisa Pittman, Chief Counsel
                David Watkins, Democratic Staff Director
             Sarah Parker, Democratic Deputy Chief Counsel
                                 ------   
                                 
                                 


                                CONTENTS

                               ----------                              
                                                                   Page

Hearing held on Wednesday, July 29, 2015.........................     1

Statement of Members:
    Bishop, Hon. Rob, a Representative in Congress from the State 
      of Utah....................................................     1
        Prepared statement of....................................     3
    Grijalva, Hon. Raul M., a Representative in Congress from the 
      State of Arizona...........................................     5
        Prepared statement of....................................     6

Statement of Witnesses:
    Bean, Michael, Principal Deputy Assistant Secretary for Fish 
      and Wildlife and Parks, U.S. Department of the Interior, 
      Washington, DC.............................................     7
        Prepared statement of....................................     9
        Questions submitted for the record.......................    13
    Rauch III, Sam, Deputy Assistant Administrator for Regulatory 
      Programs, National Marine Fisheries Service, NOAA, 
      Washington, DC.............................................    18
        Prepared statement of....................................    19

Additional Materials Submitted for the Record:
    Environmental Protection Agency, prepared statement of.......    55
                                     



  OVERSIGHT HEARING ON FEDERAL AGENCIES' SELECTIVE ENFORCEMENT OF ESA 
                              CONSULTATION

                              ----------                              


                        Wednesday, July 29, 2015

                     U.S. House of Representatives

                     Committee on Natural Resources

                             Washington, DC

                              ----------                              

    The committee met, pursuant to notice, at 10:03 a.m., in 
room 1324, Longworth House Office Building, Hon. Rob Bishop 
[Chairman of the Committee] presiding.
    Present: Representatives Bishop, Gohmert, Lamborn, 
McClintock, Thompson, Lummis, Benishek, Labrador, LaMalfa, 
Westerman, Newhouse, Zinke, Radewagen; Grijalva, Bordallo, 
Huffman, Lowenthal, Beyer, Dingell, Capps, and Polis.
    The Chairman. The committee will come to order. The 
committee is meeting today to hear testimony on Federal 
agencies' selective enforcement of Endangered Species Act 
consultation. Under Committee Rule 4(f), any oral opening 
statements are limited to the Chair, the Ranking Minority 
Member, and their designees. This will allow us to hear more 
from our witnesses sooner.
    I ask unanimous consent that all other Members' opening 
statements be made part of the hearing record if they are 
submitted to the Committee Clerk by 5:00 p.m. today. Hearing no 
objections, that is ordered.
    Also, I politely ask that everyone in the hearing room 
please silence your cell phones. This will allow minimum 
distraction for both Members and our guests.
    I am now going to recognize myself for the first 5 minutes.

STATEMENT OF THE HON. ROB BISHOP, A REPRESENTATIVE IN CONGRESS 
                     FROM THE STATE OF UTAH

    The Chairman. Like every day, Americans are required to 
comply with an ever-growing list of Federal regulations that 
restrict their freedom, harm job creation, and slow our 
economic growth. Every agency seems to be enjoying this 
continuous onslaught of regulatory activity at a fever pitch.
    No agency has perhaps expanded the Federal regulatory 
burden more than the EPA. You can imagine our surprise when the 
Environmental Protection Agency was shirking its duty under the 
Endangered Species Act at the same time it was rapidly trying 
to finalize two of the most expensive and far-reaching 
regulations in the last 50 years.
    Today we hope to discover that, if not through the front 
door at least through the back door, EPA and the Fish and 
Wildlife Service are not selectively enforcing a critical 
component of the ESA to speed up the very rules that threaten 
to slam the brakes on America's economy.
    While well-intentioned, the Endangered Species Act has been 
a headache for Americans as it has moved far afield from its 
original intent 40 years ago. Instead of focusing on saving 
species, it has become a political tool for radical special 
interest groups to exact retribution on those they do not like, 
especially those seeking to make use of our natural resources.
    Instead of having an open and transparent process with a 
partnership with the states, we have been left with a 
litigation-driven system that resolves controversies in closed-
door settlement agreements. Recent proposals by this 
Administration serve only to highlight that the status quo is 
unacceptable and that improvements in the transparency and the 
collaboration between state and local governments are 
definitely long overdue.
    While there is a growing consensus that ESA improvements 
should and can be made, it is still hypocritical for agencies 
like EPA to expect everyday Americans to follow the regulations 
while they are able to evade them. They are even trying to 
evade answering our questions. Amidst the EPA's confusing 
statements about their expertise on the ESA, they communicated 
to the committee last week that they did not have a witness 
that could speak on this topic on the agency's behalf.
    In March 2014, then-Chairman Vitter of the Senate 
Environment and Public Works Committee wrote to Administrator 
McCarthy and Director Ashe asking if EPA would be required by 
law to consult with Fish and Wildlife Service with regard to 
EPA's rule on new source performance standards.
    In response to the letter, Director Ashe responded, ``To 
date, the EPA has not asked Fish and Wildlife Service to engage 
in section 7 consultation on the proposed new source 
performance standard rule.'' As of today, 16 months later, EPA 
still has not responded to that letter.
    So, during March of this year, I asked Director Ashe if EPA 
had consulted them on the rule for existing power plants. Once 
again the answer was no. Ultimately, in a letter Director Ashe 
stated that the determination of whether EPA's actions may 
affect endangered species, and therefore require ESA 
consultation, could only be completed by the EPA, given their 
expertise with Clean Air Act issues.
    While some of those who are trying to follow the law can 
wait for years for consultation, this agency seems to be simply 
picking and choosing which parts of the law they wish to 
ignore.
    Courts have repeatedly emphasized that this law is 
intentionally a low threshold. Courts have stated, ``Any 
possible effect, whether beneficial, benign, adverse, or of an 
undetermined character, triggers the requirement.'' One court 
even went as far as to say that the mere presence of a listed 
species was enough to require consultation.
    It should not be difficult to get a straight answer as to 
whether these two massive rules may affect listed species; but 
we will hold the Federal agencies accountable until we actually 
do get that.
    I do want to know one thing. We received unsigned, 
unsolicited written remarks from the EPA very late last night, 
as well as a belated few documents in request to a letter sent 
by Chairman Inhofe and myself. If EPA thinks that this action 
is acceptable as compliance, they are crazy. If Mr. Grijalva 
had acted this way with this committee, I would consider him to 
be arrogant, self-righteous, ineffective, unresponsive, and a 
jerk. And fortunately, Mr. Grijalva is not that because he 
takes his job seriously, he does things well, and he does not 
act with a cavalier attitude the way EPA does.
    I thank the witnesses for attending this hearing, and I 
look forward to learning more about the process, if not through 
the front door, at least through the back door.
    [The prepared statement of Mr. Bishop follows:]
   Prepared Statement of the Hon. Rob Bishop, Chairman, Committee on 
                           Natural Resources
    Every day, Americans are required to comply with an ever-growing 
list of Federal regulations which restrict their freedoms and hinder 
their efforts to create jobs and grow our economy. From nearly every 
agency, the Obama administration's regulatory onslaught continues at a 
fever pitch, killing jobs and condemning our Nation's economy to the 
anemic growth we are currently experiencing.
    No agency has done more to add to the expanding Federal regulatory 
burden than the EPA. Imagine our surprise when it appeared that the EPA 
was shirking its duties under the Endangered Species Act at the same 
time it seeks to finalize two of the most expensive and far-reaching 
regulations in the last 50 years. Today, we hope to discover that the 
EPA and the Fish and Wildlife Service are not selectively enforcing a 
critical component of the ESA to speed up the very rules that threaten 
to slam the brakes on the American economy.
    While well-intentioned, the ESA has caused more than its fair share 
of headaches for Americans, moving far afield of the original intent of 
40 years ago. Instead of a law focused on saving species in danger of 
extinction, it has become a political tool for radical 
environmentalists to exact retribution on those seeking to make use of 
our natural resources.
    Instead of an open, transparent, and science-based regulatory 
scheme that would make partners of states, we have been left with an 
opaque, litigation-driven system that resolves controversial policy 
questions through closed-door settlement agreements. Recent proposals 
by this Administration serve only to highlight that the status quo is 
unacceptable and that improvements in transparency, science, and State-
Federal collaboration are long overdue.
    But while there is growing consensus that ESA improvements can and 
should be made, it is hypocritical for agencies like the EPA to expect 
everyday Americans to follow its regulations while they are able to 
evade them. They even are trying to evade answering our questions. 
Amidst EPA's confusing statements about their expertise on ESA, they 
communicated to the committee last week that they didn't have a witness 
that could speak on this topic on the agency's behalf.
    In March 2014, then-Chairman Vitter of the Senate Environment and 
Public Works Committee wrote to Administrator McCarthy and Director 
Ashe asking, among other things, if EPA was required by law to consult 
with the Fish and Wildlife Service with regard to EPA's rule on new 
source performance standards. In response to this and 16 other detailed 
questions, Director Ashe responded, and I quote: ``To date, the EPA has 
not asked the [Fish and Wildlife Service] to engage in section 7 
consultation on the proposed [new source performance standard] rule.'' 
As of today, more than 16 months later, the EPA has still not responded 
to the letter.
    Then, during a hearing before this committee in March of this year, 
I asked Director Ashe if EPA had consulted on its rule for existing 
power plants. Director Ashe responded that EPA had not requested 
consultation on the rule. Ultimately, in a letter following that 
hearing, Ashe stated that the determination of whether EPA's action may 
affect endangered species, and therefore require ESA consultation, 
could only be completed by the EPA, given their expertise with Clean 
Air Act issues.
    While some trying to follow the law can wait years to complete a 
consultation, Federal agencies are ignoring the basic question of 
whether sweeping EPA regulations ``may affect'' listed species or 
critical habitat.
    Courts and agencies have repeatedly emphasized that this is an 
intentionally low threshold. Courts have stated that ``[a]ny possible 
effect, whether beneficial, benign, adverse or of an undetermined 
character'' triggers the requirement, and one court even went as far as 
to say that the mere presence of a listed species was enough to require 
consultation.
    It should not be this difficult to get straight answers as to 
whether these two massive rules ``may affect'' listed species. But, we 
will hold the Federal agencies accountable until we do.
    I should note at this time that we received unsigned and 
unsolicited written remarks from EPA late last night on this issue as 
well as the belated first few documents supplied in response to the 
letter sent by Chairman Inhofe and myself. If EPA believes a few pages 
of unrequested testimony is a fair substitute for coming before this 
committee and answering questions in front of the American people, then 
it sorely misses the point of this institution. I will continue to 
press forward with our questions until EPA has answered them to my 
satisfaction.
    I thank the witnesses for attending this hearing and I look forward 
to learning more about this process.

                  SLIDES PRESENTED BY CHAIRMAN BISHOP
                  

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[ADDITIONAL SLIDES SUBMITTED SHOWING PROJECTED GROWTH OF THE WIND 
INDUSTRY OVER THE NEXT 35 YEARS ARE BEING RETAINED IN THE COMMITTEE'S 
OFFICIAL FILES]

                                 ______
                                 

    The Chairman. With hesitation, I now recognize the Ranking 
Minority Member for his opening statement.

  STATEMENT BY THE HON. RAUL M. GRIJALVA, A REPRESENTATIVE IN 
               CONGRESS FROM THE STATE OF ARIZONA

    Mr. Grijalva. Thank you very much, Mr. Chairman. As my 
momma always said, praise is praise, I guess----
    [Laughter.]
    Mr. Grijalva. And we take it where we can get it.
    I was hoping today's hearing signaled to some extent the 
end of my Republican colleagues' campaign to drive American 
fish and wildlife to extinction one species at a time. I wish 
the Majority wanted to see the ESA fully funded, enforced, and 
implemented instead of seeing it weakened, or as one of my 
Republican colleagues has called for, repealed.
    Unfortunately, this is not the case. Rather than turning 
over a new leaf, Committee Republicans are turning a new page 
in their extinction playbook.
    Today we will hear the argument that the Environmental 
Protection Agency should have worked harder to assess the 
impact of its proposed power plant rule on Florida manatees. We 
are asked to believe that my Republican colleagues raise this 
concern because they care deeply about the manatees, not 
because they oppose the power plant pollution limits. The 
Majority's story line is unconvincing for several reasons.
    First, the proposed rules do not require the closure of a 
single power plant, period. The states would decide how best to 
comply with the new Clean Air Act regulations. It would be up 
to power plant companies to decide if keeping an individual 
plant in operation makes any business sense.
    The Endangered Species Act does not and should not require 
EPA to guess what the indirect effects of the industry's 
reaction to a new regulation might be. What if a power plant 
does close as a result of this rule and the building is 
redeveloped as a hip new condo complex? Should EPA assess the 
impact that a swarm of hipsters might have on the coffee scene 
in the area?
    The Majority has no idea whether power plants will close as 
a result of this proposed rule. We are holding this hearing 
today because they think the EPA should have a better crystal 
ball than they do.
    Second, the proposed rules are exactly that, proposed. 
Today the Obama administration announced that they would push 
back the deadline for states to submit their carbon-cutting 
strategies by a year under the Clean Power Plant Rule and give 
them an additional 2 more years, until 2022, to comply with the 
plan. So, assessing any potential impact to manatees today at 
this hearing seems more and more of a stretch.
    Once the rule is out, if my colleagues or the public still 
have concerns about manatees, the ESA includes a process for 
seeking a review of the rule by the courts. On every day except 
today, the Republican agenda in this committee is to limit or 
wipe out public comment periods for Federal regulations and to 
weaken or prohibit judicial review of Federal regulations.
    Many of my Republican colleagues, by their own account, 
support expedited, half-hearted review processes for rules that 
help industry make more money; but here they are today 
demanding that EPA must unreasonably review standards for a 
rule that might result in pollution limits.
    I am sorry to say that I think this newfound Republican 
concern for the health and well-being of the Florida manatees 
is a sham. Next Monday, they will hold an oversight hearing in 
Homestead, Florida in order to attack the National Park Service 
management plan for Biscayne Bay National Park. At that 
hearing, Republicans will argue that the new plan is far too 
restrictive.
    Guess what that managed plan is designed to do? In part, to 
protect the Florida manatees.

    With that, I yield back.
    [The prepared statement of Mr. Grijalva follows:]
   Prepared Statement of the Hon. Raul M. Grijalva, Ranking Member, 
                     Committee on Natural Resources
    Thank you, Mr. Chairman.
    I wish today's hearing signaled the end of the Republican campaign 
to drive American fish and wildlife to extinction one species at a 
time.
    I wish the Majority wanted to see the ESA fully funded, enforced 
and implemented, instead of seeing it weakened or, as one of my 
Republican colleagues has called for, repealed.
    Unfortunately, that's not the case. Rather than turning over a new 
leaf, Committee Republicans are turning a new page in their extinction 
playbook.
    Today we will hear the argument that the Environmental Protection 
Agency should have worked harder to assess the impacts of its proposed 
power plant rule on Florida manatees. We are asked to believe that my 
Republican colleagues raise this concern because they care deeply about 
manatees, NOT because they oppose power plant pollution limits.
    The Majority's storyline is unconvincing for several reasons.
    First, the proposed rules do not require the closure of a single 
power plant. Period. The states would decide how best to comply with 
new Clean Air Act regulations. It will be up to power companies to 
decide if keeping an individual plant in operation makes business 
sense.
    The Endangered Species Act does not--and should not--require EPA to 
guess what the indirect effects of industry's reaction to a new 
regulation might be.
    What if a power plant does close as a result of this rule and the 
building is redeveloped as a hip new condo complex? Should EPA assess 
the impact that a swarm of hipsters might have on the coffee scene?
    The Majority has no idea whether power plants will close as a 
result of this proposed rule. We're holding this hearing today because 
they think EPA should have a better crystal ball than they do.
    Second, the proposed rules are exactly that: proposed. Any final 
rules will take public comment into account, including what Members of 
Congress and others have to say about ESA consultation with respect to 
impacts on manatees.
    Once the rule is out, if my colleagues or the public still have 
concerns about manatees, the ESA includes a process for seeking a 
review of the rule by the courts.
    On every day except today, the Republican agenda in this committee 
is to limit or wipe out public comment periods for Federal regulations 
and to weaken or prohibit judicial review of Federal regulations.
    Many of my Republican colleagues, by their own account, support 
expedited, half-hearted review processes for rules that help industry 
make more money. But here they are today demanding that the EPA meet 
unreasonable review standards for a rule that MIGHT result in pollution 
limits.
    I'm sorry to say that I think this new-found Republican concern for 
the health and well-being of Florida manatees is a sham. Next Monday 
they'll hold an oversight hearing in Homestead, Florida, in order to 
attack the National Park Service management plan for Biscayne Bay 
National Park. At that hearing, Republicans will argue that the new 
plan is far too restrictive.
    Guess what that management plan is designed, in part, to protect? 
Florida manatees.
    I yield back.

                                 ______
                                 

    The Chairman. Thank you.
    We will now have the opportunity to introduce our 
witnesses. We have first Mr. Michael Bean, who is the Principal 
Deputy Assistant Secretary for Fish and Wildlife and Parks of 
the U.S. Department of the Interior. And our second witness 
today is Mr. Samuel Rauch, who is the Deputy Assistant 
Administrator for Regulatory Programs for the National Oceanic 
and Atmospheric Administration, or NOAA Fisheries.
    I am assuming you have both been here before, so you know 
the drill. Your entire written statement is part of the record. 
Your oral statements are limited to 5 minutes. You have the 
clock in front of you. When the light goes red, I will cut you 
off.
    So with that, we appreciate you being here. I recognize Mr. 
Bean for your testimony.

STATEMENT OF MICHAEL BEAN, PRINCIPAL DEPUTY ASSISTANT SECRETARY 
    FOR FISH AND WILDLIFE AND PARKS, U.S. DEPARTMENT OF THE 
                    INTERIOR, WASHINGTON, DC

    Mr. Bean. Thank you. Chairman Bishop, Ranking Member 
Grijalva, members of the committee, thank you for the 
opportunity to testify before you today concerning the 
interagency consultation process of the Endangered Species Act.
    Section 7 of the Act requires Federal agencies to ensure 
that their actions that they authorize, fund, or carry out are 
not likely to jeopardize the continued existence of any 
endangered or threatened species or adversely modify their 
critical habitats.
    In carrying out this duty, Federal action agencies consult 
with the Fish and Wildlife Service or the National Marine 
Fisheries Service, or both, depending upon the species 
affected. The consultation process has been quite successful.
    The vast majority of Federal actions that are scrutinized 
under section 7 go forward with, at most, only minor 
adjustments or modifications to avoid harmful impacts. As a 
result, highly imperiled species have a better shot at getting 
off the path to extinction and onto the road to recovery; and 
many species are on that road to recovery, as my written 
statement documents.
    The section 7 consultation process is set forth in detail 
in Joint Regulations by the two Services, issued in 1986 during 
the Reagan administration. It can proceed through one, two, or 
three steps.
    In the first step, the action agency--the agency proposing 
to undertake, authorize, or fund an action--must determine 
whether that action may affect any listed species or critical 
habitat. If it determines that its proposed action does not do 
so, it has no further consultation obligation. The concurrence 
of the Services is not required in order for an action agency 
to conclude that its action does not meet the ``may affect'' 
test.
    Although action agencies are solely responsible for making 
the initial ``may affect'' finding, they may find useful the 
guidance embodied in a 2008 legal opinion by the Interior 
Department's Solicitor during the Bush administration.
    That guidance notes that in determining whether a proposed 
action may affect a listed species, the agency must take into 
account both direct and indirect effects. As the Solicitor 
noted, although direct effects are not defined, they are 
commonly understood to refer to effects that are an immediate 
and natural consequence of the taking of the proposed action. 
Indirect effects, on the other hand, are defined rather 
narrowly in those regulations to refer to effects that are both 
caused by the proposed action and reasonably certain to occur.
    Where future effects upon listed species or critical 
habitats depend upon subsequent intervening actions, such as 
actions by states, private interests, or both, distinguishing 
effects that are reasonably certain to occur from those that 
are more uncertain and speculative is often not easy. However, 
the judgment reflected in the Joint Regulations is that action 
agencies are the appropriate entities for making such 
determinations at the initial ``may affect'' stage.
    If an agency determines that its proposed action may affect 
listed species or habitats, it proceeds to the second step, 
known as informal consultation. The purpose of that is to 
determine whether a proposed action is likely to adversely 
affect a listed species or critical habitat. The process ends 
at this step if the action agency determines that the proposed 
action is not likely to adversely affect a listed species or 
critical habitat, provided the Services concur in writing.
    On average, the Fish and Wildlife Service engages in 
roughly 10,000 informal consultations annually. Through the 
process of informal consultation, it is often possible to 
identify acceptable modifications to proposed projects that 
avoid adverse effects upon endangered species.
    If an action is likely to adversely affect listed species 
or critical habitats, the process moves to the third and final 
step, known as formal consultation. This ends with the issuance 
of a written biological opinion from the Service in which the 
Service expresses its view as to whether the action agency's 
action complies with the requirements of section 7.
    Like the informal consultation process, the formal 
consultation process often identifies project modifications 
that eliminate adverse effects or reduce them to acceptable 
levels. On average, the Fish and Wildlife Service engages in 
about 1,000 formal consultations annually; and during the 
period from 2008 through 2014, only a fraction of 1 percent of 
these resulted in what are known as ``jeopardy opinions.''
    The Service's determinations and its biological opinions 
are intended to be the expert judgment of an agency that has 
the responsibility of developing and applying its biological 
expertise in the conservation of imperiled species. As such, 
they are quite consequential, and the action agencies typically 
rely upon them. However, they are not legally binding on action 
agencies. An action agency may disagree with the conclusions of 
a biological opinion.
    Through this process, the Act has been largely successful 
in ensuring that Federal agencies do not contribute to the 
extinction of rare species. Thank you, sir.
    [The prepared statement of Mr. Bean follows:]
   Prepared Statement of Michael J. Bean, Principal Deputy Assistant 
   Secretary, Fish and Wildlife and Parks, Department of the Interior
                              introduction
    Chairman Bishop, Ranking Member Grijalva, and members of the 
committee, I am Michael J. Bean, Principal Deputy Assistant Secretary 
for Fish and Wildlife and Parks at the Department of the Interior 
(Department). I appreciate the opportunity to testify before you today 
on section 7 of the Endangered Species Act of 1973 (ESA) and on the 
interagency consultation process it employs. As I will describe in 
greater detail below, the interagency consultation process has largely 
achieved the congressional purpose of ensuring that Federal agency 
actions do not imperil the survival and recovery of endangered species; 
and it has contributed to the Act's record of success in moving species 
off the road to extinction and onto the path to recovery.
    America's fish, wildlife, and plant resources belong to all 
Americans, and ensuring the health of imperiled species is a shared 
responsibility for all of us. In implementing the ESA, the U.S. Fish 
and Wildlife Service (Service) endeavors to adhere rigorously to the 
congressional requirement that implementation of the law be based 
strictly on science. At the same time, the Service has been responsive 
to the need to develop flexible, innovative mechanisms to engage the 
cooperation of private landowners and others, both to preclude the need 
to list species where possible, and to speed the recovery of those 
species that are listed. The Service remains committed to conserving 
America's fish and wildlife by relying upon the best available science 
and working in partnership to achieve recovery.
    Some aspects of that record are worth noting at the outset. Already 
in this Administration, more species have been taken off the endangered 
list due to recovery than in any prior administration. Though still 
endangered, many other species--among them the California condor, 
black-footed ferret, whooping crane, Florida manatee, Kirtland's 
warbler, Kemp's ridley sea turtle, and Florida panther--have had their 
populations increase to or near their highest levels in decades. Scores 
of other species, like the dunes sagebrush lizard, after having been 
identified as candidates for Federal protection, were ultimately 
determined not to need that protection as a result of conservation 
efforts spurred by the potential prospect of listing. Most importantly, 
nearly all of the plants and animals protected by the Endangered 
Species Act are still with us. They still have a fighting chance for 
survival, despite the many threats that beset them.
    When Congress enacted the ESA, it envisioned creating, ``a means 
whereby the ecosystems upon which endangered species and threatened 
species depend may be conserved, [and] a program for the conservation 
of such endangered species and threatened species,'' and placed the 
responsibility of conserving species that are in danger of extinction 
or likely to become so in the foreseeable future upon all Federal 
agencies by establishing a duty of Federal agencies to ensure that 
their actions are not likely to jeopardize the continued existence of a 
listed species or destroy or adversely modify its designated critical 
habitat.
    Section 7 of the ESA--Interagency Cooperation--plays an integral 
role in accomplishing the goals of the ESA. The Service, one of the 
agencies responsible for implementing the ESA, assists Federal agencies 
comply with the requirements of the ESA by consulting on thousands of 
Federal actions each year. Through these consultations, unintended and 
avoidable harm to endangered and threatened species is avoided. And 
most of these consultations do not lead to substantial changes to 
project design or implementation. The vast majority of our ESA work 
consists of technical assistance that usually results in minimal 
modifications to a project in order to avoid project impacts to listed 
species or designated critical habitat. In addition, the majority of 
our informal and formal consultations are completed in a timely 
fashion.
    The Department and the Service are committed to making the ESA work 
for the American people to accomplish its purpose of conserving 
threatened and endangered species and protecting the ecosystems upon 
which they depend. In addition to working diligently to complete 
consultations in a timely manner, under the statutory time frames, the 
Department, through the Service, has created a number of tools such as 
the use of conference opinions prior to listing to make consultation 
more efficient and has published regulatory changes that continue the 
Administration's broader agenda for improving implementation of the 
ESA.
                        purpose of consultation
    Congress, with the passage of the ESA, placed the responsibility of 
conserving threatened and endangered species upon all Federal 
departments and agencies and required them to ``utilize their 
authorities in furtherance of the purposes of this Act.'' Congress 
assigned a special responsibility to Federal agencies--to ensure that 
their actions neither jeopardize the continued existence of listed 
species nor destroy or adversely modify their critical habitat. 
Congress also entrusted the U.S. Fish and Wildlife Service and the 
National Marine Fisheries Service (the Services) to implement the ESA, 
and through section 7, the Services serve as technical advisors on 
threatened and endangered species, so Federal agencies can fulfill 
their responsibilities of conserving these species.
    Consultation is the procedural mechanism by which ``action 
agencies'' engage the Services as necessary to ensure compliance with 
their responsibilities under the ESA. Specifically, section 7(a)(1) of 
the ESA charges Federal agencies to aid in the conservation of listed 
species, and section 7(a)(2) requires the agencies, through 
consultation with the Services, to ensure their activities are not 
likely to jeopardize the continued existence of listed species or 
destroy or adversely modify designated critical habitats.
    Section 7 of the ESA is entitled, ``Interagency Cooperation,'' and 
the Services are responsible for working with and assisting all Federal 
agencies in carrying out their duties under the ESA. However, the title 
of this hearing reflects a misapprehension of the consultation process, 
as neither the Fish and Wildlife Service nor the National Marine 
Fisheries Service ``enforces'' section 7. They advise and assist 
Federal agencies in carrying out their responsibilities under section 
7, but it is ultimately the responsibility of the action agency to 
determine whether to consult and whether to adopt the Services' 
recommendations.
                 the consultation process--sec. 7(a)(2)
    The scope of Federal actions subject to the consultation process is 
broad--it applies to any discretionary action authorized, funded or 
carried out by a Federal agency. Because of this broad scope, the 
Service provides technical assistance to tens of thousands of projects 
each year. Between 2008 and 2014, the Service provided technical 
assistance on over 100,000 projects; conducted nearly 80,000 informal 
consultations; and conducted nearly 7,000 formal consultations.
    Under regulations that were jointly promulgated by the Services and 
that have been in place since 1986, consultation begins with the 
determination, made by the action agency, as to whether a proposed 
Federal action may affect a listed species or its critical habitat. If 
the action agency determines that its proposed action will not affect a 
listed species or its critical habitat, it has no further consultation 
obligation. The concurrence or assent of the Services is not required 
in order for an action agency to conclude that its action does not meet 
the ``may affect'' test.
    Although action agencies are solely responsible for making the 
threshold ``may affect'' determination, they may find useful the 
guidance on the consultation process embodied in a 2008 formal legal 
opinion by the Interior Department Solicitor. That guidance notes that 
in determining whether a proposed action may affect listed species or 
designated critical habitat, an action agency must consider both direct 
and indirect effects of the action. As the Solicitor noted, although 
``direct effects'' are undefined in the regulations, they are commonly 
understood to refer to ``effects that are the immediate and natural 
consequences of the taking of the proposed action.'' Thus, for example, 
the immediate and natural consequence of closing the gates on a newly 
constructed dam would be to inundate the reservoir area behind the dam. 
Indirect effects, on the other hand, are defined in the joint 
regulations, and they are defined rather narrowly to refer to effects 
that are both ``caused by the proposed action and . . . reasonably 
certain to occur.'' Where future effects upon listed species or 
designated critical habitats depend upon subsequent intervening 
actions, such as actions by states, private interests, or both, the 
task of distinguishing those effects that are reasonably certain to 
occur from those that are more uncertain and speculative is often not 
easy. However, the judgment reflected in the joint regulations since 
1986 is that action agencies are the appropriate entities for making 
such determinations at the threshold ``may affect'' stage.
Technical Assistance and Informal Consultation
    In 2014, the Service provided technical assistance on more than 
11,000 projects, completing those actions in a median of 8 days. 
Technical assistance includes actions such as providing species lists, 
providing information on potentially affected species, or recommending 
surveys or conservation measures to reduce adverse effects on species.
    In 2014, the Service also engaged in over 9,500 informal 
consultations. Informal consultation is an optional process in which 
the Service assists action agencies or a designated non-Federal 
representative in determining if their projects are likely to adversely 
affect listed species or designated critical habitat. Oftentimes, the 
Service is able to help action agencies modify or adjust proposed 
actions to eliminate any potential adverse effects upon listed species 
or critical habitat. In these cases, if the action agency subsequently 
determines that the proposed action is ``not likely to adversely 
affect'' listed species or critical habitat, and the Service concurs 
with that determination, the action agency has no further consultation 
obligation. The Service completed 79 percent of the 9,500 informal 
consultations in 2014 within 30 days. Those projects that fall outside 
of the 30-day range tend to be complex, involving more than one listed 
species.
Formal Consultation
    If a proposed action is likely to adversely affect a listed species 
or designated critical habitat, ``formal consultation'' between the 
action agency and the Service is required. The ESA requires that 
consultation be completed within 90 days, and the regulations allow an 
additional 45 days for the Service to prepare a biological opinion. The 
biological opinion provides the Service's analysis and findings of 
whether or not the proposed action is likely to jeopardize the 
continued existence of the species or destroy or adversely modify 
designated critical habitat. If a jeopardy or adverse modification 
determination is made, the Service works with the action agency to 
identify any reasonable and prudent alternatives that would avoid the 
likelihood of jeopardy or adverse modification and could allow the 
project to move forward. Between 2008 and 2014, the Service engaged in 
6,982 formal consultations. In those years, only three of those 
consultations resulted in a jeopardy or adverse modification final 
opinion.
    If a proposed action is reasonably certain to cause incidental take 
of a listed animal and the Service concludes that the proposed action 
(or the implementation of any reasonable and prudent alternatives) is 
not likely to jeopardize listed species or adversely modify or destroy 
critical habitat, the Service will issue along with the biological 
opinion an incidental take statement that exempts the anticipated take 
from the ESA's take prohibitions, as long as reasonable and prudent 
measures and associated terms and conditions to minimize the take are 
followed. In other words the project can comply with the ESA, even 
though it will likely take listed species, as long as there is no 
jeopardy caused and as long as reasonable measures are taken to 
minimize the take. Service staff, working through the consultation 
process, play a key role working with the project proponents to find 
reasonable ways to minimize take.
    A recent example of the Service conducting a challenging formal 
consultation was in Russell County, Kentucky. The Service completed a 
biological opinion on the effects of restoring water levels in Lake 
Cumberland on the duskytail darter, which allowed the U.S. Army Corps 
Engineers (Corps) to be positioned to capture the spring rains 
necessary to refill the lake to its normal recreation season elevation 
after making repairs to Wolf Creek Dam. In this case, the Corps and the 
Service worked together closely to implement an expedited review and 
analysis process to complete the consultation in only 45 days--an 
extraordinary pace--because of the recognized importance of Lake 
Cumberland to the local and regional economies of Kentucky and 
Tennessee and citizens who live and work in communities around the 
lake.
Programmatic Consultations
    Programmatic consultation is a generic term referring to 
consultations on Federal programs, plans, or regulations that establish 
guidelines, provide direction, or impose procedures that control 
subsequent actions that may affect listed species or designated 
critical habitat. Determining whether consultation is required for such 
programmatic actions usually involves consideration of the potential 
for indirect effects, i.e., effects that, under joint regulations, are 
caused by the programmatic action, occur later in time, and are 
reasonably certain to occur. Given the large variety of programmatic 
actions carried out by Federal agencies, some of which are highly 
complex in nature, assessing causation and reasonable certainty of 
effects to listed species or designated critical habitats can be 
challenging and complex. While the Service can assist Federal agencies 
in that assessment, and often does so with agencies that lack 
experience and expertise in section 7 consultation, we ultimately 
depend upon the action agencies to establish the effects of their 
programs, plans, or rules and determine whether their actions trigger 
the need for section 7 consultation.
    An example of a recent programmatic consultation involving a 
rulemaking was our consultation with the Environmental Protection 
Agency (EPA) on the promulgation of new regulations governing 
permitting of cooling water intake structures pursuant to Section 
316(b) of the Clean Water Act. EPA determined that consultation was 
warranted, and we worked with them through the formal consultation 
process to create procedures for EPA, state permitting authorities, and 
the facilities to follow that would ensure that no permits would issue 
that were likely to jeopardize listed species or destroy or adversely 
modify designated critical habitat. This process allowed EPA to move 
forward with their new regulation while ensuring their action was in 
conformance with the ESA.
                            section 7(a)(1)
    Section 7(a)(1) of the ESA requires all Federal agencies to utilize 
their authorities, in consultation with the Fish and Wildlife Service 
and the National Marine Fisheries Service to develop and carry out 
programs to conserve all species listed under the ESA. The purpose of 
section 7(a)(1) conservation programs is to improve endangered and 
threatened species baselines (population and habitat) within the scope 
of Federal action-agency authorities, thereby contributing to the 
conservation of all species within that habitat.
    Conservation plans developed by Federal agencies to meet the goals 
of section 7(a)(1) are another example of the flexibility we are using 
within the ESA to achieve positive conservation results. They are good 
for our mission, good for conservation, and good for our economy. The 
plans provide greater predictability and efficiency to Federal agency 
partners and put in place a transparent and continuous process of 
effective interagency communication, review, and feedback at all levels 
of management. This ensures a strong adaptive management component of 
cost-effective conservation program execution that helps streamline the 
7(a)(2) consultation process.
    The Corps and the Service are committed to improving the efficiency 
of civil works project operations and the effectiveness of ESA 
compliance through the integration of conservation planning in 
development of Operation Plans for Corps projects, using existing 
Operation and Maintenance authorities. In 2013, the Corps' Mississippi 
Valley Division released the Conservation Plan for the Interior Least 
Tern, Pallid Sturgeon, and Fat Pocketbook Mussel in the Lower 
Mississippi River. The plan outlines a process to conserve the three 
endangered species within the footprint of the Channel Improvement 
Program in the Lower Mississippi River. The Service conducted a 
consultation under section 7(a)(2) of the ESA with the Corps on the 
their conservation plan.
    The consultation process required close inter-agency communication 
and collaboration during all phases of development. Over the course of 
the consultation, it became apparent the very programs that most 
significantly affected the endangered species and their river habitats 
could be important and effective tools to maintain and enhance its 
ecological functions. This resulted in the identification of 
conservation opportunities that could be effectively incorporated into 
existing channel improvement or maintenance projects, with little to no 
additional program costs, and with no negative impact to the Corps' 
primary flood management and navigation safety missions. It also 
resulted in significantly improved habitat and population baselines for 
all three endangered species within the Lower Mississippi River portion 
of their ranges. Largely as a result of this work, the Service 
recommended in a 5-year status review last year that the Interior Least 
Tern should be delisted. This consultation demonstrates that numerous 
benefits for species, their ecosystems, and agencies can be derived 
under section 7(a)(1). It also demonstrates the key role played by 
Service staff working with the action agencies. Species and projects 
always benefit when technically competent, innovative, and engaged 
Service staff are involved.
                        improving consultations
    As part of our ongoing efforts to improve implementation of the 
ESA, the Services recently finalized the regulations governing 
Incidental Take Statements for listed species. The final rule clarified 
and codified the current policy of the Services regarding the use of 
``surrogates,'' and addressed recent court decisions related to 
Incidental Take Statements for ``programmatic'' Federal actions. These 
changes will improve the ESA's effectiveness and allow for flexibility 
in how the Services prepare Incidental Take Statements.
    The Services also jointly announced on May 18, 2015 a set of 
initiatives to increase regulatory predictability, increase stakeholder 
engagement, and improve science and transparency. Among the actions are 
proposed revisions to interagency consultation procedures to streamline 
the process for projects, such as habitat restoration activities, that 
result in a net conservation benefit for the species.
                   conferencing for candidate species
    The Service and the Natural Resources Conservation Service (NRCS) 
began a partnership, later named as ``Working Lands for Wildlife'' 
(WLFW), in 2009 to confer on the greater sage-grouse and Gunnison sage-
grouse. Work began on the conference report for the lesser prairie 
chicken the next year and an additional five species--New England 
cottontail, bog turtle northern population, golden-winged warbler, 
gopher tortoise, and southwest willow flycatcher--were added to the 
partnership in 2011. WLFW provides landowners with technical and 
financial assistance to achieve specific conservation goals for at risk 
species.
    The Service and NRCS used a unique process for working together to 
expedite the section 7 work. For each of the species covered, based 
upon information from species experts, NRCS and Service staff worked 
together to ``condition'' the NRCS practices used by landowners to both 
conserve the species and increase productivity of the land. A 
biological opinion or conference report (similar to a biological 
opinion, but for proposed species and critical habitat) was then 
developed depending on the status of species.
    Agreements between landowners and NRCS are now being implemented 
that include plans for conservation practices covered under the ESA. To 
further bolster WLFW, the two agencies developed the term ``regulatory 
predictability'' that clarified for participating landowners that they 
would be provided coverage for incidental take under the ESA as long as 
they implemented the ``conditioned'' practices.
                        esa consultation budget
    The consultation process works to conserve species and allow action 
agencies to avoid jeopardizing the existence of a listed species and 
help achieve the imperative goals of the ESA. This highly beneficial, 
important process depends on having skilled people with training, 
technical expertise, institutional knowledge, and strong communication 
ability stationed and working in field offices across the country.
    During Fiscal Year (FY) 2014, the Service concluded 9,249 informal 
consultations and another 323 informal consultations were ongoing at 
the end of the fiscal year. Through April 15, 2015, the Service had 
concluded 158 formal consultations to date, with another 195 formal 
consultations ongoing.
    To address the substantial workload, the President's fiscal year 
2016 budget requested an increase of $10.4 million for consultation and 
planning activities. The Service needs to have adequate staffing to 
address the increased environmental reviews and permitting workload 
associated with projects related to economic recovery, job creation and 
infrastructure improvements. The Service needs these additional 
resources and staffing so that we can facilitate environmentally sound 
development activities through timely consultations and environmental 
reviews.
                               conclusion
    Thank you for your interest in endangered species conservation and 
ESA implementation, and for the opportunity to testify.

                                 ______
                                 

   Questions Submitted for the Record to Mr. Michael Bean, Principal 
   Deputy Assistant Secretary for Fish and Wildlife and Parks, U.S. 
                       Department of the Interior

               Questions Submitted by Chairman Rob Bishop

    Question 1. The EPA did a regulatory impact analysis (RIA) of its 
proposed rule for existing plants, and found that about 12 percent to 
19 percent of all coal-fired capacity projected to be in service in the 
base case would shut down by 2020 under the range of scenarios 
analyzed. The RIA goes on to say: ``EPA examined whether these 
projected incremental retirements may adversely impact reserve margins 
and reliability planning.'' If EPA could look at coal-fired power plant 
retirements and determine whether those retirements may adversely 
affect reliability, why couldn't it also determine whether those 
retirements would affect listed species?

    Answer. Federal action agencies are ultimately responsible for 
determining if their projects may affect threatened or endangered 
species. In this case, we understand that EPA determined that their 
rules would have no effect on threatened or endangered species. As 
mentioned in our April 29, 2015 letter, EPA is the expert agency on the 
Clean Air Act and is best positioned to understand if its rules may 
affect listed species or designated habitat.
    Though action agencies are responsible for determining whether a 
proposed action may affect listed species or designated critical 
habitat, in 2008, the Department of the Interior Solicitor provided 
agencies with useful guidance on the consultation process through a 
formal legal opinion. That guidance notes that in making the threshold 
``may affect'' determination, an action agency must consider both 
direct and indirect effects of the action. As the Solicitor noted, 
although ``direct effects'' are undefined in the regulations, they are 
commonly understood to refer to ``effects that are the immediate and 
natural consequences of the taking of the proposed action.'' Indirect 
effects, on the other hand, are defined in FWS's and NOAA's joint 
regulations in 50 CFR 402.02 rather narrowly as effects that are both 
``caused by the proposed action and . . . reasonably certain to 
occur.'' Where future effects upon listed species or designated 
critical habitats depend upon subsequent intervening actions, such as 
actions by states, private interests, or both, the task of 
distinguishing those effects that are reasonably certain to occur from 
those that are more uncertain and speculative is often not easy. The 
judgment reflected in the joint regulations since 1986 is that action 
agencies are the appropriate entities for making such determinations at 
the threshold ``may affect'' stage.

    Question 2. The Energy Information Administration (EIA) recently 
released its analysis of the impacts of EPA's rule for existing power 
plants. The analysis uses the EIA's Annual Energy Outlook for 2015 as 
the baseline, and then compares that baseline to a number of other 
scenarios, including implementation of the EPA rule.
    One of the EIA's primary conclusions is that the EPA rule will have 
a ``significant effect on projected retirements and additions of 
electric generation capacity.'' Specifically, the EIA found that 
projected coal plant retirements will more than double if the EPA rule 
is promulgated.
    EPA itself has conducted modeling that shows, down to the 
generating unit, which power plants are likely to shut down. So if, as 
EIA and EPA predict, power plants do shut down--could that ``affect'' 
listed species like the manatee? (The EPA's modeling indicates units at 
Big Bend Power Station will be retired as a result of the rule; the 
plant's owner concurs with the EPA's modeling).
    Unsurprisingly for a rule that specifically targets fossil fuel-
fired power plants, the EPA's modeling shows a decline in coal capacity 
and power sector coal use in every model EPA has released to the public 
thus far. So according to the EPA's available modeling, there is no 
possible situation where coal-fired generation does not decline. Should 
EPA consult with FWS on the proposed rule for existing plants, since 
EPA expects plants whose operations affect manatees will shut down if 
the rule is implemented?

    Answer. Federal agencies are ultimately responsible for determining 
if their proposed actions may affect listed species or designated 
critical habitat. If they determine that their proposed action will 
have no effect on listed species or designated critical habitat, no 
consultation with the U.S. Fish and Wildlife Service (Service) is 
required. If an agency determines that an action it is proposing may 
affect listed species or designated critical habitat, it must either 
formally consult with the Service and/or NOAA Fisheries, or obtain 
written concurrence that the proposed action is not likely to adversely 
affect any listed species or critical habitat (i.e., the effects are 
completely beneficial, insignificant, or discountable).

    Question 3. One of this committee's goals is to create conditions 
in which our forests are more resilient. To that end the House passed 
the Resilient Federal Forests Act of 2015. Through this Act, the 
agencies will be able to streamline their planning processes and 
accomplish meaningful thinning. They will be able to finish their 
planning work in one-third to one-half of the time it used to take to 
conduct the NEPA analysis. However, we are still concerned about delays 
which could be caused by ESA survey protocols.
    For much of the intermountain West, surveys for spotted owls and 
other birds of prey are required. Often 2 consecutive years of surveys 
are required to make sure that the agency didn't miss the presence of 
the species. However, waiting another full year for a biologist to call 
for birds just to be sure, rather than initiating the thinning project, 
seems to make little sense when treatment is needed to prevent the 
impacts of catastrophic wildfire in high fire risk forested areas. It 
is important to note that if these forests burn, so do the nests and 
the habitat.
    In addition, if the Fish and Wildlife Service's protocols require 2 
years of surveys in burned areas, none of the dead trees will be 
harvested. This is because the wood is only of value until it begins to 
rot (generally less than a year after the fire). If the agency cannot 
sell any dead trees, they will not have funding to reforest the burned 
area, since most of the reforestation funding comes from the sale of 
the dead trees. The result will be National Brush fields ripe for a new 
fire instead of new forests.
    Given these scenarios, do you think it makes sense to insist on 2 
consecutive years of surveys, irrespective of the potential 
consequences to the habitat and the forest?

    Answer. The recovery plan for the northern spotted owl calls for 
retaining existing spotted owls on the landscape to the greatest 
possible extent, including in some of the drier portions of the range 
such as eastern Washington. Low, moderate and even in some cases high-
severity fires do maintain habitat conditions conducive for NSO. With 
that said, the Service and the recovery plan encourage fuels management 
and thinning projects that reduce ladder fuels (those small trees and 
shrubs that can carry a ground fire into the canopy resulting in stand-
replacing events) but that retain the stand canopies, which are very 
important to spotted owls. The Service also promotes siting fuel 
reduction zones in areas where other breaks already occur, such as 
roads, landings and meadows. This increases the effectiveness of the 
fuel breaks while reducing the impact to the forest. What would be most 
beneficial is if fuel reduction zones were placed in non-habitat that 
is often more dense than spotted owl habitat and at a higher fire risk. 
This would increase effectiveness while reducing potential impacts to 
spotted owl conservation.
    It is extremely difficult to successfully implement fuel reduction 
zones strategically such that fire behavior is affected in the short-
term (e.g., within 1 year). Longer-term fuels management planning often 
involves a series of fuels treatments and thus can often incorporate 2-
year owl surveys as well as other longer-term land management 
priorities. Though we do not require surveys before land management 
activities begin, surveys are important to identify sites that are 
occupied by spotted owls and minimize impacts; however, forest 
management activities that do not modify spotted owl habitat but may 
result in short term disturbance to spotted owls can be assessed using 
a 1-year survey protocol (p. 17, Protocol for Surveying Proposed 
Management Activities that may Impact Northern Spotted Owls, USFWS 
2012). In many cases seasonal restrictions can be applied to address 
the potential for disturbance during the nesting season and can be 
lifted if surveys show that NSO are not nesting. Salvage and thinning 
operations occurring in areas that may not be spotted owl habitat can 
also be assessed using this approach or may not even require surveys.

    Question 4. There are other instances where FWS, as well as the 
consultation process itself, slows the initiation of fire recovery 
projects that are critical to preventing additional fires in high fire 
risk forested areas. In these cases, the Forest Service proposes to 
remove dead trees and perform other recovery efforts after a large-
scale fire, which may impact a small amount of spotted owl and other 
ESA-listed species habitat in order to protect a much larger habitat 
area from catastrophic fire. However, FWS often won't agree to this 
approach and is unwilling to sign off on a project unless it impacts 
very little or NO habitat whatsoever.
    Why is FWS unwilling to sign off on fire recovery projects in high-
fire prone forests that affect a small amount of habitat if it means 
protecting a much larger habitat area from catastrophic fire?

    Answer. The Service supports using the best science to implement 
fuels management projects to restore more natural and less catastrophic 
fire regimes, and this position is described in detail in the spotted 
owl recovery plan. We also seek to prioritize expediting the completion 
of emergency fuels management projects over other, non-emergency 
consultation work. We work closely and collaboratively with the U.S. 
Forest Service (USFS) and the Bureau of Land Management in evaluating 
post-fire forest treatments where listed species occur. We follow the 
requirements of the Endangered Species Act section 7 consultation 
process, helping our Federal partners design and implement projects 
that meet economic and resource management goals while also conserving 
listed species. For example, in 2014 we quickly consulted on multiple 
post-fire salvage projects that permitted harvest to proceed consistent 
with the ESA and the recommendations of the spotted owl recovery plan. 
We completed these consultations under established streamlined 
consultation procedures, taking 30 days for informal consultations and 
60 days for formal consultations. Further, if projects are for human 
safety, we continue to remind the action agencies to use emergency 
provisions at 50 C.F.R. Sec. 402.05 that allow for expedited informal 
consultation, with formal consultation initiated after the emergency is 
under control.
    In our experience most post-fire salvage projects tend to be more 
opportunistic than part of a larger-scale strategic planning effort to 
reduce fire spread and severity. Such a larger-scale effort could 
include landscape level considerations for both fuel reduction and 
strategic fire breaks while incorporating considerations for spotted 
owls and other land management priorities. Recovery Action 12 in the 
spotted owl recovery plan recommends retaining post-disturbance legacy 
structures (such as large, dead trees, whether standing or down) in 
areas that are managed for spotted owl habitat because these features 
greatly improve the quality of the habitat as it recovers over time. 
The Service encourages working with our Federal land management 
partners prior to large-scale disturbances in designing landscape scale 
strategies that meet the needs of listed species while reducing fire 
risk and severity, thereby reducing post-fire conflicts. It is 
important for action agencies to seek ways to implement important fuel 
reduction work without overutilizing salvage logging that can severely 
affect the survival and recovery of natural resources.

    Question 5. The Fish and Wildlife Service (Service) has correctly 
recognized that the data collection methods it utilized to collect 
whooping crane population information and mortality rates at the 
Aransas National Wildlife Refuge during the winter of 2008 and 2009 
were deficient. To address data collection issues it has now instituted 
the Whooping Crane Winter Abundance Survey Protocol. What is the 
Service's official position on whooping crane mortality at the Aransas 
National Wildlife Refuge during the winter of 2008 and 2009? What is 
the most current estimate on the whooping crane population at the 
Aransas National Wildlife Refuge?

    Answer. In a 2008-2009 publication, the Service's Southwest Region 
reported what we believed to have been a loss of 23 whooping cranes, 
using the best information available at that time. Following the 
retirement of the Service's Whooping Crane Coordinator in 2011, a team 
of specialists was formed to evaluate our process for estimating the 
whooping crane population. After an extensive review, the team updated 
the methodology used for estimating whooping crane abundance. Use of 
this scientifically sound methodology has improved our knowledge and 
understanding of this whooping crane population and will aid in 
conservation planning, future policy decisions and the long-term 
conservation of this species for the American public. However the 
Service is unable to confirm the loss of whooping cranes previously 
reported in 2008-2009, because the data could not be verified using the 
previous methodology. Therefore the number of whooping cranes that died 
at the Aransas National Wildlife Refuge during the winter of 2008-2009 
remains unknown.
    The Aransas-Wood Buffalo population of whooping cranes in the 
winter of 2014-2015 was estimated at 308 individuals.

    Please see the following peer reviewed publications for further 
details:

http://ecos.fws.gov/ServCatFiles/reference/holding/28257

http://www.sciencedirect.com/science/article/pii/S0006320714003115

              Questions Submitted by Rep. Bruce Westerman

    Question 1. The northern long-eared bat was recently listed as a 
threatened species. Although the Service acknowledges that the species 
decline is the predominant, over-riding factor leading to the species 
decline, they've issued a 4(d) rule and, in some cases from some field 
offices, consultation guidance that would apparently require extensive 
surveys and avoidance of timber harvest during critical times of the 
year. The Forest Service manages extensive timber lands within the 
range of the bat. In general, the agency believes that existing forest 
plan standards and guidelines should adequately provide for 
conservation of the species and will prevent jeopardizing its 
existence. Can you confirm that the listing will not require individual 
National Forest Units to perform project by project consultation in the 
range of the NLEB?

    Answer. A rule under section 4(d) of the Endangered Species Act 
(ESA) does not remove, or alter in any way, the consultation 
requirements for Federal agencies under section 7 of the ESA. The U.S. 
Fish and Wildlife Service (Service) has been working with the U.S. 
Forest Service (USFS) nationwide to streamline consultations on the 
northern long-eared bat. For example, Region 4 (Southeast) of the 
Service completed a formal programmatic section 7 consultation for USFS 
Land and Resource Management Plans with Region 8 (Southern) of the 
USFS. In addition, Regions 3 and 5 (Midwest and Northeast) of the 
Service anticipate completing a similar programmatic consultation with 
Region 9 (Eastern) of the USFS by mid-October. These programmatic 
consultations will address the majority of projects within the range of 
the northern long-eared bat on USFS lands, and will substantially 
streamline subsequent project coordination and consultation. In the few 
instances where USFS activities are not covered under a programmatic 
consultation, the standard regulatory requirement for project-specific 
consultation would be applicable.

             Questions Submitted by Rep. Madeleine Bordallo

    Question 1. Like my Democratic colleagues, I am also concerned 
about the funding cuts to the FWS listing program proposed by this 
year's appropriations bill. I feel these cuts will further exacerbate 
some of the problems we're discussing today.
    However, I want to bring up my concerns over how Fish & Wildlife 
Service and other cooperating agencies prioritize resourcing ESA 
consultations. For example, this Administration has made a strategic 
decision to prioritize the rebalance to the Asia-Pacific region.
    Part of that strategic initiative is the realignment of military 
forces in the region. That has led to numerous environmental impact 
efforts in the Marianas region. However, these EIS efforts have run 
into challenges from Fish & Wildlife Service who indicate publicly that 
they do not have enough resources to get the job done. This has 
negative implications for an Administration priority.
    So, while I understand that Republicans continue to needlessly cut 
resources, what is the Fish & Wildlife Service doing to prioritize 
strategic objectives? Are there any legal impediments and do you need 
any authorities? Where is the flexibility in your agency to be able to 
prioritize proposed actions that are critical to larger national 
priorities?

    Answer. The Service defers to the Department of Defense to 
prioritize the Service's consultation work on strategic military 
objectives and addresses these priorities to the maximum extent 
practicable within our staffing abilities. We continue to work with the 
Department of Defense to explore how to leverage resources to meet our 
shared goals; the Department of Defense has arranged for at least one 
biologist to detail with the Service's Pacific Island Office to assist 
with workload.

    Question 2. As you are aware, legislation passed in last year's 
Congress that authorized Fish and Wildlife and the Navy to enter into a 
Memorandum of Agreement regarding placement of a safety danger zone 
over the Ritidian Wildlife Refuge on Guam. This effort was to ensure 
that the military buildup could continue to move forward and to address 
the concerns of my constituents who didn't want DoD to take additional 
land.
    However, I am concerned about the potential mitigations that may be 
a part of a future biological opinion for the Record of Decision on the 
Marine realignment. Any mitigation plan would be tied to protection of 
species under the endangered species act on Guam.
    I remain concerned that these mitigations would be put in place 
without a clear plan for meeting the Refuge's mission. Could you please 
give a quick update about your plan to rehabilitate and reintroduce the 
species, and progress on that plan? Have any species been reintroduced 
on Guam?

    Answer. The Service continues to work with the Navy, Air Force, 
Guam Division of Aquatic and Wildlife Resources, and other partners to 
plan for the eventual reintroduction of Guam rail, Guam Micronesian 
kingfisher, and the Mariana crow on Guam. Our current focus includes 
advancing research on control of brown tree snake and identifying and 
restoring adequate habitat to provide for the conservation of the 
birds, in anticipation of eventual reintroduction efforts. The recent 
bait drop study on Anderson Air Force Base provided very encouraging 
results that may lead to effective large-scale control of brown tree 
snake. In addition, the Navy, through Joint Region Marianas, recently 
committed to preserving over 5,200 acres of potential kingfisher 
habitat in a durable conservation status for the benefit of kingfisher 
and other extirpated species. The Refuge also continues to be a key 
part of any future reintroduction efforts. The Service and Navy are 
continuing negotiations to implement the transition of operational 
responsibility for Guam NWR consistent with the National Defense 
Authorization Act of FY15.

    Question 3. The Final EIS for the Marianas talks about conservation 
of habitat. Recently, important Chamorro archaeological sites have been 
found at the Ritidian refuge.
    Can I have your agency's assurance that you will work to provide 
better access to these sites for the public?

    Answer. The recently discovered historic Chamorro archaeological 
site is located on the Ritidian Unit of the Guam National Wildlife 
Refuge and within the designated Surface Danger Zone for the Marine 
Corps Live Fire Training Range. Accordingly, access to this site will 
be controlled by the Navy consistent with public safety concerns and 
the direction provided by Congress in the National Defense 
Authorization Act for Fiscal Year 2015.

    Question 4. There are longstanding issues regarding landlocked 
landowners whose properties border the Ritidian refuge. Can we get your 
commitment that you will work with us on these issues?

    Answer. The U.S. Government will continue to work with neighboring 
landowners on access issues.


                                 ______
                                 

    The Chairman. Thank you very much.
    Mr. Rauch.

STATEMENT OF SAM RAUCH III, DEPUTY ASSISTANT ADMINISTRATOR FOR 
 REGULATORY PROGRAMS, NATIONAL MARINE FISHERIES SERVICE, NOAA, 
                         WASHINGTON, DC

    Mr. Rauch. Good morning, Mr. Chairman, Ranking Member, and 
members of the committee. My name is Sam Rauch, and I am the 
Deputy Assistant Administrator for Regulatory Programs at 
NOAA's National Marine Fisheries Service. It is a pleasure to 
testify before you today.
    With global extinctions occurring at an unprecedented rate, 
the Endangered Species Act was enacted to conserve threatened 
and endangered species and their ecosystems. The U.S. Fish and 
Wildlife Service and the National Marine Fisheries Service 
jointly share responsibility for implementing the Endangered 
Species Act. Currently there are 2,220 species listed under the 
Act. Most of them are managed by the Fish and Wildlife Service; 
the National Marine Fisheries Service is responsible for the 
marine species, only about 125 species.
    Broadly speaking, we do exactly the same things that the 
Fish and Wildlife Service does. We conserve and recover marine 
resources by listing species under the ESA, by designating 
critical habitat, developing and implementing recovery plans, 
developing and implementing protective regulations, and 
enforcing violations of the Endangered Species Act.
    I am not going to reiterate the details of how section 7 
works; I would refer you back to the testimony that Mr. Bean 
just gave. I will say, however, that from the National Marine 
Fisheries Service's perspective, changes in the marine 
ecosystem due to climate change and other stressors are 
resulting in a greater number of ESA section 7 consultations on 
Federal actions.
    In addition, growing coastal community populations and 
growing coastal development are also increasing the need for 
section 7 consultations. This has resulted, for the National 
Marine Fisheries Service, in an increase of about 131 percent 
in the number of consultations in the last 3 years.
    To put that in a little perspective, over the course of the 
last 5 to 10 years we have engaged, total, in about 7,000 
formal and informal consultations. Of those 7,000, more than 
5,000 of them have been informal. In only 41 of them have we 
found jeopardy or adverse modification. The vast majority of 
them allow those projects to come in, they consult with us, and 
they leave without any significant changes to the project at 
all. In 41 of them we have engaged with the proposing agency 
and made modifications to preserve the endangered species.
    The result of all this action is that the ESA has been very 
successful at preventing extinction. Over the last 40 years of 
existence, less than 1 percent of the species have gone 
extinct, and 30 species have been recovered.
    For instance, ESA recovery actions have stabilized or 
improved the downward population trend of many marine species, 
such as the Eastern population of Steller sea lion and the 
Pacific gray whales, both of which were delisted by NOAA; and 
the humpback whale populations are currently growing by 3 to 7 
percent annually, so much so that NOAA is considering revising 
their listing status as well.
    We are also seeing record returns from some of our salmon 
populations, particularly the adult Chinook populations in the 
Columbia River passing Bonneville Dam. Many of our salmon 
populations, like many other activities, are affected by the 
drought; but we are seeing very good returns of the adults.
    Recovery of threatened and endangered species is a complex 
and challenging process, but one which also offers long-term 
benefits to the health of our environment and our communities. 
Partnerships with a variety of stakeholders are critical to 
implementing recovery actions and achieving species recovery 
goals.
    For example, from 2000 to 2013, the Pacific Coastal Salmon 
Recovery Fund has provided over a billion dollars in funding to 
support partnerships and recovery of listed salmonids and 
steelheads. With this funding, the states and tribes have 
leveraged additional resources to collectively implement tens 
of thousands of projects to conserve West Coast salmon 
populations.
    While there are some success stories, we do face continuing 
challenges in recovering numerous other species. Declines in 
coastal habitat from wetlands to coral reefs are often a 
significant hurdle to recovery. As stresses on coastal 
ecosystems increase, it is important to place a priority on 
habitat protection and restoration in order to prevent any need 
for listings and to facilitate recovery for species already 
listed.
    Thank you again for the opportunity to discuss section 7 of 
the Endangered Species Act. I am available to answer any 
questions.
    [The prepared statement of Mr. Rauch follows:]
      Prepared Statement of Samuel D. Rauch III, Deputy Assistant 
Administrator for Regulatory Programs for the National Marine Fisheries 
    Service, National Oceanic and Atmospheric Administration, U.S. 
                         Department of Commerce

                              introduction

    Good morning, Mr. Chairman and members of the committee. thank you 
for the opportunity to testify before you today. my name is Samuel D. 
Rauch III and I am the Deputy Assistant Administrator for Regulatory 
Programs for the National Oceanic and Atmospheric Administration's 
(NOAA) National Marine Fisheries Service (NMFS) in the Department of 
Commerce. NMFS is dedicated to the stewardship of living marine 
resources through science-based conservation and management.
    With global extinctions occurring at an unprecedented rate, the 
Endangered Species Act (ESA) was enacted to conserve threatened and 
endangered species and their ecosystems. Congress passed the ESA on 
December 28, 1973, recognizing that the natural heritage of the United 
States was of ``esthetic, 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. Currently, there are 2,220 species listed under the 
ESA, 1,575 of which are in the United States and its waters.
    A species is considered endangered if it is in danger of extinction 
throughout all or a significant portion of its range. A species is 
considered threatened if it is likely to become endangered in the 
foreseeable future. The U.S. Fish and Wildlife Service (USFWS) within 
the Department of the Interior and NMFS share responsibility for 
implementing the ESA. NMFS is responsible for 125 marine species listed 
under the ESA, from whales and sea turtles to salmon and corals.

                     nmfs implementation of the esa

    NMFS conserves and recovers marine resources by doing the 
following: listing species under the ESA and designating critical 
habitat (section 4); developing and implementing recovery plans for 
listed species that will benefit from such plans (section 4); 
developing and implementing protective regulations, where necessary and 
advisable, for threatened species (section 4), developing cooperative 
agreements with and providing grants to states for species conservation 
(section 6); consulting on any Federal agency actions where the agency 
determines that the action may affect a listed species and/or its 
designated critical habitat and to minimize the impacts of incidental 
take (section 7); working with U.S. agencies and foreign governments to 
ensure that international trade does not threaten listed species 
(section 8); enforcing against violations of the ESA (sections 9 and 
11); cooperating with non-Federal partners to develop conservation 
plans for the long-term conservation of species (section 10); and 
authorizing research to learn more about protected species (section 
10).

                   how species are listed or delisted

    Any individual or organization may petition NMFS or USFWS to 
``list'' a species under the ESA. If a petition is received, NMFS or 
USFWS must determine to the maximum extent practicable within 90 days 
if the petition presents enough information indicating that the listing 
of the species may be warranted. If the agency finds that the listing 
of the species may be warranted, it will begin a status review of the 
species. The agency must, within 1 year of receiving the petition, 
decide whether to propose the species for listing under the ESA. NMFS 
may, on its own accord, also initiate a status review to determine 
whether to list a species. In that instance, the statutory time frames 
described above do not apply. The same process applies for delisting 
species.
    NMFS or the USFWS, for their respective species, determine if a 
species should be listed as endangered or threatened because of any of 
the following five factors: (1) present or threatened destruction, 
modification, or curtailment of its habitat or range; (2) 
overutilization for commercial, recreational, scientific, or 
educational purposes; (3) disease or predation; (4) inadequacy of 
existing regulatory mechanisms; and (5) other natural or man-made 
factors affecting its continued existence. The ESA requires that 
listing and delisting decisions be based solely on the best scientific 
and commercial data available. The ESA prohibits the consideration of 
economic impacts in making species listing decisions. The ESA also 
requires designation of critical habitat necessary for the conservation 
of the species; this decision does consider economic impacts.
    The listing of a species as endangered makes it illegal to ``take'' 
(harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, 
collect, or attempt to do these things) that species. Similar 
prohibitions may be extended to threatened species. Federal agencies 
may be allowed limited take of species through interagency 
consultations with NMFS or USFWS (the Services). Non-Federal 
individuals, agencies, or organizations may be authorized for limited 
take for scientific research enhancement of survival, or through 
special permits with conservation plans. Effects to the listed species 
must be minimized and in some cases conservation efforts are required 
to offset the take. NMFS' Office of Law Enforcement works with the U.S. 
Coast Guard and other partners to enforce the ESA and prosecute for 
violations.

  interagency consultation and cooperation under section 7 of the esa

    All Federal agencies are directed, under section 7 of the ESA to 
utilize their authorities to carry out programs for the conservation of 
threatened and endangered species. Federal agencies must also consult 
with the Services on activities that may affect a listed species and/or 
its designated critical habitat. These interagency consultations are 
designed to assist Federal agencies in fulfilling their duty to ensure 
Federal actions do not jeopardize the continued existence of listed 
species and/or adversely modify their designated critical habitat. 
Biological opinions document the Services' opinion as to whether the 
Federal action is likely to jeopardize the continued existence of 
listed species and/or adversely modify their designated critical 
habitat. Where appropriate, biological opinions provide an exemption 
for the ``take'' of listed species while specifying the amount or 
extent of ``take'' allowed, identifying the reasonable and prudent 
measures necessary to minimize impacts from the Federal action, and 
defining the terms and conditions under which such take is exempted 
from ESA prohibitions. Should an action be determined to be likely to 
jeopardize a species or adversely modify critical habitat, NMFS will 
suggest reasonable and prudent alternatives, which are alternative 
methods of project implementation that would avoid the likelihood of 
jeopardy to the species or adverse modification of critical habitat. 
Last year, NMFS completed 1,467 ESA consultations. However, NMFS is 
currently responding to over 2,100 requests for consultations, some of 
which are at a national level for many species.

           consultation procedures under section 7 of the esa

    Formal consultation is required if an action agency determines a 
proposed action ``may adversely affect'' listed species or designated 
critical habitat. Action agencies often submit a biological assessment 
to NMFS, USFWS, or both after a ``may adversely affect'' determination 
is made. These assessments describe the proposed project, action area, 
and effects of the action to listed species and their designated 
critical habitat. Once consultation has been initiated, the Services 
have 135 days to prepare a biological opinion that determines whether 
the action is likely to jeopardize the continued existence of listed 
species and/or adversely modify designated critical habitat. For 
complex projects, the Services may require more than 135 days and may 
work with the action agency to establish alternative consultation 
deadlines.
    Informal consultation is an option when the action agency 
determines the proposed action ``may affect, but is not likely to 
adversely affect'' a listed species and/or designated critical habitat. 
A Federal agency, in the early stages of project planning, approaches 
the Service and requests informal consultation. Discussions between the 
two agencies may include what types of listed species may occur in the 
proposed action area, and what effect the proposed action may have on 
those species. If the Services believe that the action as proposed or 
with modifications meets the standard, they write a letter of 
concurrence in the determination and the consultation process ends. As 
of the 3rd quarter of FY-15, informal consultations made up 75 percent 
of all consultations.

  increasing efficiencies and successfully implementing the section 7 
                          consultation process

    Growing populations and development in coastal communities are 
increasing the need for section 7 consultations. The Services 
recognizes these higher demands on our services and has asked for 
increased resources through the President's fiscal year 2016 budget 
request. The budget proposes an increase of $13.2 million to strengthen 
NMFS's consultation and permitting capacity required to meet mandates 
of the Endangered Species Act, as well as the Marine Mammal Protection 
Act and the Magnuson-Stevens Fishery Conservation and Management Act. 
Increased species listings, natural hazards such as wide-scale drought, 
and response to human-caused disasters, such as oil spills, all 
necessitate increased capacity to ensure that consultations and permits 
are completed in a manner that is timely and that enables the Nation's 
economic engine to move forward without unnecessary delays.
    Due to the importance of timely consultations, NMFS is engaging 
with Federal action agencies to set priorities and better synchronize 
action agency needs with NMFS consultation capacity. Where possible, 
NMFS is pursuing programmatic consultations. A programmatic 
consultation evaluates whether routine activities or authorizations 
enable the agency to identify and address potential threats posed to 
species and habitats protected under the Endangered Species Act. 
Programmatic consultations can increase the efficiency of the section 7 
consultation process by addressing recurring actions in one 
consultation rather than through individual consultations, and by 
facilitating an evaluation of aggregate risks to listed species and 
designated critical habitat across larger geographies or longer time 
frames.

                          retrospective review

    NMFS and USFWS recently finalized regulations implementing the 
incidental take statement provisions of the ESA to clarify and codify 
the current policy regarding the use of surrogates, and address recent 
court decisions related to incidental take statements for programmatic 
Federal actions. These changes allow flexibility in the preparation of 
incidental take statements in situations where assessing and monitoring 
take of listed species may be difficult. There are several other 
actions that address other aspects of the ESA; a list can be found at: 
http://open.commerce.gov/news /2015 /03/20/commerce-plan-retrospective-
analysis-existing-rules-0.
    NMFS and USFWS jointly announced on May 18, 2015 a set of 
initiatives to increase regulatory predictability, increase stakeholder 
engagement, and improve science and transparency. Among the actions are 
proposed revisions to interagency consultation procedures to streamline 
the process for projects, such as habitat restoration activities, that 
result in a net conservation benefit for the species.
                            species recovery
    Recovery of threatened and endangered species is a complex and 
challenging process, but one which also offers long-term benefits to 
the health of our environment and our communities. Actions to achieve a 
species' recovery may require restoring or preserving habitat, 
minimizing or offsetting effects of actions that harm species, 
enhancing population numbers, or a combination of these actions. Many 
of these actions also help to provide communities with healthier 
ecosystems, cleaner water, and greater opportunities for recreation, 
both now and for future generations.
    Partnerships with a variety of stakeholders, including private 
citizens, Federal, state and local agencies, tribes, interested 
organizations, and industry, are critical to implementing recovery 
actions and achieving species recovery goals. Several NMFS programs, 
including the Species Recovery Grants to States and Tribes, the Pacific 
Coastal Salmon Recovery Fund, the Prescott Marine Mammal Rescue 
Assistance Grant Program, the Community-based Restoration Program, and 
funds from the American Recovery and Reinvestment Act provide support 
to our partners to assist with achieving recovery goals. From 2000-
2013, the Pacific Coastal Salmon Recovery Fund has provided $1.09 
billion in funding to support partnerships in the recovery of listed 
salmon and steelhead. With this funding, states and tribes have 
leveraged additional resources to collectively implement 11,500 
projects to conserve West Coast salmon. From 2003-2015, the Species 
Recovery Grant Program to states has awarded $43 million to support 
state and tribal recovery and conservation efforts for other listed 
species--from abalone to whales--in every coastal region of the United 
States. The FY 2016 Request includes an increase of $17.0 million for 
Species Recovery Grants to address high priority recovery and 
conservation actions for ESA listed species. From 2001-2014, the 
Prescott Program awarded over $44.8 million in funding through 483 
competitive and 28 emergency grants to Stranding Network members to 
respond and care for stranded marine mammals, including those listed 
under the ESA. From 2001-2014, the Community-based Restoration Program 
awarded over $49 million through 644 competitive awards and sub-awards 
to provide habitat for species listed as threatened and endangered 
under the ESA. The Community-based Restoration Program also supported 
implementation of restoration projects funded through the American 
Recovery and Reinvestment Act of 2009. Of the $155 million awarded to 
create habitat and jobs under the American Recovery and Reinvestment 
Act of 2009, $63 million was awarded to projects benefiting listed 
species.
    A strong example of how NOAA is leveraging our expertise to protect 
and recover listed fish species is in California's Russian River 
watershed, one of NOAA's 10 Habitat Focus Areas. The Forecast-Informed 
Reservoir Operations (FIRO) project involves scientists from NOAA, U.S. 
Army Corps of Engineers, U.S. Geological Survey, Bureau of Reclamation, 
State of California, Sonoma and Mendocino Counties, and Scripps 
Institution who are conducting a pilot study to determine whether more 
sophisticated hydro-meteorological forecasting data can be used to 
better inform water management decisions. This non-regulatory, R&D 
effort could potentially improve efficiency and flexibility in managing 
existing water supplies to benefit all users and the listed species.
                             esa successes
    The ESA has been successful in preventing species extinction--less 
than 1 percent of the species listed have gone extinct. Despite the 
fact that species reductions often occur over long periods of time, in 
only its 40-year existence, the ESA has helped recover over 30 species. 
NMFS recently delisted the Eastern population of Steller sea lion, our 
first delisting since 1994 when NMFS delisted the now thriving eastern 
population of Pacific gray whales. Between October 1, 2012, and 
September 30, 2014, of the 86 domestic endangered or threatened marine 
species listed under the ESA, 29 (34 percent) were stabilized or 
improving, 11 (13 percent) were known to be declining, 8 (9 percent) 
were mixed, with their status varying by population location, and 38 
(44 percent) were unknown, because we lacked sufficient data to make a 
determination.
    In addition to Pacific gray whales and Eastern Steller sea lions, 
ESA recovery actions have stabilized or improved the downward 
population trend of many marine species. For example, humpback whale 
populations are currently growing by 3-7 percent annually, enough to 
for NOAA to propose revising the listing status of some populations. 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 largest number of fall Chinook salmon to pass the dam in a 
single year since the dam was completed in 1938, and more than twice 
the 10-year average of approximately 390,000. Once numbering in the 
thousands, the North Atlantic right whale, which is one of the most 
endangered whales to inhabit our coastal waters, dropped in population 
to a few hundred due to directed harvest. Now, the western North 
Atlantic right whale population is exhibiting promising signs of 
recovery and is thought to number about 450 whales, growing at about 
2.7 percent each year.
    We face continuing challenges in recovering numerous other species. 
Declines in coastal habitat, from wetlands to coral reefs, are often a 
significant hurdle to recovery. As stresses on coastal ecosystems 
increase, it is important to place a priority on habitat protection and 
restoration in order to prevent any need for listings and to facilitate 
recovery for species already listed.
                 current and proposed listing actions.
    The Services currently have 13 proposed listing actions and another 
3 proposed critical habitat designations either proposed or under 
development for publication in the Federal Register.
                               conclusion
    Each plant, animal, and their physical environment is part of a 
complex web of ecological relationships. Because of this, the 
extinction of a single species can cause a cascade of negative events 
to occur that affect many species. Endangered species also serve to 
indicate larger ecological problems that could affect the ecosystem 
including humans. As important, species diversity is part of the 
natural legacy we leave for future generations. The wide variety of 
species on land and in the oceans has provided inspiration, beauty, 
solace, food, livelihood and economic benefit, medicines and other 
products for previous generations. The ESA is a mechanism to help guide 
conservation efforts, and to remind us that our children deserve the 
opportunity to enjoy the same natural world we experience.
    Thank you again for the opportunity to discuss section 7 of the 
Endangered Species Act. I am available to answer any questions you may 
have.

                                 ______
                                 

    The Chairman. Thank you, and I appreciate very much your 
willingness to be here with us to discuss this issue. As I 
said, some other agencies are not here who should be, but maybe 
we can find out indirectly through you what is actually going 
on.
    I am going to remind members of the committee that Rule 
3(d) imposes a 5-minute limit on questions. I am going to 
recognize Members for questions of our witnesses, once again 
with gratitude for their valuable testimony.
    If the committee will humor me for just 1 minute. Normally 
we ask questions on a seniority basis, but I have always felt 
bad for the panel that sits in front of me on the lower dais. 
Cresent Hardy never gets to be recognized by the time we are 
done with one of these meetings.
    What I would like to do, at least from our side, is to 
allow, on a rotating basis, at least one of our new Members to 
ask the first question; and we will rotate that every time I 
have some kind of a hearing. Then we will go back on the 
seniority basis. If that is not OK, tough, that is what I am 
going to do.
    [Laughter.]
    The Chairman. So the first one I am going to yield to is 
Mr. Westerman from Arkansas, if you would like to ask the first 
series of questions from our witnesses.
    Mr. Westerman. Thank you, Mr. Chairman, and thank you for 
your indulgence today. We know that our main efforts to help 
threatened and endangered species are to stop poaching or over-
harvesting and to ensure the habitats are beneficial to the 
species.
    Mr. Rauch, you said that it is complex and challenging, the 
work that we do; and it is somewhat like Newton's Third Law of 
Motion, that for every action there is often an opposite and 
equal reaction. I appreciate you guys coming here today to help 
us understand this issue better. I have a number of what should 
be easy, short questions; and I want to start with Mr. Rauch.
    Is it accurate under the consultation requirements of the 
Endangered Species Act that Federal agencies must review their 
discretionary actions to see if they may affect endangered 
species, threatened species, or critical habitat?
    Mr. Rauch. I believe that is accurate.
    Mr. Westerman. So, according to the Shared Consultation 
Manual of the Fish and Wildlife Service and NOAA Fisheries, one 
of the enumerated actions that agencies must review for effects 
is a promulgation of rules. Is that correct?
    Mr. Rauch. Yes. I think so, generally.
    Mr. Westerman. Is it true that for purposes of a 
consultation, an effect on listed species does not have to be 
adverse; it can also be discountable, insignificant, or even 
beneficial, according to the Shared Consultation Manual?
    Mr. Rauch. I believe those are different kinds of ways that 
actions can affect listed species.
    Mr. Westerman. Right. I am going to switch to Mr. Bean here 
for a second. Your agency has a mapping tool on its Web site to 
assist agencies in reviewing their actions. Those actions 
affect some listed species. With this mapping tool called IPaC, 
or the Information for Planning and Conservation, you can map a 
geographical area and retrieve a list of species or their 
critical habitat that may be in a selected area. Is that not 
correct?
    Mr. Bean. Yes. That is its purpose.
    Mr. Westerman. And it only works on a desktop; it does not 
work on an iPhone.
    Mr. Bean. I will take your word for that, sir.
    Mr. Westerman. All right. I will switch back to you, Mr. 
Rauch. Are you aware that IPaC mapping shows endangered sea 
turtles right near or within the area of multiple coal-fired 
plants along the Southeastern Coast?
    Mr. Rauch. I am not familiar with that application, so I 
don't know what it says.
    Mr. Westerman. Here is a picture of it.
    
 [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
    
    

    .epsMr. Rauch. I will take your word for it. If you say 
that is what it shows, then I will agree with you that is what 
it shows.

    Mr. Westerman. In order to make that map, they actually use 
the immediate boundaries of power plants; and studies show that 
sea turtles are attracted to the warm water discharge of power 
plants. One study found that elimination of the warm water 
refuge, especially during the winter months, may cause turtles 
to react in different ways, including leaving to find warmer 
water elsewhere or even going into winter dormancy.

    If some action caused these plants to close down, 
eliminating the cooling water discharges that attract sea 
turtles, would that action trigger, or could you use the 
determination that it may affect for purposes of ESA 
consultation?

    Mr. Rauch. It is not up to the National Marine Fisheries 
Service to determine initially whether an action may affect. 
That is a determination that the action agency makes. So, that 
is not something that we would determine.

    Mr. Westerman. Which agency would determine that?

    Mr. Rauch. Whichever agency is proposing, in your scenario, 
to shut down the facility.

    Mr. Westerman. So whichever agency it was, would they be 
able to possibly use that ``may affect'' designation, if 
closing a facility was going to remove the warm water and cause 
these sea turtles to go elsewhere?

    Mr. Rauch. The determination of whether or not their action 
would actually cause that is a determination that that agency 
would have to make.

    Mr. Westerman. So you don't know?

    Mr. Rauch. I don't know whether or not----

    Mr. Westerman. Mr. Bean, do you have a comment on that?

    Mr. Bean. Yes. I would only comment that under our 
regulations, the responsibility of the action agency is to 
consider those effects, those indirect effects, that are 
reasonably certain to occur. That is the regulatory definition 
or regulatory requirement, if you will.
    So an action agency, whoever it may be, is required to 
determine what actions--what effects, rather--are caused by its 
action and are reasonably certain to occur. So the answer to 
your question would depend on its evaluation of that reasonable 
certainty.
    Mr. Westerman. But the manual actually allows to make those 
different designations where you could actually close a plant 
and it would affect the species in a negative way. That is not 
out of the realm of the policy and the manual?
    Mr. Bean. I am not sure I follow your question, sir. I 
think, under the manual, a process is described. Under that 
process, the action agency is in the first instance charged 
with determining whether there are reasonably certain to occur 
effects that would be adverse.
    Mr. Westerman. I think we are out of time on that one. 
Thank you, Mr. Chairman.
    The Chairman. Thank you.
    And I think Ranking Member Grijalva is allowing Ms. 
Bordallo--by the way, congratulations on your bill the other 
day, finally.
    Ms. Bordallo. Thank you.
    The Chairman. It is good to have that one done.
    Ms. Bordallo. And thank you for your sponsorship.
    The Chairman. You are recognized for 5 minutes.
    Ms. Bordallo. Thank you very much, and I thank the Ranking 
Member for giving me his spot. We cannot talk too much. Is the 
clock running? No, not yet? All right. Thank you again.
    Mr. Bean, my questions are for you, they are local in 
nature, and they are very important to me. Legislation passed 
in last year's Congress authorized Fish and Wildlife and the 
Navy to enter into a Memorandum of Agreement regarding 
placement of a safety zone over the Ritidian Wildlife Refuge on 
Guam.
    I am concerned about the potential mitigations that may be 
a part of a future biological opinion for the Record of 
Decision on the realignment. Any mitigation plan would be tied 
to protection of species under the Endangered Species Act on 
Guam. These mitigations would be put in place without a clear 
plan for meeting the refuge's mission.
    Could you give me an update about your plan to rehabilitate 
and reintroduce the species, and progress on that plan? And 
very importantly, have any species been reintroduced on Guam, 
Mr. Bean?
    Mr. Bean. Unfortunately, I will have to get back to you on 
that, ma'am, because I do not know the answer to your question. 
I am certainly aware that the problem on Guam for endangered 
species is largely based upon the effects of the introduced 
brown tree snake, and ensuring that the brown tree snake will 
not continue to devastate the native wildlife of Guam is the 
necessary and obvious first step to any successful effort to 
restore and maintain its species.
    Ms. Bordallo. I would appreciate if you would get back to 
me on this issue. Another one is--the final EIS for the 
Marianas talks about conservation of habitat. Recently, 
important Chamorro sites have been found at Ritidian. Can I 
have your agency's assurance that you will work to provide 
better access for these sites for the public?
    Mr. Bean. There again, I do not have any specifics about 
your question; but I can assure you that we will do what is 
required and responsible in terms of ensuring access that is 
compatible with conservation and other requirements.
    Ms. Bordallo. All right. The third question is also for 
you. There are longstanding issues regarding landlocked 
landowners whose properties border Ritidian. Can we get your 
commitment that you will work with us on these issues?
    Mr. Bean. You certainly have my commitment. We will 
investigate and act responsibly to understand and settle these 
issues, yes.
    Ms. Bordallo. All right. Well, thank you. Mr. Bean, I will 
appreciate your getting back to me. These are very important 
issues right now. The EIS is concluded, and now we are waiting 
for the Record of Decision on this realignment of the Marines 
to Guam. So I really do need your answers to these questions.
    Mr. Bean. You will get them.
    Ms. Bordallo. Thank you, Mr. Chairman, and I yield back.
    The Chairman. Thank you.
    Mrs. Lummis.
    Mrs. Lummis. Thank you, Mr. Chairman. Well, whether it is 
sea cows or 4-H cows, I just love cows, so I welcome this 
hearing today, Mr. Chairman.
    The Fish and Wildlife Service recovery plan for the manatee 
includes a list of recovery actions for downlisting the manatee 
from endangered to threatened. One of the actions included is 
to make sure that warm water manatee refuge sites are protected 
as manatee sanctuaries, refuges, or safe havens. That includes 
Big Bend Power Plant and Crystal River Power Plant in Florida.
    Mr. Bean, do you agree that protecting these warm water 
refuges near these power plants contributes to the conservation 
of the manatee?
    Mr. Bean. Yes.
    Mrs. Lummis. Earlier this year, the U.S. Geological Survey 
produced a report entitled, ``Status and Threats Analysis for 
the Florida Manatee.'' The report states that the second 
greatest threat to the manatee, and a very close second to the 
propellers, is long-term loss of warm water habitat. The same 
report agrees with the Fish and Wildlife Service Manatee 
Recovery Plan regarding the importance of power plant cooling 
water discharges to conservation of the manatee.
    Now, specifically, that same study found that one of the 
primary causes of warm water habitat loss is the retirement of 
power generation plants that produce warm water flows. Other 
research on manatee habitat suggests that when a power plant 
goes off-line, manatees that rely on the plant do not 
necessarily move elsewhere. They are apt to remain there, and 
perhaps even succumb to cold stress.
    Mr. Bean, are you aware of the U.S. Geological Survey study 
that determined long-term loss of warm water habitat is the 
second greatest threat to the manatee?
    Mr. Bean. Yes, ma'am. I am aware of the study.
    Mrs. Lummis. Are you aware of the same USGS study's 
conclusion that a primary cause of the loss of warm water 
habitat for the manatee is the retirement of power plants that 
produce warm water?
    Mr. Bean. I do not know the details of the study. However, 
I believe the study identifies that as a potential threat for 
the manatee. The manatee, of course, is a species that has 
dramatically improved under the protection of the Endangered 
Species Act. Indeed, the census this year is the highest ever 
recorded.
    Mrs. Lummis. Then why haven't they been elevated to 
threatened from endangered?
    Mr. Bean. The Fish and Wildlife Service is actively 
considering doing exactly that.
    Mrs. Lummis. Does the conclusion surprise you, based on 
existing research on how manatees respond when power plants go 
off-line?
    Mr. Bean. No. It is well known that the manatees utilize 
warm water, both natural and artificial warm water, yes.
    Mrs. Lummis. Are you aware of any research at all that 
shows they are likely to remain around a power plant when it 
goes off-line and potentially succumb to cold stress?
    Mr. Bean. I am not familiar with the research in general, 
so I would be reluctant to comment about that.
    Mrs. Lummis. Mr. Bean, we used the Fish and Wildlife 
Service's own maps to figure out how much overlap there is 
between manatee habitat and coal-fired power plants. With so 
many coal-fired power plants--and staff, could you put that one 
up on the screen? There are at least 10 coal-fired power plants 
located near the habitat of manatees or other listed species. 
If you overlay Fish and Wildlife Service's own on-line mapping 
tool on coal-fired power plants along the coast, there are at 
least 10 where they coincide. We used the Fish and Wildlife 
Service's own maps to figure out how much overlap there is.

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]



    .epsWith so many coal-fired plants near manatee habitat, 
don't you think the EPA should have formally consulted with the 
Fish and Wildlife Service on its proposed rules that would 
force the closure of those power plants?
    Mr. Bean. Well, I would note that many of the power plants 
depicted on that map are well outside the winter range of the 
manatee, when the manatee is most dependent upon warm water 
discharges. So I think----
    Mrs. Lummis. So, are you suggesting that when these plants 
are shut down, that the manatees that die as a result are 
collateral damage?
    Mr. Bean. No. I am not suggesting that. I am suggesting 
that some of the plants shown on the map have little or no 
relationship to providing warm water refugia in the winter for 
the manatee, because the manatee is typically not in North 
Carolina or South Carolina in the winter.
    Mrs. Lummis. Well, are they on the Gulf Coast of Florida?
    Mr. Bean. In the Tampa Bay area, where I think you have two 
sites indicated, that is a known winter concentration area. The 
others, to my knowledge, are not.
    Mrs. Lummis. What about the others over in the Panhandle?
    Mr. Bean. As I said, to my knowledge, they are not major 
winter concentration areas.
    Mrs. Lummis. Are you suggesting that they are not important 
to manatee habitat?
    Mr. Bean. No. I am not suggesting that. I am suggesting 
that the warm water refugia and the threat to manatees from the 
potential closure of those particular plants is not as 
significant as would be the case elsewhere.
    Mrs. Lummis. But don't you think a consultation is 
required? I mean, you would require that of anyone else, 
wouldn't you, a non-government agency?
    Mr. Bean. The Fish and Wildlife Service does not require 
consultation of anyone. As I described, our regulations provide 
that the action agency makes the initial determination whether 
its action may affect listed species, taking into account those 
indirect effects that are reasonably certain to occur.
    Mrs. Lummis. Do you always pay ultimate deference to other 
agencies in terms of whether a consultation is required?
    Mr. Bean. At the ``may affect'' stage, our regulations are 
absolutely clear that that is the action agency's 
responsibility.
    Mrs. Lummis. Thanks, Mr. Chairman. I yield back.
    The Chairman. Mrs. Dingell.
    Mrs. Dingell. Thank you, Mr. Chairman. I am about to get in 
trouble because I am going unscripted, because I care about 
this issue greatly, like everybody else does. When I first came 
to Congress, I cared deeply about a number of issues.
    But the original author of the Endangered Species Act is 
someone who cares deeply about it, and I guess I feel a 
commitment to understand it and protect it. I am glad to see my 
colleagues talking about it this morning and wanting to 
preserve it, because many times we seem to be thinking that it 
does not work.
    And I, like my two colleagues that have gone before me, 
have a power plant in Michigan that has warm water, and it is 
an incredible sight in January and February where more than 200 
bald eagles gather to feed. There are a number of issues going 
on there, as we look at one of the neighboring coal plants that 
is likely to be closed or something is going to happen to that.
    But my understanding of the Endangered Species Act is that 
it addresses issues if a species would be eliminated. So, when 
we talk about sea turtles, we talk about the manatees--in 1973, 
the year that the Endangered Species Act was passed, there were 
only 700 to 800 manatees left in Florida. Today, the manatee 
population has risen to more than 6,000. The tools provided by 
the Endangered Species Act have been instrumental in helping 
Federal agencies address the threat to the manatee, including 
thermal discharges from the power plants.
    I guess as I am listening to all of these discussions, my 
question is: I think that all of these species, the bald 
eagles, if they were not to stay--and I hope to God they stay 
because it is one of the most beautiful sights I have ever 
seen--they would not be endangered, they would go to another 
habitat. So am I right that the challenge here is to make sure 
that we are all working together with all the agencies to make 
sure we are protecting the habitats of these species?
    Mr. Bean. I will be happy to answer that. First, let me say 
it was my pleasure to testify on this Act before Mr. Dingell on 
many occasions in the past. I greatly admire and appreciate his 
role in making this law happen and making it effective.
    Certainly, as you note, the manatee and many other species 
have recovered dramatically under the Act's protection. Key to 
that is the protection of habitat. The Endangered Species Act, 
through section 7 and other mechanisms, has been quite 
successful in protecting, restoring, improving, and otherwise 
ensuring the availability of habitat--not just for manatees, 
but also for bald eagles. Kirtland's warblers is a species in 
your state that is at or near its record levels of abundance. 
In the Chairman's state, we have the California condor having 
reproduced in the wild last year probably for the first time 
since European man set foot on the North American continent. 
These are some of the dramatic examples of success of the 
Endangered Species Act, and they are underscored by the need to 
protect habitat. Yes, ma'am.
    Mrs. Dingell. Thank you. It is not perfect; no law is. The 
last perfect law was probably the Ten Commandants; and in 
today's Congress, those probably would not be perfect, either.
    But the Obama administration is on track to delist more 
species than any other administration has in the history of the 
law. Mr. Bean, this year the Fish and Wildlife Service 
requested an increase of $10.4 million for your activities. Can 
you talk about section 7 consultations and other planning 
activities and how they would improve if you had adequate 
funding?
    Mr. Bean. Yes. Thank you. The section 7 consultation 
process is subject to some statutory timelines for completing a 
consultation. However, it is often the case that because of 
insufficient resources, the Fish and Wildlife Service has to 
ask the action agency for extensions of those timelines, which 
the action agencies are generally willing to give in order to 
allow the process to be completed.
    With the requested increase in funding, we expect the 
Service to be able to address more consultations more quickly. 
So the question, for example, about the buildup in Guam and 
some of the consultations there, the Service has had to 
prioritize consultations with the Defense Department because it 
lacks the resources to process multiple consultations 
simultaneously. The requested increase in funding would allow 
us to get a better handle on that.
    Mrs. Dingell. Thank you, Mr. Chairman.
    The Chairman. Thank you.
    Mr. Gohmert.
    Mr. Gohmert. Thank you, Mr. Chairman. I appreciate the 
witnesses being here.
    Mr. Bean, my colleagues have talked to you about the 
section 7 consultation, but I want to follow up on that since 
that requirement is to determine which protected species might 
be impacted by the EPA's actions. Correct? Is that a confusing 
question?
    Mr. Bean. The question for the action agency is not only 
what species might be affected, but whether they will be 
affected, whether they are reasonably certain to be affected. 
Yes.
    Mr. Gohmert. Right. That is part of the step by step that 
section 7 would require.
    On the Fish and Wildlife Service's Web site, you have a 
tool called IPaC. I have to say, I was really impressed. I have 
given the FWS some hard times on some issues that I have been 
concerned about, but I am really impressed with this Web site. 
It stands for Information for Planning and Conservation.
    IPaC is a project planning tool obviously intended to 
streamline the FWS review process and give agencies a quick and 
easy access to information by which endangered species may be 
impacted by any given project. It takes less than 2 minutes, 
and I would like to go ahead and just have the video run to 
show what it takes to use the IPaC service on the Internet.
    [Video played.]
    Mr. Gohmert. If somebody were wanting to make an inquiry of 
an area, they could zoom in down on Florida. It would appear so 
easy that even the EPA, if somebody had adequate training with 
a mouse, could be able to utilize this service. That would 
require you to keep enlarging until you could get down; that 
might take additional training.
    [Laughter.]
    Mr. Gohmert. Then, rather than the street, you would get 
the actual satellite view of the area. Then take the mouse, 
draw the area in question. If someone would want to find out 
what species might be impacted--in this case, draw the area, 
and voila. Here this comes.
    Then we have species listed that might be impacted. It 
would seem that if somebody at the EPA had adequate training 
with a mouse, they could use this service and be able to 
determine--I mean, that is a really fantastic service, and I 
commend Fish and Wildlife for being able to put something 
together that actually is so very usable.
    Any agency is allowed to use IPaC. Correct?
    Mr. Bean. Yes, sir. Thank you for your kind words about 
IPaC. It is intended to do just what you said--to make it easy 
for agencies and others to know what species may be present in 
a particular area, so that they can more intelligently evaluate 
whether their actions are reasonably certain to affect those 
species.
    Mr. Gohmert. So, in less than 2 minutes, you can find out 
what species are affected. Mr. Bean, do you have any record of 
EPA ever requesting a list of species that might be affected or 
further inquiring about any species that was listed in the 
IPaC?
    Mr. Bean. I am not aware of that, sir. But then again, I 
would not normally be made aware of such things.
    Mr. Gohmert. Does Fish and Wildlife have any record of EPA 
requesting a list of impacted species in the course of a ``may 
affect'' analysis?
    Mr. Bean. The answer to that is, I don't know, sir.
    Mr. Gohmert. You would know, wouldn't you, if they had made 
such a request?
    Mr. Bean. Ever, with respect to any of their actions?
    Mr. Gohmert. On this project in Florida that we were 
working on.
    Mr. Bean. I am sorry, sir. Which project are we referring 
to?
    Mr. Gohmert. Well, the one that was outlined there in the 
video.
    Mr. Bean. That was an EPA project?
    Mr. Gohmert. Right.
    Mr. Bean. I don't know the answer to your question.
    Mr. Gohmert. All right. I see my time is expired.
    The Chairman. Thank you.
    Mr. Beyer.
    Mr. Beyer. Thank you, Mr. Chairman. And thank you both very 
much for coming and being part of this. It is fascinating. It 
seems to me that the heart of the matter is, given that section 
7 of the Endangered Species Act clearly says that the action 
agency is required to seek consultation and that neither Fish 
and Wildlife or National Marine Fisheries has any enforcement 
action, that you are in the rather passive sense of providing 
consultation when requested.
    So the key question is, why didn't the EPA ask you for 
advice on the new Clean Power Plan rules, the Clean Air Act 
rules? The EPA, in their memo that they submitted, argued that 
the data was insufficient to draw a causal connection between 
the reduction in emissions, which is different from the water, 
and the effect on endangered species.
    The Majority memo says that it is not just adverse effects, 
like loss of habitat, that trigger the consultation 
requirement, but also beneficial effects, negligible 
discountable effects. It then notes also that the EPA says the 
positive environmental effects are not necessarily beneficial 
effects.
    Mr. Bean, do you think the EPA had a responsibility, under 
this action agency section 7, with the beneficial effects for 
the manatee, to come to you?
    Mr. Bean. EPA's responsibility was to evaluate the 
likelihood that its actions would cause beneficial or 
detrimental effects that were reasonably certain to occur. That 
is the same responsibility that any Federal action agency has 
when considering this first step of the consultation process.
    Mr. Beyer. It is fascinating that the No. 1 cause of death 
for manatees, I understand, is from propellers. If they take 
away the warm water in those 2 out of the 10 sites that were on 
the map, and cold water and they flee that area, are we likely 
to have fewer manatee deaths because they are not near the 
boats? Is there any way to assess the net impact on manatees 
from not having this artificial environment prompted by coal-
fired power plants, also putting them at risk from boats?
    Mr. Bean. Whether there is an increased risk from boats, I 
really couldn't say. Clearly, the manatees utilize the warm 
water discharge areas. Were those areas not to be available, 
they would have to find other warm water discharge areas, 
presumably.
    Mr. Beyer. With the Fish and Wildlife Service or National 
Marine Fisheries, Mr. Rauch, would you view the positive 
effects any differently whether they were man-made and 
artificial, say a power plant discharge, versus those that come 
from the natural environment, non-manmade? Or is the protection 
of the endangered species paramount regardless of what created 
the habitat?
    Mr. Rauch. Thank you. I think that----
    Mr. Beyer. You look confused. I am confused, too.
    Mr. Rauch. I am trying to parse out the question. When we 
analyze and the action agency analyzes, we are looking at the 
effects of the action. Usually that is looking at the man-made 
effects of the action because that is what the action is.
    Occasionally, we do deal with species displacement issues, 
where the action may displace a species from one habitat to 
another. Sometimes that is beneficial; sometimes that is not. 
We do look at changes to the natural environment. I am not 
exactly sure whether that answered your question, but we do 
consider the difference in habitats as a potential effect if 
you cause a species to move.
    Mr. Beyer. The Majority memo suggests that perhaps the 
reason the EPA did not ask is because it would create a delay 
in implementing the new power plant rules, the new Clean Air 
Act rules. Given all the written testimony that you offer about 
how quickly these consultations are conducted and approved--15 
days, 35 days--is this a meaningful concern for the EPA that 
would slow down the power plant rules, to have sought 
consultation or perhaps to seek consultation before the rules 
are finalized?
    Mr. Bean. I don't know the answer to your question, sir. I 
do believe that what EPA described in its proposed rule for 
existing sources went into some detail as to the basis for 
their ``no effect'' determination. Quite frankly, that is 
unusual, for action agencies to provide that level of detail.
    The Fish and Wildlife Service does not, as a general 
matter, receive and certainly under its regulations has no 
duty, responsibility, or ability to compel an explanation from 
an action agency for its ``no effect'' determination. In this 
instance, EPA provided one, which appeared to reflect an 
understanding of how our process works.
    Mr. Beyer. Thank you. I am pleased, too, that the manatee 
is now getting this kind of attention that we hope the sage-
grouse and the gray wolves will also get on this committee. 
Thank you, Mr. Chairman.
    The Chairman. Mr. McClintock.
    Mr. McClintock. Thank you, Mr. Chairman. As you know, 
California is suffering what hydrologists suggest may be the 
worst drought in 1,200 years; certainly it is the worst drought 
in recorded history. Yet we continue to see massive releases of 
what precious little water remains behind our dams to meet ESA 
requirements for fish.
    For example, in April, 30,000 acre-feet of water was 
deliberately released out of the New Melones Dam down the 
Stanislaus River for what, the Fish and Wildlife Service 
admitted, was 29 steelhead trout--30,000 acre-feet of water is 
enough to meet the annual residential needs of a human 
population of 300,000.
    So, on the one hand, you have the immediate and desperate 
needs of 300,000 human beings, as opposed to nudging 29 
steelhead trout to swim to the ocean, which they generally tend 
to do anyway. How do you justify such a policy? And by the way, 
New Melones is now at 16 percent of its capacity.
    Mr. Rauch. Thank you for the question. I think you are 
absolutely correct that California is facing a drought of 
historic----
    Mr. McClintock. That is not what I asked. How do you 
justify this policy, putting the needs of 29 steelhead trout 
over the needs of 300,000 human beings in the worst drought in 
the recorded history of the state?
    Mr. Rauch. There is not enough water to meet the needs of 
either the human beings, the fish, or the agricultural users--
--
    Mr. McClintock. But you made a choice to favor the fish 
over the human beings, and 29 of them as opposed to 300,000 
human beings for a year.
    Mr. Rauch. You cited Fish and Wildlife Service. I am not 
aware of that number. I know that the fish are critically 
endangered. We lost 95 percent of the Chinook run last year.
    Mr. McClintock. Well, there are a lot of folks that think 
that the human population is now seriously endangered. They may 
run out of water before the end of the summer.
    Mr. Rauch. We were trying to balance the needs of all the 
users of the water.
    Mr. McClintock. By the way, that is just one dam. We are 
seeing these pulse flows out of dams across the state and are 
unable to get a straight answer on just how much. But the 
anecdotal information is huge amounts of water.
    Mr. Rauch. The fish do need water in order to survive.
    Mr. McClintock. The human beings need water, too, to 
survive. We build these water systems so that surplus water can 
be retained for beneficial human use; so you have no moral 
justification other than you favor the fish over the human 
population?
    Mr. Rauch. No, sir. We are trying to--the fish are----
    Mr. McClintock. Let's talk about the fish for a moment. The 
biologist told me that you are not doing any favors for the 
fish, either. What he told me was that no salmon in its right 
mind is going to enter a river in a drought. The water is too 
warm and there is not enough of it. So by doing these pulse 
flows, we trick fish into doing things their own common sense 
tells them not to do; and it does not end well for them.
    Mr. Rauch. I am not aware of what biologist may have told 
you that. The fish need to go upstream and downstream in order 
to survive. If they cannot do that, they will go extinct.
    Mr. McClintock. But what you are doing is upsetting their 
own natural guidance, by inducing them to enter rivers that 
normally their common sense would tell them to stay out of.
    Mr. Rauch. Their natural guidance would tell them, for 
certain species during the middle of the summer, they need to 
go upstream or they need to go downstream.
    Mr. McClintock. Well, let's go on to one other question.
    Mr. Rauch. That is what their instinct tells them, sir.
    Mr. McClintock. I used to have the Klamath River in my 
district, where four perfectly good hydroelectric dams are 
slated for destruction to meet ESA requirements--again for 
salmon, because of what we are told is a catastrophic decline 
in the salmon population. I said, ``Well, that is terrible; how 
many are left? '' They said, ``Oh, just a few hundred left in 
the entire river.'' And I said, ``That is terrible; why doesn't 
somebody build a fish hatchery? '' Well, it turns out somebody 
did build a fish hatchery years ago at the Iron Gate Dam. The 
Iron Gate Fish Hatchery produces 5 million salmon smolts a 
year; 17,000 return every year as fully grown adults to spawn 
in the Klamath.
    The problem is, they are not allowed to be included in the 
population count. Then, to add insult to insanity, when they 
tear down the Iron Gate Dam, the Iron Gate Fish Hatchery goes 
with it. I am wondering, do you have any way to justify that 
policy?
    Mr. Rauch. The Endangered Species Act tries to preserve 
these species in their natural state, in the state in which 
they do not rely on humans for their continued survival. They 
do not require----
    Mr. McClintock. Stop. Once the smolts are released, they do 
not rely on human care. They go out into the oceans, they spend 
years in the oceans, and return as fully grown adults to spawn. 
There is no more difference between a hatchery fish and a wild-
born fish than the difference between a baby born at a hospital 
and a baby born at home.
    Mr. Rauch. We do not have most of our wild species born in 
hospitals, sir. It is quite common that these species are 
heavily manipulated. They are brought into a hatchery. They 
spend a great part of their very vulnerable life in a hatchery. 
And they have to do that----
    Mr. McClintock. And then they spend years out----
    Mr. Rauch [continuing]. Because we have so altered the 
ecosystem.
    The Chairman. Time is expired.
    Mr. McClintock. Thank you.
    The Chairman. Mr. Huffman.
    Mr. Huffman. Thank you, Mr. Chairman. I am glad my friend 
from California went right before me because the attack on the 
Endangered Species Act protections for anadromous fish is more 
characteristic of the discussions we have about the ESA in this 
committee.
    Normally, when we have hearings here about the Endangered 
Species Act, it is about how to weaken it, how to undermine it, 
how to throw obstacles in the way of citizen enforcement, and 
so on and so forth, and an endless stream of policy proposals 
that would essentially gut this critically important law that 
has been so effective and that is so popular with the American 
people.
    But today we have a little bit of political whiplash, 
because some folks across the aisle have come up with the 
clever argument that perhaps the Endangered Species Act, a 
critical law that was intended to protect our environment, can 
be used to stop one of the most important environmental 
proposals perhaps in any of our lifetimes, the Clean Power 
rule, and an attempt to take meaningful action on global 
climate change.
    Suddenly, instead of the usual assault on the Endangered 
Species Act, we have a meeting of America's newest 
environmental group, Friends of the Coal-Powered Manatee, with 
generous funding from the Koch brothers.
    One thing I think we should all be very clear about, is 
that this is not about the manatee. This is about climate 
change, climate denial, and the continued boosterism of the 
fossil fuel industry that has become the trademark of this 
committee and, unfortunately, too many of my friends across the 
aisle.
    I just want to ask each of you, since we have you here, to 
speak about the bigger picture. What are the environmental 
effects, not just for the manatee but for other species that we 
care about, of global climate change?
    Mr. Bean. Thank you, sir. I will be happy to try to answer 
that. Clearly, climate change is a threat that has both 
economic and environmental dimensions to it. We are aware that 
increased temperatures, sea level rise, and ocean acidification 
present new threats to species and make an already difficult 
task of conserving endangered species even more challenging.
    We often lack the information to make specific connections 
between a particular action that may contribute to climate 
change or reduce climate change and its effects upon endangered 
species. As a general matter, however, it is quite clear that 
the effects of climate change are going to be detrimental for 
the environment in general.
    Mr. Huffman. Mr. Rauch, would you agree? And since your 
agency focuses on the marine environment, maybe specifically 
the effects of ocean acidification as well.
    Mr. Rauch. Yes, sir. Thank you very much. We are very much 
concerned, as is the Fish and Wildlife Service, about the 
generic effects of climate change. I would agree it is very 
hard to tie it to one specific action.
    But we know that climate change is currently threatening 
the health of many of our coral reef systems. The structure 
upon which these coral reefs are built is very sensitive to 
ocean acidification. We are concerned about the effects of 
ocean acidification on our shellfish industry in this country, 
one of our most vibrant coastal economies. Those shells are all 
made of calcium carbonate and are subject to ocean 
acidification.
    We are seeing dramatic changes in some of our commercial 
fish populations, not an Endangered Species Act issue, but an 
issue which is affecting the fishing industry in the Northeast 
and other places, due to climate change and the fact that 
certain areas where these fish breed are the warmest they have 
ever been.
    So, our concerns about climate change touch on many 
endangered species and the health of reef systems, but it also 
extends to many of our industries that rely on the ocean for 
their livelihood.
    Mr. Huffman. Thank you. As I mentioned, my friends in the 
Majority generally have little use for the Endangered Species 
Act when it is protecting salmon, steelhead, delta smelt, 
prairie chicken, sage-grouse, et cetera, et cetera; but today 
it appears there is some concern, at least, for the manatee, or 
at least some manatee in certain locations.
    Do either of you have any suggestions, if Congress really 
cares about the manatee, on some things we can actually do to 
enhance their continued recovery, thanks in large part to the 
Endangered Species Act?
    Mr. Bean. I would answer that this way. Part of the reasons 
that manatees have become dependent, at least in part, upon 
these artificial warm water discharges is because the natural 
warm water springs have been either developed or degraded, or 
spring flow has been reduced.
    There are measures that the Fish and Wildlife Service has 
taken and plans to take to help restore manatee access to some 
of these natural warm water areas, as well as ensure sufficient 
flows to maintain those over time. These are the sorts of 
activities that the Fish and Wildlife Service, through its 
recovery budget, can promote.
    Mr. Huffman. Thank you, Mr. Chairman. I yield back.
    The Chairman. Mr. Newhouse.
    Mr. Newhouse. Thank you, Mr. Chairman. And let me say thank 
you for your deference to those of us in the lower part of the 
chamber.
    I appreciate you two being here this morning and visiting 
about this important topic. There are a couple of things I 
wanted to talk about, but the subject today certainly has been 
about the selective enforcement.
    So, to pivot off of the previous questioner, impacts of 
actions taken can be beneficial or negative. Given the last 
remarks we just heard, even if the benefits are beneficial, 
isn't EPA still required to consult and approve one way or the 
other the impacts of an action, whether they be good or bad?
    Mr. Bean. Thank you, sir. I will answer that this way. 
EPA's responsibility in the first instance is to determine 
whether its actions will cause effects that are reasonably 
certain to occur. Those can be either beneficial or detrimental 
for a particular endangered species. That is their obligation.
    Mr. Newhouse. Right. Good or bad. Unlike some believe, 
people on both sides of the aisle have concerns for endangered 
species and certainly want to be as smart as we can about rules 
that we implement to protect them.
    In my home state of Washington and many other parts of the 
Northwest, since the salmon door has been opened, I will just 
ask about this. Multiple agencies, including NOAA, have been 
locked in litigation for many years over operation of 
hydroelectric dams, irrigation projects, certainly on the 
Columbia-Snake River system, regarding whether these projects 
affect several species of ESA-listed salmon.
    In the Northwest, we spend close to a billion dollars a 
year, as you are aware, the ratepayers do, on this issue. Yet 
many species have seen multiple years of record or near record 
returns, as you referenced in your testimony. Could you comment 
quickly--we don't have much time--on why the agency has not 
been able to produce a defensible biological opinion that I 
think would end years of uncertainty and litigation for our 
Northwest citizens?
    As a followup question to that while you are thinking, I 
understand that NOAA is reviewing the status of 28 species of 
salmon in the Northwest. Could you speculate as to whether any 
of these species will be delisted in the future?
    Mr. Rauch. Yes. Thank you for the question. As you 
indicate, we have had numerous biological claims on the Federal 
Columbia River power system. Some of them we did win in court 
on; some of them we had to reinitiate consultation, and we 
subsequently lost.
    The current one, which is a 2008 opinion, was initially 
found by the court to be invalid. That litigation is ongoing. 
We supplemented that opinion, and we are currently in 
litigation. We believe that we have developed a defensible 
biological opinion, and we are waiting, hopefully, on the court 
to agree with us. We expect a ruling sometime this year.
    In terms of the other species, you are absolutely right. We 
are reviewing the status of all of our Pacific salmonids. We 
expect to have initial determinations on that sometime next 
year, early next year. I cannot tell you at the moment whether 
or not any of them are candidates for delisting, but we are 
actively looking at that question.
    Mr. Newhouse. Mr. Bean, I am certainly concerned about the 
lack of progress in advancing the proposed rule to delist the 
gray wolf. I am sure you are familiar with the situation in my 
state of Washington. Do you think that the Service should move 
forward with finalizing and implementing the proposed rule for 
delisting? Also, could you please explain why the Service has 
not met its statutory deadline to do so?
    Mr. Bean. Yes, sir. Thank you for the question. Certainly 
the view of the Fish and Wildlife Service, expressed many 
times, is that wolves have recovered and no longer need the 
protection of the Endangered Species Act. The proposal that you 
have referenced was built upon an assumption that the wolves in 
the Great Lakes would be delisted, and they were for a time.
    But a court decision overturned that, and that has forced 
the Fish and Wildlife Service to re-evaluate its options. It 
remains, however, of the view that wolves have recovered and no 
longer need the protection of the Act.
    Mr. Newhouse. Thank you, Mr. Chairman.
    The Chairman. Mrs. Capps.
    Mrs. Capps. Thank you, Mr. Chairman, for holding this 
hearing; and to our witnesses, thank you for your testimony.
    The Endangered Species Act, or ESA, is one of our Nation's 
most essential and effective conservation laws. Since 1973, it 
has played a critical role in successfully protecting our 
vulnerable plant and wildlife populations from threat of 
extinction.
    Threatened wildlife populations are an invaluable and 
precious part of our global ecosystems, and we have a 
responsibility to ensure their survival through ESA. Not only 
has ESA successfully prevented the extinction of hundreds of 
vulnerable species, it has achieved this goal by using the best 
scientific and commercial data available.
    ESA played a critical role in the survival of key wildlife 
populations in my district in California and throughout the 
Nation; for example, the California condor, which you have 
referenced already, Mr. Bean. The largest land bird in North 
America has been on the verge of extinction and is now one of 
the world's rarest bird species; but thanks to the hard work of 
the Fish and Wildlife Service under ESA, more condors are 
flying free in the wild today on the central coast of 
California than in captive breeding for the first time since 
recovery efforts began.
    Also in my congressional district, the island fox; it is 
found only on the Channel Islands. It was also on the verge of 
extinction, but is making a strong recovery thanks to the 
strong collaboration between our conservation agencies.
    These examples are a testament to the remarkable success 
ESA has had for precious species just in my district. My 
constituents and I know this. Any attempts to undermine key 
provisions of ESA would only deny our future generations the 
opportunity to fully explore the gifts of nature we are 
privileged to experience.
    My question to you, Mr. Bean is: How has the ESA helped the 
California condor recovery? Are there specific ways that you 
can highlight, so we can understand the role the Fish and 
Wildlife Service has played?
    Mr. Bean. Thank you, Mrs. Capps. The condor is a remarkable 
success story, because it was once gone from the wild entirely. 
There were none left in the wild. There were but a handful of 
survivors in captivity at a time when there had been no 
experience in successfully breeding these birds in captivity, 
no experience restoring these birds to the wild. So those were 
the steps taken. With the cooperation of the L.A. Zoo, the San 
Diego Zoo, and other partners, there was a successful captive 
breeding effort. They provided enough condors to begin 
restoring them to the wild, not only in California but also to 
the Grand Canyon in Arizona, from which they have since 
expanded into Utah.
    Mrs. Capps. Right.
    Mr. Bean. It is a remarkable success. There are, as you 
know, more condors alive today in the wild than probably any 
time in well over half a century.
    Mrs. Capps. Right. I don't mean to interrupt, but community 
stakeholders, even private citizens, have also been part of 
this. Is that correct?
    Mr. Bean. That is correct. For one example, the Peregrine 
Fund, a private nonprofit organization, has been instrumental 
in helping in the captive rearing and release of condors.
    Mrs. Capps. Dr. Rauch, in your testimony you highlight the 
need to address declining coastal habitats to improve marine 
life in our oceans. How can Congress improve ESA to better 
protect vulnerable marine populations?
    Mr. Rauch. Thank you. I think the Endangered Species Act, 
at the moment, works very well. When we consult, we are 
suffering from--as Mr. Bean indicated from the Fish and 
Wildlife Service, the National Marine Fisheries Service also is 
falling behind on the pace of its consultations, because the 
consultation workload has increased over 131 percent because of 
the increased coastal consultation.
    The President has asked for additional funds to help us 
continue our work. We believe that the engagement of our 
National Marine Fisheries Service staff with project proponents 
at an early stage allows them, at a low cost, to modify their 
projects to protect the habitat and to protect the species.
    It has worked very well for us, but we cannot continue at 
the pace that we are. We continue to fall further behind in the 
pace of our consultation.
    Mrs. Capps. So the success has created the extra workload?
    Mr. Rauch. I think the increase in coastal development has 
created the extra workload.
    Mrs. Capps. Right. I yield back, Mr. Chairman.
    The Chairman. Thank you.
    Mr. Lamborn.
    Mr. Lamborn. Thank you, Mr. Chairman.
    This is for either one of you. Last year, members of the 
Senate Environment and Public Works Committee raised the issue 
of consultation on EPA's rule for new power plants, but the 
proposed rule EPA released does not include a ``may affect'' 
analysis or even any Endangered Species Act analysis at all.
    If the final rule still does not include a ``may affect'' 
analysis, would either of the Services raise the issue with the 
EPA?
    Mr. Bean. I do not know what EPA's plans are with respect 
to that rule. I do know that as a general matter, the 
obligations of action agencies is to make a ``may affect'' or 
``no effect'' determination. If they make a ``no effect'' 
determination, they have fulfilled their consultation 
responsibilities.
    The Fish and Wildlife Service is not in the role of 
enforcing compliance with section 7. Section 7, rather, allows 
the Service to provide technical assistance and advice to other 
agencies, but we can neither compel nor require agencies to 
take any particular action.
    Mr. Rauch. I would concur with that answer.
    Mr. Lamborn. Thank you. Mr. Bean, if EPA--just to drill 
down a little bit more on this--finalized a rule that expressly 
and solely mandated the closure of all coal-fired power plants 
in Florida and determined it would have no effect on manatees 
or sea turtles, what would you do? Would FWS take any action?
    Mr. Bean. I don't know whether that hypothetical is even in 
the realm of the possible. Clearly, were all coal-fired plants 
that manatees depend upon closed, there would be some impact to 
manatees; but I think in the current situation--as I understand 
it, and I cannot speak for EPA in this regard--the question EPA 
asks itself, at this stage, is whether there are reasonably 
certain to occur effects upon manatees or other endangered 
species. Framed in that way, the EPA has to answer that 
question as best it can.
    The question is not, as I understand it, whether specific 
plants will be closed, but whether their action will have 
reasonably certain to occur effects upon any listed species.
    Mr. Lamborn. Thank you. Also, as a followup, if EPA's rule 
was reasonably certain to cause the retirement of coal plants 
with cooling water discharges where manatees are known to 
gather, would that rise to the level of ``may affect'' for 
purposes of section 7? I know you have already partially 
answered that, but----
    Mr. Bean. If it is reasonably certain to occur, then it is 
a ``may affect'' situation, yes.
    Mr. Lamborn. Changing gears, I would like to ask you more 
of a broad philosophical question. What is the policy of the 
Fish and Wildlife Service if a species is introduced where it 
is not native, but it is a rare species, like the Canadian 
lynx, for instance? What then becomes the responsibility, if 
any, of the Fish and Wildlife Service for a non-native species 
that people are wanting to introduce into the United States?
    Mr. Bean. I don't know that we have a specific policy. I 
know as a matter of practice, the Fish and Wildlife Service has 
not listed non-native species in the United States as 
endangered species. Certainly parts of the Endangered Species 
Act--for example, section 10(j), which allows for the 
establishment of experimental populations of endangered 
species--is pretty clear that those experimental populations 
are to be established within the historic range of the species, 
not outside of it. That is the best I can do to answer your 
question, sir.
    Mr. Lamborn. I appreciate that. Another philosophical 
question, since I've got you here and I appreciate the 
opportunity--what about a species that is endangered or 
threatened, arguably, within the borders of the United States, 
but outside the borders of the United States is not? I think 
the polar bear might be one example of that.
    Mr. Bean. I am not sure the polar bear is a good example. 
But I would say this--under the Endangered Species Act, the 
Fish and Wildlife Service and the National Marine Fisheries 
Service can list as threatened or endangered either species 
that are true biological species, subspecies, or distinct 
population segments.
    There are some instances in which the Fish and Wildlife 
Service has listed the U.S. population or the Lower 48 
population of a species that occurs, for example, in Canada or 
Mexico. That is within the authority of the Service; and to a 
limited degree, the Service has used that authority.
    Mr. Lamborn. I think that is something we need to further 
debate in the future, but I appreciate your answers. Thank you.
    The Chairman. Mr. Grijalva.
    Mr. Grijalva. Thank you, Mr. Chairman.
    Mr. Bean, just a couple of rudimentary questions. We heard 
a lot of talk about power plants and their warm water 
discharges being necessary for the survival of manatees, and 
sea turtles were included in that discussion as well. I would 
like to ask you just a few basic questions.
    Which inhabited Florida first, manatees or coal-fueled 
power plants?
    Mr. Bean. I believe the answer is manatees, sir.
    Mr. Grijalva. Thank you. What allowed manatees to survive 
cold winters before the power plants existed?
    Mr. Bean. Manatees utilize warm water springs and warm 
water areas in general to escape the cold conditions in the 
winter. Before there were artificial sources, they relied upon 
natural sources.
    Mr. Grijalva. Why can't these natural springs that you 
mentioned support that manatee population now?
    Mr. Bean. Those remaining natural springs or natural warm 
water sources do, in fact, provide a winter habitat that is 
important to manatees. Many of those natural warm water refugia 
have been adversely affected by development or reductions in 
spring flow. I indicated a moment ago in my answer to an 
earlier question that there are things that can be done and are 
being done to try to improve those habitats.
    Mr. Grijalva. Is the Fish and Wildlife Service developing a 
plan for how to protect manatees if any power plant discharges 
would become unavailable in the future?
    Mr. Bean. I think all of the power plants in Florida are 
subject to National Pollution and Discharge Elimination System 
Permits that the state issues; and the Fish and Wildlife 
Service works very closely with the State Fish and Wildlife 
agency to ensure that those permits include manatee measures to 
protect manatees against the loss of warm water discharges 
during cold snaps in the winter, for example.
    Mr. Grijalva. For both of you gentlemen, if you don't mind, 
to the issue of required consultations--the backlog of those 
requests and need-to-do items on consultation, the budget, the 
relationship between even the discussion today and other 
discussions and the budget, and the consultation that the 
agencies must do and the budget requests and that relationship 
in order to be able to expedite, get them done?
    Mr. Rauch. I cannot speak to the specifics of Fish and 
Wildlife Service's, but for the National Marine Fisheries 
Service, as I indicated, we have in the last few years done 
7,000 consultations, of which we only found jeopardy or adverse 
modification on 41 of them. The rest of them we were able to 
work with the applicants in the time allowed to put in 
reasonable restrictions, small changes, or no changes in order 
to make sure that the species could benefit.
    Mr. Grijalva. Relative to the budget, in order to be able 
to do that?
    Mr. Rauch. Right. In order to do that, the pace has been 
picking up, over a 131 percent increase. We could not do that, 
so we asked for--the President asked for--$13 million for the 
Fisheries Service to continue to do that to keep up the pace.
    Mr. Grijalva. And predictably, if you do not get that?
    Mr. Rauch. If we do not get that, we will not be able to 
work through that. Projects will be slowed down. Many of them 
are in the Southeast, but they happen across the country. Our 
ability to both protect species and to allow this coastal 
development to continue will be imperiled.
    Mr. Bean. The same is very much true for the Fish and 
Wildlife Service.
    Mr. Grijalva. Thank you. Mr. Bean, yesterday--this is a 
request off the subject--multiple media outlets reported that 
Cecil, an African legendary lion among tourists and locals in 
Zimbabwe, was lured out of the national park and killed by an 
American trophy hunter, who paid 50 grand for the privilege.
    I am very concerned about this as it relates to others 
around the world as the United States tries to take a 
leadership role in fighting this global wildlife poaching and 
trafficking crisis. I understand the details are still 
emerging, but let me ask you some questions that you can get 
back to the committee as opposed to answering them now.
    Question one: Did the hunter import any part of the poached 
lion into the United States? Question two: The hunter is a 
convicted wildlife poacher in the United States. Does the Fish 
and Wildlife Service prohibit or restrict the importation of 
wildlife by people with such convictions?
    Last October, Fish and Wildlife Service proposed listing 
the African lion as threatened under the Endangered Species 
Act. Incidents like this one show clearly that ESA protection 
is needed. What is the status of that final listing? Also, I 
ask my colleagues to consider H.R. 2697 as a partial remedy to 
what just occurred.
    With that, I yield back.
    The Chairman. Thank you.
    Mr. Thompson.
    Mr. Thompson. Thank you, Chairman. Gentlemen, thank you for 
being here. A series of questions here, pretty straightforward, 
just some clarifications.
    What types of agency actions require consultation under 
section 7 regulations?
    Mr. Bean. Many different types of agency actions require 
consultation. Typically, they are place-specific projects, like 
building a highway, a dam, or something of that sort. But they 
also can cover issuance of regulations or adoption of land use 
plans. It is quite encompassing.
    Mr. Thompson. When a Federal agency has broad statutory 
authority to act, is the promulgation of a rule considered a 
discretionary agency action?
    Mr. Bean. Yes. The regulations that I referenced in my 
statement, the 1986 Joint Implementation Regulations, clearly 
specify that issuance of regulations is a Federal action.
    Mr. Thompson. How impactful does the effect have to be to 
trigger consultation? Is it a broad effect on the population, 
or a single effect on one member of an ESA-protected species?
    Mr. Bean. It does not have to broadly affect the species as 
a whole, but it does have to be a reasonably certain to occur 
effect, if it is an indirect effect. That is a key requirement 
of our regulations--that an agency must, in making its ``may 
affect'' determination, take into account direct effects, which 
are those things that happen immediately and naturally as a 
result of an action, as well as indirect effects, provided the 
indirect effects are reasonably certain to occur.
    Mr. Thompson. As you know, under the ESA, ``take'' means to 
harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, 
collect, or attempt to engage in any such conduct. For section 
7 purpose, is an effect above or below the threshold of a 
``take'' ?
    Mr. Bean. The Fish and Wildlife Service view on that is 
that if a take occurs, it would be an effect that would have to 
be taken into account. I would note, however, that the Supreme 
Court, some years ago in a case known as the Sweet Home Case, 
held that the requirement that--excuse me, the prohibition 
against ``take''--was based upon ordinary principles of 
proximate causation. So, the take has to be proximately caused 
by the action in order for it to be a cognizable take.
    Mr. Thompson. Can adverse effects occur even if a take is 
unlikely?
    Mr. Bean. There are certainly ways to adversely affect a 
species without taking it, so I guess the answer to your 
question is yes.
    Mr. Thompson. When does an agency need to ask the 
appropriate Services for a concurrence letter?
    Mr. Bean. If the agency in step one of the process has 
determined that its action may affect a listed species, that 
then triggers step two, which is the informal consultation 
process. If the action agency in that second step concludes 
that its action is not likely to adversely affect the species, 
consultation ends, provided that the Service issues a written 
letter of concurrence. Without that written letter of 
concurrence, however, the agency's duty is to enter into the 
third and final step, the formal consultation phase.
    Mr. Thompson. You touched on this briefly, I think, but 
what kinds of effects trigger consultation? Any effect or only 
certain effects?
    Mr. Bean. Direct effects, and indirect effects that are 
reasonably certain to occur.
    Mr. Thompson. I want to change gears with what little time 
I have left and just zero right in on one endangered species 
that is impactful in 38 states, including my Keystone State, 
the northern long-eared bat. I do think your agency needs 
resources to deal with this species. It was listed as 
threatened, but you need the right resources. I would argue 
that elevating that at any time to endangered would be the 
wrong resources.
    I think Congress has provided--and I appreciate the 
distribution about 2 or 3 weeks ago of about a million dollars' 
worth of grants. My question is, though, that was distributed 
in chunks of about maybe $35,000. So what was the rationale? 
What is the level of effectiveness when we disburse it in such 
small pieces across so many different places?
    Mr. Bean. I don't know the details of those particular 
grants; but I would say that we are constrained, the Fish and 
Wildlife Service is constrained, by a budget that does not 
allow it to make grants that are commensurate with the 
challenge we face, in that case white-nose syndrome.
    Mr. Thompson. Thank you.
    The Chairman. Mr. Labrador.
    Mr. Labrador. Thank you, Mr. Chairman.
    Mr. Bean, in the proposed rule for existing plants, EPA 
states, ``There are substantial questions as to whether any 
potential for relevant effects results from any element of the 
proposed rule, or would result instead from the separate 
actions of states establishing standards of performance for 
existing sources and implementing and enforcing those 
standards.'' What are the substantial questions EPA is 
referring to in the preamble?
    Mr. Bean. I cannot speak for EPA or explain beyond the 
words of their statement that you read.
    Mr. Labrador. Have you spoken to the EPA about this?
    Mr. Bean. I have not.
    Mr. Labrador. Why have you not spoken to the EPA about 
this? If there are substantial questions, shouldn't we know 
what those substantial questions are?
    Mr. Bean. My interpretation, if you will, of those 
remarks----
    Mr. Labrador. Please.
    Mr. Bean [continuing]. Is that their proposed plan, in and 
of itself, does not have any particular effects upon particular 
facilities in particular places; that their proposed plan sets 
in place a process whereby states develop implementation plans. 
Pursuant to those state plans, particular facilities may or may 
not change their operations. Those, I think, are the 
intervening steps that in EPA's mind, apparently, led it to the 
conclusion that there were not reasonably certain to occur 
impacts.
    Mr. Labrador. Does it concern you that EPA has concluded 
that there are no effects, but has made that determination 
while acknowledging their substantial questions about whether 
the effects are a result of the Federal action?
    Mr. Bean. I understand their identification of substantial 
questions to be part and parcel of their apparent determination 
that there are not reasonably certain to occur impacts upon 
endangered species.
    Mr. Labrador. So, it does not concern you in any way that 
they would write this statement in the preamble in this way?
    Mr. Bean. I think the statement in the preamble is a more 
detailed explanation of a ``no effect'' determination than the 
Fish and Wildlife Service typically sees, because it typically 
does not see any at all from action agencies.
    Mr. Labrador. EPA's own modeling shows Big Bend generating 
units will close. EIA analysis predicts that coal-fired power 
plant closures will double, and Tampa Electric asserts in its 
comments on the Clean Power Plan that Big Bend will have to 
shut down.
    Big Bend is a primary warm water refuge for manatees, and 
has a manatee protection permit appended to its NPDS permit; 
and according to EPA's modeling and the plant operator, will 
shut down as a result of this rule. Does this not adequately 
demonstrate that EPA's rule is reasonably certain to adversely 
affect that listed species?
    Mr. Bean. I don't know whether those projections are 
accurate, whether they are shared by EPA, or whether they are 
disputed; so I really cannot intelligently inform that 
discussion.
    Mr. Labrador. You are doubting that those are accurate. If 
they happen, do you agree that then you will be putting a 
listed species in danger?
    Mr. Bean. If what happens, sir?
    Mr. Labrador. If these things actually occur, as they have 
been reported. Do you not think that it will actually make the 
manatee, which is a listed species, be adversely impacted by 
this?
    Mr. Bean. There is the potential for an adverse effect from 
a closure of a facility, any facility, that provides warm water 
refugia during the winter. If that occurs during a cold snap, 
that is a particularly dangerous time. If it occurs in the 
summer, there may be an opportunity for manatees to find other 
places to seek warm water refugia in the winter. So, it is 
somewhat conjectural.
    Mr. Labrador. You are saying the EPA does not even agree 
with its own modeling? Because it is their own modeling that 
shows that Big Bend generating units will close.
    Mr. Bean. Unfortunately, I don't have any information about 
their modeling. I am sorry, sir.
    Mr. Labrador. Well, you should look it up.
    If the likely effects of a discretionary Federal action on 
listed species are positive, how would you best describe those 
effects for section 7 purposes--beneficial, insignificant, 
discountable, or no effect?
    Mr. Bean. If there are reasonably certain to occur 
beneficial effects, those would justify a ``may affect'' 
situation.
    Mr. Labrador. What about effects that are remote or very 
small? How would you best categorize those--beneficial, 
insignificant, discountable, or no effect?
    Mr. Bean. If the effects are remote and very small, they 
would, in all likelihood, not justify a ``may affect'' 
determination.
    Mr. Labrador. If there is only a very slight effect, is 
that still an effect?
    Mr. Bean. The magnitude of the effect is one question. The 
other question is the certainty of its happening. Our 
regulations are quite clear that, at least for indirect 
effects, those need to be taken into account if they are 
reasonably certain to occur.
    Mr. Labrador. Thank you. I yield back.
    The Chairman. Mr. LaMalfa.
    Mr. LaMalfa. Thank you, Mr. Chairman. I apologize I was not 
here at the beginning of the hearing today. So Mr.--how do you 
pronounce it, Rauch?
    Mr. Rauch. Rauch.
    Mr. LaMalfa. Rauch. I am sorry about that. Thank you, Mr. 
Rauch.
    Following up on a previous hearing here, my colleague, Mr. 
Denham--I am acting as him today--asked a question of Deputy 
Regional Administrator Barry Thom about predator prevention 
programs. The subject at that time had been the Columbia River 
basin, but as well, predator problems we have in California; 
and he was not aware of any.
    What we are talking about basically is the Delta, where we 
have invasive striped bass that your own agency stats have 
shown consume approximately 98 percent of endangered winter run 
salmon. Ninety-eight percent of that run is gone by the time it 
works its way down the Sacramento and gets through the Delta.
    What I am wondering is, do you have any information on what 
NOAA is doing to reduce the number of these predators of the 
invasive striped bass, so that that endangered run would be 
able to continue, and we would be more effective in the whole 
matrix of what we are doing to prevent that loss?
    Mr. Rauch. As you indicated, we are very concerned about 
predation on the listed populations in the Sacramento Central 
Valley. Predation is a natural occurrence, but given that the 
system is so altered and our fish are so stressed, the impacts 
of predation can be quite severe.
    Depending on the agency we work with, we do try to impose 
or try to work with them to lessen the impacts of predation. We 
have worked with----
    Mr. LaMalfa. We are letting an incredible amount of water 
run out through the Delta to address a smaller percentage of 
the population, whereas predation obviously is a giant 
percentage of what we are losing here. Wouldn't we get the most 
bang for the buck by getting after the predators, these striped 
bass, that are indeed gobbling up so much of this endangered 
fish, rather than letting so much valuable water out in a 
drought situation that only helps a tiny percentage of that, 
that is not subject to that depredation?
    Mr. Rauch. I am not familiar with the statistics that you 
provided that 95 percent of the fish were lost due to 
predation. I know that last year, for the winter run, we lost 
95 percent of the run above Red Bluff Diversion Dam, because of 
the extremely hot temperature and because there was not enough 
cold water flushing down there. It may well be that----
    Mr. LaMalfa. What percentage are you attributing to the hot 
water?
    Mr. Rauch. Ninety-five percent, I think. I don't know what 
we attributed. We lost----
    Mr. LaMalfa. We have numbers that show that 90-plus percent 
is due to predators and not----
    Mr. Rauch. I don't want to debate that. That was the number 
I had. Clearly, predation----
    Mr. LaMalfa. Well, evidently you do not have a plan for 
predators, really, to speak of, then, bottom line?
    Mr. Rauch. We do not have a comprehensive plan. Different 
agencies have different roles in predation. We are working----
    Mr. LaMalfa. I am sorry. I have limited time here, sir. The 
bottom line is you do not really have a broad plan?
    Mr. Rauch. We work with different agencies using their 
authorities to address predation under whatever authority----
    Mr. LaMalfa. So which one do we need to talk to? What other 
agency?
    Mr. Rauch. We work with the Bureau of Reclamation in 
designing their projects, so as to minimize the water flows for 
predation. We are working with land management agencies to try 
to better improve the habitat so that our fish have more hiding 
places to hide.
    Mr. LaMalfa. All right. Very good. Thank you, sir. I am 
sorry on the time here.
    Mr. Bean, I want to come back over to you. We have been 
having a problem with the regulatory load from this 
Administration--not a lot of consultation with Congress here. 
For example, new regulations on a listing of yellow-legged frog 
in the Sierra Nevada has caused some very detrimental economic 
effects.
    For example, an event called the Lost Sierra Endurance Run, 
which is a 32-mile charity foot race through private land and 
through National Forest--it has been a very important economic 
engine, they have faced a consultation fee that was too great, 
and they have actually canceled the event.
    Now, this is on the heels of a couple of field hearings we 
had on yellow-legged frog possible listings, where the agencies 
involved said, well, there is really not going to be an 
economic effect on the area other than on government agencies, 
what it will cost them to do it.
    So, we see that has been canceled. Big economic effect, and 
they have not come up with any effect on the local economy. Has 
the Administration ever exempted any entity like the Lost 
Sierra Endurance Run from ESA consultation requirements?
    Mr. Bean. I am not familiar with that particular run. I 
would note----
    Mr. LaMalfa. In general. Have you ever exempted entities 
from such a thing?
    Mr. Bean. I am not aware of exemptions. We do have a 
programmatic consultation with, I think, nine National Forests 
that cover some thousand or more activities that has expedited 
the consultation process for all of those activities.
    Mr. LaMalfa. At a high cost?
    Mr. Bean. I don't know the cost, sir.
    Mr. LaMalfa. Thank you.
    The Chairman. Mr. Zinke.
    Mr. Zinke. Thank you, Mr. Chairman.
    Just to shift gears a little on the process--looking at the 
Ivanpah Solar Electric Generation System, and that is the one 
on 15 near the California border; looking at a timeline, on 
December 7, 2009, the BLM requested a consultation. That 
initial consultation was completed on April 26, 2010. That is 4 
months.
    Then subsequently, they went on. There was some cause. It 
went to the second one, which was completed, the whole thing, 
on June 10, 2011. That is less than a year, in looking at it.
    Now, it is interesting that it allowed 1,100 takes of 
tortoises. When I looked at this, in my experience as a SEAL 
commander in Niland, Twentynine Palms, and everywhere else that 
the military trains, 1,100 seems excessive. I remember seeing 
one or two and stopping training, stopping special operations 
training, stopping SEAL training in the height of what we now 
engage in. So 1,100. Do you think the 1,100 was a little 
excessive in this review of takes for desert tortoises?
    Mr. Bean. I believe what the Fish and Wildlife Service 
required in that instance was the relocation of tortoises from 
the project site to places outside the site where they would be 
expected to survive. I think it is important to emphasize that, 
as I understand it, this was not 1,100 tortoises being killed, 
but rather moved.
    Mr. Zinke. Was the same program offered to the U.S. Navy 
and the U.S. Marine Corps to relocate tortoises? Because I was 
involved in at least two EISs and maybe a dozen EAs, and it was 
never brought to our attention that we could relocate tortoises 
within the Niland training area or Twentynine Palms.
    Mr. Bean. I don't know about your particular situation. I 
would say that the relocation of tortoises has been widely used 
by the Fish and Wildlife Service for a variety of projects.
    Mr. Zinke. The point I am getting at, it was a very short 
period, 1,100 tortoises. Then you turn to other things, such as 
the mine in northwest Montana--that project took 3 years of 
consultation, and they still do not have a permit.
    The consultation in which the mining company provided about 
$100,000 of funding to your agency to do the review--the review 
came back, in this case it was the grizzly bear habitat and the 
bull trout, no effect. Yet it takes over 3 years, and again, a 
case where they have a small footprint, no effect, and it takes 
a year for 1,100 tortoises.
    Why is there such a difference in timing?
    Mr. Bean. I don't know the facts of these particular cases 
you have posed. I would say, as a general matter, the 
differences stem from the complexity of the action under 
consideration and the resources available to address it.
    Mr. Zinke. In my experience, and I have seen the mine up in 
northwest Montana--that mine started, the project started, when 
I was in high school; and I did not graduate 2 years ago. That 
is how long it has taken this company that has invested to do 
it, and it seems like every roadblock is put in their way. 
Also, the mine footprint is nowhere near Ivanpah, and I think 
we have all seen Ivanpah; nor does it have streamers from 
Ivanpah.
    I find that it seems like we are picking and choosing 
projects that we like going the fast track, and the projects 
that we do not like seem to be stopped. Do you see that as part 
of--are we playing favorites?
    Mr. Bean. In my experience, no, sir. In my experience, what 
the Service tries to do is to be responsive to agency needs 
insofar as its resources allow it that flexibility. Often it 
simply lacks the resources to process some of these 
particularly challenging consultations in a rapid fashion.
    I think about 80 percent of the informal consultations are 
completed within 30 days or less, but some of them last much 
longer. The example of Guam is a good example in which it was 
necessary, because of resource limitations, to stagger 
consultations over a period of time to address what were most 
important to the Defense Department first.
    Mr. Zinke. All right. Thank you. And thank you gentlemen 
for being here.
    Mr. Chairman, I yield back.
    The Chairman. Thank you.
    Mrs. Radewagen.
    Mrs. Radewagen. Thank you, Mr. Chairman. I want to thank 
both of you gentlemen for your testimony.
    Mr. Bean, yesterday EPA made its first and belated delivery 
of documents in response to a request from Chairman Bishop and 
Chairman Inhofe relating to the Clean Power Plant and ESA 
consultation. Were you, or any officials in your respective 
agency, made aware of the documents EPA provided to the 
committee?
    Mr. Bean. No, I was not.
    Mrs. Radewagen. Mr. Rauch?
    Mr. Rauch. I think I received them at the same time the 
committee did.
    Mrs. Radewagen. Thank you. I yield back the balance of my 
time, Mr. Chairman.
    The Chairman. Thank you. I have a few questions for you as 
well, and I appreciate you two being here. I realize it would 
probably be easier if EPA had decided to show up and defend 
themselves at the same time, and we are getting at information 
in an inverse way. Also, you are facing a difficult time trying 
to walk a fine line here, but I do appreciate your commitment 
to stay here and talk to us at the same time.
    We have gone somewhat far afield in the time of this 
hearing. The issue, at least for today, is not whether the 
Endangered Species Act is an effective law or not. The question 
is whether the law is actually being followed, and if agencies 
are ignoring the law to reach their conclusions.
    If it is appropriate for that, then the law should be 
changed. If not, then the agency should be held accountable. 
The question is, if they are ignoring requirements of the law 
in one area, are they requiring it in other areas?
    I have some specific questions dealing with that, but let 
me go far afield as well, because questions have been given to 
you and you have both commented on the threat of climate change 
to endangered species. The question is very simple. Will EPA's 
rules be beneficial for endangered species or critical habitat?
    Mr. Bean. Mr. Chairman, I presume so, but I have no 
particular knowledge on which to base a definitive answer.
    The Chairman. Mr. Rauch, can you give me a definitive 
answer?
    Mr. Rauch. I would agree with Mr. Bean on that.
    The Chairman. That you do not know?
    Mr. Rauch. I do not know. I assume that that is one of the 
goals of that, and anything that benefits climate change will 
benefit some of our listed species.
    The Chairman. We have had assumption of goals before in a 
lot of areas, and it does not necessarily have the same effect. 
It seems to me that one of the issues we have today is that the 
hatred of coal seems to overwhelm our love of endangered 
species.
    When we are talking about whether a consultation needs to 
take place, obviously the courts have had some specific 
guidance on those things as well, and that you are right. 
Whether you determine both the informal or formal, it does not 
have to just be an adverse effect, beneficial, benign, or 
actually any undetermined character.
    The one court did say the presence of a listed species was 
enough to affect a required consultation. I don't know if 
personally I would go that far, but to be honest with you, it 
does not really matter whether I personally believe that--that 
is what the courts have held, and that should be a standard 
which should be looked at.
    Let me try and walk through this again. I am going to do 
this as specifically as I can. Under the Clean Water Act, plant 
operators must have a permit to discharge their cooling water. 
The permit is called a National Pollution and Discharge 
Elimination System Permit, and as a condition of this permit 
for the Big Bend and Crystal River power plants, those power 
plants must abide by the Manatee Protection Plan attached to 
their permits.
    Among other things, these plans include provisions 
requiring the plant to notify Fish and Wildlife Service if any 
generating units are going to be retired. They also require the 
operator to immediately report any unplanned interruptions 
where there is no thermal discharge for 24 hours or longer to 
the Florida Fish and Wildlife Conservation Commission. I assume 
that is correct. Right? I actually do not need an answer. Yes, 
it is correct.
    So, if EPA has conducted their modelings to the effect that 
the 111(d) rule, the proposed rule for these existing power 
plants, according to the EPA models, as Mr. Labrador said--all 
their runs indicate that these will be shut down. Tampa 
Electric Company, which owns them, has also done their modeling 
service for the Public Service Commission, which requires it, 
and said the essentials really require them to be shut down.
    Once again, if EPA's own modeling shows they will be shut 
down and Big Bend's owners are correct that it would be shut 
down, is the EPA rule not affecting the manatee?
    Mr. Bean. Mr. Chairman, I would say the following. What 
EPA's modeling shows, I do not know. I would say, however, that 
EPA's decision on whether its action may affect a listed 
species will be based on its own assessment rather than 
somebody else's assessment of the impact.
    The Chairman. You are coming close to an answer. But if 
EPA's modeling shows it will shut down, and if the company says 
the modeling shows it will shut down, does that not affect the 
manatee?
    Mr. Bean. On the face of it, one would presume so, yes.
    The Chairman. So, even though EPA's own modeling shows it 
would shut down, and the electric company says it would shut 
down, who would be held accountable for affecting the manatee 
if not the EPA?
    Mr. Bean. Held accountable, sir?
    The Chairman. Yes. If not the EPA, who actually has 
accountability for that?
    Mr. Bean. Well, with respect to the section 7 consultation 
process, it is EPA's obligation to make the ``may affect'' 
determination. If the facts are as you describe--and I do not 
know whether they are or are not--but if they are as you 
describe, it is the EPA's----
    The Chairman. You can trust me. I am always honest here.
    Mr. Bean [continuing]. Responsibility to make that 
determination.
    The Chairman. Then the EPA would be held accountable?
    Mr. Bean. They would be responsible. There is no mechanism, 
sir, for the Fish and Wildlife Service to enforce section 7 
compliance obligations.
    The Chairman. Close enough, then. Let's go back to the 
question that was asked of you by Mrs. Lummis, Mr. Gohmert, and 
Mr. Beyer again: Should EPA have insisted on a section 7 
consultation? Is that not required by the law?
    Mr. Bean. It is required by the law if, sir----
    The Chairman. Now, not if----
    Mr. Bean. Yes, if----
    The Chairman. What the court said. If there is any kind of 
impact--in fact, the one court said even if it was a listed 
species, that should require it.
    Mr. Bean. Our regulations are quite clear that they must be 
reasonably certain to occur effects.
    The Chairman. Let me ask if Mr. Thompson has any other 
questions, because I am coming back to you on that one.
    Mr. Thompson. Thank you, Chairman. Yes. I would like to 
follow up. Actually, with the gentleman, I want to zero in on 
the reasonably certain standards. The consultation handbook 
explains that indirect effects are caused by or result from 
proposed action or later in time, and are reasonably certain to 
occur.
    Some examples from the handbook of indirect effects are 
that predators may follow off-the-road vehicle tracks into 
piping plover nesting habitat or destroy nests, and also the 
people moving into a housing unit bring cats that prey on the 
mice left in the adjacent habitat.
    If it is reasonably certain that predators will follow off-
the-road vehicle tracks, and new occupants will bring cats that 
prey on nearby mice, is it reasonably certain that the power 
plants in question will close as EPA models predict and as the 
owner/operator of Big Bend argues?
    Mr. Bean. My answer, sir, is I have no idea whether that is 
reasonably certain or not. I am not familiar enough with the 
details of the EPA rule or the expectation as to how the state 
of Florida will respond to that rule in developing an 
implementation plan.
    Mr. Thompson. If a Federal rule directs states to decrease 
carbon dioxide emissions from power plants, is it reasonably 
certain that some power plants will generate less power or shut 
down altogether and, consequently, will discharge less cooling 
water, thereby negatively impacting the existing species that 
has been talked about so much today?
    Mr. Bean. Again, sir, that is really outside my area of 
expertise. I do not know whether that is reasonably certain or 
not.
    Mr. Thompson. What about the negative impact in terms of 
the lack of discharge, of the less cooling water being 
discharged?
    Mr. Bean. I think it is quite clear for the Fish and 
Wildlife Service that the availability of warm water refugia is 
an important conservation consideration for manatees. Whether 
this proposed rule of EPA will have the effect of reducing that 
availability, I do not know.
    Mr. Thompson. Is it reasonably certain that the power 
plants that EPA modeling shows will shut down will actually 
shut down? Are they wrong? Do you question the EPA's expertise 
on this matter?
    Mr. Bean. I have neither reviewed their models nor would I 
have the competence to evaluate their models so I really could 
not say, sir.
    Mr. Thompson. Mr. Chairman, I appreciate the opportunity to 
pursue these questions. Obviously, the EPA's actions that are 
taken based on what I have heard will have an impact 
specifically on the manatee. But I would say, beyond that, any 
time we shut down the source of affordable and reliable 
electricity, one of the largest species to be impacted is 
probably the human species. With that, I yield back.
    The Chairman. All right. Let me tie a couple of loose ends 
together, if I might here. I appreciate once again what you 
have gone through. The question, once again, is: Are agencies 
ignoring the law? And the answer, we have said, is yes, they 
are. There should have been those consultations. Either the law 
needs to be changed, or agencies need to in some way, shape, or 
form be held accountable.
    Mr. Bean, I would also like to change or at least clear up 
one of the comments you made to Mr. Zinke, who is no longer 
here, about the 1,100 desert tortoise takings. You were 
inaccurate in your response to him. What it clearly said was 
not that it was removing them to another spot. The ruling was 
that actually between 405 and 1,136 tortoises and their eggs 
would be directly affected by it, not taken and moved somewhere 
else, but would be directly affected by it.
    Let me go through a couple of other things here. In TVA v. 
Hill, the Supreme Court said--well, let me not do that one 
first.
    Mr. Rauch, you said that EPA--who once again should be 
here--you saw their written testimony that was sent to us late 
last night.
    Mr. Rauch. I have seen their written testimony, sir, at 
some point before this hearing.
    The Chairman. Did you get it last night?
    Mr. Rauch. I think so.
    The Chairman. So they sent it directly to you?
    Mr. Rauch. I don't know how I get these things.
    The Chairman. Well, we did not send it to you, so I am 
assuming they----
    Mr. Rauch. No. I assume it came from them somewhere. Yes, 
sir.
    The Chairman. Don't you find it interesting that they will 
share their testimony with you right away, but they will not 
ask for a section 7 consultation on something that it directly 
affects? That is rhetorical. You know it. You do not have to 
answer that question.
    I also would remind the Fish and Wildlife Service that 
there are some issues that were dealing with endangered species 
in which you are actually the action agency and should be 
initiating section 7 consultations at the same time, even 
though EPA should have been initiating section 7 consultations 
on this particular issue.
    But in TVA v. Hill, the Supreme Court said that the ESA 
reflected--and I am quoting here--``the decision to give 
endangered species priority over the primary missions of 
Federal agencies.'' Was the Supreme Court right?
    Mr. Bean. One does not question the Supreme Court, sir.
    The Chairman. Yes, you can. You should never confuse 
Supreme Court decisions with the Constitution. Let me ask you 
the question again. Was that statement correct?
    Mr. Bean. That statement, as I understand it, was part of 
the process by which the court in that case concluded that TVA 
had an obligation to refrain from completing the completion of 
Tellico Dam.
    The Chairman. Do I take that as a yes, it was correct?
    Mr. Bean. As I said a moment ago----
    The Chairman. Or no, you disagree with it?
    Mr. Bean. I do not disagree with the Supreme Court ever. It 
is pointless to do so.
    The Chairman. So yes, it was correct?
    Mr. Bean. In our system, the Supreme Court has the ultimate 
say on these matters, as you know.
    The Chairman. I am still waiting for your opinion. Let me 
go on and give you an easier one, then. Under the ESA, do 
listed species take first priority over the missions of Federal 
agencies?
    Mr. Bean. Under the ESA, Federal agencies have an 
obligation to ensure that their actions do not jeopardize the 
existence of listed species or adversely modify critical 
habitat. So to that degree, yes.
    The Chairman. So they do. So do listed species take 
priority over EPA's Power Plant Rule?
    Mr. Bean. The same answer, I would say, that----
    The Chairman. Yes?
    Mr. Bean [continuing]. What the law requires is that 
agencies ensure that their actions not jeopardize the existence 
of listed species.
    The Chairman. Thank you. Which meant there should have been 
a consultation, a section 7 consultation. It is very clear and 
it is very obvious. I appreciate your efforts of being here.
    Once again, I thank you for having the courage to come and 
talk to us and give us the input from the receiving end of what 
should have taken place. I wish the other agencies, instead of 
giving us unsolicited and unsigned testimony late last night, 
would have actually shown up here to answer the specific 
questions on why or what took place and why it did not.
    At the same time, the question is not if ESA is ineffective 
or not. If the provisions of the Endangered Species Act are not 
being followed by the agencies, then we either change the law 
or we insist that the agencies do follow the law. They do not 
have the option of simply picking and choosing what is there 
and what is not there.
    Can I just give one last comment here? The concept of 
extinction and lack of extinction, showing the success of an 
Act, is not really a good standard. As another Beane in 
Moneyball once said, ``If you play the game and commit no 
errors, that is not a great deal. It could mean that you are 
simply too bad of a player to actually touch the ball.''
    We have a lot of work to do on the Endangered Species Act 
to make sure that it is doing what it was supposed to do--
actually preserving and rehabilitating species, not just 
listing them and managing them. We also have to make sure that 
if the law is there, the law needs to be followed.
    I appreciate your appearance here today. Thank you for 
spending your time with us. If there is no other business--I do 
want to mention that there may be other questions as time 
develops, and we would ask you to respond to those in writing. 
Under Committee Rule 4(h), the hearing record is held open for 
10 business days.
    Therefore, if there is nothing else--Mr. Thompson, anything 
else? We thank you for being here. The hearing is adjourned.

    [Whereupon, at 12:03 p.m., the committee was adjourned.]

            [ADDITIONAL MATERIALS SUBMITTED FOR THE RECORD]

     Prepared Statement of the U.S. Environmental Protection Agency
    This statement describes the Environmental Protection Agency's role 
in addressing section 7(a)(2) of the Endangered Species Act (ESA) 
consultations, specifically as it relates to EPA's proposed greenhouse 
gas regulations for new and existing fossil fuel-fired power plants.
    EPA is very aware of the requirements of section 7(a)(2) of ESA and 
is carefully considering those requirements as they relate to the EPA's 
proposed greenhouse gas regulations for new and existing power plants. 
I can assure you that any rule EPA finalizes regulating greenhouse gas 
emissions from new or existing fossil fuel-fired power plants will be 
based on sound science, will be legally sound, will comply with the 
ESA, and will also address any comments we receive on the ESA during 
the comment period on EPA's proposed rules.
    EPA recognizes that ESA section 7(a)(2) requires Federal agencies, 
in consultation with the U.S. Fish and Wildlife Service and/or the 
National Marine Fisheries Service (together, the Services), to ensure 
that actions they authorize, fund, or carry out are not likely to 
jeopardize the continued existence of federally listed endangered or 
threatened species or result in the destruction or adverse modification 
of designated critical habitat of such species. Importantly, under the 
Services' implementing regulations, section 7(a)(2) applies only to 
actions where there is discretionary Federal involvement or control, 
and consultation is required only for actions that may affect listed 
species or designated critical habitat. Consultation is not required 
where the action has no effect on such species or habitat. It is the 
Federal agency taking the action that evaluates and determines whether 
consultation is required.
    EPA appreciates that section 7(a)(2) addresses a broad range of 
potential direct and indirect effects on listed species and critical 
habitat. However, not all Federal actions will meet the ESA's ``may 
affect'' threshold. In the Clean Power Plan proposal, the EPA noted 
that we did not believe there would be effects on listed species that 
would trigger the section 7(a)(2) consultation requirement. 79 Fed. 
Reg. 34830. 34,933-34 (June 18, 2014). At this point, the EPA has not 
finalized this determination or taken any final action in connection 
with this proposal or with the proposed rule for new power plants. The 
EPA would finalize its consideration of ESA requirements in connection 
with the issuance of any final rules and in that context would address 
any comments raising ESA issues in response to comments.
    With regard to the ESA and the Clean Power Plan, EPA considered in 
the preamble to the proposed rule a variety of categories of potential 
effects. For example, as described in the proposed Clean Power Plan 
preamble and my response to your request letter, in the context of a 
separate rule involving GHG emission standards for light duty vehicles, 
EPA examined the GHG emission reductions achieved by that rule and 
concluded that available modeling tools cannot link the calculated 
small, time-attenuated changes in global metrics to effects on specific 
listed species in their particular habitats (Docket EPA-OAR-HQ-2009-
4782). As EPA noted in the proposed Clean Power Plan, the agency 
believes the same reasoning would apply to the GHG emission reductions 
that would be achieved if the proposed regulations for fossil fuel-
fired power plants are finalized. EPA thus proposed to conclude that 
any potential for effects related to GHG emission reductions would be 
too remote to call for section 7 consultation.
    As explained in the preamble for the proposed Clean Power Plan, EPA 
also considered reductions in non-GHG air emissions that would be 
achieved by the rule, if promulgated. However, because EPA lacks 
relevant discretion under section 111 of the Clean Air Act to adjust 
the standard based on potential impacts of such pollutants on listed 
species, EPA proposed to conclude that section 7 consultation would not 
be required with regard to such emissions, consistent with longstanding 
ESA regulations promulgated by the Services.
    As EPA further stated in the preamble to the proposed Clean Power 
Plan, the agency also considered other potential outcomes (beyond 
reductions in air pollutants) and whether any such matters would fall 
within the ESA regulatory definition of the effects of an action. As 
EPA explained, there are substantial questions as to whether any 
potential for relevant effects results from any element of the rule or 
would result instead from separate decisions and actions made in 
connection with the development, implementation, and enforcement of 
plans to implement the standards established in the rule. EPA 
recognized, for instance, that questions may exist whether decisions 
such as increased use of solar or wind power could have effects on 
listed species. Subsequent to publication of the proposal, EPA also 
received questions from Chairman Bishop regarding whether the rule may 
have potential effects on certain facilities located in the state of 
Florida whose discharge effluent may provide a warm water refuge for 
manatees.
    As EPA explained in the preamble to the proposed Clean Power Plan, 
the precise steps taken to implement any final rule are at this point 
uncertain and cannot be determined or ordered by the rule. EPA cannot 
predict with reasonable certainty where specific implementation 
measures would take effect or which measures would be adopted. It is 
thus uncertain whether particular types of facilities (such as new wind 
or solar facilities) might be built, where those facilities might be 
located, or how a future implementation plan for a particular state, 
such as Florida, might affect, if at all, the operations of a specific 
existing facility. Although EPA would only finalize its consideration 
of ESA issues in the context of a final rulemaking, EPA notes that 
section 7(a)(2) of the ESA does not provide for such speculation. 
Rather, effects must be caused by EPA's action and reasonably certain 
to occur to qualify for ESA purposes.
    In conclusion, I would note that climate change is one of the 
greatest challenges of our time. It already threatens human health and 
welfare and economic well-being. The science is clear. The risks are 
clear. And the high costs of climate inaction are clear. We must act. 
As the climate changes, species will need to either adapt to the new 
local climate or migrate to stay within their preferred climate zone. 
The National Research Council stated that some species will be at risk 
of extinction, particularly those whose migration potential is limited 
whether because they live on mountaintops or fragmented habitats with 
barriers to movement, or because climatic conditions are changing more 
rapidly than the species can move or adapt. Likewise, the 2014 National 
Climate Assessment found that currently prevalent species may disappear 
from certain areas due to rapidly changing habitats caused by climate 
change and other stressors.