[House Hearing, 115 Congress]
[From the U.S. Government Publishing Office]
H.R. 6344, ``LOCAL ACT OF 2018''; H.R. 6360, ``PREDICTS ACT OF 2018'';
H.R. 6346, ``WHOLE ACT OF 2018''; H.R. 6354, ``STORAGE ACT OF 2018'';
H.R. 6345, ``EMPOWERS ACT OF 2018''; H.R. 3608, ``ENDANGERED SPECIES
TRANSPARENCY AND REASONABLENESS ACT''; H.R. 6364, ``LAMP ACT OF
2018''; H.R. 6356, ``LIST ACT OF 2018''; AND H.R. 6355, ``PETITION ACT
OF 2018''
=======================================================================
LEGISLATIVE HEARING
BEOFRE THE
COMMITTEE ON NATURAL RESOURCES
U.S. HOUSE OF REPRESENTATIVES
ONE HUNDRED FIFTEENTH CONGRESS
SECOND SESSION
__________
Wednesday, September 26, 2018
__________
Serial No. 115-55
__________
Printed for the use of the Committee on Natural Resources
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
Available via the World Wide Web: http://www.govinfo.gov
or
Committee address: http://naturalresources.house.gov
__________
U.S. GOVERNMENT PUBLISHING OFFICE
31-631 PDF WASHINGTON : 2018
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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
Chairman Emeritus Madeleine Z. Bordallo, GU
Louie Gohmert, TX Jim Costa, CA
Vice Chairman Gregorio Kilili Camacho Sablan,
Doug Lamborn, CO CNMI
Robert J. Wittman, VA Niki Tsongas, MA
Tom McClintock, CA Jared Huffman, CA
Stevan Pearce, NM Vice Ranking Member
Glenn Thompson, PA Alan S. Lowenthal, CA
Paul A. Gosar, AZ Donald S. Beyer, Jr., VA
Raul R. Labrador, ID Ruben Gallego, AZ
Scott R. Tipton, CO Colleen Hanabusa, HI
Doug LaMalfa, CA Nanette Diaz Barragan, CA
Jeff Denham, CA Darren Soto, FL
Paul Cook, CA A. Donald McEachin, VA
Bruce Westerman, AR Anthony G. Brown, MD
Garret Graves, LA Wm. Lacy Clay, MO
Jody B. Hice, GA Jimmy Gomez, CA
Aumua Amata Coleman Radewagen, AS Nydia M. Velazquez, NY
Daniel Webster, FL
Jack Bergman, MI
Liz Cheney, WY
Mike Johnson, LA
Jenniffer Gonzalez-Colon, PR
Greg Gianforte, MT
John R. Curtis, UT
Cody Stewart, Chief of Staff
Lisa Pittman, Chief Counsel
David Watkins, Democratic Staff Director
----------
CONTENTS
----------
Page
Hearing held on Wednesday, September 26, 2018.................... 1
Statement of Members:
Biggs, Hon. Andy, a Representative in Congress from the State
of Arizona, prepared statement of.......................... 92
Bishop, Hon. Rob, a Representative in Congress from the State
of Utah.................................................... 5
Prepared statement of.................................... 7
Gosar, Hon. Paul A., a Representative in Congress from the
State of Arizona, prepared statement of.................... 60
Grijalva, Raul M., a Representative in Congress from the
State of Arizona........................................... 3
Prepared statement of.................................... 5
Huffman, Hon. Jared, a Representative in Congress from the
State of California........................................ 2
Johnson, Hon. Mike, a Representative in Congress from the
State of Louisiana, prepared statement of.................. 59
McClintock, Hon. Tom, a Representative in Congress from the
State of California........................................ 69
Norman, Hon. Ralph, a Representative in Congress from the
State of South Carolina.................................... 53
Tipton, Hon. Scott R., a Representative in Congress from the
State of Colorado.......................................... 8
Westerman, Hon. Bruce, a Representative in Congress from the
State of Arkansas.......................................... 84
Young, Hon. Don, a Representative in Congress from the State
of Alaska.................................................. 75
Statement of Witnesses:
Dreher, Robert, Senior Vice President, Conservation Programs
and General Counsel, Defenders of Wildlife, Washington, DC. 25
Prepared statement of.................................... 27
Questions submitted for the record....................... 36
Johansson, Jamie, President, California Farm Bureau
Federation, Sacramento, California......................... 16
Prepared statement of.................................... 18
Renkes, Gregg, Director, Office of Policy Analysis, U.S.
Department of the Interior, Washington, DC................. 9
Prepared statement of.................................... 11
Sauter, David, County Commissioner, Klickitat County, Lyle,
Washington................................................. 21
Prepared statement of.................................... 23
Wood, Jonathan, Attorney, Pacific Legal Foundation,
Washington, DC............................................. 38
Prepared statement of.................................... 40
Additional Materials Submitted for the Record:
Submissions for the record by Representative Bishop
List of organizations and letters of support endorsing
all nine bills......................................... 93
Morning Consult poll..................................... 96
Submissions for the record by Representative LaMalfa
Pit Resource Conservation District, Letter dated
September 14, 2018 to Secretary Ryan Zinke............. 97
Submissions for the record by Representative Grijalva
Alaska Wilderness League et al., Letter dated September
25, 2018 to Rep. Grijalva.............................. 98
Comments of Attorneys General of Massachusetts,
California, Maryland, New York, Oregon, Pennsylvania,
Rhode Island, Vermont, Washington, and the District of
Columbia............................................... 103
Goodall, Dr. Jane, Testimony submitted for the record.... 48
GreenLatinos, Letter dated September 26, 2018 to Rep.
Grijalva............................................... 101
Hawkins, Rev. Jimmie R., et al., Letter dated September
25, 2018 to Members of Congress........................ 102
Union of Concerned Scientists, Letter dated September 25,
2018 to Rep. Grijalva.................................. 71
LEGISLATIVE HEARING ON H.R. 6344, TO AMEND THE ENDANGERED
SPECIES ACT OF 1973 TO ENCOURAGE VOLUNTARY CONSERVATION
EFFORTS, ``LOCAL ACT OF 2018''; H.R. 6360, TO AMEND THE
ENDANGERED SPECIES ACT OF 1973 TO PROVIDE FOR GREATER CERTAINTY
AND IMPROVED PLANNING FOR INCIDENTAL TAKE PERMIT HOLDERS,
``PREDICTS ACT OF 2018''; H.R. 6346, TO AMEND THE ENDANGERED
SPECIES ACT OF 1973 TO PROVIDE FOR CONSIDERATION OF THE
TOTALITY OF CONSERVATION MEASURES IN DETERMINING THE IMPACT OF
PROPOSED FEDERAL AGENCY ACTION, ``WHOLE ACT OF 2018''; H.R.
6354, TO AMEND THE ENDANGERED SPECIES ACT OF 1973 TO PROHIBIT
DESIGNATION AS CRITICAL HABITAT OF CERTAIN AREAS IN ARTIFICIAL
WATER DIVERSION OR DELIVERY FACILITIES, ``STORAGE ACT OF
2018''; H.R. 6345, TO PROVIDE FOR GREATER COUNTY AND STATE
CONSULTATION WITH REGARD TO PETITIONS UNDER THE ENDANGERED
SPECIES ACT OF 1973, AND FOR OTHER PURPOSES, ``EMPOWERS ACT OF
2018''; H.R. 3608, TO AMEND THE ENDANGERED SPECIES ACT OF 1973
TO REQUIRE PUBLICATION ON THE INTERNET OF THE BASIS FOR
DETERMINATIONS THAT SPECIES ARE ENDANGERED SPECIES OR
THREATENED SPECIES, AND FOR OTHER PURPOSES, ``ENDANGERED
SPECIES TRANSPARENCY AND REASONABLENESS ACT''; H.R. 6364, TO
AMEND THE ENDANGERED SPECIES ACT OF 1973 TO INCREASE STATE AND
LOCAL INVOLVEMENT IN MANAGEMENT PLANS, ``LAMP ACT OF 2018'';
H.R. 6356, TO AMEND THE ENDANGERED SPECIES ACT OF 1973 TO
PROVIDE FOR IMPROVED PRECISION IN THE LISTING, DELISTING, AND
DOWNLISTING OF ENDANGERED SPECIES AND POTENTIALLY ENDANGERED
SPECIES, ``LIST ACT OF 2018''; AND H.R. 6355, TO AMEND THE
ENDANGERED SPECIES ACT OF 1973 TO DEFINE PETITION BACKLOGS AND
PROVIDE EXPEDITED MEANS FOR DISCHARGING PETITIONS DURING SUCH A
BACKLOG, ``PETITION ACT OF 2018''
----------
Wednesday, September 26, 2018
U.S. House of Representatives
Committee on Natural Resources
Washington, DC
----------
The Committee met, pursuant to notice, at 2:11 p.m., in
room 1324, Longworth House Office Building, Hon. Rob Bishop
[Chairman of the Committee] presiding.
Present: Representatives Bishop, Young, McClintock, Gosar,
Tipton, LaMalfa, Denham, Westerman, Radewagen, Bergman;
Grijalva, Costa, Sablan, Huffman, Beyer, and Gallego.
Also present: Representative Norman.
The Chairman. All right. I want to welcome you all here
today. This Committee hearing is going to come to order.
The Committee is meeting to hear testimony on nine bills
that modernize the Endangered Species Act.
Under Committee Rule 4(f), any opening oral statements at
this hearing are limited to the Chairman and the Ranking
Minority Member. This will allow us to hear from our witnesses
sooner and keep Members to their schedules. Therefore, I ask
unanimous consent that other Members' opening statements be
made part of the hearing record if they are submitted to the
Subcommittee Clerk by 5:00 p.m.
Without objection, that is so ordered.
I also ask unanimous consent that the following list of
Members who are not on the Committee be allowed to sit on the
dais and participate in this hearing from the dais.
Specifically, Mr. Norman from Louisiana if and when he is
there. Others will obviously be recognized from the dais, as
well.
Let me switch the order here, and allow Mr. Huffman,
representing the Minority--if you would like 5 minutes for an
opening statement.
STATEMENT OF THE HON. JARED HUFFMAN, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF CALIFORNIA
Mr. Huffman. Thank you, Mr. Chairman. The slate of bills
before us today, I am sorry to say, Mr. Chairman, is a painful
reminder of how far we have moved away from the bipartisan
agreement that Democrats and Republicans used to share over a
core set of values, and the values of conservation and respect
for science, in particular.
Both sides of the aisle used to agree that protecting
America's natural heritage for the enjoyment of this generation
and future ones was a worthy goal, and that relying on sound
science to guide conservation policy was the gold standard for
natural resource management.
I would like to remind everyone that when the ESA was
enacted, it had strong bipartisan support, passed out of the
Senate unanimously, was voted 390 to 12 out of the House of
Representatives, and signed by a Republican President.
The Endangered Species Act has long been one of our most
successful and broadly supported conservation laws, and it has
prevented the extinction of 99 percent of the species that have
received its protection.
The ESA, it is important to remember, only kicks in when a
species is in danger of extinction, or when it is foreseeable
that it will be in such danger. And if you think about it, if
an emergency room doctor saved 99 percent of the patients that
came through the door and put 90 percent of them on a clear and
timely road to recovery, as the ESA has done with imperiled
species, that doctor would receive universal praise.
So, following on this analogy, it is alarming to note that
one of the bills before us today wouldn't even let the patient
into the waiting room. If the waiting room is full, it would
kick the patient out of the hospital, leaving it to suffer
alone. This is not a way to manage species.
So, why does the ESA receive so much criticism by the Trump
administration and some of my colleagues across the aisle? I
suspect the answer is simple. The law requires Federal agencies
to use the best available science to determine decisions, to
prevent extinction, regardless of who produced the science. And
that can be bad news for mining companies, oil and gas
companies, big developers, and others.
For example, one of the bills before us, H.R. 3608, deems
anything submitted by states, tribes, or localities to be the
best-available science, regardless of the quality of that
information.
Another bill, the STORAGE Act, would prohibit Federal
agencies from designating critical habitat in man-made water
infrastructure areas, further endangering California salmon and
steelhead populations.
And yet another bill, the LIST Act, would require the
Secretary to de-list a species if he receives substantial
scientific or commercial information showing that a species has
recovered. Another handout to those wishing to develop and
destroy important habitat for imperiled species.
These bills ignore the fact that protecting fish and
wildlife is not just good, in principle. It is good for the
economy, and good for people, as well. The salmon fishermen in
my district and elsewhere on the West Coast, for example,
depend on a strong and functioning ESA to protect salmon runs,
allowing them to continue catching healthy stocks.
The bottom line is that the ESA has worked because
decisions under the law must be made based on data and
evidence. That is a pretty reasonable standard to uphold.
So, yes, we no longer just cut down as many trees or catch
as many fish as possible without thinking about the future. But
that is a good thing, not just for fish and wildlife, but for
future generations of people, as well.
It would be a welcome change if we were really talking
about modernizing the ESA, so that it works better for both
people and wildlife. But these bills, unfortunately, won't get
us there.
With that, I yield back, Mr. Chairman.
The Chairman. I haven't done my statement, but I will
recognize Mr. Grijalva for yours before I do that.
STATEMENT OF RAUL M. GRIJALVA, A REPRESENTATIVE IN CONGRESS
FROM THE STATE OF ARIZONA
Mr. Grijalva. Thank you, Mr. Chairman. It is a shame that
the last hearing that this Committee is going to have before we
return in November is such a fraud. It really is.
The bills before us today are not in the best interest of
the American public. They aren't meant to fix the Endangered
Species Act, as will be claimed by my Republican colleagues.
They are not thoughtful pieces of legislation to fix real
problems like the extinction crisis we currently face. They are
bad-faith proposals designed to destroy the law and give
handouts to oil and gas companies.
It is no coincidence that the American Petroleum Institute,
the American Exploration and Mining Association, and the
Western Energy Alliance have endorsed all these bills.
While this political stunt of a hearing is ridiculous on
its own, the titles of some of these bills are really insults
to the public's intelligence. My personal favorite is the
STORAGE Act, or the Stop Takings on Reserve Antithetical to the
Germane Encapsulation Act. It makes me wonder--to all my
friends, both Republicans and Democrats--what the phrase
``germane encapsulation'' really even means.
I am a little disappointed that Mr. McClintock's bill is
the only one without an acronym. I guess he missed the acronym
meeting.
The important thing to remember today is that the
Endangered Species works. Despite years of Republican efforts
to weaken the Act, to cut funding for agencies that protect and
recover American wildlife, 99 percent of the listed species
have continued to survive, and 90 percent are on schedule to
meet recovery goals. These are facts that are not up for
debate.
Last year, the Committee passed a package of five
extinction bills. They got no traction in the Full House
because the public didn't want them. Few people outside oil,
gas, and mining industries actually opposed the Endangered
Species Act.
So, we hold these hearings and hold these votes and we have
to wonder exactly why.
Here, today, is a new package of damaging and misguided
bills. They harm protected species and their habitats, they
create barriers to listing species that need protection, they
allow states to potentially over-ride listing decisions, they
allow the use of faulty science, and undermine citizen
involvement in the enforcement of the Act. They make too many
other destructive and unwarranted changes to list them all. And
we will do everything in our power to ensure that these bills
suffer the same fate as the previous bills.
These attacks on one of the most successful and popular
conservation statutes in the history of the world are old, they
are tired, and they are not fooling anyone.
We are going to be hearing today that ESA kills jobs, or
impedes economic growth. We hear this every time, and we still
don't have evidence. Words are not evidence. These claims are
simply not grounded in reality. The U.S. economy has more than
tripled in size since the law was passed, from $5 trillion in
1973 to $16 trillion today.
We have a duty to preserve species for the next generation.
Indeed, a moral duty to do that. Instead of debating these
bills, which are, in my mind, an embarrassment and a waste of
time, we should be talking about how we can truly support the
ESA, fund it fully, provide the personnel, and with that, let
the job be done that legislation was intended to do.
With that, Mr. Chairman, 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. It's a shame that the last hearing we'll
have in this Committee before we return in November is such a fraud.
The bills before us today are not in the best interest of the
American public. They aren't meant to ``fix the Endangered Species
Act,'' as my Republican colleagues will claim. They are not thoughtful
pieces of legislation to fix real problems--like the extinction crisis
we currently face. They are bad faith proposals designed to destroy the
law and give handouts to oil and gas companies.
It's no coincidence that the American Petroleum Institute, the
American Exploration & Mining Association, and the Western Energy
Alliance have all endorsed these bills.
While this political stunt of a hearing is ridiculous on its own,
the titles of some of these bills are insults to the public's
intelligence. My personal favorite is the STORAGE Act, or the Stop
Takings on Reserves Antithetical to Germane Encapsulation Act. It makes
me wonder what my Republican friends think the phrase ``germane
encapsulation'' even means.
I'm a little disappointed that Mr. McClintock's bill is the only
one without an acronym--I guess he missed the memo--but I digress.
The important thing to remember today is that the Endangered
Species Act works. Despite years of Republican efforts to weaken the
Act and cut funding for agencies that protect and recover American
wildlife, 99 percent of listed species have continued to survive, and
90 percent are on schedule to meet their recovery goals. These facts
are not up for debate. Deep down, even many Republicans know this. But
the Republicans on this Committee pretend otherwise.
Last year, this Committee passed a package of five extinction
bills. They got no traction in the Full House because the public
doesn't want this. Few people outside the oil, gas and mining
industries actually oppose the Endangered Species Act.
So, we hold these meaningless hearings and hold these meaningless
votes, and we have to wonder why.
Here we are today with a new package of damaging and misguided
bills. They harm protected species and their habitats. They create
barriers to listing species that need protection. They allow states to
potentially over-ride listing decisions. They allow the use of faulty
science and undermine citizen involvement in enforcement of the Act.
They make too many other destructive and unwarranted changes to list
them all. And I will do everything in my power to ensure that these
bills suffer the same fate as the previous bills.
These attacks on one of the most successful and popular
conservation statutes in the history of the world are old, they're
tired, and they're not fooling anyone.
The Fish and Wildlife Service and the National Marine Fisheries
Service have provided us with more than 40 years of evidence that the
law gives states, localities, landowners, and private interests an
incredible amount of flexibility to proceed with development projects.
The law makes sure we build things and create jobs in ways that
conserve fish, wildlife, plants and the landscapes they need to
survive. These agencies are good at what they do. Congress needs to
provide adequate funding for them to do their jobs, and then get out of
the way.
We're going to hear today that complying with the ESA kills jobs or
impedes economic growth. We hear this every time, and we still don't
have the evidence. Words are not evidence. These claims are simply not
grounded in reality. The U.S. economy has more than tripled in size
since the law was passed, from $5 trillion in 1973 to $16 trillion
today.
We have a moral duty to preserve species for the next generation,
instead of debating these bills. They are an embarrassment and a waste
of time.
I yield back.
______
The Chairman. Thank you, I think. I now want to yield to
myself 5 minutes for my opening remarks.
STATEMENT OF THE HON. ROB BISHOP, A REPRESENTATIVE IN CONGRESS
FROM THE STATE OF UTAH
The Chairman. I am appreciative of the wonderful comments
that have been made by the Ranking Member, as well as the
Ranking Vice Member here today. I am very happy that you are so
supportive of the piece of legislation that was signed by
Richard Nixon. It is, indeed, his legacy. In fact, maybe we
should have a monument on the Mall to Richard Nixon for ESA,
EPA, Clean Air, and Clean Water Act. They all kind of roll
together.
Mr. Grijalva. Wilderness?
The Chairman. Yes, all sorts of bad ideas.
So, what Mr. Grijalva said is actually correct. We are here
today to talk about modernizing this Act. I want to thank the
witnesses, the bills' sponsors for being here today. I want to
thank the Western Caucus and others who live in the West who
understand. They have done a tremendous amount of work in
drafting measures and building coalitions of support.
The Endangered Species Act is an important law that is in
need of improvements. Despite what some might have you believe,
Americans actually do agree. The Morning Consult poll, which I
want to ask unanimous consent to put into the record, conducted
nationwide in September of 2018, showed 73 percent of Americans
favor updating the Endangered Species Act. The poll also showed
that a majority of Americans believe the main purpose of the
Endangered Species Act should be to aid in the recovery of
endangered plants and animal species, something it does not do
now.
More registered voters believe that states should be more
responsible for managing the recovery of species than the
Federal Government. And since 2015, there has been an 8 percent
increase in voter opinions that state and local governments
should be most responsible for managing endangered species
efforts, primarily because the states actually work, and the
Federal Government efforts don't.
Two in three support removing species from the endangered
species list, returning it to state management if they meet all
of the recovery goals, something that does not happen in
practice today. Sixty-eight percent support revising the
Endangered Species Act to focus efforts on conserving species
before they become threatened or endangered. And they are right
in all those approaches.
Too often, species are indefinitely kept on the endangered
species list. Litigation focuses the law on listing more
species and not enough on actual recovery and eventually de-
listing of species.
State and local communities, and their expertise on the
ground, are often cut out of the process. They have very little
to say in the decisions to list and the most effective recovery
strategies that can be used.
At the end of the day, more focus needs to be on actual
recovery and eventually de-listing a species. States should
have a role in the recovery, rather than being ignored by the
Federal Government. Science and best practices, rather than
litigation and judges, should guide our decisions.
The bills we are addressing today address these issues and
they improve the law for the betterment of species and
communities.
Everything needs to be updated occasionally. It has been
far too long since this was updated because we can do a better
job, and we must do a better job. The Endangered Species Act is
not necessarily being maligned, it is simply saying it is not
working, and it needs to be made to work.
I yield back the remainder of my time.
[The prepared statement of Mr. Bishop follows:]
Prepared Statement of the Hon. Rob Bishop, Chairman, Committee on
Natural Resources
It's been almost 45 years since the Endangered Species Act was
first passed by Congress to protect and recover species at risk of
extinction. Despite these worthy intentions, less than 2 percent of
species have recovered enough to warrant removal from the list of
endangered and threatened species.
In the past several years, the Committee has held numerous hearings
and heard testimony from dozens of witnesses on how the ESA has failed
in its fundamental goal of recovering species. Further, the law has
been misused to restrict land use, block economic activity, and stifle
resource and infrastructure development. Excessive litigation has only
exacerbated these issues and worked to drain resources away from actual
conservation efforts. Clearly something is not working.
I am optimistic that working with our colleagues in the Senate and
this Administration, we can continue to lay the groundwork for ESA
modernization. That is why we are here today to consider a package of
bills from the Western Caucus that modernize the ESA. The nine bills
before us today--two of which are bipartisan--seek to improve the Act
in a manner that enhances species recovery without unduly burdening
communities, economies and livelihoods.
Action needs to be taken on numerous fronts to achieve these goals.
Increasing efficiency and providing certainty regarding regulations are
paramount to resolving conflict arising from the ESA. Bills presented
today promote regulatory certainty and reward good behavior of public
and private entities to help recover species.
H.R. 6344, the LOCAL Act, is a bipartisan effort that will codify
programs and increase certainty on regulations, incentivizing private
property owners to manage land in a way that will benefit species we
are so desperately trying to protect.
H.R. 6360, the PREDICTS Act, will codify the Clinton
Administration's ``No Surprises'' regulation, supporting public and
private entities that faithfully uphold their agreements to help
endangered species.
H.R. 6346, the bipartisan WHOLE Act, will allow the totality of
conservation efforts to be considered before Federal actions are taken,
ensuring projects won't harm species while incentivizing private
contributions to help recover species.
H.R. 6354, the STORAGE Act, ensures misunderstandings, like
designating limited water reservoirs and water infrastructure areas as
critical habitat, will not take place, benefiting not only endangered
species, but also water and power infrastructure operators and their
customers.
In addition to improving regulatory certainty, the ESA should be
adapted to provide more meaningful opportunities for states, tribes,
and local communities to be involved in the ESA decision-making
process. These local entities often have some of the most specialized
knowledge about the threats facing species and have successful local
conservation measures in place to counter such threats and to ensure
the survival of the species.
H.R. 6345, the EMPOWERS Act, requires Federal agencies to consult
states for data when listing decisions are considered that will impact
a state.
H.R. 3608, sponsored by Congressman McClintock, improves
transparency by requiring that relevant state data be utilized in
listing decisions and that data used as the basis for a listing
decision be publicly disclosed, as well as information concerning ESA
litigation.
H.R. 6364, the LAMP Act, will assist state and local governments by
allowing the establishment of cooperative agreements to manage species
and habitats.
Last, one thing we can all agree on is species recovery. H.R. 6356,
the LIST Act, will help bring the ESA up to date, authorizing the
Secretary of the Interior to de-list species discovered to be
ecologically abundant.
H.R. 6355, the PETITION Act, will reform the highly abused petition
process, allowing for a petition backlog when frivolous petitions stack
up and the Federal Government becomes vulnerable to lawsuits.
I look forward to discussing these bills today and working
together, along with my colleagues on the other side of the aisle, to
find common ground on how to best improve this important law to ensure
its success for future generations.
I want to thank our witnesses and bill sponsors for being here
today, and I look forward to hearing their testimony about these
important measures.
______
The Chairman. Now I am going to introduce the witnesses. We
have, first of all, Mr. Greg Renkes, who is the Director of
Office Policy Analysis with the U.S. Department of the
Interior.
I appreciate you being here.
I wish to yield 30 seconds for Mr. LaMalfa, so he can
introduce our second witness.
If you would, please.
Mr. LaMalfa. All right. Thank you, Mr. Chairman, for the
honor of doing that.
The President of California Farm Bureau, Jamie Johansson,
has joined us today, and we are very pleased to have him and
part of his team and his leadership out here with us.
So, thank you for your attendance today.
He is also a neighbor of mine in my home county, and
purveys a very, very find olive oil product up there that is
part of a very, very nice Ag. tour that goes on in October in
Butte County, so it is fun to take part of that and see his
family and operation there. I know that it really comes from
the heart, where the Ag. background is.
So, thank you for joining us today.
And thank you, Mr. Chairman.
The Chairman. Thank you. Our third witness is David Sauter,
who is a County Commissioner in Washington State.
I am saying that because there is no way I am ever going to
pronounce your county properly, so you will have to do that for
me. Thanks.
Then Mr. Robert Dreher, who is the Senior Vice President
with the Conservation Program and General Counsel at Defenders
of Wildlife.
And our last witness is Mr. Jonathan Wood, attorney with
the Pacific Legal Foundation in Washington, DC.
I remind our witnesses that, under our Committee Rules,
they are limited on their oral statement to 5 minutes, but the
entire written statement will appear in the hearing record.
I am assuming you have all been here before, and recognize
the mechanism in front of you. When your time starts, the green
light goes on. As soon as it hits yellow, you have 1 minute
left. When it is red, I am going to be snotty to you and
actually cut you off in mid-sentence. So, please watch that red
light. Don't let it hit you.
With that, we are going to go through each bill
individually and allow Members to ask witnesses questions
pertaining to the bills being considered.
We are going to start with H.R. 6344 by Mr. Tipton, which
amends the Endangered Species Act of 1973 to encourage
voluntary conservation efforts.
The Chair is now going to recognize Mr. Tipton if he would
like to introduce his piece of legislation.
STATEMENT OF THE HON. SCOTT R. TIPTON, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF COLORADO
Mr. Tipton. Thank you, Mr. Chairman. I want to also thank
our panel for taking the time to be here today. I do appreciate
the opportunity to be able to speak in support of the
bipartisan Land Ownership Collaboration Accelerates Life Act,
otherwise known as the LOCAL Act.
I firmly believe that the most effective approach to
species recovery and conservation is through proactive,
localized efforts that take into account the unique landscape,
habitat, and ecological conditions of an area. It is critical
to empower the landowners who have their boots on the ground
every day to lead critical conservation and recovery efforts.
The LOCAL Act would amend and, I believe, strengthen the
Endangered Species Act to give the Federal Government the
opportunity to engage non-Federal landowners in voluntary
conservation efforts through the species recovery agreements,
habitat reserve agreements, private party conservation grants,
and a conservation planning loan program.
I don't think you can find a better steward of public lands
or a protector of animals than landowners who are out working
their land every day for farming, ranching, or other purposes.
They know the challenges that threatened and endangered species
face, and they are in a unique position to be able to provide
input on the best conservation strategies.
Through a species recovery agreement or a habitat reserve
agreement, the Secretary of the Interior could enter into an
agreement with a non-Federal landowner who agrees to carry out
activities that protect or restore habitat and contribute to
the recovery of an endangered or threatened species. The
landowner would receive payments to cover the costs of these
agreements.
Through private-party conservation grants, a private
property owner could receive financial conservation aid to
alleviate the burdensome ESA compliance, and states, counties,
and municipalities could receive assistance for conservation
planning to the conservation planning loan programs.
We have seen how collaboration and localized initiatives
have benefited species like the sage-grouse in Colorado. The
best way to be able to protect species is by preventing them
from getting listed in the first place, so we need to start
being proactive instead of reactive. This is the goal of the
LOCAL Act.
Thank you, Mr. Chairman, and I yield back.
The Chairman. All right. We are now going to turn to our
panel.
Once again, you can have 5 minutes to begin with. You have
nine bills that we are going to handle here. If you wish to
speak to all nine bills, that is fine. If you want to try to
sum up your entire statement the first time around and then, if
you want to add to that when we hit the other bills, however
you would like to handle that.
Mr. Renkes, let me recognize you first to talk about,
hopefully, all nine. And then we will see if there is stuff
that can be added to you afterwards.
STATEMENT OF GREGG RENKES, DIRECTOR, OFFICE OF POLICY ANALYSIS,
U.S. DEPARTMENT OF THE INTERIOR, WASHINGTON, DC
Mr. Renkes. Thank you, Chairman Bishop, Ranking Member
Grijalva, and members of the Committee. My name is Gregg
Renkes. I am the Director of the Office of Policy Analysis in
the Department of the Interior, and I appreciate the
opportunity to present the Department's views to you today on
the nine bills to amend the Endangered Species Act.
The Administration supports the goals of the ESA to prevent
extinction and foster recovery of species in danger of
extinction. We pursue these goals, knowing the Federal
Government must be a good neighbor, and also knowing that
critical expertise and resources for species recovery most
often lie with the states.
We must partner with the states and private landowners, who
often bear a disproportionate share of the burden in conserving
Endangered Species-listed species, particularly in the West.
And we are working to make common-sense improvements to ESA
implementation in recently proposed regulations.
Earlier this month, Secretary Zinke issued a memorandum
reaffirming the authority of states to exercise broad powers as
stewards of the Nation's fish and wildlife on Federal public
lands and waters. He instructed all bureaus to complete a
review of Fish and Wildlife regulations, policies, and
guidance, and provide recommendations as to how the Department
can better align with states.
The Secretary recognizes that states are good stewards of
our natural resources, and have a long history of sound fish
and wildlife management. This is why the Department
participates in the joint Federal-State task force on ESA
policy, and was a participant with the Western Governors
Association endangered species efforts. The Administration is
committed to making the ESA work for the American people, and
we will continue to work with the states and Congress to
improve implementation of the law.
Mr. Chairman, a modern vision of conservation is one that
uses cooperative federalism, public-private partnerships,
market-based solutions, the best-available science,
transparency, and sensible, efficient regulation to achieve the
greatest good for the greatest number of people over the
longest term.
The bills before the Committee today are excellent examples
of these principles, and complement the Administration's
efforts. Collectively, these bills seek to improve the ESA by
providing greater regulatory certainty, embracing federalism
and transparency, and improving frameworks for listing, de-
listing, and recovery of species. The Department supports these
goals.
Staying within my allotted time, I refer the Committee to
my written statement for the Department's more detailed
comments on each of the nine bills.
Four of the bills being discussed today seek to improve
regulatory certainty for states, local governments, and private
landowners impacted by the ESA. Consistent with the goals of
the LOCAL Act, the Department believes strongly in the value of
voluntary conservation, the power of financial incentives, and
in providing regulatory assurances to landowners doing good
work on their land.
And we agree with the sponsors of the WHOLE Act, the
STORAGE Act, and the PREDICTS Act, that improving
predictability and regulatory certainty under the ESA is of
paramount importance to the American people.
We support the themes of the EMPOWERS Act, LAMP Act, and
Endangered Special Transparency and Reasonableness Act to
strengthen the cooperative federalism structure of the ESA, and
improve transparency.
The Department recognizes that state fish and game agencies
are experts in the conservation field, and critical partners in
our work to achieve ESA goals.
The PETITION Act and LIST Act seek to improve procedures
for listing and de-listing. The Department agrees more needs to
be done. We have proposed regulations to clarify the factors
used to determine species recovery. The petition process needs
to be improved. We all understand the time and cost of
litigation have become significant challenges in implementing
ESA.
As the ESA approaches its 50th anniversary, the Department
recognizes the need to modernize the law and make it work for
the American people. Our commitment to improving implementation
of the ESA is reflected in the Administration's reform and re-
organization recommendations, which return the National Marine
Fisheries Service to Interior, merging it with the Fish and
Wildlife Service. This would consolidate the Endangered Species
Act and Marine Mammal Protection Act into one agency within
Interior, resulting in more consistent policy and improve
service to stakeholders.
The Administration is committed to common-sense solutions
that make the ESA as efficient, reliable, and defensible as
possible, and conserving threatened and endangered species and
protecting the ecosystems upon which they depend. We appreciate
the Committee's work toward this end, and support the goals of
the nine bills before the Committee today.
The Department stands ready to work with you to address
these and other legislative efforts to improve the Endangered
Species Act. Thank you.
[The prepared statement of Mr. Renkes follows:]
Prepared Statement of Gregg Renkes, Director, Office of Policy
Analysis, Department of the Interior on H.R. 6356, LIST Act of 2018;
H.R. 6345, EMPOWERS Act of 2018; H.R. 6344, LOCAL Act of 2018; H.R.
6355, PETITION Act of 2018; H.R. 6364, LAMP Act of 2018; H.R. 6360,
PREDICTS Act of 2018; H.R. 6346, WHOLE Act of 2018; H.R. 6354, STORAGE
Act of 2018; and H.R. 3608, ``Endangered Species Transparency and
Reasonableness Act''
introduction
Good afternoon Chairman Bishop, Ranking Member Grijalva, and
members of the Committee. I am Gregg Renkes, Director of the Office of
Policy Analysis in the Department of the Interior (Department). I
appreciate the opportunity to testify before you today on nine bills to
amend the Endangered Species Act of 1973 (ESA). The Administration
supports the goals of the ESA to prevent the extinction of species and
to foster recovery of species in danger of extinction. We pursue these
goals knowing that the Federal Government must be a good neighbor and
work collaboratively with states and landowners who often bear a
disproportionate burden in conserving species protected under the ESA,
given that approximately two-thirds of lands in the United States are
privately owned. That is why the Administration is working diligently
to partner with states and landowners and make common-sense
improvements to how we administer the ESA, while maintaining our
environmental standards and stewardship responsibilities.
Each of the bills being discussed today--H.R. 6356, H.R. 6345, H.R.
6344, H.R. 6355, H.R. 6364, H.R. 6360, H.R. 6346, H.R. 6354, and H.R.
3608--seeks to improve implementation of the ESA. In general, the
Administration supports the goals of these bills to improve
coordination with, and expand the role of, the states in implementing
the ESA, to improve transparency in decision making, to expand tools to
encourage voluntary conservation on private lands, and to improve the
processes for listing, down-listing, de-listing and recovery of
species. The Department welcomes the opportunity to work with the
Committee to improve the ESA's effectiveness at its primary goals--
preventing extinction and recovery--while reducing and avoiding
unnecessary burdens.
background
The ESA is one of our Nation's most important wildlife conservation
laws. It is implemented jointly by the U.S. Fish and Wildlife Service
(Service) and the National Oceanic and Atmospheric Administration's
National Marine Fisheries Service (NMFS) (together known as ``the
Services''). The law's stated purpose is to provide a program and means
for the conservation of threatened and endangered species and the
ecosystems upon which they depend. When a species is designated as
threatened or endangered--or ``listed'' under the ESA--it is in urgent
need of help. The law directs the Services to use the best available
scientific and commercial information to determine whether a species
needs to be listed, to identify and address the threats to the species,
and to facilitate the recovery of the species.
administration priorities
The Administration is committed to making the ESA work for the
American people. The ESA has had some notable success since its passage
over 40 years ago--bald eagles and peregrine falcons, once rare in the
lower 48 states, are fully recovered, and we have brought species like
the California condor and black-footed ferret back from the very brink
of extinction. But as we look at our record of de-listing and recovery
there is clearly room for improvement. Implementation of the law
regularly generates frustration and controversy among private
landowners, states, regulated industries, and environmental advocates
alike. Some argue that getting species on the list is easier than
getting them off. Particularly in western states, the law and certain
species have become lightning rods for intense disagreement.
Our commitment to improving implementation of the ESA is reflected
in the Administration's Reform Plan and Reorganization Recommendations
which includes a proposal to merge the Department of Commerce's NMFS
with the Service. This merger would consolidate the administration of
the ESA and Marine Mammal Protection Act in one agency and combine the
Service's science and management capacity, resulting in more consistent
Federal fisheries and wildlife policy and improved service to
stakeholders and the public, particularly on infrastructure permitting.
The Department is focused on improving implementation of the ESA
and has placed a high priority on regulatory reform. A modern vision of
conservation is one that uses cooperative federalism, public-private
partnerships, market-based solutions, the best available science, and
sensible regulations in order to achieve the greatest good in the
longest term. To that end, in July of this year, the Service and NMFS
jointly proposed regulations to modify the parameters for Federal
agency consultation; clarify and improve some of the standards under
which listings, de-listing, reclassifications, and critical habitat
designations are made; and adopt a change in approach to how the
Service applies protections to threatened species. These proposed
revisions are based on public input, the best available science, and
best practices and are intended to improve conservation results and
reduce the regulatory burden on the American people.
In addition to pursuing these regulatory revisions, the Department
and the Service continue to work to address concerns raised by state
and local governments, as well as other stakeholders, through
administrative initiatives to improve implementation of the ESA. As
part of these efforts, the Service has sought to bring greater
transparency and predictability to the listing process, which benefits
stakeholders and the public. To achieve this, the Service developed and
released a National Listing Workplan, which prioritizes listing and
critical habitat decisions over a 7-year period. In addition to
providing transparency and predictability, the workplan helps the
Service and its partners be strategic in delivering conservation on the
ground to prevent the need to list species under the ESA. The workplan
identifies candidate species and species petitioned for listing and
undergoing a 12-month finding.
In a similar vein, late last year, the Service also developed a
National Downlisting and Delisting Workplan that outlines upcoming
actions addressing 5-year status reviews, petitions undergoing a 12-
month finding, and proposed rules to down-list and de-list species over
a 3-year period. The workplan was developed to provide greater
predictability regarding the timing of recovery actions.
The Service also developed the Species Status Assessment (SSA)
framework as part of the ongoing effort to improve implementation of
the ESA and enhance conservation success. An SSA is a focused, science-
based, repeatable, and rigorous assessment of a species' ability to
maintain self-sustaining populations over time. The result is a single
document that delivers foundational science for informing all ESA
decisions, including listing determinations, consultations, grant
allocations, permitting, and recovery planning.
When it comes to developing guidance on how to best help listed
species achieve recovery, the Service has revised its approach.
Informed by the Species Status Assessment, the Services is improving
and streamlining the way it develops recovery plans to produce them
faster and with more flexibility to adapt to new information or
circumstances affecting species.
Additionally, the Service is tackling the backlog of recovery
plans, 5-year status reviews, and de-listing and down-listing actions.
The Service must manage its multiple responsibilities for recovery
planning, recovery actions, de-listing and down-listing rulemaking, and
5-year status reviews concurrently and is working to develop a national
multi-year strategy to ensure balance among these responsibilities. In
the FY2019 Budget, the Administration proposed modest funding increases
to expand the Service's capacity to ensure that recovery plans have
objective and measurable recovery criteria and to address 5-year status
review recommendations.
Finally, the Department and Service are committed to being good
partners to the states and working to incorporate that in all they do.
In support of that, earlier this month, Secretary Zinke issued a
Memorandum to all Bureaus reaffirming the authority of the states to
exercise their legal authority to regulate fish and wildlife species on
Federal public lands and waters, except as otherwise required by
Federal law. The Secretary recognizes that states are good stewards of
our natural resources and practice sound management of fish and
wildlife while allowing appropriate opportunities for citizens to enjoy
public resources.
I offer the following comments on the individual bills under
consideration today.
H.R. 6356--Less Imprecision in Species Treatment (LIST) Act of 2018
The LIST Act would require the Secretary to initiate a de-listing
rule when a species meets the recovery goals described in an associated
recovery plan, or when the Secretary determines that the species is
recovered based on available information. It requires a species to be
de-listed if the Secretary finds that it was listed based on
inaccurate, fraudulent, or misrepresentative information. Additionally,
it would prevent parties from submitting petitions for a period of 10
years if the Secretary determines that they knowingly submitted
fraudulent species data. The LIST Act would transform recovery plans
from advisory documents, the content of which are not subject to legal
challenge, into action-forcing documents. If enacted, recovery plans
would become decision documents and may be subject to legal challenge.
The bill would also shield negative petition findings and de-listing
determinations from public review and comment, and shield a subset of
negative findings from judicial review, while retaining those public
participation and oversight mechanisms for positive petition findings
and listing determinations.
The Department and the Service values science-based decision making
and want to ensure that it continues. The Department would welcome the
opportunity to work with the Committee on these areas of the bill.
H.R. 6345--Ensuring Meaningful Petition Outreach While Enhancing Rights
of States (EMPOWERS) Act of 2018
The EMPOWERS Act would require petitioners to notify affected
states and counties prior to submitting petitions to the Secretary. It
would also enable states to advise the Secretary on petitions and
require the Secretary to demonstrate that the information provided by a
state or county government is incorrect if the Secretary disagrees with
a recommendation that the petition is not warranted. The bill would
also require the Secretary to provide advance notice to affected states
and counties of a proposed regulation, invite recommendations from the
state and county governments, and require the Secretary to respond
within a certain time frame if the Secretary disagrees with a not
warranted recommendation.
The Department supports advance notification from petitioners to
state governments regarding forthcoming petitions as an important means
of increasing transparency and raising awareness among affected
entities, and recently revised the regulations governing processing of
petitions to require such advance notification. The Department welcomes
the information, data, and advice provided by state and local
governments. The Secretary will continue to make species determinations
based on the best available scientific and commercial information.
State fish and wildlife agencies are expert agencies in the
conservation of fish, wildlife and plants, and the Service makes
special effort to obtain information from those agencies and give
special consideration to their views. Federal agencies will continue to
work with the states and local communities to ensure the best possible
science is used for decision making. For wide ranging species, the
requirement to provide advance notification and treat information from
county governments as the best available science will be procedurally
burdensome and problematic. Additionally, requirements and associated
deadlines related to proposed regulations in the bill may increase
workload for agency staff and may expose the Department to additional
litigation risk. We welcome the opportunity to discuss these issues
with the Committee.
H.R. 6344--Land Ownership Collaboration Accelerates Life Act (LOCAL) of
2018
The LOCAL Act would establish new programs administered by the
Secretary to incentivize voluntary conservation on private lands. These
include incentive payments for short-term conservation agreements for
listed species; cost-share payments and incidental take permits for
long-term conservation contracts for listed species, candidate species,
or species of concern; incentive payments for the preservation of
habitat for listed species; and grants for private landowners
implementing conservation practices for listed species on their land.
It also establishes a habitat conservation planning loan program for
state and local governments. The bill also creates an aid program to
compensate landowners for the fair market value of a project on their
land that would not comply with section 9(a). Additionally, the bill
requires the Secretary to review applications for incidental take
permits for private landowners within a certain time frame.
The Department strongly supports voluntary conservation agreements
for species and habitats and recognizes the need for incentives to
encourage broad participation. To that end, the Service offers
Candidate Conservation Agreements with Assurances (CCAAs), Safe Harbor
Agreements (SHAs), and Habitat Conservation Plans (HCPs) to landowners,
with the incentive for participation primarily based on regulatory
assurances. This bill would direct the Service to offer a variety of
new species and habitat conservation programs to landowners, with the
primary incentive for participation being financial support.
Considering the creation of a significant new financial assistance
program requires careful consideration of budgetary impacts to ensure
consistency with the Administration's broader fiscal goals. While
Federal funding, to the extent that it is available, could provide
strong incentives to encourage conservation efforts by additional
landowners, we would like to work with the Committee to promote broader
participation in CCAAs, SHAs, and HCPs, which all provide regulatory
assurances.
In light of the overlap between the provisions of H.R. 6344, H.R.
6360, and H.R. 6364 concerning voluntary conservation agreement
vehicles and provisions, we recommend that the Committee work with the
Department to reconcile the separate but related provisions in these
three bills. We would like to work with the Committee to ensure these
programs are structured in a manner consistent with the
Administration's proposals to achieve operational efficiencies in
similar conservation programs managed by the U.S. Department of
Agriculture.
H.R. 6355--Providing ESA Timing Improvements That Increase
Opportunities for Nonlisting (PETITION) Act of 2018
The PETITION Act would establish a procedure through which the
Secretary could declare ``petition backlogs'' for 90-day and 12-month
findings. It would set guidelines and restrictions for the Secretary's
work on petitions during a backlog period, and would establish
deadlines for completing review of listing and uplisting petitions.
Additionally, it shields from judicial review any negative 90-day and
12-month findings for listing or uplisting petitions made due to the
expiration of a deadline set in the bill.
The Department appreciates and supports the goals of the PETITION
Act to address the workload challenges associated with the petition
process. And while we agree with the need to focus efforts on recovery
and de-listing, we would like to work with the Committee to determine
more appropriate deadlines that would not place additional constraints
on the work of the agency.
H.R. 6364--Localizing Authority of Management Plans (LAMP) Act of 2018
The LAMP Act would authorize the Secretary to delegate to a state
the authority to manage listed species in that state. It would also
expand the existing authority for the Service to establish cooperative
agreements with states to also cover agreements with groups of states,
political subdivisions of states, Indian tribes, local governments, and
non-Federal persons.
The Department appreciates and supports the goals of the LAMP Act
to expand the role of state, local, and tribal governments, and
individuals in implementing the ESA. The Department would like to work
with the Committee on the practical application of this bill and the
implications to the public.
The LAMP Act would re-shape the relationship between the Services
and non-Federal parties in conserving species under the ESA. By
replacing the permitting authorities of the ESA that underlie existing
voluntary conservation agreements with a straight-forward exemption
from the take prohibitions under the ESA, we are uncertain how this
would affect incidental take permitting and look forward to working
with the bill's sponsors to better understand their intent.
Additionally, the provisions authorizing the Secretary to delegate ESA
authorities to a state are silent with regard to the implementing
regulations, policies, and procedural manuals that guide the details of
implementing the Act across the country. As written, this language has
the potential to authorize variable ESA implementation across the
country, with different policies and procedures among states and
between states and the Services.
We welcome the opportunity to work with the Committee to further
consider this legislation and develop provisions that could ensure
consistent implementation among Federal and state agencies, and the
states themselves.
H.R. 6360--Permit Reassurances Enabling Direct Improvements for
Conservation, Tenants, and Species (PREDICTS) Act of 2018
The PREDICTS Act would codify certain Federal regulations that
enable the development of HCPs, CCAAs, and SHAs. The bill would also
authorize the Secretary to provide grants of up to $10,000 to assist
qualifying landowners.
The Department supports the PREDICTS Act, which would codify
several important tools we use to incentivize voluntary conservation
and provide regulatory predictability to non-Federal entities. We
would, however, welcome the opportunity to work with the Committee to
clarify the approval standard for CCAAs and SHAs to ensure that these
plans continue to contribute to species recovery.
H.R. 6346--Weigh Habitats Offsetting Locational Effects (WHOLE) Act of
2018
The WHOLE Act would require that when making a determination of
whether a Federal action is likely to jeopardize a species, destroy, or
adversely modify critical habitat, the Secretary must consider the
offsetting effects of all avoidance, minimization, and conservation
measures already in place or proposed to be implemented, including
habitat conservation measures.
The Department supports the WHOLE Act, which, with one exception,
would codify processes already a part of long-standing practice and
policy for Federal agency consultation under the ESA. That exception
concerns determinations of the effect of Federal actions on designated
critical habitat. The legislative language does not limit the
offsetting measures to those carried out only within the designated
critical habitat. The Department would welcome the opportunity to work
with the Committee to improve that language.
H.R. 6354--Stop Takings on Reserves Antithetical to Germane
Encapsulation (STORAGE) Act of 2018
The STORAGE Act would prohibit the Secretary from designating
critical habitat for any area in a water storage reservoir, water
diversion structure, canal, or other water storage, diversion, or
delivery facility, where habitat is periodically created and destroyed
as a result of changes in water levels caused by the operation of such
facility.
The Department supports the intent of the STORAGE Act. While it is
current Service practice to not designate critical habitat within the
operational pool of water storage reservoirs, if species presence is in
direct conflict with the purposes of the facility, there are
circumstances where operations and maintenance of conveyance facilities
is compatible with the function of critical habitat. The Department
would appreciate the opportunity to work with the Committee to refine
the language in this legislation.
H.R. 3608--Endangered Species Transparency and Reasonableness Act
The Endangered Species Transparency and Reasonableness Act would
require that data used in species listings be made publicly available
and that all data used shall be provided to states in advance of
listing determination. It broadens the definition of ``best scientific
and commercial information available'' to include data provided by
state, county, and tribal governments. It requires the Secretary to
submit a report to Congress and make public any expenditures related to
litigation. Additionally, the bill would cap attorney's fees to
prevailing parties in ESA citizen suites at $125 per hour, consistent
with current Federal law governing other actions against the United
States.
The Department has worked to address concerns regarding
transparency of the data used to make listing determinations. As in
previous testimony by this Administration, the Department would
recommend modifying this legislation to require the Service to consider
all data submitted by states, tribes, and local governments, rather
than automatically deeming that data to be the ``best scientific and
commercial data available'' as currently required in the bill. Defining
that term to automatically include data submitted by states, tribes,
and counties, without regard to its quality, would be a significant
departure from scientific integrity standards.
Also as stated in previous testimony by this Administration, this
legislation would in effect limit attorneys' fees for successful
citizen plaintiffs in ESA cases against the Federal Government. The
time and cost of litigation is one of the significant challenges we
face in implementing the ESA. As currently drafted, it is unclear
whether the legislation would require that all prevailing fee awards be
paid through annual appropriations, rather than having the option to
pay through the Judgment Fund as is the case under current law. The
Department would welcome the opportunity to work with the Committee to
clarify this aspect of the legislation.
conclusion
The Department recognizes our shared interest in modernizing the
ESA and making it work for wildlife and the American people. We
appreciate the Committee's attention to this effort. We support the
goals of improving the ESA through cooperative federalism, public-
private partnerships, market-based solutions, utilization of the best
available science, and effective, sensible regulations. We welcome the
opportunity to work with the Committee to address some technical
modifications to the proposed legislation. The Department is committed
to making the ESA as efficient, predictable and effective as possible
in accomplishing its purpose of conserving threatened and endangered
species and protecting the ecosystems upon which they depend. While the
ESA has had some success since its passage over 40 years ago, there are
greater opportunities ahead. The Department looks forward to working
with the Committee to address these and other legislative efforts to
improve the ESA.
______
The Chairman. Thank you, sir. I appreciate that.
To our other witnesses, let me try to explain what we are
trying to do here. There are nine bills. If you wish to address
all nine bills in the first 5 minutes, we can do that. Then we
will come back with specifics afterwards, as we go through
them, bill by bill. Or, if you want to just speak on the bills
for which you want to speak about, and not the others, we can
do that at the same time. So, I give you that option, whether
you want to comment on all of them at once, or just on this
specific one.
But we are going to talk, first of all, about the Tipton
bill. We will ask questions about the Tipton bill before we go
to the others.
So, with that, Mr. Johansson.
STATEMENT OF JAMIE JOHANSSON, PRESIDENT, CALIFORNIA FARM BUREAU
FEDERATION, SACRAMENTO, CALIFORNIA
Mr. Johansson. Thank you, Chairman Bishop and Ranking
Member Grijalva, for the opportunity to testify before you from
the American Farm Bureau. I am Jamie Johansson. I am president
of the California Farm Bureau Federation. We represent more
than 39,000 members across 56 counties, contributing the
largest agricultural economy of any state in the Nation.
Our farmers and ranchers provide food, fiber, and feed to
our local communities, the Nation, and across the globe. In
California, battles over everything from spotted owls to delta
smelt have reshaped our rural communities and, sadly, have
created tremendous industries of conflict. All this with little
to show in the way of improvements for the species.
This culture of conflict and lack of success is evidence
that conservation is at a crossroads. We can either continue
down the path of escalating conflict and seemingly endless
cycles of listings and lawsuits, or we can take a long, hard
look at what the past 45 years of implementing the Endangered
Species Act can teach us, as we strive to make the ESA work
better.
The law could be better for species, whether listed or
unlisted. And better for people, whether farmer or
conservationist. There are three reasons this is the case.
First, we all value protecting species from extinction. Our
disagreements are not about the goals of species protection,
but the best way to achieve that goal.
Second, there is widespread acknowledgment that ESA can be
improved to work better for species and people.
Third, the key to the ESA working better is improving
opportunities for collaborative conservation by reducing
conflict and increasing regulatory certainty. The bills under
deliberation today move in the direction of bringing regulatory
certainty.
Regarding my first point, I wish to state that we are not
here to question the Act's fundamental goal of striving to
conserve species from extinction. This goal will not and should
not change. What we grapple with today is not whether we should
conserve species from extinction, but how we should conserve
species from extinction.
To expand on my second point, I believe that there is
widespread acknowledgment that the ESA could work better for
both species and people. Though everyone may not state it
precisely that way, if you look at how the issue is discussed,
the conservation groups are increasingly acknowledging the need
to take care of landowners who are well positioned to help
species.
Meanwhile, farmers and ranchers believe they need to take
care of the species if we want to continue to take care of our
future. While we all may say it differently, there is a common
message that the ESA can and should be functioning more
effectively for both species and people.
This leads me to my third point, and the principal reason I
am here today. I believe that if the ESA is to work better for
species, it must work better for people. This is the reason for
your convening today to consider legislation that could provide
improvements in areas where the existing law has created
unnecessary and unproductive conflict. What we know is that to
actually take care of species on the land, we need to work
together, not against the people on the land. For this to
happen, we must increase the opportunities for collaboration
and decrease the opportunities for conflict.
Currently, landowners view the ESA as a threat. The history
of the ESA has generally shown landowners that having species
or habitat on their land creates a lot of risk, and provides no
real benefit. Given that half of listed species spend 80
percent of their lives on private land, this situation offers
little opportunity for people or species.
Under the current regulatory climate, the ESA
disincentivizes landowners from protecting and growing habitat.
We can all agree that rational landowners should do everything
they can to reduce their risk by minimizing habitat or species
on their land. Despite this hard logic, I am proud to say that
farmers and ranchers are good stewards, and generally accept
that risk.
But escalating conflicts and expanding lists of endangered
and threatened species are consistently straining the situation
now. Now is the time to focus on improvements to the ESA that
will encourage collaborative conservation by reducing conflict
and improving regulatory certainty.
We appreciate the Committee's hard work to identify aspects
of the ESA that can be improved, and offer the American Farm
Bureau Federation's support for the measures being considered
before the Committee today.
Ideas to prioritize petitions, improve transparency of data
and litigation, and provide greater opportunity for state and
local governments to participate in management of species are
ideas that have been discussed in many forms, and are concepts
also included in Senator Barrasso's discussion draft of the
Endangered Species Act Amendments of 2018.
As the legislative efforts move forward in the House and
Senate, we emphasize the importance of incorporating the
breadth of perspectives into the process in order to develop
viable and durable solutions that will result in long-term,
meaningful improvements to the Endangered Species Act.
Thank you.
[The prepared statement of Mr. Johansson follows:]
Prepared Statement of Jamie Johansson, President, California Farm
Bureau Federation on behalf of the American Farm Bureau Federation on
H.R. 6344, H.R. 6360, H.R. 6346, H.R. 6354, H.R. 6345, H.R. 3608. H.R.
6364, H.R. 6356, and H.R. 6355
Thank you, Chairman Bishop and Ranking Member Grijalva for the
opportunity to testify. I am Jamie Johansson, President of the
California Farm Bureau Federation. We represent more than 39,000
members across 56 counties contributing the largest agricultural
economy of any state in the Nation. Our farmers and ranchers provide
food, fiber, and feed to our local communities, to the Nation, and
across the globe.
In California, battles over everything from spotted owls to delta
smelt have reshaped rural communities, and sadly, have created
tremendous industries of conflict. All this with little to show in the
way of improvements for the species.
This culture of conflict and lack of success is evidence that
conservation is at a crossroads. We can either continue down the path
of escalating conflict and seemingly endless cycles of listings and
lawsuits, or we can take a long hard look at what the past 45 years of
implementing the Endangered Species Act (ESA or ``the Act'') can teach
us as we strive to make the ESA work better. The law can be better for
species, whether listed or unlisted, and better for people, whether
farmer or conservationist.
There are three reasons this is the case.
First, we all value protecting species from extinction. Our
disagreements are not about the goal of species protection, but the
best way to achieve that goal.
Second, there is widespread acknowledgement that the ESA can be
improved to work better for species and people.
Third, the key to the ESA working better is improving opportunities
for collaborative conservation by reducing conflict and increasing
regulatory certainty. The bills under deliberation today move in the
direction of bringing regulatory certainty.
Regarding my first point, I wish to state that we are not here to
question the Act's fundamental goal of striving to conserve species
from extinction. This goal will not and should not change. What we
grapple with today is not whether we should conserve species from
extinction, but how we should conserve species from extinction.
To expand on my second point. I believe that there is widespread
acknowledgement that the ESA could work better for both species and
people. Though everyone may not state it precisely that way, if you
look at how the issue is discussed, the conservation groups are
increasingly acknowledging the need to take care of landowners who are
well positioned to help species. Meanwhile, farmers and ranchers
believe they need to take care of the species if we want to take care
of our future. While we all may say it differently, there is a common
message that the ESA can and should be functioning more effectively for
both species and people.
This convergence of messages from what traditionally has been
sparring groups, was perhaps best reflected in the Western Governors'
Association's ``Initiative on Species Conservation and the Endangered
Species Act.'' This thorough and inclusive process, in which Farm
Bureau was an active participant, brought together stakeholders on all
sides of the issue. The initiative involved several years exploring
ideas ``for improving the efficacy of the Endangered Species Act,'' and
included all manner of positions and viewpoints. A common theme was
that improvements could, and should, be made.
This leads me to my third point, and the principle reason I am here
today. I believe that if the ESA is to work better for species, it must
work better for people. This is the reason for your convening today, to
consider legislation that could provide improvements in areas where the
existing law has created unnecessary and unproductive conflict. What we
know is that to actually take care of species on the land, we need to
work with, not against, the people on the land. For this to happen, we
must increase the opportunities for collaboration and decrease the
opportunities for conflict.
Currently, landowners view the ESA as a threat. The history of the
ESA has generally shown landowners that having species or habitat on
their land creates a lot of risk and provides no real benefit. Given
that half of listed species spend 80 percent of their lives on private
land, this situation offers little opportunity for people or
species.\1\
---------------------------------------------------------------------------
\1\ U.S. Fish & Wildlife Service, ``Our Endangered Species Program
and How It Works With Landowners,'' 2009. https://www.fws.gov/
endangered/esa-library/pdf/landowners.pdf.
---------------------------------------------------------------------------
Perhaps no species is more symbolic and perhaps symptomatic of the
ESA's challenges than the northern spotted owl. Listed as threatened in
1990, this listing kicked off the timber wars that reshaped the Pacific
Northwest and the ESA. Thriving rural communities lost a significant
portion of their economic base because of the costs and restrictions
placed on timber harvest. As much as any other species, the spotted owl
proved to landowners that endangered species and their habitat were
major hazards to be avoided at all costs.
All this, and yet the spotted owl is still not doing well. The
primary threat now appears to be the barred owl--a species that over
the past century has expanded its range from the east, outcompeting,
breeding, and killing the spotted owl.
In sum, the listing harmed our rural communities. The ensuing
battles weaponized the Endangered Species Act and led to the creation
of a massive industry of conflict. This resulted in turning the ESA
into a feared threat to landowners. Currently, the spotted owl is worse
off than ever.
Several more examples illustrate the very real conflicts in
California, both those experienced in the past and problems we
anticipate in the future.
delta smelt: a failed system
Another example of extraordinary harm, without commensurate
benefit, is the crippling effect litigation over the delta smelt has
had on California's water system. Questionable science has focused
regulatory controls on California's state and Federal water projects
because this is the easiest ``knob'' the regulators have had to turn.
Litigation-focused advocacy groups have also turned the smelt into a
nuclear weapon in court to further their own narrow agenda.
The real causes of the smelt's decline, however, are much more
complex than just the state and Federal projects. In fact, one of the
biggest causes appears to be an invasive clam that has wiped out the
smelt's primary food supply. While there's not a lot we can do about
the clams, the best science today suggests that any threat from the
projects can be managed without eliminating the water supply to cities
and farms. Working with water users and landowners to improve habitat
and food supply are the more effective ``knobs'' we should be turning.
salmon: lost opportunity
In Northern California, farmers and ranchers worked for decades to
make improvements beneficial to salmon and steelhead. Millions have
been invested in putting in fish screens to prevent juvenile salmon
from being pulled into water diversions. Significant amounts of water
historically used for irrigation and municipal supply have flowed
through the California Bay Delta and out to sea in an effort to improve
the survival of salmon. However, these efforts have not had the
intended effect of increasing salmon populations. Instead, we are
finding that collaborative efforts to allow juvenile salmon to spend
time in flooded rice fields are having a much better effect than simply
keeping more water in our river systems. This is yet another example of
the need for collaboration rather than conflict.
Elsewhere in the battles over salmon, farmers and ranchers sought
to work with local, state and Federal agencies to implement a small-
scale supplementation program. The constraints of the ESA and
bureaucratic reluctance to engage in supplementation (it is out of
fashion in the latest conservation thinking) resulted in the project
going nowhere. This reinforced in the minds of farmers and ranchers
that the real motivations are something other than actually helping
species.
small success in collaborative conservation on working lands
There are positive examples of collaboration on working lands
during the last two administrations. The Bush administration
promulgated 4(d) rules that exempt routine ranching activities from the
prohibitions of the Act for the California Tiger Salamander and
California Red Legged Frog. In both examples, the U.S. Fish and
Wildlife Service (FWS) recognized that ranches provided the bulk of
habitat for these species. They saw that continued ranching was more
beneficial to the species than preventing the possible deaths of a few
critters and potentially driving ranchers to sell for development or
switch to more profitable crops.
Another successful example of collaboration came during the Obama
administration when the Modoc Sucker (a small fish) was de-listed after
extensive work between the agency and ranchers in Modoc and Lassen to
improve habitat.
Unfortunately, these positive stories are more aberration than
opportunity under the current ESA, as there are few examples that have
worked for both people and species. The fact is that very limited
circumstances have proven just right enough to fit the narrow
opportunities currently provided for in the ESA.
monarch butterfly: a promising future model
While the spotted owl and delta smelt are stories of how the ESA
has failed people and species, the monarch butterfly could shape how we
approach conservation in the future. The USFWS received a petition to
list the monarch in 2014 and agreed pursuant to a settlement to make a
listing decision by June 2019.
We are striving hard, as are many conservation groups, to find
solutions that work for species and people. While we believe the
solutions to improve habitat are feasible, it is clear the ESA is not
flexible enough to ensure that those proactive collaborative
conservation efforts are not derailed by litigation.
As we address the monarch butterfly, we have a question before us.
Will we continue to allow the ESA to be about conflict, or can we work
together to create a path toward conservation that works for species
and people?
good stewards
Under the current regulatory climate, the ESA disincentivizes
landowners from protecting and growing habitat. We can all agree that
rational landowners should do everything they can to reduce their risks
by minimizing habitat or species on their land. Despite this hard
logic, I am proud to say that farmers and ranchers are good stewards
and generally accept the risk. But escalating conflicts and expanding
lists of endangered and threatened species are consistently straining
this situation. Now is the time to focus on improvements to the ESA
that will encourage collaborative conservation by reducing conflict and
improving regulatory certainty.
In order for any landowner to work collaboratively to conserve the
species, they need to know at the start what will be expected of them,
and they must be confident the rules are not going to change once they
are in.
Several provisions before the Committee today recognize this point.
Providing incentives and regulatory assurances to landowners--topics in
the LOCAL Act, H.R. 6344, the LAMP Act, H.R. 6364, and the PREDICTS
Act, H.R. 6360--are two of the elements necessary to providing
landowners with the real opportunity to engage in collaborative
conservation. For future success in species conservation, it is
important to recognize the costs of implementing conservation on the
land for farmers and ranchers. And it is important to recognize
farmers' and ranchers' need for regulatory certainty.
conclusion
As the Committee considers legislation intended to improve the
efficacy and efficiency of the ESA, we stand at a crossroads in
conservation. No one is suggesting we should turn back. Rather, we are
now choosing on which path to move forward. To do nothing is to reject
decades of lessons from applied conservation and continue down the path
of conflict-based environmentalism that developed in the 20th century,
failing species and people alike. We have another, better option. We
can take a hard look at the lessons we have learned about conservation
and forge a path toward conservation in the 21st century that works
with our farmers and ranchers and not against them.
We appreciate the Committee's hard work to identify aspects of the
ESA that can be improved and offer the American Farm Bureau
Federation's support for the measures being considered before the
Committee today. Ideas to prioritize petitions,\2\ improve transparency
of data and litigation,\3\ and provide greater opportunity for state
and local governments to participate in management of species \4\ are
ideas that have been discussed in many forums, and are concepts also
included in Senator Barrasso's discussion draft of the Endangered
Species Act Amendments of 2018. As legislative efforts move forward in
the House and Senate, we emphasize the importance of incorporating the
breadth of perspectives into the process in order to develop viable and
durable solutions that will result in long term, meaningful
improvements to the Endangered Species Act.
---------------------------------------------------------------------------
\2\ H.R. 6355.
\3\ H.R. 3608.
\4\ H.R. 6345, H.R. 6364.
---------------------------------------------------------------------------
______
The Chairman. Thank you.
All right, Commissioner, go through the same thing. If you
want to talk about all nine at first, or emphasize just the
LOCAL Act, whichever you want to do. You are recognized for 5
minutes.
STATEMENT OF DAVID SAUTER, COUNTY COMMISSIONER, KLICKITAT
COUNTY, LYLE, WASHINGTON
Mr. Sauter. Chairman Bishop, Ranking Member Grijalva, and
members of the Natural Resources Committee, on behalf of the
National Association of Counties, thank you for your invitation
to testify in support of your Endangered Species Act
modernization package. Counties appreciate your work to ensure
the ESA better protects species using the best scientific data,
and cooperative efforts between the Federal and local
governments.
My name is David Sauter. I am in my third term as a
Klickitat County, Washington Commissioner. Our is a rural
county of about 21,000 people, and bordered by the Gifford
Pinchot National Forest and the Columbia River. I have lived
there my entire life, and I have witnessed the detrimental
impacts of ESA listings firsthand.
Klickitat County historically relied on a resource-based
economy of timber, agriculture, and fishing. However, over the
past 20 years, a major timber mill closed after the northern
spotted owl listing, resulting in high unemployment and a
shuttered community. Farmers and ranchers struggled to comply
with management plans written without input of local experts.
We need a new approach to conservation policies focused on
good stewardship, without ignoring the needs of communities. We
must modernize the ESA.
We appreciate your work on these nine bills to guarantee
ESA policies are based on the best scientific data with a
maximum level of involvement from counties. My testimony will
focus on three bills, each of which will promote federalism and
greater transparency: H.R. 6345, the EMPOWERS Act; H.R. 3608,
the Endangered Species Transparency and Reasonableness Act; and
H.R. 6364, the LAMP Act.
The EMPOWERS Act would require Federal agencies to consult
with states before making final listing decisions, and mandates
Federal agencies explain when their decisions diverge from
states' advice. This bill will strengthen the role state and
local governments play.
We currently partner with Federal agencies in wildlife
management and habitat conservation efforts. States and
counties have adopted management plans which may include
scientific data that can be used to benefit listed species.
Collaboration will benefit species and create better policy
outcomes.
For example, the Oregon spotted frog was listed as
threatened in 2014. Critical habitat proposals included private
lands within the Glenwood Valley. The Klickitat County
responded to landowners' concerns by convening meetings with
Federal and state wildlife officials. Eventually, 20 landowners
signed a cooperative agreement that was incorporated into the
frog's critical habitat. It was a win-win for all. Consultation
creates strong relationships and local buy-in. The EMPOWERS Act
will ensure this level of consultation.
ESA decisions often do not conform to the process under
law, but instead are mandated by court decisions through the
abuse of our legal system by special interest groups. These
lawsuits may also require taxpayers to pay special interest
legal fees. From 2002 to 2017, the Department of the Interior
entered into 96 separate settlements, paying $1.7 billion in
legal fees.
H.R. 3608 would require information on ESA lawsuits be
available online, and put in place the same $125-per-hour
attorney's fees caps for ESA suits as for suits under the Equal
Access to Justice Act.
Klickitat County is home to the most wind turbines in
Washington State, accounting for nearly one-third of our tax
base. Some of these capital-intensive projects were threatened
with litigation. Most settled to maintain their tight
construction schedules, but this legal threat can have a
chilling effect on future developments.
H.R. 3608 steers the ESA back to focus on good stewardship,
not lawsuits.
It also defines the term ``best available scientific and
commercial data'' to include data provided by affected local
governments. Counties have developed data to assist Federal
agencies in species conservation plans. This bill would ensure
this data is used when available.
The LAMP Act would allow agencies to enter into cooperative
agreements with local governments to improve species recovery
and habitat management. Under the LAMP Act, the ESA would
become a more collaborative conservation tool that welcomes the
input of non-Federal partners. This bill ensures Federal
support for locally driven solutions. County governments are
partners to Federal agencies in implementing species
conservation plans. Allowing these partnerships to flourish
will lead to greater efficiencies and better outcomes.
Once again, thank you for holding today's legislative
hearing on the ESA. We must work in a bipartisan constructive
manner to ensure that our approach to our shared objective of
species recovery and habitat conservation is driven by
coordination----
The Chairman. Time is expired.
Mr. Sauter. Thank you.
[The prepared statement of Mr. Sauter follows:]
Prepared Statement of the Honorable David Sauter, Commissioner,
Klickitat County, Washington on behalf of the National Association of
Counties on H.R. 6345, H.R. 3608, and H.R. 6364
Chairman Bishop, Ranking Member Grijalva, and members of the U.S.
House Committee on Natural Resources, on behalf of the National
Association of Counties (NACo), thank you for your invitation to
testify today in support of your efforts to modernize the Endangered
Species Act (ESA). County governments appreciate the Committee's
efforts to ensure that this landmark conservation law better protects
species and their habitat using the best available scientific data and
cooperative efforts between the Federal Government and its
intergovernmental partners, including local governments.
My name is David Sauter, and I am serving my third term on the
Klickitat County, Washington Board of Commissioners. Klickitat County
is bordered by the Gifford Pinchot National Forest to the West and the
Columbia River to the South. We are a rural county with a population of
about 21,000 people.
the importance of esa modernization to counties
Klickitat County historically relied on a resource-based economy of
timber harvests, ranching, farming and fishing. I have lived in the
county my entire life and have witnessed the detrimental impacts of ESA
listings firsthand. I have seen a prosperous, well-kept community
demoralized and discouraged when its mill closed because of a lack of
timber supply due to the listing of the Northern spotted owl--a mill
that provided strong, middle class jobs for generations, the closure of
which resulted in a blighted community with high unemployment and a
reduced standard of living. I have witnessed farm and ranch families
struggling to continue generations-old operations as they attempt to
comply with resource management plans that were made without meaningful
consultation of state and local expertise--the very people that are on
the landscape and have direct, real-world experience with local issues.
We need a new approach to species conservation policy that ensures good
stewardship of resources without ignoring the voices and economic needs
of local communities. This is why it is imperative that we modernize
the ESA.
The National Association of Counties, which represents America's
3,069 counties, parishes and boroughs, has adopted into the American
County Platform several goals for modernizing the ESA to ensure the
legislation meets its mandate and serves as a strong part of our
Nation's conservation legacy. NACo's platform specifically highlights
the importance of the ESA, and further states:
``NACo supports reforming the ESA to mandate that the federal
government treat state and county governments as cooperating
agencies with full rights of coordination, cooperation,
consultation and consistency to decide jointly with appropriate
federal agencies when and how to list species, designate
habitat and plan and manage for species recovery and de-
listing.''
As this language makes clear, American counties support the
Committee's efforts to modernize the ESA. We appreciate your leadership
in developing common-sense bills that ensure the maximum level of
involvement for county governments in ESA processes and that ESA
policies are based on the best available scientific data. If enacted,
the nine ESA modernization bills under consideration by the Committee
would greatly improve how we protect species and conserve their habitat
while assuring that our Nation's resource management policies are built
through a strong federal-state-local partnership.
While counties hope to see all nine ESA modernization bills under
consideration by the Committee (H.R. 6344, H.R. 6360, H.R. 6346, H.R.
6354, H.R. 6345, H.R. 3608, H.R. 6364, H.R. 6356 and H.R. 6355) enacted
into law, my testimony will focus on three particularly important
pieces of legislation to be considered by the Committee, each of which
will promote federalism and greater transparency under the ESA: H.R.
6345, the EMPOWERS Act; H.R. 3608, the Endangered Species Transparency
and Reasonableness Act; and H.R. 6364, the LAMP Act.
H.R. 6345, EMPOWERS Act of 2018
The Ensuring Meaningful Petition Outreach While Enhancing Rights of
States (EMPOWERS) Act would require Federal agencies making listing
decisions under the ESA to meaningfully consult with state governments
before a listing determination is made. It also mandates Federal
agencies provide an explanation when their decisions diverge from the
findings or advice of a state government.
County governments strongly support H.R. 6345 because it will
strengthen the role that state governments and their political
subsidiaries play in the ESA process. State game and fish departments
assist the Federal Government in species and habitat conservation
efforts. Further, states and many counties have adopted their own
resource management plans (RMPs), which can provide existing,
verifiable and scientific information that the Federal Government can
use in its species, habitat or natural resource management plans.
I can give you an example of where this approach has been very
successful in my county: the Oregon spotted frog was listed as a
threatened species under the ESA in 2014. The U.S. Fish and Wildlife
Service (USFWS) initially proposed to include a large portion of the
Glenwood Valley of Klickitat County, including private property, as the
frog's critical habitat. The residents and the county were highly
concerned about the potential impacts that the designation would have
on ranching and county road operations. To help address these concerns,
our county government facilitated meetings between USFWS, the
Washington Department of Fish and Wildlife, and local ranching
interests. It took considerable time and effort to build trust between
the parties, but eventually these meetings culminated in an agreement
that was signed by over 20 private landowners and was incorporated into
the critical habitat designation in 2016. It was a win-win for all
involved, especially the frogs. This example illustrates what can
happen when Federal agencies trust their local partners and engage in
meaningful consultation and dialogue before finalizing decisions.
We want to thank Congressman Pearce for sponsoring this common-
sense legislation that recognizes the need for the Federal Government
to include state and local governing partners in developing the best
possible species conservation policies. If Federal, state and local
governments craft and implement resource management decisions in good
faith, policies are more likely to be accepted by local residents, thus
increasing the possibility of future intergovernmental cooperation on
other important community issues.
H.R. 3608, The Endangered Species Transparency and Reasonableness Act
Too often, ESA decisions do not conform to the process spelled out
under the ESA, but instead are mandated by court decisions forced on
the Federal Government through the abuse of our legal system by special
interest groups. To make matters worse, these lawsuits may require
taxpayers to pay the legal fees of entities who sue on technical
grounds to prevent common-sense, locally supported species and habitat
management plans from being implemented. According to the U.S.
Department of the Interior, from 2012 to 2017, the Federal Government
entered into 96 separate settlement agreements or consent decrees and
paid out $1.7 billion in legal fees.\1\
---------------------------------------------------------------------------
\1\ https:/ /www.doi.gov/sites/doi.gov/files/elips/documents/
so_3368_promoting_transparency_and_
accountability_in_consent_decrees_and_settlement_agreements.pdf.
---------------------------------------------------------------------------
This system needs to be fixed to prevent further abuse. This is why
counties support H.R. 3608, the Endangered Species Transparency and
Reasonableness Act, and urge its adoption by Congress. If enacted, this
bill would require USFWS to track, report to Congress, and make
available online information on ESA lawsuits and attorney payouts from
those lawsuits. This bill would also put in place the same $125 per
hour cap on attorney's fees for suits filed under the ESA as for those
filed under the Equal Access to Justice Act.
I can give an example of why this is important: Klickitat County is
home to large wind energy farms. We are proud to have the most wind
turbines of any county in Washington State and third-most in the Nation
behind a couple of counties in Texas. Wind projects now make up nearly
one-third of the entire tax base of the county. These are very capital-
intensive projects that are on tight construction schedules. Many of
these projects were threatened with litigation by third parties and
most paid out some form of settlement to maintain their construction
schedules. Unfortunately, lawsuits have become a whole new industry in
my county, holding up projects until a settlement can be extracted.
This cycle of litigation and settlement is likely to have a chilling
effect on the county's flourishing and much-needed wind energy
industry. Conservation policy should be based on good stewardship of
the land, not profit incentives for special interests. Limiting
opportunities to ``sue and settle'' represents a step in the right
direction.
Additionally, under current law, the science used to justify ESA
listing decisions may not be publicly available. H.R. 3608 would
address this issue by mandating Federal agencies to make publicly
available the data used for ESA listing decisions and to make the data
accessible through the Internet. The bill also requires the Federal
Government to disclose to states all data justifying an ESA listing
decision and defines the term ``best available scientific and
commercial data'' to include data provided by affected states, tribes,
and local governments. Species listings and recovery decisions should
be based on the best available scientific data and consistent, reliable
timelines. Counties have developed data that can assist our Federal
partners in species conservation plans, and we encourage the Federal
Government to use this data where available.
H.R. 6364, LAMP Act of 2018
The LAMP Act would allow the Federal Government to enter into
cooperative management agreements with state and local governments,
tribes and non-Federal stakeholders to improve endangered species
recovery and habitat management. States with strong, scientific
approaches to species conservation would also take the lead in species
conservation efforts. Under the LAMP Act, the ESA would become a more
collaborative conservation statute that welcomes the input and
expertise of non-Federal governing partners for species and habitat
protection.
Counties support the adoption of H.R. 6364 because this legislation
would empower county governments by ensuring Federal support for local
management solutions. In a time of strained resources and manpower
within the Federal Government, developing cooperative solutions to our
environmental challenges can lead to greater efficiencies in decision
making and improve long-term recovery. County governments have already
served as partners to Federal agencies in implementing various species
conservation plans and creating new opportunities for these
partnerships to flourish will lead to better outcomes for communities
and the environment.
conclusion
Once again, thank you, Chairman Bishop, Ranking Member Grijalva,
and Committee members for holding today's legislative hearing on the
ESA. We must pull together and work in a bipartisan, constructive
manner to ensure that our approach to the mutually shared objective of
species recovery and protection is driven by coordination between
Federal, state and local governments. We hope Congress acts on and the
president signs all of the ESA modernization bills before the Committee
and appreciate the opportunity to express counties' support for these
important efforts.
______
The Chairman. Thank you.
All right, Mr. Dreher, apparently everyone is going through
all nine, so go through all nine at first. You have 5 minutes.
STATEMENT OF ROBERT DREHER, SENIOR VICE PRESIDENT, CONSERVATION
PROGRAMS AND GENERAL COUNSEL, DEFENDERS OF WILDLIFE,
WASHINGTON, DC
Mr. Dreher. Good morning, Chairman Bishop, Ranking Member
Grijalva, and members of the Committee. My name is Bob Dreher,
and I am Senior Vice President of Conservation Programs at
Defenders of Wildlife, a national non-profit conservation
organization dedicated to the protection of all native animals
and plants in their natural communities. Thank you for inviting
me here today to discuss the nine Western Caucus bills related
to the Endangered Species Act that are before this Committee.
My testimony draws on nearly four decades of experience in
conservation law and policy, including service with the Federal
Government as Associate Director of the U.S. Fish and Wildlife
Service, and as Acting Assistant Attorney General for the
Environment and Natural Resources for the Department of
Justice. I have represented and advised business clients, state
governments, tribes, and environmental groups on environmental
matters, and taught Federal natural resources law for almost
two decades.
Thanks to the visionary goals and flexible framework
Congress established when it passed the Endangered Species Act
in 1973, the ESA is the world's most effective law for
protecting wildlife in danger of extinction. In its 45-year
history, only 11 species of the more than 1,600 on the list
have been declared extinct. That is, in itself, a cause for
celebration.
But the Act has also contributed to the recovery of 54
species, including iconic species such as the bald eagle, brown
pelican, humpback whale, and the American alligator. And many
more species have been set on a path to recovery.
The ESA is effective because it requires that decisions
under the law be based on the best available science, not
politics. It has been improved by continuous administrative
reforms that have made the ESA work better, both for imperiled
species and for stakeholders affected by its provisions. And
the ESA, like many of our bedrock environmental and civil
rights statutes, gives individual citizens the right to hold
agencies accountable for complying with the law.
Simply put, the ESA works. And it is a good thing it does,
because the need for a strong ESA is greater than ever.
Humanity is confronted with a global extinction crisis of epic
proportions. In the last 40 years, we have lost half of all
wild animals on Earth. Extinction is happening at a pace at
least 100 times greater than what would be considered normal.
During this biological crisis, what is most needed to
improve ESA's effectiveness is to fully fund it. Rather than
change the structure of this successful law, Congress should
reaffirm our national commitment to protecting our biodiversity
heritage, and provide the funding necessary for the ESA to
realize its full potential.
Unfortunately, the legislation being considered today does
nothing to improve the ESA, and many things to weaken it. The
bills would gut the ESA's science-based listing process by
mandating reliance on any information, apparently even
erroneous or irrelevant data submitted by states and counties.
They would create arbitrary barriers to listing species,
including prioritizing de-listing of species at the expense of
species that may face imminent extinction.
One bill would even allow states and counties to
effectively veto decisions to list species, barring the
Secretary from acting unless he can prove that information
submitted by such governments is incorrect, regardless if it is
sufficient to outweigh the scientific evidence showing the need
to list.
Another bill would allow the Secretary to delegate
management of endangered species to states, which often lack
legal authority or resources to conserve imperiled species
effectively. More than that, the Secretary could delegate
management of endangered species to local governments,
corporations, or private individuals, undermining both Federal
and state authorities over wildlife.
Other bills would limit designation of critical habitat;
force the government to pay landowners to comply with the ESA,
which would swiftly bankrupt the ESA program; and set time
limits that automatically approve projects that may take
species.
Several bills undermine the rule of law by excluding agency
decisions from judicial review. Although not all decisions, I
would note, since these manifestly partisan bills typically
preclude citizens from challenging decisions not to protect
species, while allowing landowners and industry full rights to
challenge decisions to protect them.
I have addressed each of these bills in more detail in my
written testimony. Taken together, however, the Western Caucus
bills are a prescription for extinction. None of these bills
would improve species conservation. Each would undermine,
sometimes dramatically, the ESA and the fundamental commitment
of our Nation to conserve and recover imperiled species.
On behalf of Defenders of Wildlife and our 1.8 million
members and supporters, I strongly urge this Committee to
reject these dangerous bills.
Thank you for the opportunity to testify. I would be happy
to answer any questions.
[The prepared statement of Mr. Dreher follows:]
Prepared Statement of Robert G. Dreher, Senior Vice President of
Conservation Programs, Defenders of Wildlife on H.R. 3608, H.R. 6344,
H.R. 6345, H.R. 6346, H.R. 6354, H.R. 6355, H.R. 6356, H.R. 6360, and
H.R. 6364
Good morning Chairman Bishop, Ranking Member Grijalva, and members
of the Committee. My name is Bob Dreher and I am Senior Vice President
of Conservation Programs at Defenders of Wildlife (Defenders), a
national non-profit conservation organization dedicated to the
protection of all native animals and plants in their natural
communities. For 70 years, Defenders has protected and restored
imperiled species throughout North America by establishing on the
ground programs at the state and local level; securing and improving
state, national, and international policies that protect species and
their habitats; and upholding legal safeguards for native wildlife in
the courts. We represent more than 1.8 million members and supporters.
Before joining Defenders in June 2016, I served as Associate
Director of the U.S. Fish and Wildlife Service, serving as the primary
policy advisor for the Director. Prior to that, I served in the
Department of Justice as Principal Deputy Assistant Attorney General
and Acting Assistant Attorney General for the Environment and Natural
Resources Division, and previously served during the Clinton
administration as Deputy General Counsel of the U.S. Environmental
Protection Agency. I have spent my career in conservation law, having
represented business clients in private practice and conservation
organizations as managing attorney for the Washington, DC office of the
Sierra Club Legal Defense Fund (now Earthjustice). I also taught
Federal natural resources law as an adjunct professor for almost 20
years at George Washington University Law School and Georgetown
University Law Center.
Thank you for inviting me here today to discuss the nine Western
Caucus bills related to the Endangered Species Act (ESA) that are
before this Committee. I welcome the opportunity to speak about
conserving imperiled wildlife under the ESA and the negative impact
these bills would have on that important work.
As I will describe in detail, the bills before this Committee today
would undermine key provisions of the ESA and result in increased harm
to protected species and their habitat. The bills would gut the ESA's
science-centered listing process by mandating reliance on any
information provided by state and local governments. They would create
arbitrary barriers to listing species, including prioritizing de-
listing species at the expense of species that may face imminent
extinction; one bill would even allow states and county governments to
effectively veto decisions to list species. Other bills would limit
designation of critical habitat, force the government to pay landowners
to comply with the ESA, and undermine the rule of law by excluding
agency decisions from judicial review. One bill would allow the
Secretary to delegate management of endangered species to local
governments, corporations or private individuals, undermining both
Federal and state authorities over wildlife.
Taken together, the Western Caucus bills are a prescription for
extinction. Rather than adopt any of these proposals, Congress should
reaffirm our national commitment to protecting our biodiversity
heritage for current and future generations.
the esa: a commitment worth keeping
Congress passed the ESA in 1973 out of a growing realization that
our natural heritage was in peril and needed to be preserved. In
section 2 of the law, Congress declared ``various species of fish,
wildlife, and plants in the United States have been rendered extinct as
a consequence of economic growth and development untempered by adequate
concern and conservation.'' \1\ Congress further recognized that many
more species were in danger of extinction and that ``these species of
fish, wildlife, and plants are of esthetic, ecological, educational,
historical, recreational, and scientific value to the Nation and its
people.'' \2\
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\1\ 16 U.S.C. Sec. 1531(a)(1).
\2\ Id. Sec. 1531(a)(3).
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With these values in mind, Congress set forth an ambitious goal.
The ESA would not only address actions directed at species themselves--
such as hunting and trade--but also would ``provide a means whereby the
ecosystems upon which endangered species and threatened species depend
may be conserved.'' \3\ Congress also pledged to ``take such steps as
may be appropriate to achieve the purposes of the treaties and
conventions'' under which our Nation had pledged to the world that we
would conserve threatened and endangered species.\4\
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\3\ Id. Sec. 1531(b).
\4\ Id.
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The commitment we made as a Nation in enacting the ESA is embodied
in its definition of conservation, which is ``the use of all methods
and procedures which are necessary to bring any endangered species or
threatened species to the point at which the measures provided pursuant
to this chapter are no longer necessary.'' \5\ As the Supreme Court has
recognized, the ``plain intent of Congress'' in enacting the ESA ``was
to halt and reverse the trend toward species extinction, whatever the
cost. This is reflected not only in the stated policies of the ESA, but
in literally every section of the statute.'' \6\ The result is ``the
most comprehensive legislation for the preservation of endangered
species enacted by any nation.'' \7\
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\5\ Id. Sec. 1532(3).
\6\ Tennessee Valley Auth. v. Hill, 437 U.S. 153, 184 (1978).
\7\ Id. at 180.
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The ESA works by establishing a framework for the conservation of
imperiled species, with specific management actions left to the
scientific judgment of the U.S. Fish and Wildlife Service or the
National Marine Fisheries Service (Services or Service). First, the
appropriate Service determines whether a species warrants listing as
``threatened'' or ``endangered.'' \8\ In making this determination, the
first factor the Service considers is ``the present or threatened
destruction, modification, or curtailment of its habitat or range.''
\9\ Consistent with Congress' emphasis on habitat preservation, the
Service must also at the time of listing and ``to the maximum extent
prudent and determinable'' designate ``any habitat of such species
which is then considered to be critical habitat.'' \10\
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\8\ 16 U.S.C. Sec. 1533(a)(1).
\9\ Id. Sec. 1533(a)(1)(A).
\10\ Id. Sec. 1533(a)(3)(A), (a)(3)(A)(i).
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Once a species is listed, a series of substantive and procedural
requirements attach. While section 9 prohibits ``take'' of endangered
species without prior authorization,\11\ section 7(a)(1) imposes on
Federal agencies a substantive obligation to promote the conservation
of listed species.\12\ Moreover, section 7(a)(2) obligates Federal
agencies to consult with the Service whenever they act, authorize, or
fund a project that may affect a listed species or its designated
critical habitat.\13\ Through consultation, Federal agencies must
ensure that their actions will not ``jeopardize the continued
existence'' of a listed species or ``result in the destruction or
adverse modification'' of critical habitat.\14\ This consultation
process is designed to lessen the impact of Federal or federally
permitted activities on species and their critical habitats.
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\11\ Id. Sec. 1538(a)(1)(B).
\12\ Id. Sec. 1536(a)(1).
\13\ Id. Sec. 1536(a)(2).
\14\ Id. Sec. 1536(a)(2).
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Section 7 consultation protects species while allowing most
development projects to proceed with no more than minor modifications.
Defenders of Wildlife examined every section 7 consultation recorded by
the U.S. Fish and Wildlife Service between January 2008 and April 2015,
and in that time not one project had been stopped or extensively
altered as a result of a finding of jeopardy to a species or adverse
modification of critical habitat.\15\ Our research proves that
consultation does not in theory or practice hamstring private
development. To the contrary, it advances the ESA's recovery goals by
striking a science-driven balance between conservation and economic
activity.
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\15\ Jacob W. Malcom & Ya-Wei Li, Data Contradict Common
Perceptions About A Controversial Provision of the U.S. Endangered
Species Act, 112 PNAS 15844, 15848 (2015), https://defenders.org/
publications/section-7-pnas.pdf.
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the esa is a proven success
Thanks to the visionary goals and flexible framework Congress
established, the ESA is the world's most effective law for protecting
wildlife in danger of extinction. A remarkable 99 percent of species
have survived since being listed. In its 45-year history only 11 listed
species have been officially declared extinct.\16\ That in itself is a
cause for celebration.
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\16\ U.S. Fish & Wildlife Serv., Delisted Species, https://
ecos.fws.gov/ecp0/reports/delisting-report.
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The total number of ESA de-listings due to recovery is now 54, with
28 of those overseen by the Obama administration.\17\ More recoveries
were declared under the Obama administration's watch than all past
administrations combined, not because that administration was
necessarily more committed to the ESA than prior administrations but
because recovery of species takes time. We have achieved dramatic
successes through decades of effort with species like the bald eagle,
brown pelican, humpback whale, black-capped vireo, the Louisiana black
bear, and the Steller sea lion, all of which have recovered to the
point where they no longer require Federal protection. But an equal
measure of the ESA's success may be the many more species that have
been set on a path to recovery, including the iconic grizzly bear, the
whooping crane, and the Florida manatee.\18\ With adequate resources
and commitment, the ESA can save these and other imperiled species.
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\17\ Id.
\18\ Daniel M. Evans et al., Species Recovery in the United States:
Increasing the Effectiveness of the Endangered Species Act, Issues in
Ecology, Winter 2016, at 1.
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The ESA has been effective because it requires that decisions under
the law be based on the best scientific data available--not politics.
It has been improved by continuous administrative reforms that have
made the ESA work better both for imperiled species and for
stakeholders affected by its provisions. From habitat conservation
planning to candidate conservation agreements with assurances that
provide regulatory certainty to landowners, the Services have taken
advantage of the ESA's inherent flexibility to find win-win solutions.
The ESA has also been successful because, like many of our most
important environmental and civil rights statutes, it gives individual
citizens the right to hold agencies accountable for complying with the
law.
Put simply, the ESA works. What is most needed now to improve the
ESA's effectiveness is to fully fund it. To clear the backlog of
species that require listing decisions, develop recovery plans, and
work with stakeholders to promote conservation, the Services must have
the necessary resources to achieve the ESA's visionary purposes and
goals. Rather than change the structure of this successful law,
Congress should provide the funding necessary for the ESA to realize
its full potential.
Given its visionary purpose and numerous success stories, it should
come as no surprise that the ESA also is broadly popular with the
American people. Recently published peer-reviewed research from Ohio
State University found that roughly four out of five Americans support
the ESA.\19\ Previous studies by Hart Research in 2016 and Tulchin
Research in 2015 found similar results; between 80 and 90 percent of
Americans supported the ESA and agree that saving at-risk wildlife from
going extinct is an important goal for the Federal Government.\20\
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\19\ Misti Crane, Most Americans Support Endangered Species Act
Despite Increasing Efforts to Curtail It, Ohio State News, July 19,
2018, https://news.osu.edu/most-americans-support-endangered-species-
act-despite-increasing-efforts-to-curtail-it/; Jeremy T. Bruskotter et
al., Support for the U.S. Endangered Species Act Over Time and Space:
Controversial Species Do Not Weaken Public Support for Protective
Legislation, Conservation Letters, e12595 (2018), https://doi.org/
10.1111/conl.12595.
\20\ Tulchin Research, Poll Finds Overwhelming, Broad-Based Support
for the Endangered Species Act Among Voters Nationwide, July 6, 2015,
http://www.defenders.org/publications/Defenders-of-Wildlife-National-
ESA-Survey.pdf; Hart Research Associates, CAP Energy/Environment/
Climate Voters Survey, Dec. 2016, https://cdn.americanprogress.org/
content/uploads/2017/01/18040011/FI-CAP-Energy-Enviro-Dec2016.pdf.
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the sixth mass extinction
Unfortunately, the need for a strong ESA is greater than ever.
Despite significant efforts to prevent extinction, the loss of
biodiversity, driven largely by habitat degradation and destruction,
remains a rapidly growing problem.\21\ Climate change and ocean
acidification, which were barely on the radar when the ESA was written,
are only exacerbating the trend.
---------------------------------------------------------------------------
\21\ See, e.g., Stuart L. Pimm et al., The Biodiversity of Species
and Their Rates of Extinction, Distribution, and Protection, 344
Science 987 (2014); David S. Wilcove et al., Quantifying Threats to
Imperiled Species in the United States, 48 Am. Inst. Bio. Sciences 607
(1998); National Research Council, Science and the Endangered Species
Act 72 (1995), https://www.nap.edu/read/4978/chapter/6#72 (``[T]here is
no disagreement in the ecological literature about one fundamental
relationship: sufficient loss of habitat will lead to species
extinction.'').
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The result is a global extinction crisis of epic proportion, in
which half of all species could be facing extinction by the end of the
century. In a 2017 study published in the Proceedings of the National
Academy of Sciences, researchers found that of the 27,600 land-based
mammals, birds, amphibians and reptile species studied, nearly one-
third are shrinking in population numbers and territorial ranges.\22\
Even more startling, in just the last 40 years, we have lost half of
all wild animals on Earth.\23\ That is a sobering statistic. Further,
the rate of extinction is happening at a pace at least 100 times
greater than what would be considered normal. Scientists estimate that
by 2050, well within our children's lifetime, 10 percent of all
terrestrial species will be ``committed to extinction.'' \24\
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\22\ Gerardo Ceballos, Paul R. Ehrlich, and Rodolfo Dirzo,
Biological Annihilation Via the Ongoing Sixth Mass Extinction Signaled
By Vertebrate Population Losses and Declines, PNAS E6089-E6096 (July
10, 2017), http://www.pnas.org/content/pnas/114/30/E6089.full.pdf.
\23\ Id.
\24\ Elizabeth Kolbert, The Sixth Extinction: An Unnatural History
167-68 (2014); see also Daniel A. Farber, Separated at Birth?
Addressing the Twin Crises of Biodiversity and Climate Change, 42
Ecology L.Q. 841, 846 (2016) (noting that climate change will
exacerbate biodiversity loss).
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This is what scientists now call the Sixth Extinction. Unlike
previous extinction events, it is largely being caused by man himself.
Faced with the impact of our own hands on the diversity of life, we
have a responsibility to ourselves, to our children and to the planet
itself to act. As famed scientist E.O. Wilson has said, ``The one
process now going on that will take millions of years to correct is the
loss of genetic and species diversity by the destruction of natural
habitats. This is the folly our descendants are least likely to forgive
us.'' \25\ It is up to us to halt and reverse this damage to the web of
life.
---------------------------------------------------------------------------
\25\ Edward O. Wilson, Biophilia 121 (1984).
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Biodiversity decline is the proverbial canary in the coal mine, a
symbol of what we are doing to the Earth. And what befalls the Earth
ultimately will come back to haunt us. As Congress once understood,
there are many reasons to be alarmed about the loss of biodiversity,
not the least of which is its ultimate impact on humans. Threatened and
endangered species provide tangible services and benefits to people,
playing important roles in providing us with clean water, food,
medicines and more. Beyond such material benefits, species have
intangible existence and spiritual value. The value of Earth's
biodiversity ``is, quite literally, incalculable,'' the House Report
for the ESA stated back in 1973. ``Sheer self-interest impels us to be
cautious.'' \26\
---------------------------------------------------------------------------
\26\ H.R. Rep. 93-412, pp. 4-5 (1973).
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the western caucus bills would cripple species conservation
So why, when the need for conservation and concern for our future
is greater than ever, is this Committee considering a suite of bills
that would, each in its own way, undermine the ESA and cripple our
efforts to conserve endangered species? If we are to avert this looming
extinction crisis we should strengthen the laws and policies,
especially the ESA, that protect imperiled species and their habitat.
But these bills would do just the opposite. While some of these
proposals are solutions looking for a problem, others are direct
attacks on the very foundations of the ESA.
Despite their superficially attractive yet often Orwellian acronyms
(like the LOCAL Act or the EMPOWERS Act), not one of these bills would
enhance the conservation of endangered species in this country or
stimulate their recovery. Rather, they would undermine sound science-
based decision making, create unnecessary barriers to the listing of
species, weaken protections against take, exempt areas from critical
habitat designation, decrease opportunities for public participation,
and increase burdens on already fiscally-strapped wildlife agencies.
Overall, these bills would take a wrecking ball to the ESA, and all to
benefit a minority of special interests in a few western states.
H.R. 3608: Endangered Species Transparency and Reasonableness Act of
2018
This bill would subvert the ESA's bedrock requirement that listing
decisions be based on sound science by simply declaring that all
information submitted by state, tribal or county governments must be
considered as the best scientific and commercial data available,
irrespective of its actual merit. The ESA already encourages
governments to submit information that may aid the Services in making
listing decisions. That information is assessed, like any other, for
its accuracy and reliability. Under this provision, information of any
quality provided by state, tribal, and county governments--even data
that are flatly wrong--would be presumed equivalent, if not superior,
to peer-reviewed research from leading species experts. Adding an
additional burden, the bill requires the Services to make information
that served as the basis for listing and critical habitat
determinations publicly available online, but it exempts information
that is subject to state privacy laws. This exemption could undermine
transparency and encourage states to pass laws shielding commercial
data from public inspection to appease special interests.
Notably, the bill also targets citizen enforcement of the ESA by
capping and increasing the difficulty of obtaining litigation fees, in
addition to requiring publication of yearly reports detailing Federal
expenditures related to ESA cases, including settlements and attorneys'
fees. Citizen enforcement is a critical part of the ESA's design, and
central to the rule of law. These provisions could deter citizens from
providing a vital check in the form of judicial review of erroneous
agency decision making.
H.R. 6344: Land Ownership Collaboration Accelerates Life Act of 2018
(LOCAL Act)
The LOCAL Act would create a major loophole in the ESA's
prohibition on take of endangered and threatened species that could
eviscerate protections for species that are already on the brink of
extinction. This bill proposes to add provisions under a new section
10(l) that would allow individuals to request a determination from the
Secretary regarding whether a particular activity would constitute
unlawful take. If the Secretary determines that the proposed activity
complies with the law, then any use or action taken by the property
owner in ``reasonable reliance'' would be exempted from the take
prohibitions of the ESA. If the Secretary fails to respond to such a
request within 180 days, the activity would automatically be exempt
from the ESA's take prohibition.
The LOCAL Act would unreasonably burden the Secretary, who may lack
the resources necessary to provide a timely response, while at the same
time creating incentives for individuals to inundate the Secretary with
requests in the hopes of obtaining authority to take listed species
outside of the normal permitting process. After a missed deadline, an
automatic no take determination would remain effective for 5 years; if
the Secretary responds that the requested activities do not constitute
a take, this determination would be effective for 10 years. Under the
bill, the Secretary may only withdraw such a determination in the case
of unforeseen changed circumstances.
Most disturbing, if the Secretary finds that the proposed use would
not comply with the ESA's take prohibition (or withdraws a no take
determination), the LOCAL Act would entitle the landowner to financial
compensation for the full market value of its proposed use. This
sweeping provision effectively pays property owners to comply with the
law and would quickly bankrupt funding for the ESA. The requirement to
pay full market value for a proposed use, without regard to the
relative extent of the property owner's loss or the other economic uses
to which its property can be put, violates settled constitutional
principles governing compensation for regulatory takings and invites
speculative and fraudulent claims. The Fifth Amendment of the
Constitution guarantees just compensation when an individual's property
is taken for public use, but a mere regulation does not trigger
compensation unless the property owner suffers a physical appropriation
or a near total loss of a property's economic value.\27\ All citizens
benefit from government regulation that maintains a healthy
environment, and their use of their property can be limited by such
regulation without compensation except in the rare case where it rises
to a government taking. As Justice Oliver Wendell Holmes, Jr.
recognized in the seminal case that defined regulatory takings,
``Government hardly could go on if to some extent values incident to
property could not be diminished without paying for every such change
in the general law.'' \28\ The LOCAL Act thus provides a financial
windfall without any constitutional basis to selected property owners
simply to ensure that they comply with the ESA. This would cripple the
ESA's implementation.
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\27\ See, e.g., Lingle v. Chevron U.S.A. Inc., 544 U.S. 528 (2005);
Penn Cent. Transp. Co. v. New York City, 438 U.S. 104 (1978).
\28\ Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 413 (1922).
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H.R. 6345: Ensuring Meaningful Petition Outreach While Enhancing Rights
of States Act of 2018 (EMPOWERS Act)
The EMPOWERS Act would require the Services to engage in an
elaborate notice and consultation process with states and counties and
would provide states and counties with de facto veto power over listing
and critical habitat decisions. Upon finding that a petition to list a
species or revise its critical habitat may be warranted, H.R. 6345
directs the Secretary to seek out from state and county governments
information related not just to the species' status but also to the
potential impacts of the petitioned action on the locality and invites
state and county officials to advise whether such action is
``merited.'' The EMPOWERS Act thus opens the door to elevating non-
biological factors, such as economic costs, in the listing process.
Most concerning, if a state or county objects to a proposed listing
or critical habitat determination, this bill would forbid the Secretary
from proceeding with the action unless the Secretary demonstrates that
information submitted by the locality is ``incorrect'' and that the
action is warranted. The Secretary is thus precluded from listing a
species or revising its critical habitat if any information submitted
by a locality is correct (or cannot be demonstrated to be incorrect),
regardless of whether that information is relevant to the decision or
sufficient to overcome other scientific information in the record that
supports the action.
As with H.R. 3608, this bill elevates political considerations over
sound science. States and local governments have ample opportunities to
participate in the listing process and provide relevant information to
the Services. The ESA already requires the Secretary to notify states
and counties of proposals to list species or designate critical habitat
and invite their comments, and requires the Secretary to furnish a
written justification to a state if he or she issues a listing or
critical habitat regulation that conflicts with the state's
comments.\29\ A 2016 Obama administration regulation already requires
petitioners to notify states of their intention to file a listing
petition.\30\ The elaborate procedure that would be established under
the EMPOWERS Act is thus unnecessary to ensure that states and
localities can fully participate and submit relevant information in the
petition process, and its provisions inviting consideration of non-
biological factors in listing and granting states and counties an
arbitrary veto over listings and revisions of critical habitat plainly
subvert the integrity of the ESA.
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\29\ 16 U.S.C. Sec. Sec. 1533(b)(5)(A), (i).
\30\ 50 C.F.R. Sec. 424.14(b).
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H.R. 6346: Weigh Habitat Offsetting Locational Effects Act of 2018
(WHOLE Act)
The WHOLE Act strikes at what many have called the ``heart of the
ESA''--the section 7 consultation process. Section 7 requires that
Federal agencies consult with the Services whenever an action
authorized, funded or carried out by the agency could jeopardize the
continued existence of a listed species or adversely modify its
critical habitat. Formal consultation results in a biological opinion
and incidental take statement that sets forth reasonable and prudent
measures to minimize the take of listed species. This bill adds a
requirement that the Secretary consider the ``offsetting effects of all
avoidance, minimization, and other species-protection or conservation
measures that are already in place or proposed to be implemented as
part of the action, including the development, improvement, protection,
or management of species habitat whether or not it is designated as
critical habitat of such species.''
The Services already consider avoidance, minimization and other
conservation measures that are included in a proposed action during
consultation, as well as evaluating existing conservation measures that
benefit a species as part of the environmental baseline. In doing so,
however, the Services evaluate the reliability of such measures,
including the extent to which they are funded, the certainty of their
implementation and the likelihood that they will in fact provide the
projected benefits to the species. Such evaluation is essential, since
the environmental record is replete with instances where agencies or
project proponents have failed to implement mitigation measures or
where such mitigation fails to achieve its expected benefit. The
direction in the WHOLE Act to consider ``all'' such measures appears to
direct the Services to consider any mitigation proposal, regardless of
how speculative, unfunded or ineffective it may be. Moreover, requiring
the Services to consider ``the offsetting effects'' of existing
conservation measures is illogical, since beneficial measures already
in place cannot ``offset'' the detrimental impacts of new actions. The
extent to which existing conservation measures have benefited a species
is properly considered in evaluating the environmental baseline
regarding the status of the species.
H.R. 6354: Stop Takings on Reserves Antithetical to Germane
Encapsulation Act of 2018 (STORAGE Act)
This bizarrely named bill prohibits the designation of critical
habitat within reservoirs, canals, and other water storage, diversion
or delivery facilities where habitat is periodically created and
destroyed due to changing water levels resulting from the operation of
these facilities. This unnecessary bill would have limited application
but risks blocking the designation of critical habitat that may be
necessary for a species to survive. The prevalence of reservoirs and
water projects throughout areas of the western United States has
contributed to widespread losses of riparian habitat that are essential
for imperiled species. As the West experiences changes in its long-term
hydrological cycle due to climate change, many reservoirs operate at
reduced capacity, restoring riparian habitat that may be highly
valuable for listed species. Any designation of critical habitat in
such areas would have to take into account adverse economic impacts,
including constraints on the future operation of the facility, so such
designation is unlikely except where changes in the operation of a
project create opportunities to restore riparian habitat over a long
term without disruption of a project. This bill would preclude
consideration of such habitat protection altogether.
H.R. 6355: Providing ESA Timing Improvements That Increase
Opportunities for Nonlisting Act of 2018 (PETITION Act)
The PETITION Act is among the most problematic bills being
considered by this Committee. The bill declares, without evidence, that
the listing petition process, a key safeguard that allows citizens to
petition for protection of species that face extinction, is overloaded
because of the intentional submission of frivolous petitions with the
express purpose of forcing the Service to miss statutory deadlines or
list species that do not deserve protection.
These charges are unfounded. As the Government Accountability
Office (GAO) recently found, other than setting schedules for
completing actions required under section 4, settlement agreements in
deadline litigation ``did not affect the substantive basis or
procedural rulemaking requirements the Services were to follow in
completing the actions.'' \31\ There is simply no basis for the claim
that deadline settlements lead to species being listed that do not, as
a scientific matter, warrant the protections of the ESA. Nor is there
any basis for the conspiracy theory that environmentalists
intentionally submit unwarranted listing petitions in order to overload
the listing system. I am unaware of any court decision or agency
determination that has concluded that environmentalists have done so.
Although citizen petitions have at times strained the capability of the
Services, that is a reflection of the limited resources the Services
are provided for listing. Citizen petitions have led to the listing of
many species from the loggerhead sea turtle to the polar bear and the
red knot that are critically imperiled and fully warrant the
protections of the ESA.\32\
---------------------------------------------------------------------------
\31\ U.S. Government Accountability Office, Environmental
Litigation: Information on Endangered Species Act Deadline Suits, GAO-
17-304 at 19 (Feb. 28, 2017), https://www.gao.gov/products/GAO-17-304.
\32\ See also Editorial, The Public Role in Species Protection,
N.Y. Times, Aug. 29, 2012, https://www.nytimes.com/2012/08/30/opinion/
the-public-role-in-species-protection.html (citing examples).
---------------------------------------------------------------------------
If the premise that the petition process is being intentionally
abused were limited to ``findings,'' the bill could be dismissed as
partisan rhetoric. That demonstrably false accusation underlies highly
damaging substantive provisions, however, that would cut the heart out
of the ESA by precluding the Services from even considering listing
petitions during any period when a backlog of listing petitions exists.
Without providing additional resources to avoid such backlogs, this
approach would prevent species from receiving the protections of the
ESA and could lead to their extinction.
This bill requires the Secretary to declare ``petition backlogs''
and suspend listing decisions if the number of species included in
petitions with missed 90-day or 12-month findings exceeds 5 percent of
the number of species for which 90-day or 12-month petitions have been
presented over the last 15 years. Once a backlog for these petitions
has been declared, under most circumstances, the bill requires the
Secretary to prioritize addressing petitions to de-list or down-list
species above petitions to list or uplist species until the backlog is
resolved. The bill would suspend statutory deadlines for responding to
petitions to list or uplist species, and automatically deny most
petitions to list or uplist species during a petition backlog. The bill
also precludes judicial review of decisions denying listing petitions,
but not of decisions granting listing or denying de-listing or down-
listing petitions, thus depriving citizens seeking to protect species
of their rights to seek court redress while empowering industries and
property owners who oppose listings and press for de-listing species to
challenge decisions adverse to their interests.
The PETITION Act would deny ESA protection for imperiled species
due to resource constraints that prevent the Secretary from meeting
statutory petition deadlines, and that are wholly the fault of Congress
in failing to provide adequate funding for the ESA. It would elevate
de-listing of species that are, by definition, no longer in peril over
the protection of species that face imminent extinction. It subverts
the very purpose of the ESA.
H.R. 6356: Less Imprecision in Species Treatment Act of 2018 (LIST Act)
Like the PETITION Act, the LIST Act also subverts the ESA's
science-based process for evaluating whether a species is recovered and
should be de-listed. The ESA currently requires that the same process
and criteria be used to both list and de-list a species by making a
determination on the basis of the best scientific and commercial data
available when considering the five listing factors under section
4(a)(1). The courts have held that those factors, and not other
considerations such as the goals of recovery plans, must form the basis
for any decision to list or de-list.\33\
---------------------------------------------------------------------------
\33\ Friends of Blackwater v. Salazar, 691 F.3d 428, 432-33 (D.C.
Cir. 2012).
---------------------------------------------------------------------------
The LIST Act, however, directs the Secretary to de-list species if
the Department of the Interior (oddly, the Department of Commerce,
which shares the administration of the ESA, is omitted) has produced or
received substantial information demonstrating that the species ``is
recovered'' or that the goals of a recovery plan for a species have
been met regardless of the statutory factors set forth in section 4(a).
This change would subvert the integrity of the ESA because the de-
listing process would no longer require a methodical review of the
listing factors to ensure that a listed species is not threatened or
endangered, elevating recovery goals above the statutory factors that
determine whether a species is threatened or endangered. The bill does
not define what might constitute ``recovery,'' leaving that critical
concept ambiguous and creating the obvious risk that species that still
qualify under section 4(a) may lose statutory protection. Moreover, the
bill dispenses with rulemaking requirements intended to ensure public
transparency and reliability of agency information, directing that the
Secretary only publish a notice that a species is being removed rather
than the text of a proposed de-listing regulation, as now required by
the ESA.
The LIST Act also establishes a one-sided process for de-listing
based on the false premise that many species are erroneously listed.
The bill would allow for cursory de-listings if the Secretary
determines, based on information submitted by third parties or
developed by the Department of the Interior (again, oddly omitting the
Department of Commerce), that the species was listed based on
information that was ``inaccurate beyond scientifically reasonable
margins of error,'' fraudulent, or misrepresentative. If the Secretary
determines that the listing was less than likely to have occurred
absent such information, the species would be cursorily de-listed
(without consideration of the statutory factors in section 4(a)) and
that determination would not be subject to judicial review. By
contrast, as usual in these bills, a decision by the Secretary that
finds that the original petition did not contain inaccurate, fraudulent
or misrepresentative information would be subject to judicial review by
parties interested in forcing the delisting of the species.
Finally, in an apparent attempt to limit citizen petitions, the
bill would punish a person who submitted a listing petition containing
any information later determined to be inaccurate beyond scientifically
reasonable margins of error, fraudulent, or misrepresentative by
prohibiting the person from submitting future petitions for 10 years.
H.R. 6360: Permit Reassurances Enabling Direct Improvements for
Conservation, Tenants, and Species Act of 2018 (PREDICTS Act)
This bill unnecessarily codifies the existing well-established
practice of allowing non-Federal landowners to enter into Candidate
Conservation Agreements with Assurances and Safe Harbor Agreements.
H.R. 6360 requires that all Incidental Take Permits, Candidate
Conservation Agreements with Assurances, and Safe Harbor Agreements
contain assurances governing permit revocation, changed circumstances,
and unforeseen circumstances. But the bill only allows the Secretary to
revoke these permits and agreements in very limited circumstances. In
contrast to current administrative practice established in Service
regulations, the bill would not allow termination for the landowner's
failure to implement the agreement or violations of law. The bill thus
makes it more difficult for the Secretary to enforce these agreements
or alter them in the face of changed circumstances.
H.R. 6364: Localizing Authority of Management Plans Act of 2018 (LAMP
Act)
Like many of the bills under consideration, H.R. 6364 would expand
the role of the states in implementing the ESA and impair the ability
of Federal agencies to conserve species. Section 6 of the ESA allows
states and the Federal Government to enter into cooperative agreements,
whereby the states propose programs to conserve listed species and the
Secretary assists with the management of those programs. The LAMP Act,
however, would amend this provision to authorize the Secretary to
broadly transfer management of resident listed species to state
governments, and to provide Federal funding to support the state
program. Unlike the current section 6, states will be permitted to
protect only some species or taxonomic groups of species, rather than
all species listed under the ESA. In addition, the bill removes
language from current law that prevents states from enacting laws that
are less restrictive than Federal laws, creating the risk that state
programs established under this authority will relax existing
protections for listed species.
Proposals to delegate the ESA to the states raise very substantial
risks for the integrity and effectiveness of the law. Although states
play a vital role in conserving resident species of wildlife, their
focus has historically been on the management of game species, and the
funding for state fish and wildlife agencies is often derived primarily
from hunting licenses and fishing permits. States have in more recent
years begun to engage with conserving non-game species, in part
stimulated by the provision of Federal funds for such conservation
through state wildlife grants. But states still generally lack the
legal authority under state law, the biological expertise, or the funds
to effectively conserve imperiled species. A recent study by the
University of California Irvine School of Law found that few state ESA
laws protect all endangered species within their state, that many state
ESA laws do not require decisions to be based on sound science, that
few state ESA laws require consultation with expert state fish and
wildlife agencies on the effects of state approved projects on listed
species, that most state ESA laws do not allow citizens to petition for
listing or de-listing species, that most state ESA laws fail to provide
authority for the designation and protection of critical habitat, that
few state ESA laws even protect against harm to listed species'
habitat, that virtually no states have authority to plan for species
recovery, and--perhaps most revealing--that state expenditures make up
only approximately 5 percent of ESA spending.\34\ As the authors of the
study conclude: ``[W]ithout significant state law reforms in most
states, the proposed devolution of Federal authority and responsibility
over threatened and endangered species to states is likely to undermine
conservation and recovery efforts, lead to a greater number of species
becoming imperiled, and result in fewer species recovered.'' \35\
---------------------------------------------------------------------------
\34\ Alejandro E. Camacho, et al., Assessing State Laws and
Resources for Endangered Species Protection, 47 Envtl. L. Inst. 10837
(2017), https://www.law.uci.edu/centers/cleanr/news-pdfs/cleanr-esa-
report-final.pdf.
\35\ Id. at 10837-10838.
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The LAMP Act would also allow non-Federal parties to manage species
on certain public and private lands while being exempted from the ESA's
consultation requirement and take prohibition. The ESA currently allows
the Secretary to enter into ``management agreements'' with states that
allow the state to manage areas established for the conservation of a
listed species. The LAMP Act, however, would allow the Secretary to
enter into ``cooperative management agreements'' with any unit of
government or non-Federal person. In addition to expanding the scope of
who may enter into such an agreement, the LAMP Act would allow parties
to a cooperative management agreement to manage both species and land,
as opposed to the current ESA's provisions that states may only manage
land. Moreover, the LAMP Act would exempt parties to an agreement from
sections 5, 7, and 9 of the ESA, allowing them to forgo consultation on
Federal actions and ignore the ESA's take prohibition. These provisions
empower local governments and non-Federal parties, such as oil and gas
companies, to apply for authority to manage species, undermining the
authority of both the Federal Government and the states over wildlife.
Such entrants may have subversive motives or insufficient knowledge,
pushing imperiled species even further toward extinction. Finally, the
LAMP Act would exempt entry into cooperative management agreements from
review under the National Environmental Policy Act, allowing the
Secretary to ignore the potential environmental impacts of entering
into such agreements.
conclusion
The ESA has been an indispensable safety net for fish, wildlife and
plants. As former Speaker of the House Newt Gingrich wrote in a recent
book: ``Bold leadership produced the Endangered Species Act in 1973,
perhaps the most effective piece of environmental legislation in our
country's history. The Act has been, by any measure, a very successful
guardian of wildlife and habitat and any attempt to weaken it should be
resisted.'' \36\ Unfortunately, the bills pending before this Committee
ignore the ESA's achievements and popularity and would seriously
undermine species conservation.
---------------------------------------------------------------------------
\36\ Newt Gingrich & Terry Maple, A Contract with the Earth: Ten
Commitments You Can Make to Protect the Environment Now, 170 (2008).
---------------------------------------------------------------------------
None of these bills would improve species conservation. Each would
undermine the ESA, often dramatically. If these measures are enacted,
species deserving of Federal protection will be denied the help they
need to survive and recover.
This is not the time to play politics. If the proponents of these
bills are really interested in helping species recovery and avoiding
further extinctions, they should support critically needed funding
increases for the Services rather than advancing these damaging
legislative proposals that only undermine the ESA. On behalf of
Defenders of Wildlife and our 1.8 million members and supporters, I
strongly urge this Committee to reject every one of these dangerous
bills.
______
Questions Submitted for the Record by Rep. Gosar to Mr. Robert Dreher,
Senior Vice President, Conservation Programs & General Counsel,
Defenders of Wildlife
Question 1. Mr. Dreher, since 1976, your organization, the
Defenders of Wildlife has been the litigant in 510 lawsuits. How many
dollars in attorney's fees has Defenders of Wildlife collected as a
result of litigation against the Federal Government?
Answer. Since 2009, Defenders of Wildlife has recovered $824,279.58
in attorney's fees under the Equal Access to Justice Act or other
statutes that provide for an award of fees to a prevailing party in
litigation against the United States. This amount represents a fraction
of 1 percent of the organization's annual budget for those years.
Defenders of Wildlife does not have records of attorney fee awards
prior to 2009.
Question 2. Mr. Dreher, you have opposition to all the bills in the
package, which should come as no surprise to anyone given the extremist
group you work for. You even spoke against the PREDICTS Act which
codifies the Clinton administration's 1998 ``No Surprises'' rule. Can
you name one reform to the ESA, other than throwing more money at
problems you all likely caused, that the Defenders of Wildlife has
pursued through congressional legislation and supported over the last
30 years?
Answer. Over the past 30 years, Defenders of Wildlife has supported
various amendments to the ESA, including:
1. Endangered Species Act Amendments of 1988
100th Congress--H.R. 1467
2. Endangered Species Recovery Act of 1997
105th Congress--S. 1180, H.R. 2351
3. Endangered Species Recovery Act of 1999
106th Congress--H.R. 960
4. Endangered Species Recovery Act of 2001
107th Congress--H.R. 4579
In addition to these bills, Defenders of Wildlife published a
report in 1994, Building Economic Incentives Into the Endangered
Species Act, advocating for legislative changes to the ESA which would
create various tax incentive provisions, develop funds to reward and
incentivize private landowners, and require Habitat Conservation Plans
for candidate species. Several of these recommendations were adopted
administratively by Secretary of the Interior Bruce Babbitt.
Defenders of Wildlife has also supported a wide variety of
legislation which would improve wildlife conservation in conjunction
with the ESA. These bills include:
1. The Global Warming Wildlife Survival Act (which later became
known as the Safeguarding America's Future and Environment
Act)
a. 110th Congress--S. 2204, H.R. 2338
b. 112th Congress--S. 1881
c. 113th Congress--S. 1202, H.R. 5065
d. 114th Congress--S. 1601, H.R. 2804
e. 115th Congress--S. 2176, H.R. 4490
2. The Protect America's Wildlife Act of 2007
a. 110th Congress--H.R. 3663
b. 111th Congress--S. 1535, H.R. 2281
3. Wildlife Corridors Conservation Act of 2016
a. 114th Congress--H.R. 6448
4. The Scientific Assistance for Very Endangered North Atlantic
Right Whales Act of 2018
a. 115th Congress--S. 3038, H.R. 6060
5. The Eliminate, Neutralize, and Disrupt Wildlife Trafficking Act
of 2016
a. 114th Congress--S. 2385, H.R. 2494
6. America's Wildlife Heritage Act
a. 111th Congress--H.R. 2807
b. 112th Congress--H.R. 3496
Defenders of Wildlife is not currently supporting any proposals for
legislative changes to the ESA. Out of the over 110 bills, amendments
and riders we have identified relating to the ESA that have been
introduced in the current Congress, none would benefit species
conservation. Instead, all are harmful to protected species and/or the
ESA, including all of the bills that were the subject of the
Committee's September 26, 2018 hearing. Defenders of Wildlife works
continually to improve the implementation of the ESA, however, through
its field programs and through its Center for Conservation Innovation
(CCI), which uses data, technology, and interdisciplinary approaches to
pioneer innovative, pragmatic conservation solutions. More information
about CCI's initiatives can be found at: https://defenders.org/
innovation.
Question 3. Mr. Dreher, you testified that these bills are and I
quote, ``all to benefit a minority of special interests in a few
western states.'' I take offense to that. I'd encourage you to look at
our website and review the list of the 170 stakeholders throughout the
country that are supporting these bills. Is the Florida Farm Bureau
Federation from the West? How about the Missouri Sheep Producers? How
about the National Association of Realtors, are they solely in the
West? How about the U.S. Chamber, solely in the West? And by the way,
what is your disdain for the West?
Answer. I don't personally have any disdain for the West, nor does
Defenders of Wildlife. We believe that all Americans have a vital stake
in the protection of our natural heritage. Defenders of Wildlife works
closely with state and local governments and people throughout the West
to conserve wildlife and supports western communities through our co-
existence programs. For example, we work with ranchers to prevent
attacks on livestock through range riders, livestock guard dogs, fladry
and trail cameras. Defenders of Wildlife subsidizes construction of
electric fences for securing grizzly bear attractants, such as garbage,
fruit trees and livestock, in states like Washington, Idaho, Montana
and Wyoming. These programs are central to our mission of reducing
human-wildlife conflict and working toward sustainable solutions that
benefit both wildlife and people.
We can't, however, ignore the fact that the Western Caucus and its
members took the lead on sponsoring these nine bills, which are all
harmful to endangered species conservation. The goals of many of these
bills appear to be to reduce protections for imperiled species,
delegate regulatory authority to state or local governments, limit
opportunities for judicial review by citizens concerned with protecting
imperiled species, and otherwise facilitate development activities that
might be constrained under the ESA. It is no coincidence that pro-
development interests, such as oil, gas, mineral extraction and farming
interests make up a clear majority of the supporters to these bills.
Many of those organizations are from the West or represent interests
that are heavily engaged in development of western resources, including
such groups as the American Petroleum Institute, the Independent
Petroleum Association of America, the National Mining Association, the
American Loggers Council, the National Grazing Lands Coalition, the
Western Energy Alliance, and a host of others.
______
The Chairman. Thank you.
Mr. Wood.
STATEMENT OF JONATHAN WOOD, ATTORNEY, PACIFIC LEGAL FOUNDATION,
WASHINGTON, DC
Mr. Wood. Chairman Bishop, Ranking Member Grijalva, and
honorable members of the Committee, thank you for giving me the
opportunity to testify on this important issue. My name is
Jonathan Wood. I am an attorney with the Pacific Legal
Foundation, and also a research fellow with the Property
Environment Research Center.
The Endangered Species Act is the Nation's most popular
environmental law. Yet, surveys reveal that most of the public
has little understanding of how the law works, or what it has
achieved. Thus, Congress should heed the public's deep concern
for endangered species. But it would be a mistake to assume
that because the law polls well, everything is working
perfectly and we cannot improve on what we have now.
In fact, the ESA's record of accomplishing its goals is
rather mixed. On the bright side, only 1 percent of species
protected by the law have gone extinct. Now, that is an
accomplishment we can and all should celebrate. However, only 3
percent of protected species have recovered, and I think we can
do better.
To better achieve both of the ESA's goals, we need bold
reforms that improve the incentives for states, property
owners, and conservationists to work together toward species
recovery. That is why I am glad to see that the LOCAL Act
provides financial incentives for efforts to protect species
and recover habitat, transforming rare species from a liability
into an asset.
Similarly, the EMPOWERS Act seeks to better enlist states
as partners in conservation. When combined with the reforms
proposed by the Administration, these can help boost the rate
at which we recover species without sacrificing the law's
success at preventing extinction.
But in addition to substantive reforms, we also need
process reforms to address some of the persistent points of
conflict under the Act. The PETITION Act and LIST Act, for
instance, address some of the conflicts that arise under the
listing process.
It is undeniable that, historically, the number of
petitions filed have exceeded the agency's ability to review
them by the strict deadlines contained in the statute.
Reviewing petitions is expensive. Even petitions that are
meritless may cost the agency upwards of $150,000 to review.
And unfortunately, as the Obama administration explained in a
proposed rule in 2016, it is the weakest petitions that can
impose the greatest burdens, because they require agency staff
to decipher petitions that may lack any clear logic.
Due to the backlog, listing policy has historically been
driven primarily by the interest of whichever organizations
petition and sue the most. Science on the threats to species,
and the agency's policy judgments, by comparison, have played a
reduced role.
Fortunately, the Obama administration found a way to
address this problem. It established a system to prioritize
petitions based on the seriousness of threats species face, the
quality of the data, and whether state and private conservation
efforts are ongoing. The PETITION Act would codify this
approach, confirming that agencies can prioritize petitions
with the most merit over those with the least, which would
allow the agency to focus their resources where they can do the
most good, rather than having priorities arbitrarily set by
litigation.
Another persistent source of conflict is the difficulty in
de-listing species. Although the law assigns the same standards
and preference for listing and de-listing decisions, this has
not been borne out in practice. In my written testimony, I
describe several cases where the U.S. Fish and Wildlife Service
ignored its own scientists' determination that a species'
status had improved.
In the case of the manatee, for instance, the agency
dragged its heels for an entire decade, and it likely would
have continued to delay the decision if PLF had not filed a
petition and sued, sued, and sued again on behalf of affected
property owners. The LIST Act would require a prompt de-listing
of species, once agency scientists determine they no longer
require protection. It would also require prompt de-listing
where a species was listed based on bad data.
A problem which a recent Heritage Foundation study found is
far more significant than we previously assumed. In fact, if
you properly allocate species between whether they recovered,
went extinct, or were originally listed in error, that is the
largest category, and it trumps the others.
Thus, the proposals in the LIST Act are sensible changes.
There is compelling evidence that merely listing a species
without devoting resources to its conservation can cause more
harm than good. Thus, when species linger on the list, they
siphon conservation funding away from the species that truly
need it.
In my written testimony, I identify several points that
could benefit from further clarification or improvement. Today,
I want to particularly caution the Committee about barring
judicial review. Undoubtedly, too many ESA issues wind up in
litigation. But the solution is to address the underlying
incentives behind that problem, as H.R. 3608 would do, by
limiting attorney's fees to reasonable rates.
But as I explained in my written testimony, broad bans on
judicial review are an invitation for agency mischief.
In conclusion, the reforms we are discussing today
appropriately focus on reducing conflict, while providing
better incentives for species recovery. That is precisely what
we need to achieve the ESA's goals.
Thank you, and I look forward to questions.
[The prepared statement of Mr. Wood follows:]
Prepared Statement of Jonathan Wood,\1\ Pacific Legal Foundation \2\ on
H.R. 6355 (PETITION Act) and H.R. 6356 (LIST Act)
---------------------------------------------------------------------------
\1\ Attorney, Pacific Legal Foundation; Research Fellow, Property
and Environment Research Center.
\2\ Founded in 1973, Pacific Legal Foundation is a nationwide
public interest legal group that fights to secure all Americans'
inalienable rights to live responsibly and productively in their
pursuit of happiness. It has secured 10 wins at the Supreme Court of
the United States on behalf of property owners and individuals whose
rights were violated by government.
---------------------------------------------------------------------------
main points
For decades, the U.S. Fish and Wildlife Service has
struggled to keep up with a persistent backlog of listing
and de-listing petitions.
The backlog workplan is a sensible, bipartisan response to
this problem.
The public shouldn't have to bring multiple suits to get
agencies to listen to their own scientists.
Chairman Bishop, Ranking Member Grijalva, and honorable members of
the Committee, thank you for the opportunity to testify on this
important issue.
Forty-five years after the Endangered Species Act was enacted, we
have learned a lot about how the law works and doesn't work. We can be
proud that only 1 percent of protected species have gone extinct. But
we should be equally dissatisfied that only 3 percent of those species
have recovered. We can and must do better. And that requires a
combination of reforms. First, bold reforms are needed to improve the
incentives for states, property owners, and conservationists to work
together toward species recovery.\3\ And, second, process reforms must
address some of the persistent points of conflict that distract from
those recovery efforts.
---------------------------------------------------------------------------
\3\ See, e.g., Jonathan Wood, The Road to Recovery: How Restoring
the Endangered Species Act's Two-Step Process Can Prevent Extinction
and Promote Recovery, PERC Policy Report (2018).
---------------------------------------------------------------------------
The PETITION Act and LIST Act address two of the most persistent
bureaucratic problems in the administration of the Act. In fact, they
codify or build on reforms proposed administratively by both the Obama
and Trump administrations. Importantly, these reforms will restore the
government's ability to focus on the species that most need protection
while spurring the de-listing of species that no longer require it.
The popular but poorly understood Endangered Species Act
The Endangered Species Act is one of our Nation's most popular
environmental laws. Surveys routinely reveal broad, bipartisan
support.\4\ Almost everyone, regardless of political persuasion,
embraces the goals of the Endangered Species Act. However, it's equally
clear that most Americans know very little about how the law works and
what results it has achieved.
---------------------------------------------------------------------------
\4\ See, e.g., Tulcin, et al., Poll Finds Overwhelming, Broad-Based
Support for the Endangered Species Act Among Voters Nationwide, Tulchin
Research Memo (July 6, 2015), available at https://earthjustice.org/
sites/default/files/files/PollingMemoNationalESASurvey.pdf.
---------------------------------------------------------------------------
A recent survey by the Association of Zoos and Aquariums, for
instance, found that the average American believes there are only 80-
100 species on the Endangered Species List.\5\ (There are nearly
1,500.) They do not know that species like the bald eagle have
recovered, despite the good news being widely publicized.\6\ Nor can
many identify popular species that have recently been listed.
---------------------------------------------------------------------------
\5\ See Press Release, Association of Zoos and Aquariums, U.S.
Americans Greatly Underestimate How Many Animals on the Endangered
Species List, Study Shows (May 14, 2018), available at https://
www.aza.org/aza-news-releases/posts/us-americans-greatly-underestimate-
how-many-animals-on-the-endangered-species-list-study-shows.
\6\ See id.
---------------------------------------------------------------------------
This lack of knowledge is understandable. Social scientists have
long observed that the public is rationally ignorant of many important
issues because time is limited, acquiring information is costly, and
the odds that an investment in further knowledge will affect the
outcome are extremely low.\7\ If any of us were quizzed on enough
public policy topics, we'd inevitably have our own ``what is Aleppo?''
moment.\8\
---------------------------------------------------------------------------
\7\ See generally Ilya Somin, Democracy and Political Ignorance:
Why Smaller Government Is Smarter (2013).
\8\ See Alan Rappeport, `What is Aleppo?' Gary Johnson Asks, in an
Interview Stumble, N.Y. Times (Sept. 7, 2016), available at https://
www.nytimes.com/2016/09/09/us/politics/gary-johnson-aleppo.html.
---------------------------------------------------------------------------
Because people care so deeply about the law's purposes, but
understandably know little about its operation, any reform--whether a
major reworking of the Act or the most minor tweak imaginable--will
generate political conflict.\9\ This problem has dogged the agencies
charged with implementing the law, regardless of whether the
administration is perceived as a friend or foe of
environmentalists.\10\
---------------------------------------------------------------------------
\9\ See Tate Watkins, Changing the Endangered Species Act could
actually help conservation, Wash. Post (July, 24, 2018), available at
https://www.washingtonpost.com/news/posteverything/wp/2018/07/24/
changing-the-endangered-species-act-could-actually-help-conservation/
?utm_term= .0ef3d3eb8a24 (noting that environmentalists' views on the
Trump administration's proposals ranged from the ``sky-is-falling'' to
seeing opportunities for conservation benefits); Editorial, Endangered
Species Scare, Wall St. J. (July 26, 2018), available at https://
www.wsj.com/articles/endangered-species-scare-
1532646111?mod=searchresults&page=1&pos=5.
\10\ See, e.g., Lydia Wheeler, Endangered species rule changed,
angering environmental groups, TheHill.com (Sept. 26, 2016), available
at https://thehill.com/regulation/energy-environment/297752-rule-
changes-petitioning-process-for-animal-protections (describing
environmental opposition to one minor rule change to the petition
process proposed and finalized by the Obama administration).
---------------------------------------------------------------------------
We can't even agree on whether the law is a success or failure.
Supporters of the Act point to the fact that only 1 percent of species
protected by it have gone extinct,\11\ while critics note that only 3
percent of those species have recovered.\12\ To anyone not entrenched
in the conflict, the answer would seem obvious: it's a little of both.
The Endangered Species Act provides an effective backstop against
species extinction but fails to adequately incentivize recovery
efforts.\13\ But such a nuanced view often escapes the debate.
---------------------------------------------------------------------------
\11\ See Lisa Feldkamp, What has the Endangered Species Act ever
done for us? More than you think., Nature.org May 8, 2017), available
at https://blog.nature.org/science/2017/05/08/what-endangered-species-
act-done-effective-extinction-conservation/.
\12\ See Jonathan H. Adler, The Leaky Ark: The Failure of
Endangered Species Regulation on Private Land, in Rebuilding the Ark:
New Perspectives on Endangered Species Act Reform (2011) (noting the
distressingly few number of successful recoveries, several of which
cannot directly be attributed to the ESA).
\13\ See Jonathan Wood, The Endangered Species Two-Step, PERC
Reports vol. 37 (Sum. 2018), available at https://www.perc.org/2018/07/
13/the-endangered-species-two-step/; see also Tate Watkins, If a Frog
Had Wings, Would It Fly to Louisiana?, PERC Reports, vol. 37 (Sum.
2018), available at https://www.perc.org/2018/07/13/if-a-frog-had-
wings-would-it-fly-to-louisiana/ (describing the challenges and
incredible efforts by the Nature Conservancy to restore habitat for the
dusky gopher frog).
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All of this is to say that Congress should heed the public's deep
concern for the protection and recovery of endangered species. But it
would be a mistake to assume that, because the Endangered Species Act
polls well, it is working perfectly and cannot be improved. It can.
The chronic listing backlog and its causes
The Endangered Species Act permits any interested person to
petition the U.S. Fish and Wildlife Service or the National Marine
Fisheries Service urging the listing or de-listing of a species. There
is no cost to file a petition and minimal paperwork requirements. In
principle, this is a laudable effort to empower anyone to participate
in the process, regardless of their resources.
In practice, a handful of well-healed organizations, not plucky
citizen-scientists, dominate the petition process. From 2007 to 2011,
for instance, two organizations filed 90 percent of listing petitions,
according to the New York Times.\14\ Together, these two organizations
have annual budgets exceeding $15 million and receive significant
amounts in attorney's fees paid by the Federal Government.
---------------------------------------------------------------------------
\14\ Todd Woody, Wildlife at Risk Face Long Line at U.S. Agency,
N.Y. Times (Apr. 20, 2011), available at https://www.nytimes.com/2011/
04/21/science/earth/21species.html.
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Although a petition is virtually free to the petitioner, the mere
filing of one can impose significant costs on the agencies. Even the
most patently inadequate petition requires a response that, in the case
of the U.S. Fish and Wildlife Service, has a median cost of
$39,276.\15\ If the petition indicates that a listing merely may be
warranted--a relatively low bar--the agency must expend another
$100,690.\16\ Thus, anyone may easily divert a substantial amount of
the agency's resources based on a minimum showing. Where a petition has
merit and leads to the recognition of threats to a species, this is a
bargain. But that the same resources can be diverted for petitions that
don't merit such expenditures is troubling.
---------------------------------------------------------------------------
\15\ See, e.g., Department of Interior, Annual Description of
Progress on Listing Actions, 79 Fed. Reg. 72,450, 72,456 (Dec. 5,
2014).
\16\ See id.
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In fact, the greatest burdens are imposed by the weakest petitions
because they require greater time and effort to decipher. When the
Obama administration proposed reforms to the petition process, it
emphasized the difficulty of reviewing weak petitions: ``It has often
proven to be difficult to know which supporting materials apply to
which species, and has sometimes made it difficult to follow the logic
of the petition.'' \17\
---------------------------------------------------------------------------
\17\ Proposed Revisions to the Regulations for Petition, 80 Fed.
Reg. 29,286, 29,287 (May 21, 2015).
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This is not merely a question of resources. There is compelling
evidence that merely listing a species, without devoting resources to
its conservation, may further imperil the species.\18\ In other words,
resources that would be better spent pursuing species recovery are too
often diverted to deciphering weak petitions.
---------------------------------------------------------------------------
\18\ See Adler, supra n.12, at 13.
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It is no exaggeration to say that Federal listing policy is, to a
large extent, dictated by the preferences of whoever is most willing to
petition and sue, as lawsuits are often required to receive a response
to a petition. Science on the threats to a species and the agency's
policy judgment, by comparison, play a reduced role.\19\
---------------------------------------------------------------------------
\19\ See, e.g., Daniel Benjamin, Public pressure effects species
listings, PERC Reports, vol. 18 (2000), available at https://
www.perc.org/2000/09/01/public-pressure-effects-species-listings/.
Until recently, this problem was getting worse. From 1993 to 2007,
the U.S. Fish and Wildlife Service received petitions requesting an
average of 20 species' listings per year. From 2008 to 2011, that
number skyrocketed to 308 per year. Much of this increase was driven by
the filing of ``megapetitions,'' those urging the listing of dozens or
hundreds of species at a time. In 2011, Gary Frazier, the assistant
director for endangered species during the Obama administration,
---------------------------------------------------------------------------
bemoaned that these petitions had derailed the process:
[T]hey're basically going to shut down our ability to list any
candidates for the foreseeable future . . . If all our
resources are used responding to petitions, we don't have
resources to put species on the endangered species list. It's
not a happy situation.'' \20\
---------------------------------------------------------------------------
\20\ See Wildlife at Risk Face Long Line at U.S. Agency, supra n.
14.
Because this problem is the result of the underlying incentives of
the petition process, more money may not solve the problem. Any
additional listing-budget funds would likely be quickly dissipated by
the filing of more petitions. And, because the weakest petitions
require greater resources to decipher, it may result in throwing more
good money after bad.
In any event, more money is not a politically practical solution.
In terms of political priorities, the listing budget is a very low
priority.\21\ If given the power to allocate significant new funding,
even the most ardent supporters of the Endangered Species Act as
currently implemented would likely prioritize other actions, such as
active recovery efforts, over pouring more into a bureaucratic process.
---------------------------------------------------------------------------
\21\ See Jonathan Wood, Worried About Cuts to the ESA Listing
Budget?, PERC.org (Feb. 20, 2018), available at https://www.perc.org/
2018/02/20/worried-cuts-esa-listing-budget/.
---------------------------------------------------------------------------
Solving this problem would require a better allocation of these
costs between the agency and petitioners. The backlog problem is not
unique to the Endangered Species Act and Congress' solution to the
problem in other contexts could provide a blueprint. To address a long
running backlog in the Food and Drug Administration's review of new
medicine applications, for instance, Congress brokered a deal by which
pharmaceutical companies would bear the costs of those reviews in
exchange for a commitment to reduce delays.\22\ That reform funded a 77
percent increase in agency staff to review new drug applications and
cut approval times in half.\23\ Similarly, allowing environmentalists
and industry to voluntarily pay for expedited petition reviews under
the Endangered Species Act could improve the process for everyone by
freeing up agency resources.\24\
---------------------------------------------------------------------------
\22\ See Congressional Research Service, The Prescription Drug User
Fee Act: Background and Issues for PDUFA IV Reauthorization (2007),
available at http://congressionalresearch.com/RL33914/document.php.
\23\ See GAO, Effect of User Fees on Drug Approval Times,
Withdrawals, and Other Agency Activities (2002), available at https://
www.gao.gov/new.items/d02958.pdf.
\24\ See Worried About Cuts to the ESA Listing Budget?, supra n.20.
---------------------------------------------------------------------------
Until the underlying incentives are reconciled, reforms to the
petition process can go a long way toward returning, to the agencies
appointed by Congress to administer the Act, the decision about which
species most urgently require the government's limited resources. An
administrative reform by the Obama administration shows how this can be
done.
Codifying a temporary peace in the listing-backlog wars
When the absurdity of the most recent backlog became too much to
bear, the Obama administration brokered a temporary peace. In 2011, the
Department of the Interior agreed to a settlement that established a 6-
year workplan to review the then-pending megapetitions, in exchange for
environmental groups submitting fewer such petitions.\25\ For the most
part, environmental groups cooperated, giving the new plan time to
work.\26\
---------------------------------------------------------------------------
\25\ See Juliet Eilperin, Interior Dept. strikes deal to clear
backlog on endangered species listings, Wash. Post (May 10, 2011),
available at https://www.washingtonpost.com/national/interior-strikes-
deal-with-conservation-groups-on-endangered-species-listings/2011/05/
10/AF7iX2hG_story .html?noredirect=on&utm_term=.158a4003b88a.
\26\ But see Allison Winter, Petitions for new species protection
wobble balance in FWS settlement, agency says, E&E News (Aug. 7, 2012),
available at https://www.eenews.net/greenwire/2012/08/07/stories/
1059968495.
---------------------------------------------------------------------------
As the initial 6-year workplan neared its conclusion, the Obama
administration proposed a rule to formalize it.\27\ Under that rule,
the Service would assign petitioned species into one of five bins,
giving each a different priority based on the degree of threat the
species faces, data quality, and whether state and private recovery
efforts are ongoing. This allowed the agency to focus its limited
resources on the petitions that most deserved them.
---------------------------------------------------------------------------
\27\ Fish and Wildlife Serv., Methodology for Prioritizing Status
Reviews and Accompanying 12-Month Findings on Petitions for Listing
Under the Endangered Species Act, 81 Fed. Reg. 49,248 (July 27, 2016).
---------------------------------------------------------------------------
Because the Endangered Species Act sets firm deadlines to respond
to listing petitions, this approach has largely relied on goodwill. At
any time, someone could challenge the agency's failure to respond to a
petition by the statutory deadline. And a court could order the agency
to respond promptly, even if the agency had assigned the species a low
priority under the workplan.
The PETITION Act would codify the Obama administration's approach,
eliminating this litigation risk. Importantly, it would rely on the
Service rather than random litigation outcomes to prioritize listing
decisions in the face of budget constraints. It explicitly adopts the
Obama administration's methodology and allows it to be relied on
anytime that the Secretary of the Interior declares a backlog. This
methodology allows the government to focus its limited resources on
those petitions that are most likely to result in species protection,
rather than allowing those resources to be sapped by weaker petitions
without such potential. The bill would also require transparency about
implementation, both for the benefit of petitioners and the public. As
the bill codifies an administrative reform developed by the Obama
administration, it should enjoy broad support. Environmentalists and
industry have experience working under this approach, and the early
results have been positive.
The bill could be further improved by allowing the Secretary of
Interior to adjust which bin a species is assigned to based on updated
information. For instance, one of the bins is reserved for species that
the Service expects to receive new information on, revealing important
data about its status. Once the anticipated study is released, it may
be sensible for the species to be reassigned to a higher or lower
priority bin, based on the results.\28\
---------------------------------------------------------------------------
\28\ But see PETITION Act, Sec. 4(a)(I)(ii).
---------------------------------------------------------------------------
It would also be useful to clarify what Congress expects to happen
after the Service declines a petition under the PETITION Act's
mandatory deadlines.\29\ If such denials serve as a signal to the
petitioner that she should provide more and better information when
resubmitting, so that a subsequent petition is assigned a higher
priority, this would be extremely useful. But if the Service could
treat the petition denial as a judgment on the merits binding future
petitions, that would be concerning--especially as the bill precludes
judicial review of automatic denials based on the bill's deadlines.
---------------------------------------------------------------------------
\29\ See, e.g., id. Sec. 4(a)(H)(ii)(IV).
---------------------------------------------------------------------------
Moreover, the Committee should be more concerned generally about
the dangers of barring judicial review. Undoubtedly, too many
Endangered Species Act issues result in litigation. But the solution is
to address the underlying incentives that drive that problem, not to
ban all litigation, including litigation that advances the public
interest.\30\ In time, you may be surprised by the novel means agencies
devise to abuse these provisions and thwart Congress' will.\31\
Therefore, you should be extremely cautious about enacting any
limitation on judicial review.
---------------------------------------------------------------------------
\30\ PLF regularly litigates Endangered Species Act issues on
behalf of individuals and organizations whose interests are harmed by
over-reaching and counterproductive regulations. We have received
minimal attorney's fees for this work in recent years. PLF also notes
that the cases in which it has received such fees are those in which
the government has ignored its own scientists' recommendation that a
species' status be changed. The LIST Act would address this problem,
rendering future litigation on this issue unnecessary and eliminating
this minimal source of attorney's fees.
\31\ In fact, agencies have long used judicial-review bans to
thwart Congress' will. For instance, agencies flagrantly ignored the
Regulatory Flexibility Act until Congress amended it by repealing its
anti-judicial review provision. See 142 Cong. Rec. H3016 (Mar. 28,
1996) (statement of Rep. Ewing); 142 Cong. Rec. H3005 (Mar. 28, 1996)
(statement of Rep. McIntosh). Today, agencies hide behind an ambiguous
judicial review provision to avoid compliance with the Congressional
Review Act. See Kansas Natural Resource Coalition v. Dept. of Interior,
No. 18-cv-01114 (D. Ks. filed Apr. 10, 2018) (government has moved to
dismiss a case seeking the submission of a rule under the CRA based on
a theory that would utterly defeat the law's purpose).
---------------------------------------------------------------------------
Recognizing when species have recovered
There have been depressingly few de-listings under the Endangered
Species Act. Although this is primarily due to the lack of incentive
for property owners to recover species, it is also due to agencies'
stubborn unwillingness to pursue de-listing with the same zeal as they
pursue listing. Although the law imposes the same standard on de-
listing decisions as applies to listing decisions, the agencies have
imposed far higher burdens on the former in practice.\32\
---------------------------------------------------------------------------
\32\ See 83 Fed. Reg. 35,193, 35,196 (July 25, 2018) (acknowledging
this problem and proposing to clarify that the Endangered Species Act
requires the same standard be used in both instances).
---------------------------------------------------------------------------
Getting a species removed from the list is a daunting task, even
where there is no question that the decision is merited. In case after
case where the U.S. Fish and Wildlife Service's own scientists have
determined that a species' status should be changed, the agency has
ignored them. Property owners can only obtain relief in such
circumstances by filing several petitions and lawsuits, an ordeal which
may be too expensive or intimidating for the average landowner to
undertake.
For instance, the Service's scientists determined that the Valley
Elderberry Longhorn Beetle should be de-listed in 2006. It ignored this
science for 4 years, causing PLF to file a de-listing petition on
behalf of an affected property owner. Despite this plea from a property
owner and the agreement of its own scientists, the Service . . . did
nothing. The property owner had to sue not once but twice before the
Service finally proposed de-listing the insect in 2012.\33\ However, in
2014, it withdrew its proposal claiming the studies had become too
stale--which of course was due to the agency's dilatoriness.
---------------------------------------------------------------------------
\33\ See Damien M. Schiff, Service proposes to de-list Valley
elderberry longhorn beetle, PacificLegal.org (Oct. 1, 2012), available
at https://pacificlegal.org/service-proposes-to-delist-valley-
elderberry-longhorn-beetle/.
---------------------------------------------------------------------------
Similar frustrations were felt by property owners affected by the
listing of the manatee, although that story at least has a happy
ending. In 2007, the Service's scientists determined that the manatee
had recovered to the point that its status should be upgraded from
endangered to threatened. The agency again ignored its scientists for a
prolonged time, prompting PLF to file a petition on behalf of affected
property owners. When that petition was ignored too, PLF filed a
lawsuit to force a response in 2012. In response to that suit, the
Service determined that the species' status should be changed but again
did not follow through. So PLF had to sue again. The Service finally
reclassified the manatee in 2017, a decade after the science showed
this move was warranted.\34\
---------------------------------------------------------------------------
\34\ See Pam Wright, Florida Manatee Status Changed to `Threatened'
As Congress Targets Endangered Species Act, weather.com (Mar. 31,
2017), available at https://weather.com/science/nature/news/florida-
manatee-endangered-species-regulations.
---------------------------------------------------------------------------
Even the bald eagle, the species most cited as evidence of the
law's success, fell victim to this bureaucratic morass. When the
Service determined the eagle should be de-listed, President Clinton
held a press conference to share the news. That was 1999. But no such
de-listing was forthcoming. In 2005, PLF sued on behalf of an affected
landowner, urging the Service to follow through. Instead, it fought to
have the case dismissed. Only after the courts rejected this gambit did
the Service belatedly de-list the species in 2007.
Property owners should not have to sue, sue, and sue again to force
the Service to do what it has admitted all along should be done. If the
government behaved this way with listing decisions, it would be a
national scandal. Imagine if the Service determined a species was
critically endangered then ignored that determination, even in the face
of petitions and lawsuits, which it fought rather than doing the right
thing.
The LIST Act would fix this imbalance by directing the Service to
initiate the de-listing process once its scientists conclude that a
species has recovered or otherwise merits de-listing. That is a
sensible change. There is no reason why species should linger on the
list long after the science shows de-listing is warranted.
The LIST Act also addresses another serious problem: the large
number of species that have been improperly listed based on bad data.
The Service acknowledges 19 such mistakes. But a recent Heritage
Foundation report shows that the actual number is far higher.\35\ The
data reveal that approximately half of all domestic species reported as
``recovered'' under the Endangered Species Act were not endangered in
the first place but, instead, listed based on bad data which were
subsequently corrected. If these de-listings were properly categorized,
the number of species delisted for data error would dwarf the few
recoveries.
---------------------------------------------------------------------------
\35\ Robert Gordon, Correcting Falsely ``Recovered'' and Wrongly
Listed Species and Increasing Accountability and Transparency in the
Endangered Species Program, Heritage Found. Backgrounder (Apr. 16,
2018), available at https://www.heritage.org/sites/default/files/2018-
04/BG3300_0.pdf.
---------------------------------------------------------------------------
For instance, the Service listed the Hoover's wooly star in 1989,
speculating that there were as ``few'' as 35,000 to 300,000 of the
plants.\36\ A full survey was only performed after the species was
listed. According to the Service, the actual population size is
approximately 135,000,000.\37\ Yet, despite this several-orders-of-
magnitude error, the Service considered the de-listing as a recovery.
It credited the listing as the impetus for the survey and then
attributed the findings to the listing, even though the survey didn't
increase the size of the population but only revealed the error on
which the listing was originally based.\38\
---------------------------------------------------------------------------
\36\ See id.
\37\ See id.
\38\ See id.
---------------------------------------------------------------------------
Species lingering on the lists dissipate resources from those
species who need them. In the case of false-recoveries, for instance,
the Service incurs years of post-listing monitoring. Given the limited
funding for recovery efforts, such misallocations are unacceptable.\39\
---------------------------------------------------------------------------
\39\ Ecologists have long observed that scarce conservation funds
are routinely misallocated. Most notably, they are doled out to
charismatic species at far greater rates than less popular species. See
Leah R. Gerber, Conservation triage or injurious neglect in endangered
species recovery, PNAS (Mar. 29, 2016), available at http://
www.pnas.org/content/113/13/3563.
---------------------------------------------------------------------------
The LIST Act's solution to this problem could benefit from further
clarification, however. The bill wisely directs the Service to act
promptly when it determines that a species' listing depends on a data
error. However, it also authorizes the Secretary of the Interior to
declare that a petitioner knew a petition contained inaccurate,
fraudulent, or misrepresentative information and to deprive such a
person of the right to submit petitions for 10 years. It's not clear
whether the aggrieved petitioner would have a right to judicial review
of this determination, although she should before being denied such an
important right. As discussed above, statutory bans on judicial review
can be dangerous licenses for agencies to thwart Congress' true aims.
This broad grant of power to the Secretary raises the potential for
mischief, which should concern both sides of this issue. The Secretary
might abuse this power against environmental groups or industry
petitioners, depending on the bureaucrats' political views. Here, as is
often the case, it's best not to confer power to an executive branch
official without first considering whether you'd want your fiercest
opponent to wield it. Thankfully, concerns about petitioner foul-play
could be addressed with less drastic means by, for instance, allowing
the Service to consider a group's past petitions in assessing the
credibility of data presented in a subsequent petition. If a group has
a history of malfeasance, that should be taken into consideration. But
it may not always be dispositive.
Finally, and somewhat repetitively, Congress should clarify the
circumstances in which it intends to forbid judicial review--and should
minimize such circumstances. The LIST Act provides that a ``negative''
finding, but not a ``positive'' one, under Sec. 2(b)(H)(i) is subject
to judicial review. It's not clear from the text whether this means
judicial review is only available when the Service de-lists a species
citing data error or instead only when it maintains the status quo.
But, that ambiguity aside, judicial review should be available in
either circumstance to ensure that the agency follows Congress' intent
under the bill.
conclusion
We need not tolerate the broken procedures I've described in my
testimony. They benefit neither people nor endangered species, but
instead harm both. Codifying the Obama administration's backlog
workplan is a sensible way to convert this temporary peace into a long-
term improvement. Similarly, facilitating more de-listings is an
effective way to ensure that limited conservation resources go to the
species that need it. It also reduces the need for litigation brought
by property owners to force the agencies to listen to their own
scientists, which unnecessarily taxes both the property owners and the
agencies.
______
The Chairman. Thank you, and I appreciate you all staying
within the 5 minutes.
Committee Rule 3(d) allows questions from each Member of 5
minutes. It doesn't mean you have to ask a question for each
bill. We are going to go through each bill one at a time. If
you don't have a question for that particular bill, we will
just go by it and wait until we come to yours.
I am going to recognize Members for questions on Tipton's
bill, the LOCAL Act, which, once again, codifies voluntary
conservation efforts.
I am going to take my first time, and I will yield to Mr.
Tipton on your bill. You have up to 5 minutes. Questions only
on your bill, though. Everything for this round, only on the
LOCAL Act. Go for it.
Mr. Tipton. Since you are starting with the most important
bill, I appreciate that, Mr. Chairman.
Mr. Renkes, has the Department of the Interior actually
used voluntary conservation practices in the past?
Mr. Renkes. Yes. In fact, it is one of the most important
tools that we have, and we have a number of different variants
that create a little bit of an alphabet soup, if you are
studying this. But they all work, and they work by
incentivizing private landowners with assurances, regulatory
assurances, and then working on conservation plans.
We have a number of success stories involving this. One of
those is the recovery of the Louisiana black bear. It was due
in large part to conservation efforts by private forest owners,
farmers, and landowners across the range of the species. Ninety
percent of the species' habitat is on private land and the
recovery of that species was based on the use of these tools.
So, the stronger they are, the better the conservation is
going to be.
Mr. Tipton. Great. So, you have effectively had success
trying to be collaborative with local landowners, in terms of
being able to develop policies. Is it pretty much your opinion
that is something that we ought to continue to be
incentivizing? And what do you see that role being in the
future?
Mr. Renkes. We should definitely continue to find ways to
incentivize local landowners. I think the way to look at this
is we need to turn endangered species from liabilities into
assets. Where I come from--which Congressman Young knows is
Alaska, but more recently I live in Wyoming--you run into an
endangered species approach from local landowners. They call it
shoot, shovel, and shut up. And that is not good for species
recovery.
So, by creating incentive programs, voluntary incentive
programs that you are discussing and the ones that the
Department is using, we can change that paradigm and actually
make the species conservation an asset for private landowners
and states.
Mr. Tipton. Thank you, sir.
Mr. Johansson, you are a farmer, somebody that actually
works the land. Is it safe to be able to make the assumption
that you actually care about where you live, want to be able to
see species actually recover, it is part of the ecosystem that
you rely on for your business?
Mr. Johansson. Absolutely. Nothing gives us greater pride
than seeing what we support on our land when it comes to
wildlife. And certainly even for our kids, we know we are doing
something right.
Mr. Tipton. When we talk about the ESA, I think there isn't
a person on this Committee that will dispute the intent of the
ESA. We had the example of bald eagles being recovered,
actually, on species recovery. But in terms of some of the
actual practice over the period of time, have you seen that the
ESA has hindered or helped the ability to be able to recover a
species?
Mr. Johansson. Well, I think the thing that hinders farmers
the most and the ranchers the most is just simply the fear of
the Act, and the unknown, and not having those assurances that
the steps we take in good faith, the steps we take that we owe
our land and our family and taking care of everything on our
land won't be punished down the road with new regulations, new
interpretations, or simply a new lawsuit.
I think it has been a hindrance, but I look at the
opportunities with your bill, H.R. 6344, that also codifying
efforts, voluntary efforts that farmers and ranchers can take,
really, to encourage them, also takes into account that one
size doesn't fit all farms.
There are large farms, small farms, family farms, and even
corporate farms. And all too often, we see that the opportunity
to take further steps in preserving species and developing
habitat, the small farmers simply cannot afford.
We look at the tremendous success of farm bill, EQIP,
working with the NRCS, also the RCDs, the resource conservation
districts, in our areas. Tremendously supportive in California.
We have been very successful. But not all farms can
participate. And those programs generally are funded for about
3 years.
What intrigues me most about your H.R. 6344, it begins to
establish longer time frames that farmers will be rewarded, and
don't have to show instant success before funding runs out, but
truly can look at the long-term vision, and also hope for their
property, in terms of species recovery and habitat.
Mr. Tipton. Thank you, and I appreciate that. Some of the
same circumstances we have in my district, we have different
terrains, different circumstances. And we have seen, actually,
positive responses working with Interior and others to be able
to rehabilitate a species using real science and real local
processes in a collaborative process.
So, Mr. Chairman, I thank you for holding this hearing and
I appreciate our panel for being here today. I yield back.
The Chairman. Thank you.
Mr. Grijalva, do you have questions for the LOCAL Act?
Mr. Grijalva. Yes.
The Chairman. OK, you are recognized.
Mr. Grijalva. Before those questions, I would like to ask
for unanimous consent to enter a letter into the record from
Dr. Jane Goodall. If anybody could be called an expert on
species conservation, it would be Dr. Goodall. She states in
her letter, just one section, ``The bills being discussed today
would undermine these protections, and make it more difficult
for endangered species to recover. Surely, we do not want to
live in a world without the great apes, our closest living
relatives in the animal kingdom, a world where we can no longer
marvel at magnificent flight of the bald eagles, or hear the
howl of wolves under the moon, a world not enhanced by the
sight of a grizzly bear and her cubs hunting for berries in the
wilderness. What would our grandchildren think if these magical
images were only to be found in books?''
If no objection, I would like to enter that into the
record, Mr. Chairman.
The Chairman. Without objection, the letter and the words
will be entered into the record.
[The information follows:]
Prepared Statement of Dr. Jane Goodall, Founder, The Jane Goodall
Institute
Thank you for this opportunity to express my strong support for the
Endangered Species Act (ESA) and my strong opposition to the package of
nine bills before the House Natural Resources Committee on September
26, 2018. It is my considered opinion that if these bills are passed it
will undermine the scientific integrity of the Act and make it more
difficult to protect and recover endangered species.
We, as humans, are fortunate to share the Earth with such a
magnificent diversity of life forms, but Earth's biodiversity is
dwindling at an alarming rate. In just over 100 years, the population
of wild chimpanzees has dropped from an estimated 1-2 million (probably
closer to 2 million), to as few as 350,000, many of them living in
fragmented patches of forest with little hope of long-term survival.
This is only one example of the decline in the population of a species
the same decline is evident in almost every species of wild animals
including many in the United States. Indeed, we are experiencing what
science describes as ``The Sixth Great Extinction.'' A 2017 study found
that of the 27,600 land-based mammals, birds, amphibians and reptile
species studied, nearly one-third are shrinking in terms of their
population numbers and territorial ranges. In the last 40 years, we
have lost about half of all wild animal species on Earth. Further, the
rate of extinction is happening at about 100 times faster than what
would be expected from studies of the fossil record.
Given this crisis, it is inconceivable to me that Members of
Congress are spending time to discuss efforts to gut the most
successful piece of legislation for combating species extinction when
we should rather be working to strengthen it. We have a moral
responsibility to protect the incredible life forms with which we share
this planet for now and for future generations.
Thanks to the ESA, we've been able, to some extent, to counter the
rate of extinction. It has been estimated that over 200 species would
have been wiped from our planet between 1973 and 2005 if it were not
for the interventions of the ESA. Thanks to the ESA, 99 percent of
listed species have survived and many more have been set on a path to
recovery, including the iconic American Bald Eagle, the Grizzly Bear
and the Florida Manatee. The ESA is one of the only pieces of
legislation that has long prevented the unique American landscape from
turning into barren wasteland and is one of the few that has provided
critical protections to imperiled species worldwide--such as elephants
and tigers, as well as marine mammals such as whales and turtles who
migrate between international waters, thus necessitating international
cooperation.
The bills being discussed today would undermine these protections
and make it more difficult for endangered species to recover. Surely,
we do not want to live in a world without the great apes, our closest
living relatives in the animal kingdom? A world where we can no longer
marvel at the magnificent flight of bald eagles or hear the howl of
wolves under the moon? A world not enhanced by the sight of a grizzly
bear and her cubs hunting for berries in the wilderness? What would our
grandchildren think if these magical images were only to be found in
books?
In addition to undermining the facts provided by science under the
ESA, this package of bills would also transfer key authority of
wildlife management to state officials who all too often lack the
funding and sometimes the political will to adequately address the
threats to imperiled species. These bills would also undercut citizen
involvement in and enforcement of the ESA, further increasing the risk
that species most at risk won't be afforded vital Federal protections
until it is too late.
I urge you to reject this package of bills that would threaten
species already at risk of disappearing forever, and instead only
extend or increase protections under the Endangered Species Act to help
secure adequate funding for projects to protect the world's vanishing
wildlife.
______
Mr. Grijalva. Thank you very much, sir.
Mr. Dreher, one of the bills you object to is the LOCAL
Act, and that requires the government to pay landowners some
kind of compensation whenever it appears that there are listed
species on the land that would potentially lead to regulation.
Can you explain why this is a bad idea, and what it would do to
habitat conservation planning, generally, under ESA?
Mr. Dreher. Yes, Mr. Grijalva. Let me start by saying that
it has been a cherished dream of the far right in this country
for decades to use the takings clause for just compensation of
the Fifth Amendment as a means to put a brake on government
regulation. They have a very simple perception, and that is
that if you make government pay for every single thing it does,
the government will shut down. That is what will happen under
this provision.
This provision, which is, essentially, a gold mine for
speculators, would require the Secretary to pay any person that
submitted a proposal for land use development on his or her
property. If it, in fact, raised the risk of taking an
endangered species, the Secretary would have to pay the full
market value of that proposal.
There is nothing to stop that applicant from submitting a
similar proposal the next day, or continuing to submit these
proposals. And, moreover, the applicant doesn't need to
actually invest in anything, but he gets the full market value
of a projected scheme. So, if I wanted to make money quickly,
this is what I would do, certainly.
And the problem is that, of course, that money is
apparently not coming out of the judgment fund. That money
would come out of the ESA budget. So, I cannot think of a
better way to collapse the effort to conserve endangered
species than to create this incredible boondoggle to allow
people to file speculative claims of land development.
There are other problems with the LOCAL Act, I think. One
of them is just this whole process of allowing property owners
to request assurance letters from the Secretary. Among other
things, to show how one-sided this bill is, it would
automatically grant those requests at the end of 180 days--no
matter how jammed the Secretary may be in responding to them--
automatically grant them, regardless of whether they actually
would take species. And then that authorization would give an
exemption from take for 5 years.
So, I mean, this is really not written to conserve species.
Mr. Grijalva. Thank you. Mr. Renkes, we didn't have the
opportunity to visit with you before. What role does your
office play in the issues pertaining to ESA?
Mr. Renkes. My office is involved in the analysis of
legislation and regulations impacting the Department of the
Interior, and we provide advice and analysis to the rest of the
Department, across the entire spectrum of activities that take
place at the Department.
So, it is within that context that I am here today to
comment on the nine bills.
Mr. Grijalva. OK. Given that wide breadth of
responsibility, how will the Secretary determine if owners
claiming foregone use of the land due to ESA regulations have
legitimate plans to implement the use claimed to be foregone--
how will the Secretary determine false claims for a foregone
use under the authorities provided in this bill?
How are you going to make those determinations of
legitimacy and how do you establish fair-market value for any
of those?
Mr. Dreher. Obviously, those are important questions. The
idea of incented conservation on private land is a powerful
one, and can be an important driver. It obviously has to be
something that has procedures involved, like a court takings
proceeding would have to judge fair-market value and the
legitimacy of the claim.
We are standing ready to work with the Committee and the
Committee staff on the bill to flesh out those details.
The Chairman. All right, thank you. Now, questions to the
LOCAL Act, just this bill. We will have the others later.
Mr. Young, do you have questions for the LOCAL Act?
Mr. Young. No.
The Chairman. All right. Mr. McClintock, questions for the
LOCAL Act?
Mr. Gosar, for the LOCAL Act? Yes, you are recognized.
Dr. Gosar. This is for Mr. Johansson and Mr. Sauter. From
your experience in California and Washington State, what
benefits are there to be gained for species conservation by the
Federal Government coordinating with local governments and
private entities?
Mr. Johansson. I would simply say, being from California,
coordination between what our state government does and the
Federal Government is imperative, because having our own
Endangered Species Act in California, all too often we see the
state and Federal Government not working hand in hand.
So, we have to know the parameters of what is expected of
us as we enter into these programs, how long we are expected to
be in them, and then be able to measure the results that are
measured fairly between the state government and the Federal
Government.
Mr. Sauter. Thank you for the question, Congressman.
Speaking from Washington's perspective, at least the county
perspective, there is a huge benefit for this collaboration to
take place. When you collaborate at the local level, it really
gives you access to information and data that these Federal
agencies cannot necessarily get at, because of, I will call it
a trust gap between local landowners and Federal agencies.
As a local government guy, I can tell you that county
government has great credibility and trust with its citizens,
and we have numerous examples where we have been able to
collaborate and get information and data to those Federal
agencies that would not have happened if the county government
was not involved.
Dr. Gosar. What does the government and what do potentially
endangered species miss out on when that coordination fails to
take place?
Go in reverse order.
Mr. Sauter. Yes. I would just kind of reiterate that what
happens is that you don't have access to good data, or as
complete of good data as you can have when you actually have
local buy-in. And, as we all know, and I will tell you as a
county commissioner, I need good information to make good
decisions.
Dr. Gosar. Mr. Johansson?
Mr. Johansson. I don't have much more to add to that.
Having been a former city councilman and working on a habitat
conservation plan for our county, it was extremely difficult
because you rely so heavily on data to put together an
effective plan.
And, going forward, collaboration is key. And that is all
we ask for on our farms and ranches, is that, as we put these
plans together, we have reliable information. And the source
for that information doesn't just have to come from a state
agency. We also know, working with our private businesses, who
also have an interest to keep their businesses going, the
research they have done, all the way from trail cameras to
employed wildlife biologists, those are the resources that we
really need to access to make the right decisions.
Dr. Gosar. The key you made is buy-in. When you have buy-in
on the local aspects, where they are thoughtful, and predicated
that they are experienced and information is rewarded, it makes
a big deal.
Thank you, Mr. Chairman.
The Chairman. Thank you. Mr. Sablan, to this local
voluntary conservation bill?
Mr. Sablan. Yes. Thank you very much, Mr. Chairman.
Actually, I have a question on not just the LOCAL Act, but it
embraces all the legislation we have.
The Chairman. Well, do it one by one. Keep it to the LOCAL
Act first, come on.
Mr. Sablan. OK, because it involves the right of citizens
also to hold their government accountable. Thank you.
The Endangered Species Act is especially important to my
district, the Northern Mariana Islands, home to several unique
species such as the Tinian monarch and the Marianas fruit bat.
Additionally, there are 15 Indo-Pacific coral species listed by
NOAA's National Marine Fisheries Service as threatened under
the Act, including two that have been clearly identified as
living on the reefs of the Northern Marianas.
Decisions whether to list a species that is endangered or
threatened should be made based on science. Recently I joined
letters to the Interior and Commerce Secretaries protesting
Trump administration proposals to weaken the ESA and to House
leadership to prevent provisions that undermine national
conservation policy to be added to appropriations bills.
I am particularly concerned about proposals that undermine
citizens' involvement in enforcement of the Act. Many of the
positive ESA outcomes in my district have been generated by
actions taken by my constituents.
Mr. Dreher, is that correct? In your testimony, you state
that the ESA has been successful because it gives individual
citizens the right to hold agencies accountable for complying
with the law. Can you discuss the importance of this right, and
the way in which the bills before us today will diminish it?
Mr. Dreher. I am happy to, Congressman.
The Chairman. Just confine your comments to the LOCAL Act,
though.
Mr. Dreher. The LOCAL Act, I don't think, has provisions
that limit judicial review. There are other bills that are
before the Committee that would.
The primary thing I think that you would be concerned about
with the LOCAL Act is just the fact that it provides economic
incentives and payment out of the ESA program, or out of the
Land and Water Conservation Fund for conservation, which
landowners are otherwise largely either required to do or
incentivized to do under existing law.
But this bill does not have, as I read it, restrictions----
Mr. Sablan. So, my question would apply to which bill
before us today?
Mr. Dreher. Two of the bills that have strong restrictions
on judicial review: the PETITION Act and the LIST Act.
The Chairman. All right. Let him go on.
Mr. Sablan. My question has been asked. When you get to
those two bills, please respond to them, if you will.
Mr. Dreher. Thank you.
Mr. Sablan. Or submit your response for the record. Thank
you.
The Chairman. You will have a chance to go on those bills
when we hit those. Do you yield back?
Mr. Sablan. Yes, I yield back.
The Chairman. Mr. LaMalfa, for the LOCAL bill.
Mr. LaMalfa. Thank you, Mr. Chairman. I think at this point
I will just submit a letter for the record from a local
resource conservation district on the local level concept from
the Pit Resource Conservation District of Bieber, California.
They have been working with the Forest Service to develop a
salvage sale in what is known as the 30,000-acre Cove Fire.
They proposed to treat just 1,300 acres of the 30,000, as what
they thought they could accomplish. They would have preferred
to treat a much larger area, but given the time restraints,
they chose to focus on an area of extreme importance to the
landscape.
This partnership, using a steward agreement that the RCD is
working with the Forest Service in the area. They have an EA,
an environmental assessment, under emergency situation
determination signed by the chief. All NEPA requirements are
met. And locals with RCD staff and local consultants have done
the work and completed the effort.
They put it out to bid, and only one bidder came in because
of how long it took to get the process done and then award the
bid.
Then, last week, the RCD was notified that the Conservation
Congress is planning to submit a lawsuit against the Forest
Service with the intent of an immediate stop work order. The
basis was not only unfounded, but numerous items stated in the
court docket were not even factual. The Forest Service and the
local RCD have been proactively working together with the
contractor to prepare for the potential litigation and severe
hardships placed on all parties.
The Pit RCD is requesting support for this process to
continue with the salvage that is very vital to forest health.
I would like to submit this letter for the record, please,
addressed to Secretary Zinke from Andy Albaugh, the Chairman of
the Pit Resource Conservation District, and the frustration it
is with the locals trying to collaborate in an important
project like this.
I see Mr. Tipton's bill would probably be quite beneficial
in that, in moving this direction.
Thank you, Mr. Chairman.
The Chairman. Mr. Huffman, to the LOCAL bill?
OK. Mr. Westerman, to the LOCAL bill?
OK. Mr. Gallego, the gentleman from Arizona. I am sorry, I
mispronounced your name. Do you have questions for the LOCAL
bill?
Mr. Norman for the LOCAL bill? We are coming to yours next.
All right, then let's move on to the next one, which is H.R.
6360, the PREDICTS Act by Mr. Norman.
I am going to offer you 5 minutes to explain your bill, and
then see if you have questions for any of the witnesses about
your particular piece of legislation.
STATEMENT OF THE HON. RALPH NORMAN, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF SOUTH CAROLINA
Mr. Norman. Thank you, Chairman Bishop, Ranking Member
Grijalva, and members of the Natural Resources Committee. Thank
you for allowing me to come before you today and address the
Committee. I am proud to be the sponsor of H.R. 6360, the
PREDICTS Act.
The PREDICTS Act is part of a larger legislative package to
modernize the Endangered Species Act. As a whole, this package
makes necessary and common-sense updates to the Endangered
Species Act, the legislation that has only had one significant
reform in the past 40 years.
This package, this legislation, preserves the intent of the
Endangered Species Act, and provides for the protection of
endangered species conservation, while also making improvements
to the Endangered Species Act that increases transparency,
includes states in the decision-making process, and brings
accountability to the decisions to list or de-list a species as
an endangered species.
Specifically, the PREDICTS Act codifies the No Surprises
regulation which provides certainty and rewards the good
behavior of public and private entities that faithfully uphold
their agreement to help recover endangered species.
This regulation was put in place after agencies responsible
for endangered species conservation realized they were not
doing as great of a job recovering a species as they would
like. And to compensate, these agencies were attempting to
retroactively change habitat conservation plans. This ``No
Surprises regulation'' was promulgated in response to these
actions, and simply maintains that it was improper to put new
mandates on entities that were faithfully and effectively
implementing previously agreed-to habitat conservation plans.
The PREDICTS Act highlights the fact that affected species
conservation can co-exist with project permitting and economic
development. But public and private entities go through a
rigorous process to create habitat conservation plans with the
Fish and Wildlife Service prior to being given a permit. In
fact, in creating these plans, the applicant is required to
identify all foreseeable ways in which a project and its
operations may impact species and account for that.
The PREDICTS Act simply ensures that after a plan is agreed
to and these public and private entities are executing the
plans in good faith, the changes to the plans cannot be made
retroactively. In essence, this legislation prevents the
imposition of new mandates, and recognizes that faithful and
effective compliance with an agreement should not be answered
with changes that can be costly and burdensome and creates an
added layer of uncertainty.
This legislation also codifies two other existing programs
found in Federal agency handbooks, the Candidate Conservation
Agreements with Assurances, the CCA, and the Safe Harbor
Agreements, the SHA.
Participants in the CCA program voluntarily agree to take
actions with the intention of reducing threats to specific
species that are not currently on the endangered species list
so that species are protected and do not need to be added to
the list.
Participants in the SHA program enter into voluntary
agreements to take actions to help endangered species recover.
Both of these programs allow for participants to aid in the
protection of species, and the PREDICTS Act will allow them to
rely on the agreements they enter into.
In summary, the PREDICTS Act codifies the requirements for
habitat conservation plans, Candidate Conservation Agreements
with Assurances, and Safe Harbor Agreements already found in
agency regulations. This legislation provides certainty and
rewards the good behavior of both public and private entities
that uphold their agreements to help recover species while
promoting project permitting and economic development.
I yield back.
The Chairman. Thank you. Let me ask a couple of questions
on this particular Act first.
Mr. Renkes, when the Clinton era No Surprises rule took
effect, has it had, in your estimation, some positive impact on
survival and recovery of listed species?
Mr. Renkes. Yes, it has had a dramatic impact. In fact,
prior to that policy coming into effect, there were very few of
these agreements entered into. And then I think they had
increased by nearly 10-fold.
The Chairman. Let me come back to you, then.
Mr. Johansson, let me ask you the next question. Why was
there hesitancy on farmers, ranchers, those kinds of people to
enter in these agreements before this rule was put into effect?
Mr. Johansson. I mean, quite simply, it was a lack of
predictability in the program, and confidence that they
wouldn't be punished for taking the right answer should they be
successful, leading to other species on their land, as well.
So, I think the No Surprises rule had a positive impact on
farmers and ranchers turning toward those programs.
The Chairman. OK. Mr. Renkes, let me come back to you,
then. This is still rule status, correct?
Mr. Renkes. That is correct.
The Chairman. So, if we pass this bill, it codifies what is
the rule, so it cannot be adjudicated or changed later on.
Mr. Renkes. That is correct.
The Chairman. And do you think, as a representative from
the Department, that that codification would have a positive
impact?
Mr. Renkes. Absolutely, because it increases certainty.
The Chairman. All right. Thank you. Let me yield back.
Mr. Grijalva, do you have any questions on this one?
Mr. Grijalva. Yes. Thank you.
Mr. Dreher, what are your main concerns or considerations
the Committee should consider in this piece of legislation that
is before us now?
Mr. Dreher. Thank you, Congressman. I do have several
concerns. I think the biggest one, the Candidate Conservation
Agreements with Assurances, the Safe Harbor Provisions, those
have been embodied in Department of the Interior regs for many
years. People understand how they work. There are some small
changes here that make it more restrictive, make it harder to
terminate them.
For example, obviously, under the Fish and Wildlife Service
regs, you can terminate for failing to comply with an agreement
or for violating the law. Those things aren't embodied in this
agreement.
The big thing about this, though, is that it applies to
habitat conservation plans. The other two programs both deal
with voluntary incentivized conservation, one for candidate
species that are not yet protected, another, the Safe Harbor
Agreement, if you manage habitat so that it attracts listed
species onto your property that weren't there before.
But habitat conservation plans are plans that actually
involve development that affects and may harm endangered
species. And these kinds of assurances throw out the actual
point of the HCP. A habitat conservation plan has to ensure
that the species in fact doesn't go extinct, that it isn't
actually harmed because of changed circumstances. And it is
essential that HCPs actually provide a benefit to the species.
It is like mixing apples and oranges, but in the worst way,
because HCPs involve listed species that are actually being
harmed by a proposed development. The other two policies are to
incentivize conservation agreements for the benefit of species.
So, there is a huge difference.
Mr. Grijalva. Thank you.
I yield back.
The Chairman. Mr. McClintock, to this bill?
Mr. Gosar, to this bill?
Dr. Gosar. Yes. Mr. Dreher, you have had opposition to all
the bills in this package, which should come as no surprise to
anybody given the group that you work for. You even spoke
against this PREDICTS Act, which codifies the Clinton
administration's 1998 No Surprises rule.
Can you name me one reform to the ESA, other than throwing
money at the problems that you help cause, that the Defenders
of Wildlife have pursued through congressional legislation and
supported over the last 30 years?
Mr. Dreher. Sorry, Congressman, over how long?
Dr. Gosar. Thirty years.
Mr. Dreher. The last 30 years, we were certainly
instrumental in supporting the revisions to the Endangered
Species Act----
Dr. Gosar. Be specific.
Mr. Dreher. It was before my time.
Dr. Gosar. I am all ears. We are all ears. You are very
prophetic and very detailed. I like the details.
Mr. Dreher. Well, I do not go back far enough with
Defenders of Wildlife to tell how far back we did what we did
30 years ago when the Act was last amended------
Dr. Gosar. Well, what I would like, as a nice project for
you, is to list those out for the Committee, so that we----
Mr. Dreher. I will be happy to submit that for the record.
Dr. Gosar. Thank you.
Mr. Dreher. I will say that we work constantly to try to
improve the implementation of the Act, and we work very closely
with landowners, with state governments, and with Federal
Government agencies to try to improve the implementation of the
Act. We have a whole department at Defenders of Wildlife that
develops better scientific methods for implementing the Act.
Dr. Gosar. We will come back to that one. I am ready for
that one. Thank you.
Mr. Dreher. All right. Thank you, Congressman.
Dr. Gosar. We will look forward to your response.
The Chairman. Thank you.
Mr. Sablan, do you have questions for this PREDICTS Act?
Mr. LaMalfa, for this one?
Mr. LaMalfa. Thank you, Mr. Chairman. I wanted to turn to
the California Farm Bureau president, Mr. Johansson, on this
bill. We do many things in agriculture that also have the
double benefit, whether you are conserving habitat, whether
just by the type of crop you are operating, a lot of time in
rice it indeed is a much parallel habitat benefit at the same
time.
How beneficial do you think this proposed legislation would
be, in light of what we have seen with farmers leaving land
fallow, whether it is economics, or they are just giving the
land a rest, and then finding out that they cannot plant their
land back without a very onerous permit process, or being sued,
et cetera.
Mr. Johansson. That certainly is a fear right now that
farmers live with. We have seen that happen in Tehama County,
particularly with a wheat field that hadn't been farmed for
about 6 or 7 years, and then, when he went back on there, ran
into trouble with water issues, as well, Clean Water Act, and
all of that.
One of the things that we have to do is, and this is the
problem with these programs, it has to have the flexibility in
those programs to understand that farming and ranching up and
down--particularly farming--and that oftentimes we don't have
the water supply. And coming off historic droughts in
California, we do fallow the land, because we were not given
the water, perhaps, because we couldn't send them through the
pumps down in the south, based on the delta smelt or salmon
numbers, and when we pump water.
I think, again, we want to do the right thing for our land.
And if we don't have regulatory certainty, we are going to make
bad decisions for our farms, and we are going to make bad
decisions for our environment and the species on there.
I know you are familiar with the efforts being done with
salmon restoration in rice fields, and the multiple benefits of
our rice fields, not only for the rice that we eat, but also in
flood protection at times, and also in salmon habitat recovery,
and then also increasing our number of salmon, and some pretty
innovative uses of our rice industry, which, if you remember,
had the black mark of burning their rice every fall and winter,
but has really turned it around with unique programs.
Mr. LaMalfa. Certainly being able to bail the rice straw
and find markets for it has been very positive, as an
alternative. But you do run into a disincentive, whether you
are allowing habitat to grow on its own, or setting aside, and
then maybe you have to do something to manage that habitat, and
then someone comes along and says no, you now cannot touch
that, which causes disincentive to people not allowing it to
grow to begin with in ditches or other areas of their land.
So, with what you see coming on Waters of the United States
and, again, the lawsuits that happened in Tehama County, what
is the general feeling of agriculture on whether this
legislation will be helpful, or some of the others in the
package, or the general direction that the regulatory agencies
are going?
Mr. Johansson. I think the general feeling that any farmer
and rancher in California wants is to be able to look out over
his property and know for sure what needs to be done, not only
to be farming successful, but how to take care of species, as
well as ensure clean water. I think that is the biggest
frustration right now, is our own land. We see it one way, and
there is a big fear that regulators may see it another way, and
have other designs on it.
One of the issues we have with habitat conservation plans
is also we see a lot of water irrigation districts entering
into them, because as they clean their waterways from weeds,
and as they clean out their irrigation ditches, that may also
disturb endangered species that have grown up in those ditches,
so they also have to enter. And that is something that really--
Mr. LaMalfa. We are talking man-made ditches?
Mr. Johansson. Absolutely, man-made ditches put in by an
irrigation district that also has to participate. It is not
just the farms that have to participate in our land, it is also
our irrigation districts that have to pay that cost, as well.
Mr. LaMalfa. How about the development of habitat
conservation plans that rely on the farmer tying up his or her
land maybe into perpetuity. I have seen that, where
bureaucracies want that so that they can gain long-term
predictability for their own ends, such as transportation
projects, using the land, the farm land, as their habitat plan.
What do you think about that?
Mr. Johansson. The most important part of any habitat
conservation plan--and having gone through one in Butte County
and the difficulties and difference of opinions--is local
control, and farmers being able to determine what is best for
them.
The Chairman. All right, thank you.
Mr. Westerman, to this Act, the PREDICTS?
Mr. Bergman, to the PREDICTS Act?
Thank you. All right, we will now turn to the next--oh, I
am sorry, Mr. Costa, I didn't ask you if you had one for this
Act, PREDICTS.
Mr. Costa. No.
The Chairman. OK. Then we will turn to the next one, which
is H.R. 6346, the WHOLE Act by Mr. Johnson, who is not here to
present it. Let me just ask two questions, then, very quickly
about this and see if anyone else has questions about this one.
Mr. Wood, let me ask you on this particular one, the WHOLE
Act, then, how does this bill build upon existing cumulative
impact analysis?
Mr. Wood. The WHOLE Act essentially clarifies that
cumulative impact analysis cuts both ways. And that makes a lot
of sense. When an agency is looking at a particular project, it
should consider that in the context of everything else going
on, whether everything else is good or bad for a species, and
let that count toward the project.
The Chairman. All right. Then let me go to Mr. Sauter.
Commissioner, can you give me an example, just one example of
some kind of habitat designation that would have been helped,
especially one that was maybe economically crippling, that
could have been prevented or helped if this Act, the WHOLE Act,
were in place?
Mr. Sauter. Yes, thank you for the question, Mr. Chairman.
I can think of a couple of different ones, but I will focus on
probably the spotted owl, as one that could have been helped.
Also, we had the example of the Oregon spotted frog. We have a
lot of spotted animals, apparently, in Washington State that
could have been helped by this.
The Chairman. Thank you, I appreciate that.
I yield back. Mr. Grijalva, specifically to this one?
Mr. Grijalva. Thank you.
Mr. Renkes, I noticed in your testimony that the Department
of the Interior has concerns with this particular piece of
legislation, the WHOLE Act. Can you explain what those are?
Mr. Renkes. Yes, thank you. The bill codifies our current
consultation practice, and we support it. The off-site
mitigation idea can be effective. We want to work with the
Committee on the details of how this can work for designated
critical habitat. Currently, mitigation has reserved two areas
designated as critical habitat, and we like the idea of off-
site mitigation. Obviously, the use of mitigation banks has
been effective in other circumstances, and we look forward to
working with the Committee to see how we can work that out.
Mr. Grijalva. Mr. Dreher, do you find it concerning that
this legislation requires the Secretary to consider all
additional positive measures in determining jeopardy, but does
not require the Secretary to consider the cumulative impacts to
a species from other activities? And what other concerns might
you have with this legislation?
Mr. Dreher. Well, I do. I think that legislation--the issue
with mitigation is, of course, the extent to which it is
reliable, the extent to which it is binding, the extent to
which it is funded, the extent to which it will actually be
effective in overcoming these things. The bill doesn't address
the evaluation of the reliability of mitigation at all.
Beyond that, the concern that the Department of the
Interior has raised, I think, is a very significant one.
Federal agencies are required by section 7 to avoid destroying
or adversely modifying critical habitat. And if they are doing
that, and they are conserving lesser-value habitat somewhere
else that isn't designated as critical habitat, I think it
raises serious legal questions about how they could actually
comply with section 7's mandate. If they are actually damaging
critical habitat, the practice of the Department of the
Interior to date has been that if there is any offsetting
conservation, it should be with critical habitat. So, it is
apples to apples.
Mr. Grijalva. I yield back.
The Chairman. Thank you.
Mr. McClintock, do you have any questions for this bill?
Mr. Gosar, for this bill?
Dr. Gosar. Yes. I would like to have Congressman Johnson's
statement put into the record in its entirety, please.
The Chairman. Thank you. Without objection, so ordered.
[The prepared statement of Mr. Johnson follows:]
Prepared Statement of the Hon. Mike Johnson, a Representative in
Congress from the State of Louisiana
I would like to thank the Chairman and the members of this
Committee for having the fortitude to consider the various Endangered
Species Act (ESA) reforms before us today.
When Congress passed the Endangered Species Act over four decades
ago, it was because they recognized the importance of conserving,
protecting and valuing species whose very existence was threatened. The
spirit of the law and deep appreciation for preserving these species
remains alive and well today. We cannot, however, allow the fear of
challenging the status quo prevent us from taking a hard look at the
ineffective policies put in place decades ago that have failed to meet
the goals of the underlying legislation.
Proponents of preserving this antiquated law despite its obvious
failings do a disservice to both the listed species, as well as the
surrounding communities. The truth is, while 99 percent of the species
classified as threatened or endangered have not gone extinct, the
recovery management plans have failed to provide the species with the
opportunity to actually grow and thrive. To that extent, barely 3
percent of the populations listed are considered to have rebounded and
thus remain on the threatened or endangered lists. Three percent is
nowhere near the rate of success we should expect and further
illustrates the need for modifications to the ESA.
In addition to failing to help listed species recover, the ESA
imposes many burdensome and duplicative regulations on America's
hardworking farmers and ranchers. Absent reforms, the ESA will continue
to adversely impact their ability to provide food not only to America,
but to those all around the world. And to exacerbate the problem,
activist groups are employing sue-and-settle tactics to further their
ideological agenda and increase the number of species listed under the
ESA. As the list grows, however, farmers and ranchers are forced to
shift their primary focus from safe food production to navigating and
complying with bureaucratic hurdles that threaten their livelihoods.
My bill would require the Secretary to consider the totality of
conservation measures already in place, when determining whether a
potential Federal action will jeopardize species or habitat loss. Our
Nation's farmers and ranchers are already active participants in
conservation programs and in implementing protections and mitigation
factors on their land to protect habitat and wildlife. Despite our
agriculture community proactively promoting conversation measures and
seeking guidance from the USDA on best practices, the ESA continues to
expand far beyond the original intent of the law.
The time has come for Congress to modernize the ESA, and to that
end, my bill, the WHOLE Act, takes a holistic approach to protecting
species and preserving habitats. This legislation will ultimately help
our Nation's farmers and ranchers get back to doing what they do best--
providing a safe, sustainable food source for Americans. The bipartisan
WHOLE Act has received over 160 national endorsements, and I urge my
colleagues to support this critical piece of legislation.
______
Dr. Gosar. Thank you.
The Chairman. Mr. LaMalfa, to this Act?
Mr. Westerman, to this Act?
Mr. Bergman, to this Act?
Mr. Costa, to this Act?
Mr. Costa. I am sorry, which bill?
The Chairman. The WHOLE, Johnson's H.R. 6354. No?
Mr. Sablan, no?
Mr. Gallego, no?
OK, then let us turn to the next one, which is H.R. 6354.
Mr. Gosar, you are recognized to introduce your bill.
Dr. Gosar. I will just put my opening statement into the
record.
[The prepared statement of Mr. Gosar follows:]
Prepared Statement of the Hon. Paul A. Gosar, a Representative in
Congress from the State of Arizona
Good morning. Today, we are here to discuss in-depth the nine bills
that comprise a bipartisan legislative package that will bring the
Endangered Species Act into the 21st century. We call it the Western
Caucus ESA Modernization Package after the 79-Member Caucus I chair,
but it's a package that applies evenly across the entire country.
Moreover, it has the support from 165+ organizations ranging from the
American Farm Bureau, the U.S. Chamber of Commerce, the National
Association of Realtors, American Loggers Council, Safari Club
International, the National Association of Conservation Districts,
Western Energy Alliance, Americans for Limited Government, the
Competitive Enterprise Institute, the National Association of Home
Builders, the National Association of Counties, the National Water
Resources Association and the National Rural Electric Cooperative
Association, just to name a few.
The Endangered Species Act serves a noble purpose that is necessary
to the conservation of many species. However, it is clear that this
legislation has fallen short of its intended goal. A less than 3
percent recovery rate for endangered species is anything but the mark
of a successful law.
With this in mind, our members came together to address point by
point many of the shortcomings of the Endangered Species Act. Our
bipartisan legislative package offers much needed legislative
improvements that not only assist the law in meeting its original
purpose of conserving and recovering endangered species and their
habitats, but also does not stand in the way of economic development
and job creation that is beneficial to the American people. Species
conservation and economic development are not zero-sum. They are both
attainable goals that can be accomplished.
What is even more important is that the Endangered Species Act
works for people, not against them. Unfortunately, many hardworking
Americans throughout the country have felt the inefficiencies of this
law firsthand. One such person is Mary Thoman, a rancher from Wyoming.
In a USA Today Op-Ed she wrote on August 29, 2018 entitled,
``Yellowstone grizzly bears are not an endangered species--but ranchers
like me are,'' she writes, ``Special interest groups are suing the
Federal Government to have the grizzly bear population in and around
Yellowstone National Park returned to the endangered species list--
contrary to the recommendations of research. If those special interest
groups succeed, state and local officials will no longer be able to
effectively manage the population that lives in their backyards. And
grizzlies are bound to grow too numerous and pose a greater threat to
those who live in the area.'' \1\ As a result of the special
protections given to the grizzly bear population, Marry Thoman was
forced to give up the grazing lands that their family had ranched on
since 1978. This is unacceptable and unfortunately, indicative of the
current issues with the law.
---------------------------------------------------------------------------
\1\ Thoman, Mary A. ``Yellowstone grizzly bears are not an
endangered species--but ranchers like me are.'' USA Today, Gannett
Satellite Information Network, 29 Aug. 2018.
---------------------------------------------------------------------------
Sadly, the current processes under the law have enabled gross
exploitation by special interest groups that stand to profit from
abusing the current system. An authorized agency should not be forced
to allocate most of its resources on combating litigation, it should be
focused on protecting and recovering species. Moreover, hardworking
Americans like Mary should not be forced from the lands that they have
worked on for decades because of special interest groups that stand to
profit from listing species that are not endangered. Stories like Mary
Thoman's are why Americans are coming together to support the
legislation being discussed here today--legislation that will offer
clarity, flexibility, and assistance for authorized agencies, state,
local and tribal officials, and everyday Americans.
Our Nation is blessed with an abundance of biodiversity and a
richness in species distribution across the 50 states and territories.
Everyone here agrees with the premise that we must make all reasonable
efforts to protect species facing extinction. Agreeing on that premise
means that we can go forward in good faith to analyze and propose
improvements of the Endangered Species Act to the benefit of all
involved parties--species, industry, government and citizenry alike.
It's an issue that pits every interest imaginable against one another,
but our job as Federal legislators is to balance these interests
appropriately and enshrine that proper balance in legislation.
We believe to have done just that with this bipartisan legislative
package. I appreciate all the Western Caucus, Natural Resources and
other Members who have invested in this package and contributed to
making it a success. I am grateful for the support of the more than 165
stakeholders and organizations throughout the country.
I thank Chairman Bishop and his team for all their hard work on
these bills and for hosting today's hearing, and with that I yield
back.
______
The Chairman. OK. Then I will yield my time to you. Do you
have questions for these witnesses on your Act?
OK. Mr. Young, to this one?
Mr. McClintock, to this one?
Mr. McClintock. No.
The Chairman. Mr. LaMalfa, to this one?
Mr. LaMalfa. Which one?
The Chairman. The STORAGE.
Mr. Westerman, no?
Mr. Bergman?
Mr. Grijalva?
Mr. Grijalva. I am going to leave the dead horse be.
The Chairman. Mr. Costa to this one, STORAGE? OK.
Mr. Costa. Thank you, Mr. Chairman and Ranking Member, for
holding this hearing, and I think it is really time the
Committee take a serious look at modifications of the
Endangered Species Act.
I would like to thank those who are testifying here today
for your insight and your perspective, specifically a good
friend that I have worked with for many years, Jamie Johansson
from the California Farm Bureau. Having been a member of the
California Farm Bureau for over 30 years, I have worked with
you and folks for many years.
Because of the number of bills that we have before us and
the limited time for the hearing, I want to just speak
generally about the bills.
The Endangered Species Act, obviously, I think as most of
the witnesses noted, has laudable goals. We ought to be able to
be good stewards of the environment and ensure that we don't
act in ways in which species go extinct. But clearly, I think
with climate change and other factors, species go extinct, and
that is just a reality. And while the ESA has been passed and
implemented for four decades now with the best of intentions,
like any legislation or law, it is not perfect, and I think it
is time we take a serious look at how we can improve it and
reform it.
And I say that to my Democratic friends, as well as to my
colleagues on the other side. The fact is, I think the way it
operates today, it is a blunt tool. And I know firsthand from a
lot of experiences that I have been involved in the San Joaquin
Valley in California, who have been harmed by the application
of the Endangered Species Act, limiting the movement of water
in California, resulting in the fallowing of farm land, reduced
economic productivity that has all sorts of socio-economic
effects in farm communities with both farm workers and farmers,
crime, social ills, unemployment, and you can go on.
There are several pieces of legislation, I think, that have
good ideas before us. I think they need some refinement. And
members of the Committee, I think trying to develop a process
in which we can work together in a bipartisan way is going to
be the key as to whether or not we have success. Underlying the
STORAGE Act, which we have before us right now, the LOCAL Act
and the PREDICTS Act, I think deserve consideration and further
refinement.
In addition to one important concern that I have regarding
the future of the ESA, is that there is little accommodation
for the Act impacts to non-migratory aquatic species whose
ecosystems are being modified by the impact of climate change
and loss of other factors that have created greater damage.
Some of these, in some cases, they have gone too far to save.
Our economic attempts of trying to save them is likely to fail,
like the discussion of trying to return a spring run of salmon
to the San Joaquin River in which water temperatures are a big
issue.
So, let me ask some questions. Mr. Johansson, you talked
about both the delta smelt and the salmon as examples in your
testimony. And we know that the State Water Board is looking at
unimpeded flows to improve the water quality for the fisheries.
But they are discounting the impacts of lack of habitat, they
are discounting invasive species, they are discounting non-
discharges into the waters.
How do we strive to create a balance if we are going to fix
some of these problems without taking into account all of the
science?
Mr. Johansson. I think we are doing that on our own right
now, in agriculture, having gone through what we did with the
delta smelt and the biological opinions--a biological opinion,
by the way, that also relied on intuition, in which the species
was managed through intuition, which was very disturbing to us,
as someone who always has to demonstrate that our farms operate
on sound science and proven science.
I bring to fact, and it is very close to Congressman
LaMalfa's farm there, a rice ranch there that had a situation
with a spring run chinook salmon that only averaged about maybe
10 salmon a year coming up the Butte Creek. Proactively,
understanding that maybe some of their water diversions may be
having an impact, that water district took the proactive
approach to start to fix their infrastructure, and now actually
get about 10,000 salmon a year coming up there. So, we are
doing that.
We are also doing that, as I mentioned earlier, in our rice
fields, in terms of creating that habitat.
Mr. Costa. Right.
Mr. Johansson. And trying to demonstrate that, as the Water
Board talks about flows, it is not about flows, it is about
functional flows, and making sure that that water is released
at the right time, based on that species. But we have allowed
the Endangered Species Act in addressing salmon to come into
just a small box and not look at what really is going on in the
entire ecosystem.
Mr. Costa. Right. And thankfully, your testimony----
Mr. McClintock [presiding]. The gentleman's time has
expired.
Mr. Costa. Yes. I know, my time has expired, but----
Mr. McClintock. Further questions on H.R. 6354?
Further questions, any others on the Republican side?
Dr. Gosar. I am going to be last.
Mr. McClintock. OK, well, you are going to be last, then. I
am going to claim time and yield to Mr. Gosar.
Dr. Gosar. Mr. Dreher, since 1976, your organization, the
Defenders of Wildlife, have been the litigant in 510 lawsuits.
How many dollars in attorney's fees has the Defenders of
Wildlife collected as a result of litigation against the
Federal Government?
Mr. Dreher. I will be happy to provide that number for you.
I have no idea, sitting here today.
Dr. Gosar. We will expect that for the record.
Mr. Dreher. I will say that it is an infinitesimal part of
our budget. It does not factor into our budgeting----
Dr. Gosar. No, I am a believer that the facts set us free.
Mr. Dreher. Yes.
Dr. Gosar. You contradict yourself in your written
statement by saying you support science-based process for the
ESA, and that is why you oppose the LIST Act, yet you oppose
H.R. 3608, which requires public availability on the Internet
of the best scientific and commercial data available for the
ESA decisions.
It seems like you like cherry-picking your science. Your
allegation against the LIST Act is baseless, by the way, as
that bill actually allows for the totality of science to be
considered. Why does your organization hate science?
Mr. Dreher. You know, Congressman, we call it as we see it.
We object to legislation----
Dr. Gosar. Well, I find it very interesting that you like
to cherry-pick, because that is the perfect term for what you
actually do----
Mr. Dreher. We object to provisions that we think, in fact,
are objectionable. We object to legislation that we think, in
fact, disserves the purposes of the Act.
It is not our fault if the legislation that is before us we
think is bad for the ESA. That is our job to call that out.
Dr. Gosar. Let me ask you a question, then. That goes back
to my previous question. What have you supported to change that
legislation in the better for the critters?
Mr. Dreher. Well, I don't know----
Dr. Gosar. And you couldn't do that for me. You couldn't
site a single example. Yet, you are articulate about everything
else.
Mr. Dreher. And I think that is a commentary on the
partisan nature of the dialogue right now about the ESA, and it
has been a highly partisan issue for 20 years.
There have not been bills put forward by the Congress that
actually would serve the purposes of ESA, and so we have not
supported those bills.
Dr. Gosar. That is your opinion.
Mr. Dreher. Yes.
Dr. Gosar. But to the gentlemen to your left and right,
that is quite opposite, in contrary, and a number of people on
this dais up here. We are not against critters. We want to see
this work. We want to see that make it forward. So, we have to
start looking at the people standing in the way, and that is
you.
Let me go further. You testify that the ESA was a proven
success, and tried to brag about its success rate. This is
another lie. The Committee points out that one of the mammals--
and I quote--``In the 45 years since its enactment, less than 2
percent of species have recovered enough to warrant removal
from the list of endangered and threatened species.''
Did you fail algebra? I am a healthcare provider, and if I
have a success rate like that, something is wrong. Something is
wrong with that. I want to go back to raise that number. So, I
should be doing everything I possibly could with the people to
my left and the people to my right to make a success story.
That is why, when you start looking at prime examples like
the Mexican gray wolf, where the courts actually had to
intervene because of the management plan, if that is the
management plan we were going with, no wonder the Mexican gray
wolf can't be a success story. It is unbelievable, just
unbelievable.
You testified that these bills are, and I quote, ``all to
benefit a minority of special interests in a few states.'' I
take offense to that. I would encourage you to look at our
website and review the list of the 166 stakeholders throughout
the country that are supporting these bills. Is the Florida
Farm Bureau Federation from the West? No. How about the
Missouri Sheep Producers? How about the National Association of
Realtors? Are they really solely in the West? How about the
U.S. Chamber, are they solely in the West? And by the way, what
is your disdain for the West?
Mr. Dreher. I have no disdain for the West. I think----
Dr. Gosar. Your actions seem to predicate it.
Mr. Dreher. I do not mean to suggest any disdain for any
part of the country. I think the commitment the American people
have to the ESA is something that is nationally felt.
I think there are particular circumstances in the West,
including the predominance of federally owned land, and the
long-standing sort of resentment in the West toward the
presence of the Federal Government that exacerbate concerns
over the ESA. And I do think that the concerns over the ESA in
some instances are higher in some places in the West. But that
is not in any way denigrating the sensibilities of the people
that live in the West. That is an issue that we need to work
with proactively.
We should be trying to find solutions, as you say,
Congressman. And we try very hard to find solutions. We
actually pay for, for example, range riders to try to protect
people's cattle from wolves and grizzly bears. We engage
constantly in this sort of cooperative behavior.
Mr. McClintock. Mr. Sablan.
Mr. Sablan. I would like to yield my time to Mr. Costa,
please.
Mr. McClintock. Mr. Costa is recognized.
Mr. Costa. Thank you very much. Mr.--is it Dreher?
Mr. Dreher. It is Dreher, sir.
Mr. Costa. OK, I concur with you, I think we all recognize
that the ESA, the Endangered Species Act, has become very
political over the last two decades.
From your perspective, would you, shortly, because I want
to get to some other questions--have you recommended changes to
deal with science, as it has changed over the last four
decades, and implementation, and regulation, process, and court
rulings? Do you or part of your coalition just like it the way
it is? You think it works?
Mr. Dreher. Congressman, I think there is a myth that the
Act, because it is old, is outdated, as if it is a----
Mr. Costa. I didn't say that. I didn't say that.
Mr. Dreher. I know. I am trying to respond to your
question, sir. I mean it is part of what other people say about
the bill.
I think that the structure of the Act itself is very
straight-forward and does not need changing. What it actually
needs is to be well implemented. We focus a great deal of
attention on how to improve the implementation of the Act so
that it works better for species and for stakeholders, and we
could demonstrate that that makes a difference. But it needs to
be funded.
Mr. Costa. OK. But we have had administrations that have
funded it better than other administrations.
I think there are two criticisms that I would raise. One is
that I don't think there is a good accounting--with all the
changes in our environment, what is the art of the possible.
I just think this notion that somehow--there has been a lot
of science on salmon in the Northwest, all the way up to the
Alaska Peninsula, and how in some areas, with climate change,
you are just not going to restore that. Would you agree or
disagree?
Mr. Dreher. I think climate change is unsettling a lot of
our expectations. You are absolutely right. Conservationists--
Mr. Costa. And I think we need to take that into account.
Mr. Dreher. I agree.
Mr. Costa. I think this whole effort is a balancing act.
And I think you have to get the best bang for your buck. We
have to make some--I mean, we are going to have some
agricultural land that is going to go out of production. Nobody
likes that. That is the reality, in terms of our water supply.
But there is no accounting on the other end as to what
species you can save and which you cannot. And that is where I
think my criticism rises.
Mr. Johansson, you talked again about the science that we
are dealing with, and water issues in California. The fact is
that we are trying to come together now on some compromises on
fixing a broken water system in California. What do you think
is the outlook in the next 4 months as to whether or not this
host of issues on the delta, the water fix, and other issues
involving the ESA, the likelihood that we are going to be able
to work through the current challenges?
Mr. Johansson. I think, unfortunately, we have a situation
with the ESA, where it is the initial blunt instrument that
stops us, and that is----
Mr. Costa. That is what I said in my comments. That is what
you said.
Mr. Johansson. That is what stops us from pumping. But it
goes from there, because it goes all the way up into the upper
watershed in our Sierras. And the inability to manage our
forests and our public lands properly because of, again, the
Endangered Species Act. So, therefore, the water doesn't make
it down to the river.
But also, too, it stops us--we just really haven't looked
at the science. And it allows someone who may want to send more
water to the ocean, or divert it to whatever purposes they deem
more important, but aren't looking at the fact that it isn't
just flows that provide the smelt with benefit. That is, the
dangers to the smelt come from other biological purposes, as
well, not just----
Mr. Costa. That is why re-consultation of the opinions is
very important right now.
Mr. Johansson. Absolutely. And, I think that is the
struggle ahead of us in California, is how do we proactively
get around this ESA by doing efforts up in our forests and in
our rice fields and on our farms that help us get around the
ESA and try to demonstrate that we can do this, that the old
logic, or how we look biologically at the fish in the stream,
there really are different options that farmers can
participate----
Mr. Costa. And as you noted in your comments, the better
management of our forest lands, the better issue of healthier
forests, and less of these horrific fires that we have had to
deal with in recent years all over the West.
Mr. Johansson. We have created a situation in California
where either we are under water or on fire. We are letting
these extremes take over because we are not appropriately
dealing with what is happening on the ground and what we can do
better.
Mr. Costa. Thank you.
Mr. McClintock. Further questions on H.R. 6354?
On the Republican side?
Mr. Gallego.
Mr. Gallego. Thank you, Mr. Chair.
Mr. Dreher, we kind of touched on this earlier, when you
were talking specifically about these bills would take a
wrecking ball to the ESA and all to benefit a minority of
special interests in a few western states. I, too, am a
westerner from Arizona, like Congressman Gosar. But I wanted to
give you some more time to actually go deeper and elaborate
what you were specifically thinking about when you made those
comments.
Mr. Dreher. Thank you, Congressman. These bills appear to
want to create special breaks for people that want to develop
their land in ways that will, in fact, affect adversely
endangered species. That is the primary thrust of about half of
them. So, they really are a pro-land development set of bills.
They are very one-sided.
It is conspicuous in one sense, in the sense that at least
twice they exclude judicial review for, for example,
organizations like mine that try to protect species, and allow
judicial review for organizations like my colleagues sitting
next to me, that may be defending property owners that are
opposed to protection. I don't mean any slight on him, I think
we both have the same entitlement to use the courts to hold
agencies accountable to the law.
I think that when you have bills that attempt to grease the
skids, or to create special procedures that would allow
property owners to get exemptions from the way the Act works,
these are kind of special pleading. These are bills that really
are being advanced for particular special interests, in many
cases.
I don't know what special interests they are being advanced
for, I have not been part of the development of these bills,
and I don't mean to disparage the Congressmen that have
introduced them, but I do think the effect of them is going to
be to make it easier to develop land in a way which will hurt
endangered species, and that is not, I think, consistent with
the intent of the Act.
Mr. Gallego. Are there any specific groups that you are
thinking about or have seen in the past? I have been involved
in this game for a little while, both on the state side also,
as a state legislator, so I have some idea of who you are
talking about. But I think an education for anyone else here,
are there any particular groups that you have seen in the past
using this type of movement to essentially benefit themselves?
Mr. Dreher. Well, there has been a constant tension in the
development of resources in the West. Right now, the theme of
the Administration is to have as much one-sided development of
oil and gas and mineral interests as possible on the Federal
lands. And the Endangered Species Act and other Federal
statutes can be significant checks on that kind of activity.
So, if there are ways to carve loopholes in this. One of
the things that frankly scares me, but maybe only because I
don't understand it, but there is a provision in one of these
bills that would allow the Secretary to delegate management of
a species to a private individual or, apparently, a
corporation. I would not want endangered species managed by
Exxon.
Mr. Gallego. I yield back.
Mr. McClintock. Further questions on H.R. 6354?
Seeing none, that concludes the consideration of H.R. 6354.
The Committee will now take up consideration of H.R. 6345
by Congressman Pearce. Any questions on H.R. 6345?
Mr. Grijalva.
Mr. Grijalva. Thank you, Mr. Chairman.
Mr. Dreher, first of all, despite some of the questioning,
I do want to extend belated gratitude to Defenders. They were
principal members of a grouping in Pima County in Arizona,
where I was a supervisor that put together the Sonora Desert
Conservation Plan, along with screaming and kicking of the
homebuilders. And now they find it a wonderful management tool.
And for other stakeholders in that community, it is a plan
that worked, habitat for the species was protected for the
pigmy owl, and the consequences have been positive on both
ends: economically, habitat protection, a bond package passed
by the voters to buy additional open space and land for habitat
protection, and that was a consequence of collaboration. And
the presence of the Defenders, in terms of expertise and
advocates that you brought to that issue was very, very
important. So, my belated thanks for that effort, sir.
Mr. Dreher, H.R. 6345 requires the Secretary to consult
with each state and county in which a species is located before
the species is considered for protections under ESA. This
process could create a massive amount of bureaucracy.
Hypothetically, let's pretend endangered species like the
whooping crane, that is not currently listed--whooping cranes
can be found in 17 states and over 700 counties--the bill would
require the Federal agency to consult with over 700 different
chief executives to determine whether the species deserves
protection. What is fundamentally wrong with that?
Mr. Dreher. I think you have identified at least a couple
of the major concerns. The first is obviously just the burden
this would place on an already over-burdened Department of the
Interior and Fish and Wildlife Service. I think, in fact, the
Department of the Interior has expressed concerns about that
burden in its testimony, as well.
I think there is much more in this bill that is
troublesome. It goes far beyond saying that it is important for
the Department of the Interior to solicit information from
state and local governments. And I think there are already
provisions in the Act that require that. There already are
clear policies from the Department of the Interior that
encourage the coordination with and collaboration with states
and with local governments to collect information.
This bill sets up a very odd provision that says that if a
state or county objects to a listing, then the Secretary can
only move forward if he can prove that information that the
state or county submitted was incorrect.
Mr. Grijalva. If I may, Mr. Renkes, on that point, that the
bill would preclude the Secretary from proceeding with a
petition for action if a chief executive advises the action is
not warranted unless the Secretary can demonstrate the chief
executive is wrong, is incorrect, how would a Secretary
demonstrate just information received by the chief executive is
incorrect? Who would be the arbiter to determine whether the
chief executive or the Secretary is correct? Who decides that?
Mr. Renkes. As I understand the bill, it would essentially
create a rebuttable presumption that the information coming
from the state is correct, and then, if the Secretary found
that that information was incorrect, he or she would provide a
response and a record of decision explaining those reasons.
Mr. Grijalva. And that explanation would finalize it?
Mr. Renkes. I believe that record of decision, since they
used the words ``record of decision,'' would be subject to
review.
Mr. Grijalva. Review through the courts, reviewed through--
so the scenario is set up for--OK.
Do you have any other concerns, Mr. Dreher or Mr. Renkes,
on this legislation?
Mr. Renkes. No, we support the bill. We support the idea of
the involvement of states. We are doing it now. The Fish and
Wildlife Service has an agency goal of 100 percent of
participation of states in the listing process and, in fact,
gives states a seat at the table to consider all the scientific
information that comes in to determine whether that information
is the best available science, and then that goes into the
construction.
Mr. Grijalva. But it doesn't have veto power, those chief
executives, those states, those counties. This bill provides,
essentially, veto power over any listing.
Mr. McClintock. The gentleman's time has expired.
Mr. Grijalva. Thank you.
The Chairman [presiding]. All right. To this bill, Mr.
Gosar?
Mr. Westerman, EMPOWERS?
Mr. Bergman?
OK.
[Pause.]
The Chairman. Let's go to the next one, which is Mr.
McClintock's bill, H.R. 3608. You are recognized to introduce
your bill.
Mr. McClintock. Thank you.
STATEMENT OF THE HON. TOM McCLINTOCK, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF CALIFORNIA
Mr. McClintock. Thank you, Mr. Chairman. H.R. 3608 is based
on a very simple principle, that sunlight is the best of
disinfectants. It was originally sponsored by Chairman Doc
Hastings in the 113th Congress.
The bill requires the government to publish all science
underpinning ESA determinations and the costs imposed, and caps
attorney's fees at $125 per hour, as consistent with the Equal
Access to Justice Act.
When this was last considered by the Congress, over 25
organizations, including the U.S. Chamber of Commerce, the
Family Farm Alliance, the National Rural Electric Cooperative
Association, the American Farm Bureau Federation, the National
Association of Counties, the National Cattlemen's Beef
Association, the National Water Resources Association,
Washington Farm Bureau, Oregon Farm Bureau, Public Power
Council, and National Association of Conservation Districts all
supported the measure. It passed with bipartisan support both
out of this Committee and out of the House of Representatives
in the 113th Congress.
The bill has four components aimed at improving
transparency. It requires data used by Federal agencies for ESA
listing decisions to be made publicly available and accessible
through the Internet. This provision would allow the American
people to actually see what data is being used to make key
listing decisions.
Second, it requires the U.S. Fish and Wildlife Service to
track, report to Congress, and make available online the funds
expended to respond to ESA lawsuits, the number of employees
dedicated to litigation, the attorney's fees awarded in the
course of ESA litigation, and settlement agreements. The
American people should know all of the money that is being
diverted from species recovery in order to cover lawyers' fees
and other litigation costs.
Third, the measure requires the Federal Government to
disclose to affected states all data used prior to any ESA
listing decisions, and requires that the best-available
scientific and commercial data used by the Federal Government
include data provided by affected states, tribes, and local
governments. It is important to hear from the state and local
governments and the tribes when making decisions that will
affect their land management. Restoring good stewardship of our
public lands should be our ultimate goal.
Fourth, it places reasonable caps on attorney's fees, and
makes the ESA consistent with another Federal law. The Equal
Access to Justice Act limits the hourly rate for prevailing
attorney fees to $125 per hour. However, no such fee cap
currently exists under the ESA, and attorneys have often been
awarded huge sums of taxpayer-funded money. This provision
places the same $125-per-hour cap on attorney's fees for suits
filed under the ESA that currently exist under the Equal Access
to Justice Act.
I do want to clear up a misunderstanding expressed by a
Member earlier. It does not require that state and tribal and
local governments that have submitted reports be accepted as
the best-available science. Rather, their work must be
considered among the reports that ultimately form the decision.
This is important for a number of reasons, not the least of
which state witnesses and local governments, and tribal
governments, which often have a great deal of information on
the local conditions, have simply been ignored during previous
consideration of listing decisions.
There is a growing tendency on the left to hide scientific
data that is contrary to their own predetermined conclusions.
That is not science. Science welcomes debate. Science welcomes
challenge. And it relies on the ability of independent
researchers to replicate its data. When someone says you are
not allowed to ask questions, you are not allowed to look at
the data, you are not allowed to debate the issue, you are not
allowed to look at the full scope of the data, that is not a
scientist talking, that is a politician--and an authoritarian
one, at that.
So, this measure opens up the information that is available
so the public can look at it, the science can be debated and
challenged, and the best possible decision rendered under the
terms of the Endangered Species Act.
In my remaining time I want to note the presence of Jamie
Johansson, the President of the California Farm Bureau
Federation. His presidency of that federation has been a breath
of fresh air. Agriculture has suffered a number of setbacks in
recent years in California, and Mr. Johansson's leadership of
the Farm Bureau comes at an absolutely critical time.
In the remaining 19 seconds, Mr. Johansson, any comments on
the bill?
[Laughter.]
Mr. Johansson. Well, thank you----
The Chairman. Actually, wait.
Mr. Johansson [continuing]. For the kind words. I will
quickly say that I think this bill would fully expose----
The Chairman. Wait, wait, hold on. Wait a minute, wait.
Start him over again.
I am going to yield my time to you for questions, if you
have any, which you do.
Mr. McClintock. Just for Mr. Johansson to wrap up.
The Chairman. Go ahead, then.
Mr. Johansson. All right. I would say thank you for the
kind words.
And really quickly, acknowledging that you gave me more
time--but I think this bill would surely show, in its
implementation, the industry of conflict that has developed
around the ESA, which I talked about earlier, which is an
unfortunate place that we find ourselves and our farms and
ranches, not getting solutions, but constant conflict.
Thank you, Congressman.
Mr. McClintock. I yield back.
The Chairman. Thank you.
Do you have questions on this bill?
Mr. Grijalva. Yes.
The Chairman. OK.
Mr. Grijalva. First, Mr. Chairman, I have two questions,
but I ask unanimous consent to enter a letter into the record
of over 1,500 scientists and experts urging Congress not to
weaken the Endangered Species Act, and it is specifically
addressing portions of this legislation, if there is no
objection.
The Chairman. Without objection, as long as you don't read
it.
[The information follows:]
The Union of Concerned Scientists
September 25, 2018
Dear Representative:
This week, the House Committee on Natural Resources is holding a
legislative hearing on several proposals that threaten the important
role of science in implementing the Endangered Species Act, and allow
for politics to intrude into decisions about which species need
protection, H.R. 3608, H.R. 6345, H.R. 6355, and H.R. 6356. The Union
of Concerned Scientists, representing more than 500,000 members and
supporters across the country, urges you to oppose all of these bills
which undermine one of our nation's most effective science-based laws
for protecting imperiled species on the brink of extinction. We are
especially concerned about H.R. 3608, H.R. 6345, H.R. 6355, and H.R.
6356. Together, along with the other five bills that the committee is
scheduled to hear testimony on, they would threaten the integral role
of science in carrying out the Endangered Species Act.
H.R. 3608, deceptively named ``The Endangered Species Transparency
and Reasonableness Act,'' would undermine the Endangered Species Act's
science-based determination process by declaring any information
provided by states, tribes, or counties to constitute ``best available
science,'' regardless of the scientific merit of that information.
Decisions to list or delist a species are already required to use the
best available science, which of course can include state, tribal, and
local scientific studies when they are conducted in accordance with
well-established scientific standards. Best available science is a
culmination of the efforts undertaken by scientists and wildlife
experts at the U.S. Fish and Wildlife Service (FWS) and the National
Marine Fisheries Service (NMFS), where they conduct studies, gather
data and other information from the scientific community and the
public, including state, local, and tribal government and industry.
H.R. 6345, the ``Ensuring Meaningful Petition Outreach While
Enhancing Rights of States Act,'' would insert economic considerations
into the listing decision process and would give states arbitrary veto
authority over listing decisions. The Endangered Species Act rightfully
requires listing decisions to be made based on the best available
scientific and commercial data. By giving states and local governments
the arbitrary ability to object to science-based decisions to protect
imperiled species, it politicizes the process of species conservation
and makes it more difficult for agencies to rely on the best
information.
H.R. 6355, the ``Providing ESA Timing Improvements that Increase
Opportunities for Nonlisting Act,'' would provide a fast track to
prioritize delistings and downlistings of species in the event of a
backlog. While this sounds like a method to ease the backlog, this is
not accompanied by a similar mechanism, to fast track listings, nor is
it addressing the funding problem at the root of the backlog at the
agency. This is a misrepresented attempt to push the agency to make
unscientific decisions to delist and downlist species because they have
been historically starved for funding.
H.R. 6356, the ``Less Imprecision in Species Treatment Act,'' is a
bill meant to intimidate and push scientists and the public out of the
petition process. This bill would keep petitioners from submitting
another petition to list imperiled species for 10 years after
`knowingly' including inaccurate information in a listing petition.
Scientists and communities should not fear presenting their research in
petitions in case the agency deems it a misrepresentation and locks
them out of any future process.
Earlier this week, more than 1,500 scientists \1\ asked Congress to
protect the Endangered Species Act. These ill-advised proposals would
only weaken the Act and hinder science-based policymaking.
---------------------------------------------------------------------------
\1\ https://s3.amazonaws.com/ucs-documents/science-and-democracy/
esa-letter-final-september-25-20l8.pdf.
In addition to the four bills listed above, we also stand in
solidarity with our partners in opposition to H.R. 6344, H.R. 6346,
H.R. 6354, H.R. 6360, and H.R. 6364. Combined with these egregious
anti-science bills, all of these proposals attempt to substitute
politics for scientific judgment and make it harder for the public to
engage in wildlife stewardship. We urge you to oppose all nine of these
ill-informed pieces of legislation that undermine our nation's most
---------------------------------------------------------------------------
effective science-based conservation law, the Endangered Species Act.
Sincerely,
Andrew A. Rosenberg, Ph.D.,
Director, Center for Science and Democracy
______
Mr. Grijalva. Mr. Dreher, H.R. 3608 undermines the citizen
suit provision of ESA. Elaborate on that situation and
elaborate on the double standard. Some of my colleagues are
very supportive of restrictions on attorney's fees pertaining
to ESA, but support such a restriction in other areas that are
particular to them. If you could elaborate on that, sir, I
would appreciate it.
And, also, the issue of who has a monopoly on the best-
available science, and do states, local counties, tribes, and
private entities, do they have a particular monopoly on what is
good science, and the science being generated by the agencies
is not good science because it has been scrubbed?
Although that seems to be the practice going on in this
Administration with regard to climate change and anything that
approaches science. But that is another issue.
Mr. Dreher?
Mr. Dreher. Thank you, Congressman. I think the first issue
you referred to is the limitation on attorney's fees. A number
of environmental statutes provide for a provision of attorney's
fees to prevailing parties in order to incentivize citizen
enforcement of the law.
And an important part of maintaining the rule of law is to
hold agencies accountable, and recognizing that many people do
not have resources to hire high-priced lawyers. Corporations
often have the money to hire major law firms, but citizens
groups often don't. And individual citizens certainly don't.
So, this would cap those fees using the Equal Access to
Justice Act. One consequence of that I would call out is that
the Equal Access to Justice Act awards fees from the agency's
budget. So, this is, again, a way of siphoning off money from
the listing and protection and recovery of endangered species
to pay attorney's fees. Attorney's fees that are currently paid
out under the ESA are paid out of the judgment fund, as they
are under the Clean Water Act and under the Clean Air Act, and
other major environmental bills.
The other point is the issue about the best-available
science. I certainly think that states and counties and
localities may well have valid science that should be
considered, and I think that if this bill did nothing more than
to encourage the Department of the Interior to consider all
such material that was provided by governments, it would be
fully consistent with the Department of the Interior's existing
policy, and it would be something that certainly Defenders of
Wildlife would support.
The problem is the actual language of the Act. And this is
not the only bill that has recited this. There have been
several other bills each Congress that declare that the term
``best available scientific and commercial information''
includes data submitted by a state or tribal or a county
government.
So, imagine the problem that you have, I mean the sponsor's
statement about encouraging scientific debate. The whole point
about choosing and selecting what is the best-available science
involves scientific evaluation by scientists of the actual
validity and reliability of scientific studies and information
that they rely on, on what the data is.
This would declare that information, which may be
completely erroneous, it may be irrelevant, or it may just have
data of conflicts, or it may just be in conflict with other
scientific information--it may, in fact, be a validly conducted
study, but it may be an outlier in the field of species
conservation, but this would declare that the Service has to
rely upon it. That is what the meaning of ``best available
scientific and commercial information'' is. That is what they
have to actually make their decisions on.
So, it kind of throws out the whole issue about evaluating
that science to determine if it is valid. And that is, I think,
why so many scientists are objecting to this.
The Chairman. You good?
Mr. Grijalva. Thank you.
The Chairman. Do you have any questions for this one?
Dr. Gosar. First of all, I would like to respond to the
1,500 scientists about weakening the ESA. At a 2 percent
success rate, that is hardly success. That is hardly success,
by anybody's standards. So, we ought to be looking at trying to
mitigate that. And that is why, Mr. Dreher, I came back at you
to see where we should go, based on your intuitions.
It is not good enough just to allow this to occur and just
say, well, these are fundamentally flawed. It is what are your
solutions. And that is why I asked my first questions to you,
and you couldn't answer them. And that is what is so sad about
this, is that everybody's heart is in the right place, to
mitigate this. I mean, you have a conflict of interest. And
that is why I asked about the money, is to find out how much
exactly you have actually benefited from, not just in the
financial dollars, but in delays and deliberative stoppages of
any program or anything that could actually benefit. So, I find
that kind of interesting, that you would look at that.
Mr. Renkes, what right do states, local governments,
tribes, and industries have to know what the Federal Government
is up to? And why does it matter whether states are consulted,
and whether these entities know the internal deliberations of
government?
Mr. Renkes. Let me say the Administration supports the
thrust of this bill, and a maximum amount of transparency. And
I think the right that they have to know is the right to know
that these decisions are based on the very best information,
which is the goal of the Act. And having the best information
will result from transparency of the data that is provided.
I believe this Administration has mentioned before, made it
100 percent agency goal to bring the states to the table and
actually--it used to be that in the administration of this Act,
that science would be reviewed in a corner, and not revealed
and not transparent to the public in some cases. But now, the
states are invited to the table to review all of the
information that comes into the agency, and then participate
with the Service in the creation of the science document that
is used in the listing process.
So, it is that kind of transparency that this bill
advances, and we think it is a good thing for the Act.
Dr. Gosar. So, walk with me for a minute in regards to an
issue you probably are aware of, and that is forest thinning.
And the tribal involvement, because I look at this
intentionally from that standpoint.
We have the Rodeo and Chediski fires over in the eastern
part of Arizona, and the tribe was very upset because of the
neglect and the destruction that occurred. So, what they did is
they took it upon themselves on their tribal lands to thin the
forest in an appropriate, prescribed application that may not
have been part of the Federal Government's. And it actually
worked.
Would that be an example of how that interaction would
occur for best-available science?
Mr. Renkes. After the listing decision has been made, and
you have a recovery plan, or have that conservation plan, I
think that then you want continued input and continued
involvement of the local governments and tribes and the states,
because they have the best available local knowledge. And I
think----
Dr. Gosar. That shows you the success is the implementation
on the floor. And I think that this bill is important in that
regard, because it shows you a real time evaluation of success.
Mr. Renkes. That is correct.
Dr. Gosar. Thank you. I yield back.
The Chairman. Mr. Westerman, do you have a question on this
one?
Mr. Bergman, on this one?
Mr. LaMalfa, do you have a question on this one? You do
have one, though?
Mr. LaMalfa. You need me to come over there?
The Chairman. Tell you what. Give your question, then come
here.
He's chairing from right there for a second.
Mr. LaMalfa [presiding]. All right. Give me a second here.
Thank you.
OK, Mr. Johansson, let's come back to this on the
attorney's fees angle of this. I think that is a very important
component in the bill, and something I have tried to advance
previously in other legislation, as well, in that the
incentive--and we kind of talked about it with this letter I
submitted up there earlier--is that there is a giant incentive
to sue, just for the heck of it, because there is a good chance
of recovery.
And with the cap in the fees, what do you see on all this
stuff we have been talking about in California, especially
where we have salvage, fire salvage operations that try to
happen, and a litany of lawsuits that come from that, and then
we were talking about on the land use, et cetera. If these fees
were capped at something that is more reasonable, what do you
see as far as the frequency of continued lawsuits that appear
to some of us as being pretty frivolous, because there is no
downside?
Mr. Johansson. Well, I would say--and I repeat what I said
earlier, in terms of exposing an industry of conflict that
really has developed around the ESA and people or organizations
that thrive on litigation. It is the first thing they are going
to turn to, is to litigate and to challenge.
So, by posting a transparency of what we are spending on
those fees, or what is being spent on those fees also is
important in terms of when we discuss how much we are funding
the ESA, what truly is going into the ESA, in terms of our
implementation of it. We have to recognize the litigation
aspect of it. There is no one who goes into a habitat
conservation plan or any other sort of conservation plan
without the advice of attorney, because that is your first
decision, probably, in complying with the ESA, if you have to,
is who is the good attorney.
So, we would hope that it would minimize the litigation,
and we could go forward with conservation.
Mr. LaMalfa. OK. Thank you, I will yield.
Mr. Young. Then recognize me.
[Pause.]
Mr. LaMalfa. I would recognize Mr. Young. Did you have a
question?
Mr. Young. No question.
Mr. LaMalfa. Oh, no? OK. All right. Then no further
questions on this bill.
We will jump to Mr. Young's bill, H.R. 6364. And I will
recognize Mr. Young.
STATEMENT OF THE HON. DON YOUNG, A REPRESENTATIVE IN CONGRESS
FROM THE STATE OF ALASKA
Mr. Young. Thank you, Mr. Speaker, Mr. Chairman. First, let
me tell you what is wrong with this whole program. I am the
only one that has ever voted on this Act. And when we voted on
it, it was 10 pages long. And it is now 386 pages long, not by
congressional action, by action of the agencies that implement
the Endangered Species Act. That is what is the problem.
And I want to stress that. And I will tell you I have
little respect for the Defenders of Wildlife or any other group
that uses this Act as it never was intended. I remember the
testimony before us. Unfortunately, it was written wrong, but
it was to protect animals that were endangered, birds that were
endangered, but not all this other stuff. But we did put it in
there that frogs would be protected, flies would be protected,
hopping mice would be protected, without consideration of the
science and how it affected other species.
So, Mr. Chairman, I can suggest one thing. My little bill
just requires that the counties and states, the tribes work
together with the Federal agencies to come to an agreement on
what is the best way to protect the animals and the species,
including the frogs. That is what we are trying to do.
But the Act itself has been misinterpreted and misused,
primarily to take property away from the private individual and
impede progress, which deeply disturbs me, because that is not
what America is all about.
Mr. Sauter, the LAMP program, that is my Act, authorizes
Federal agencies to delegate greater authority to the states
and tribes, et cetera. In your experience, do you believe the
states, along with the tribes and counties and local
municipalities, have the capability of managing species in a
professional manner, protecting them, and still going forth
with everyday life?
Mr. Sauter. Thank you for the question, Congressman. Yes,
absolutely. I think there is ample evidence. And I have
evidence as far as my own personal experience as a county
commissioner. We work on wildlife programs, we conserve
species, we save habitat all the time. And I think there is
this erroneous assumption that local and state and tribal--
maybe not so much tribal--cannot be trusted to look after
species, that we don't care about species, that we don't want
to see species recovered. That is simply not true.
Our view is that the best people, the people that have the
most to gain from all of this, are actually those local
landowners.
Mr. Young. I happen to agree with you. And, by the way,
most species that are put on the list come from outside
interests, have nothing to do with the agencies. They are
proposed, or they will sue to put them on the list. People
don't look at that. Again, misusing the Act itself.
Mr. Renkes, congratulations, by the way, appearing before
this Committee for the first time. Do you believe increased
support from agencies of state and local-driven conservation
efforts and species management can lead to more effective
outcomes of species and the communities most impacted by them?
Mr. Renkes. Yes, Congressman. The Department appreciates
and supports the goals of the LAMP Act. And anything we can do
to increase the involvement and the participation of the states
and tribes and local governments is better for the conservation
of endangered species.
Mr. Young. Mr. Chairman, I just have a little personal
experience. I was originally from California until I got smart
and went to Alaska. As you know, I had a ranch there, and my
brother ran it. And we have a grove. My father set aside 20
acres.
Along came California's Fish and Wildlife and Federal Fish
and Wildlife, and said we set that grove up, my dad did, for
preservation of species, long before it was popular. And
because we had an abundance of golden garter snakes, they were
told that we would have to put a buffer zone in 1,000 yards
long, away from that little grove. We couldn't farm it.
Mr. Renkes, you said shoot and shovel--what is it? Shoot,
shut up, and shovel.
Mr. Renkes. Shoot, shovel, and shut up.
Mr. Young. I used the hoe, and I shoveled, and I shut up.
But the idea that they were going to punish the ranch because
we protected something, that is how stupid this bill is. It was
never intended for that.
So, Mr. Chairman, this is a good piece of legislation. All
these bills deserve merit. And if we don't do it, in fact, the
Act itself eventually will be defeated by the people. I yield
back.
Mr. LaMalfa. Yes, Mr. Chairman, I think that hearkens back
to the PREDICTS Act from a little while ago, the conversation
we are having--can I predict that I can set my land in a
certain way and be able to use it if I need to in a different
way later? And you cannot predict that because they pronounce
it on your private property.
Let me turn to Mr. Grijalva. Do you have questions? Or any
of your other colleagues on that side of the aisle there?
Mr. Grijalva. Which one are we on, LAMP?
Mr. LaMalfa. H.R. 6364, by Mr. Young.
Mr. Grijalva. Oh, Mr. Young's bill.
Mr. Dreher, do you have concerns on this legislation, sir?
Mr. Dreher. I do, sir. Defenders of Wildlife fully
appreciates and supports the role of state governments in
managing resident species of wildlife, and we certainly support
anything that would help to encourage collaboration between
states and the Federal Government and other stakeholders,
including groups like ours and including property owners, to
try to engage in endangered species conservation.
There are significant concerns about widescale delegation
of the ESA to the states. There was a very comprehensive study
done by the University of California Irvine School of Law that
examined the authorities that state governments have to protect
endangered species, and found things that were actually a
little shocking, like almost no state has authority to actually
try to recover an imperiled species that is listed under state
law. Very few of them require expert consultations. Very few of
them protect plants.
Almost none of them protect the whole list of endangered
species that the Federal Government protects. And, maybe most
revealing, only 5 percent of the money that is spent on
endangered species conservation is spent by the states.
So, there are real concerns about the capacity and
authority of the states to step up and take this kind of
leadership role on endangered species conservation away from
the Fish and Wildlife Service and the National Marine Fisheries
Service. That is not to say they shouldn't work hand in hand,
and they absolutely should, and as they do, whenever they do,
we applaud that. But we are concerned about that.
But I would say the other thing that really gives me pause,
because I have never actually seen this before, is the
suggestion in this particular bill that the Secretary could
delegate management of entire species or groups of species, as
well as habitats of those species, to private parties. And I
don't know what a non-Federal party is, but it could include,
as far as I can tell, an oil and gas company or a mining
company. I have never seen anything like this in the
discussions about the endangered species conservation program,
and I don't know how far it could go. It would exempt those
parties from take and from the requirement to consult.
If you have delegation of authority not to a state--states,
after all, are kindred spirits to the Federal Government in
their commitment to conserving endangered species. But private
parties?
So, I think this bill raises very, very significant and
large concerns about what it might do to the endangered species
program.
Mr. Grijalva. Thank you.
If I may, Mr. Chairman, just because we were talking about
the litigation part on the other legislation, a 2017 GAO report
on Endangered Species Act deadlined litigation, only
approximately 13 cases were filed per year on deadline lawsuits
from 2005 to 2015. Moreover, only half of the cases were
brought by environmental groups, with the rest by a variety of
plaintiffs, including the California Cattlemen's Association,
the Florida Homebuilders Association, and finally, of the 141
cases filed in the 10-year period of deadline lawsuits, 72 were
resolved through settlement.
And I mention that because of all the civil cases brought
against the Federal Government, less than one-half of 1 percent
are with EPA and Interior. The rest are commercial litigation
cases, so security litigation cases, prisoner litigation cases,
and other mostly commercial cases.
So, I suggest that before we make this the issue of the
lawsuit and a citizen's right to access the court for redress,
and handcuff that process, that we look very carefully, because
this is not the boogeyman that it is being made out to be by
the proponents of limiting the ability of the citizen to access
the courts for redress.
I yield back, Mr. Chairman.
Mr. LaMalfa. All right. Thank you, Mr. Grijalva. Would Mr.
Gosar like to be recognized?
Mr. Westerman? OK.
I will touch upon a little bit. Mr. Wood, on this bill,
with what Mr. Young was talking about there, like on a
management of their own land, they had set aside that 20 acres,
for good reasons, and then found that they didn't have control
of their land any more. Can you elaborate a little bit on what
you see from the legal angle of how does a landowner carry that
battle these days on regaining their control of managing their
land, even though they might have a species on that that they
are actually helping to propagate, but not enough to change the
use of that land, and not have a buffer zone, et cetera?
Mr. Wood. It often is very difficult. One of the biggest
challenges with the Endangered Species Act the way it is
written and the way it is implemented is that it often punishes
the landowner who provides habitat for rare species, when what
we really need is greater incentives to restore and enlarge
existing habitat, because it is often too small for the most
imperiled species.
So, from the property-owner's perspective, it could be
really dangerous to create or restore habitat, because you are
essentially setting yourself up for far greater regulation. And
many of the things that have been done by administrations of
both political parties and that are codified in many of these
bills will make that situation better by providing more
certainty to landowners, as well as additional incentives to do
that important work.
Mr. LaMalfa. Mr. Johansson, same thing on that. Again,
because it seems to be a disincentive for people I know of in
various Ag. industries to do that good thing and leave
something on some set-aside land, and then lose control of it
because you let trees grow too long on that piece of land, or
something of that nature.
Mr. Johansson. That is the fear, and this our hope, to
remedy, and why California Farm Bureau, American Farm Bureau is
here today, is to bring in the certainty that doing the wrong
thing--or excuse me, doing the right thing won't end up being
the wrong thing, in terms of the longevity of your farm and
your family on that land.
Mr. LaMalfa. Yes, because the results I see is that people
are going to leave their land barren and so highly maintained
that a weed can't grow or a tree can't grow on areas that they
don't want it to take over, and then lose that control. So,
thank you.
Anybody else on the panel have any last thoughts on H.R.
6364?
OK, all right. With that we will move on to H.R. 6356 by
Mr. Biggs of Arizona, called the LIST Act of 2018. I will throw
this over to our colleagues here.
Mr. Gosar.
Dr. Gosar. Mr. Wood and Mr. Renkes, at present do we make
enough of an effort to distinguish between species that are
experiencing population decline as a consequence of human
versus non-human factors at the petitioning and listing stage?
I will start with you, Mr. Renkes.
Mr. Renkes. The listing decision is based on the definition
in the Act. I am not sure if that is what your question was
getting at.
Dr. Gosar. Well, do we make a distinction that are
consequences of human versus non-human factors in the
petitioning process?
Mr. Renkes. In the Act, there is a definition of endangered
and threatened species, as you know. And a five-factor analysis
is supplied. And in those five factors, the last, fifth factor,
is natural or man-made factors that affect the continued
existence of the species.
Dr. Gosar. Mr. Wood?
Mr. Wood. I agree. The Act, as written, doesn't distinguish
between those two different types of threats. And one of the
challenges of the implementation is that the response required
will be very different, based on whether a threat is man-made
or natural.
And the regulatory approach contained in the Act doesn't do
as good of a job creating the incentives we need for novel and
innovative solutions, particularly to those natural threats,
where a species is competing with another species. Telling a
farmer he can't plow isn't going to change that underlying
natural phenomenon.
Dr. Gosar. Give me an example in regards to how the law
differentiates.
Mr. Wood. Well, as I said, in terms of the listing, it
doesn't. It says----
Dr. Gosar. I am sorry, it is the opposite. Tell me, by law,
how it doesn't differentiate, and how it could be effective.
Mr. Wood. So, for example, the spotted owl in the Pacific
Northwest was listed based on fears that logging would
eventually damage too much habitat. Well, today the main threat
to that species is competition from another species of owl.
Limiting the ability for timberland owners to harvest their
land and their trees is not going to change the underlying
dynamics of that shifting ecosystem and the competition the owl
is facing.
Dr. Gosar. Well, obviously, species went extinct before
humans came around. We just happened to accelerate those rates
through habitat modification. Do you think that is a useful
distinction, one that could easily be readily measured and
implemented in consideration under the ESA, Mr. Wood?
Mr. Wood. Well, I think, certainly given how popular the
Act is, no one wants to just accept extinction. It may be
impossible to prevent all of it, but it is something we all
care about.
I think what is important is to stress how those challenges
make it even more necessary to focus on flexibility and free
market, or voluntary, conservation means. That is what is going
to accomplish those solutions we need. Regulating landowners
doesn't address any of those problems.
Dr. Gosar. So, more of a--not you can't, but how can you
help with verifiable outcomes, right?
Mr. Wood. Exactly.
Dr. Gosar. Mr. Wood, why does the distinction between
threatened and endangered matter?
Mr. Wood. Well, obviously, the biggest reason why it
matters is that endangered species are on the verge of going
extinct. Those are the ones that most critically need
protection. The reason why it matters legally is that Congress
made different judgments for the two types of species.
Threatened species don't require the same regulatory
protections endangered species do.
Historically, the Service hasn't honored that distinction,
but the Administration has recently proposed to restore it. And
that rule change will provide a lot more flexibility for states
and private property owners to pursue active recovery efforts.
And I think it will actually boost the rate at which we recover
species.
Dr. Gosar. So, do you think Congress should reinforce that
distinction and that it would benefit species conservation?
Mr. Wood. Absolutely. I think that is clear from the text
of the statute, as written. But codifying and emphasizing it, I
think, would be absolutely helpful.
Dr. Gosar. Would you agree with that, Mr. Renkes?
Mr. Renkes. Yes, I would, and it is a major thrust of the
current regulations.
Dr. Gosar. This seems like this is a kind of a common-sense
bill that is looking at outcomes and looking at all resources
into that predication. Wouldn't you agree, Mr. Wood?
Mr. Wood. Yes.
Dr. Gosar. Supporting species, right?
Mr. Wood. That is exactly right. For instance, the last
thing we talked about, empowering states, is something that
builds on efforts by the Obama administration to better engage
with states. I think most people realize we need changes like
this to incentivize more active efforts to recover species.
Dr. Gosar. OK, thank you.
Mr. LaMalfa. Mr. Grijalva.
Mr. Grijalva. Mr. Wood, I think earlier today you discussed
judicial review of endangered species listings for the Wyoming
gray wolf and grizzly bears. In your testimony, you caution the
Committee against ``enacting any limitation on judicial
review.'' However, many of these bills, including this one, do
just that.
So, can you explain why that is problematic, and why the
caution?
Mr. Wood. Sure. I found, in reviewing other statutes that
preclude judicial review, that they are essentially invitations
for agency mischief. And, often, the result is to undermine
Congress' will.
That said, I recognize that too many ESA issues result in
litigation, so something should be done. But I think the answer
is to deal with the underlying incentives behind that
litigation, like the amount of attorney's fees, and not to ban
access to the courts.
Mr. Grijalva. Mr. Dreher, another reaction to that opinion,
something to agree on, or not?
Mr. Dreher. Well, there has been talk among the members of
the Committee about the need for sunshine and transparency. And
one of the ways to ensure that is to allow the American public
to actually look at what has been happening in a government
decision, regardless of where you stand or what interest you
represent, to know what it is and, if it is improper, to
actually contest it against the standards of the law. That is
what the courts are all about. That is what the rule of law is
all about.
I think, if there are too many conflicts over the ESA, the
issue should be to try to resolve those conflicts, and to try
to establish better ways to collaborate together. But denying
American citizens their rights to go to court to indicate their
civil rights is just not something I think this Committee
should be doing.
Mr. Grijalva. Thank you.
Mr. Dreher, one other question. And speaking of science, in
all the legislation that we are seeing as a package on
dismantling the ESA, one subject that doesn't come up, and it
is a scientific issue, is the issue of climate change and its
impact on habitat and impact of species on their recovery. Can
you, from your perspective and expertise, talk a little bit
about how that is also part of changing the discussion around
species protection and recovery efforts?
Mr. Dreher. Yes. I think climate change is the huge and
growing threat to life on this planet, frankly. And, certainly,
to the balance that we have and that we know about. It has
unsettled, I think, all of our expectations in the field of
conservation. We used to think that we could restore habitat in
areas to a pristine, pre-Columbian state. Now we are facing the
fact that we are changing the climate so severely that we--but
the point about all of this is that what climate change does is
exacerbate the pressures that we are putting on species.
Most species are endangered because of the pressures of
human development. And climate change exacerbates that. So, any
rational process for trying to conserve biodiversity, including
one under this Act, has to take climate change into effect. And
that complicates things.
It means we have to think about, for example, do we need to
protect vacant habitat, where a species doesn't currently live,
but where it will have to move? Species are having to move
upslope, they are having to move north, they are having to move
away from temperature gradients that put them at risk. So, it
may become crucially important to do conservation planning that
establishes where those trends are, and----
Mr. Grijalva. Accessing corridors, that is another
discussion that I have heard, as well. Yes, I think when you
are talking about this very vital and important legislation,
the ESA law--not only anticipating what is coming, but
accepting that as real science, I think helps mitigate
recovery, both of species and protection and conservation of
habitats. And all this legislation, and most of what we see on
this Committee, in terms of environmental issues, the issue of
climate change is a non-issue, a non-factual issue. I just
wanted to get your response to that.
And I yield back.
Mr. Dreher. Well, we are worried that proposals by the
Administration would eliminate consideration of climate change
in administering the ESA.
Mr. Grijalva. Yes.
Mr. Dreher. We are also worried, frankly, that the most
important thing we need to do is develop better ways to work
together and collaborate. And the kind of accusations in this
bill, accusing environmentalists of explicit bad faith, are
entirely unfounded, and not, I think, helpful to establish the
kind of dialogue we need.
Mr. LaMalfa. All right, thank you.
Mr. Westerman? OK.
I will have one for Mr. Renkes. As just a practical matter
and summarizing the bill and what that looks like for the
Secretary, for the Department, again, giving the power to the
Secretary to de-list when, again, objective, scientific data
clearly demonstrates a species is recovered, and also to act on
wrongfully listed species, where the rubber meets the road,
what does this really look like for the Secretary and for your
Department there?
Mr. Renkes. We agree with the focus----
Mr. LaMalfa. Let me juxtapose this with--we talked about
gray wolf earlier, where in 2009 it was originally proposed to
be de-listed, and in my own backyard we have the valley
elderberry longhorn beetle that was also submitted for de-
listing at least 8 or 9 or 10 years ago, as well, by Fish and
Wildlife. So, mix that into your answer, too, please.
Mr. Renkes. We agree with the focus of recovery and getting
species off the list. And the regulations--public comment just
closed on and by the way, we received 180,000 comments on the
regulations, representing the input of over a million people.
And that comment period closed on Monday.
But one of the provisions in those regulations makes it
clear that the standard for getting on or off the list is the
same. It is the definition in the Act. And it is really the
definition in the Act that is going to control in each of the
5-year reviews of the species, or when someone petitions for a
down-listing or a de-listing.
So, this LIST Act, we think, really would enhance the
ability to move through that list. I think right now we have
533 petitions under review, and 506 of those are past the 12-
month deadline for a decision.
Mr. LaMalfa. To add new species to the list?
Mr. Renkes. Yes.
Mr. LaMalfa. And none of them are de-listing or down-
listing?
Mr. Renkes. Oh, no. Some of those----
Mr. LaMalfa. What does that list look like?
Mr. Renkes. The de-listing and down--I don't have those
numbers in front of me. We could get those to you.
I am not familiar with the beetle issue that you raised,
but I am somewhat familiar with the wolf. And the Service has
maintained that the wolf had recovered, and it has gone through
the courts, and now it has been settled for the Wyoming, Rocky
Mountain population. And we are still waiting on a decision, I
believe, for the Midwestern population of the wolf.
Mr. LaMalfa. Whereas, the Secretary could be empowered,
having looked at all the information, to go ahead and make the
move, instead of more waiting, right?
Mr. Renkes. Right.
Mr. LaMalfa. All right. Mr. Wood, would you care to weigh
in on that thought?
Mr. Wood. I think that is right, and it presents two sides
of the problem. You mentioned the valley elderberry longhorn
beetle, something I discussed in my written testimony. That is
a case where the Service's scientists said the science is
there, this species status needs to be upgraded, and nothing
happened. A petition was filed, and still nothing happened.
And by the time the agency got around to acting, it said,
well, now that science is too old and we have to start all
over. It just shows that de-listing hasn't been treated as a
sufficient priority to get the ball moving.
And, of course, the other challenge is the courts, that
when a species gets de-listed, it will be challenged, and
courts will strike the decision down even in situations where
the species has recovered. It has happened with the gray wolf,
and it has happened with the grizzly bear.
Mr. LaMalfa. I recall on the elderberry beetle they
actually did have the data on that. And then I don't know if it
was good to de-list in 2008--just because they waste more time
on that doesn't mean that now that data isn't good any more.
But my understanding is they didn't like the data they had,
and they contracted for a different style of gathering the data
on how they counted the beetle. It is a never-ending circus,
really.
OK. Any more questions on this one from the panel?
With that, we will close out on H.R. 6356 and go to H.R.
6355 by Mr. Westerman, the PETITION Act.
Well done, Mr. Westerman, taking an eight-letter acronym,
putting that together, that is pretty creative.
STATEMENT OF THE HON. BRUCE WESTERMAN, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF ARKANSAS
Mr. Westerman. Pretty creative. Thank you, Mr. Chairman,
and I thank the witnesses for being here today.
Mr. Chairman, the gentleman from Alaska, Mr. Young, alluded
to this a little bit in his remarks, but as I have researched
the ESA I have found that it was a highly partisan Act, highly
partisan piece of legislation that was passed back in the early
1970s. I use that term ``partisan,'' meaning that it is
something that is to be prejudiced in favor of a particular
cause. And there was a particular cause. That cause was to
protect critically imperiled species from extinction.
And the legislation wasn't partisan by today's standards,
because it passed the Senate with a vote of 92 to 0, and it
passed the House with a vote of 390 to 12. There were very good
intentions for the ESA, and we cannot deny the benefits we have
seen because of implementation of the ESA. We have seen eagles,
falcons, whales, grizzly bears, different birds, butterflies,
and plants, all that have recovered because of the Endangered
Species Act.
But this hearing has given us a chance to explore the idea
that there are updates needed to the ESA, and specifically my
PETITION Act provides protections from abusing the process. It
actually starts the listing procedure.
Forty-five years ago, when the ESA was conceived, it was
laudably designed so that anyone could work with the government
to save a species. That is a good thing. As such, there is no
cost to petition the Service, and the agency must thoroughly
respond to each individual request within 90 days, even if the
petition contains unsubstantiated information. Further, if the
agency fails to respond within this limited time frame, then
whoever petitioned Fish and Wildlife can take them to court.
On the surface, this is all well and good. If my Federal
Government ignores me, I get to take them to court. The problem
is the process is being abused. Unlike the vision of citizen
scientists banding together to save one or two species, a
handful of well-funded organizations have overwhelmed the
listing procedure.
From 2007 to 2011, just two organizations were responsible
for 90 percent of all submitted petitions. These two groups,
each with annual budgets exceeding $15 million, drove the
average number of yearly petitions from 20 to well over 300.
Fish and Wildlife Service has simply not been able to keep up
with this increase, and, as a result, has been repeatedly drug
into court and forced to accept settlements that undercut both
the established listing procedure and Federal scientists.
Some would suggest that Fish and Wildlife just needs more
money and more people. Mr. Chairman, there are nearly 22,000
plant and animal species in the United States alone, and there
is no limit to how many can have ESA petitions filed on their
behalf. These organizations have subverted well-intentioned
policy. Rather than submit scientifically sound petitions,
well-funded organizations can simply overwhelm the Service and
then sue to achieve their desired result. This subversion is
incredibly harmful, not only to the American taxpayer, but to
species recovery, as a whole.
My bill, the PETITION Act, attempts to reverse this
problem. By allowing the Secretary of the Interior to declare a
petition backlog, and then allow the Fish and Wildlife
scientists to prioritize which petitions need immediate
attention, my bill allows for a fair and orderly consideration
of all new petitions, not just the ones funded by large
activist organizations.
The structure of my bill is nothing new to Fish and
Wildlife. In fact, part of the PETITION Act codifies the
backlog structure put in place under the Obama administration,
when frivolous petitions began to stack up.
Overall, the purpose of my bill is to update a 45-year-old
law to protect the Endangered Species Act from the current
abuse it receives. Under the current structure, well-funded
groups are drowning out sound science and species with true and
immediate need.
I am eager to conclude this testimony today, and I look
forward to working with any member of this Committee to update
the Endangered Species Act in a sound and responsible manner
that gets back to doing what it was originally designed for.
Again, that is to protect critically imperiled species from
extinction.
With that, I yield back.
Mr. LaMalfa. All right, thank you, Mr. Westerman.
Mr. Grijalva.
Mr. Grijalva. Mr. Dreher, again, backlog petitions are an
issue for implementing the ESA. We have the approach being
represented in Mr. Westerman's legislation. Do you think there
is a better approach, that one idea would be to increase the
resources to the implementing agencies to meet this heightened
demand, in terms of backlog. Beyond that, any other ideas,
suggestions?
Mr. Dreher. Thank you, Congressman. The thing is that the
petition workload has been a burden. I have spent more than 2
years at Fish and Wildlife Service and 4\1/2\ years defending
Fish and Wildlife Service at the Department of Justice.
I was there when we faced the multiple species petitions
that were filed in 2011, that proposed hundreds of species for
listing. What happened there was, I think, responsible
management. The Department of Justice and the Fish and Wildlife
Service developed a plan.
First, we took all those listings and all the deadline
suits and put them into one court. Then we came up with a
settlement approach that established a reasonable schedule that
we could actually manage. And we got the commitment of the
petitioners, the plaintiffs in those cases, to that schedule,
and we have implemented it. It is difficult, but it can be
done. But it does require resources.
What this bill, unfortunately, does is to penalize the
endangered species that Mr. Westerman says that he is seeking
to protect. Under his scenario, if a backlog is established, a
new petition that could be filed that brings to the attention
of the Service a species that it had not previously recognized
was in imminent risk of extinction would have to be ignored.
They could not move on it. And then it would be denied after
180 days, automatically denied. And that could not then be
judicially reviewed, all until they managed to bring the
backlog down.
And the only thing they can do until they bring the backlog
down is to grant petitions to de-list, so it is an extremely
one-sided ratchet. It forces the Fish and Wildlife Service to
spend all of its time on species which are, at least by
definition, no longer in need of protections of the Act. So,
although it is important to get them de-listed, and it is
important for the success of the Act to show that they are
recovered, they are not at risk. And it forces the Fish and
Wildlife Service to spend all of its time and money on those
species, instead of species that may be brought to its
attention that, in fact, are critically imperiled.
So, it is really a one-sided bill, and I think would do
serious damage to the ability of the Fish and Wildlife Service
and the National Marine Fisheries Service to respond to
legitimate petitions.
And I guess I should just add that many of the species that
are listed under the Act have been brought to the Service's
attention by citizens. That is why this Congress created the
petition process. It is an analog to the citizen suit
provision, yet recognizes that the agencies aren't perfect, and
in some cases they are going to sit on their hands. And what
citizens have to do to make this Act work is be able to submit
information and make the agencies grapple with it. That is all
the petition process does.
Mr. Grijalva. Thank you. Mr. Dreher, you discussed the
current extinction crisis. Can you elaborate in the time we
have left a little more on that extinction crisis, the reality
of it, and ESA's important role in addressing that crisis?
Mr. Dreher. Well, I was about to say I would be happy to,
Congressman. It is not a happy subject. I think we are becoming
aware, societally--scientists are becoming aware, responsible
government decision makers, the public is becoming aware of the
effects of the relatively unchecked development by the human
species of the entire face of the planet. There is almost no
part of the planet at this point that does not bear the effects
of human development.
We have lost half of all wild animals in the last 40 years.
As many as 10 percent of all species on Earth will be
endangered within the next 30 or 40 years, and that may be a
very low estimate. That is according to the National Academies
of Science. So, we are facing an extinction event that is
comparable to what happened when the Earth was hit by comets
that wiped out the dinosaurs.
And it is our doing, which means that we bear the
responsibility, the moral, the ethical, and the practical
responsibility of trying to conserve the planet that we live
on.
The Act is the most visionary and the most effective law in
the world to do that. Many other countries have endangered
species legislation that really does nothing, except identify
species that are going under, but don't have any actual program
for recovery. So, the Act is something we should all, I think,
commend for its effort.
Mr. Grijalva. Thank you. I yield back.
Mr. LaMalfa. The gentleman yields back. We need to
recognize Mr. Gosar?
OK, Mr. Westerman.
Mr. Westerman. Thank you, Mr. Chairman.
Mr. Wood, in your testimony you mentioned that the Obama
administration sought a cease-fire with the environmental
groups suing the Federal Government. In fact, as part of that
cease-fire, the previous administration imposed a
prioritization framework to a process that is actually codified
in my bill.
In your opinion, what is the status of that cease-fire? Has
it ended?
Mr. Wood. The settlement itself has ended. But after that
the Obama administration proposed a rule to finalize it. And it
has been working. But, of course, it could be upended at any
time. Unless Congress acts to codify that approach, at any time
a petitioner could go to court and get an order to jump the
line. And I think that would be a mistake.
The Obama prioritization schedule properly focuses on the
species that most need protection, rather than the weaker
petitions that might get ordered by a court.
Mr. Westerman. So, Mr. Renkes, what is the current state of
the petition backlog?
Mr. Renkes. Currently, there are 533 petitions pending; 506
of those are past the 12-month deadline.
Mr. Westerman. Is that backlog increasing or decreasing?
Mr. Renkes. The Service is working to decrease the backlog,
and they estimate now that it will take about a decade to work
through that backlog.
Mr. Westerman. Does the Federal Government anticipate the
risk of major settlements from lawsuits increasing as a result
of the state of the backlog?
Mr. Renkes. Each species is taken on its own, and the
determination is made of the best-available science, based on
the definitions in the Act. So, the settlement process really
doesn't put pressure on the decisions that are made by the
Service in that regard under the Act.
Mr. Westerman. And the mass petition settlement was
mentioned earlier. Mr. Wood and Mr. Renkes, can you compare the
treatment of a petition considered under normal conditions with
one which is part of a mass petition settlement of a backlog
such as happened in the recent years and decade?
Mr. Wood. Well, I am sure one of the other witnesses can
testify a little bit more on the challenges it presents to the
Service, but I think it is laudable that the Obama
administration took on the problem of mega-petitions,
recognizing that they make it a lot harder to decipher and
resolve a petition, and proposed a rule to get rid of it.
But to a large extent, the backlog crisis we saw in 2011
was the result of indecipherable petitions proposing to list
hundreds of species at a time. And that is an incredibly
challenging problem that I hope is done.
Mr. Westerman. And Mr. Wood, in your testimony you also
mentioned that the Federal listing policy is largely dictated
by whoever is most willing to petition the government.
Mr. Renkes, is this characterization accurate, in your
opinion?
Mr. Renkes. Yes.
Mr. Westerman. Mr. Wood, the settlements from these suits,
then, undercuts sound, balanced science produced by the Federal
Government?
Mr. Wood. It doesn't affect the outcome. That still has to
be done, based on the requirements in the Act.
But what it does is shift the decision about what species
and what petitions to prioritize from the Service and the
science to court orders. And those are inherently subject to
arbitrariness.
Mr. Westerman. Mr. Wood, is there any reason to suspect
that some of the petitions that are submitted to Fish and
Wildlife are actually submitted precisely in order to jam the
system's resources and create a petition backlog, making the
government vulnerable to lawsuits?
Mr. Wood. Yes, it is certainly hard to speculate about the
intent behind the groups that filed the petitions. You
occasionally get the sort of smoking gun quote saying,
``Thankfully, this species existed, because we wanted to stop
some particular project.''
But I think the fundamental problem is that Congress chose
the agency to make the decisions about how to prioritize and
protect species, and the backlog problem and the petition
process is taking that away. And that is why a solution is so
necessary.
Mr. Westerman. Thank you. I yield back, Mr. Chairman.
Mr. LaMalfa. Mr. Westerman, you mentioned the 92 to 0 vote
in the Senate back in 1973, was it?
Mr. Westerman. That is correct.
Mr. LaMalfa. Do you think that group of Republicans cared
more about the environment then than they do now? Is that what
you attribute that to?
Mr. Westerman. It was 92 to 0. We can't speculate, but we
can look at results.
Mr. LaMalfa. All right. I appreciate that. OK, we will wrap
up here.
Oh, Mr. Gosar, you wish to----
Dr. Gosar. Yes.
Mr. LaMalfa. OK.
Dr. Gosar. I just wanted him to go first, because it was
his bill.
Mr. LaMalfa. OK.
Dr. Gosar. Mr. Wood, is there ever a good theoretical
rationale for a major petition and listing settlement with
respect to the merits of such listings?
Mr. Wood. No, and the Service has long taken a position
that a settlement cannot dictate the outcome of a petition.
Dr. Gosar. Are such mass settlements, in your opinion, good
solutions to the backlog and to litigation with respect to the
goals of the Act?
Mr. Wood. In 2011, that was probably the best we could get.
But a formalized rule--and, in fact, Congress codifying the
approach selected by the Obama administration is far
preferable, because it provides certainty.
Dr. Gosar. In your opinion, would there ever be an
efficient use of Fish and Wildlife Service or NMFS resources
that would devote serious resources and time to analyzing the
petitions that are put into the low-priority bins?
Mr. Wood. If the higher priorities have been exhausted,
then, of course. But as long as we are going to have a backlog,
it makes sense for the Service to focus on the species that
most require consideration.
Dr. Gosar. Well, that makes some sense.
Mr. Dreher makes the allegation of such a dire circumstance
with climate change, with very few countries initiating and
helping out. Don't you think that we ought to be reviewing and
utilizing every asset that we actually have, if those
circumstances are so dire?
Mr. Wood. Well, I am not sure more money can solve the
problem. That would just spur more----
Dr. Gosar. I didn't say money, I said resources. And what I
am looking at is a group of them, whether they be farmers,
whether they be corporate entities, whether they be a local
county board of supervisors. I think those are all considered
assets.
Mr. Wood. I agree. This isn't a challenge just being faced
by the Federal Government. It is something that states and
private individuals care about. So, the more we engage with
everyone who has a stake in the outcome for these species, the
better off we will be.
Dr. Gosar. And don't you think that if we did it in a
methodology that our mission is to ensure the success of the
species. Don't you think that is drive enough?
Mr. Wood. I am sorry, I missed the last part of the
question.
Dr. Gosar. Don't you think that is drive enough, that if
our goal is to preserve these species, then we ought to look at
enabling and empowering any and everyone to have a say in it.
Mr. Wood. Absolutely right. And that is the only way you
are going to get the active efforts you need.
And to borrow an example from my own past work, we
represented property owners affected by the designation of the
Utah prairie dog. And there, they have been subject to this
burdensome regulation for decades without any progress. Thanks
to a lawsuit, we got power shifted back to the states, and now
that is the model to recover that species. Even the Service
admits that that is the better approach.
Dr. Gosar. So, I guess my question to you is I can have my
cake and eat it, too, right?
Mr. Wood. I think so. I think the conflict we see is
unnecessary, that so many people care so deeply about
recovering species that if we engage with them better, we will
get better outcomes.
Dr. Gosar. You hit a great point there. So, why is it that
Mr. Dreher--his efforts are higher in priority than, let's say,
the oil and gas companies?
Mr. Wood. I don't----
Dr. Gosar. Aren't they both noble, if we get the results?
Mr. Wood. Absolutely. And often, industries like the oil
and gas companies, farmers, and others have been key partners
in protecting and recovering species. And PLF supported the
Obama administration's efforts to do that, including in
defending a case brought by the Defenders of Wildlife to blow
up one of those sorts of compromises.
So, I think you are exactly right. We shouldn't look at
anyone as an enemy in this challenge. This is something we need
all hands on deck, and we have to work with each other.
Dr. Gosar. But in the conversation today, Mr. Dreher used
the ``boogeyman'' over and over and over again as oil and gas
companies. And I find that disingenuous, because we all inhabit
this planet together, and we are going to have to collaborate
and cooperate together to make it work.
And particularly when you look at the things that we cannot
control, like plate tectonics, molten mass, and elliptical
orbit around an irregular solar mass, that is changing
dramatically as we speak--so, I mean, it behooves us to use all
those assets. And that is why, Mr. Dreher, I came at you very
hard, is that if you find those problems, you ought to be
addressing those with us.
This is an attempt to start that conversation. And if you
are part of that solution, you are remanded to make changes to
facilitate the effectiveness of that law. And doing nothing
isn't the answer.
Thank you, I yield back.
Mr. Dreher. Mr. Congressman, I really would ask a right to
reply. I have actually been accused of a number of things by
the Congressman, and have not had a chance to respond to him.
As I have said, I think Defenders of Wildlife--and I
personally----
Mr. LaMalfa. The time has expired for Mr. Gosar's time.
Mr. Dreher. So, there is no opportunity to reply to
personal attacks?
Mr. LaMalfa. Ten seconds.
Mr. Dreher. All right. We work very hard for conservation
of species, including things like range mapping, trying to
actually find out where the species are. We are trying to make
things actually work better, and that is a much better outcome
than anything in any of these bills. So, we are trying to make
the Act work.
Mr. LaMalfa. Thank you.
About 6 minutes left on votes. If you two fellows want to
take off, I will finish up. Or you are welcome to stay, too.
I want to just come back, as we finish on this bill, to Mr.
Johansson. What we hear about is, again, with this backlog,
with just a blizzard of petitions that come into the various
departments asking for yet another listing. And you hear the
results sometimes, when they get so far behind, they want to
just settle them all to back off the lawsuits that then will
come.
So, what you see is deals being cut, basically to placate
the environmental organizations with Ag, with grazing, timber,
minerals, all that, basically feeling like they are barely
hanging on in the negotiations.
For example, in one of the areas in my district, Lassen
National Forest, you have the martin, red-legged frog, the
spotted owl, maybe others that are all overlapping in their
time frame for what would allow timber harvest, and you are
down to a limit of a little less than 30 days, mostly in
September, that you can do logging operations, because of this
overlapping.
What do you see with your experience, whether that applies
to grazing on certain listings, or timber? How widespread is
this settle process and limitation on doing the types of things
we need to be doing outdoors for industry?
Mr. Johansson. I am not familiar with the specifics of, as
you say, the settle----
Mr. LaMalfa. Not on that one, but in general. When they
settle----
Mr. Johansson. Well, unfortunately, it becomes a business
decision, and it doesn't become what is the right thing to do,
or what do I have to do to make my farm better, or my
timberland better, or my grazing land better, but it becomes a
business decision. And we are seeing those business decisions
being made, which is less and less mills in our forest.
Also, too, in Lassen National Forest, the grazing permits
that are allowed, those aren't even all allocated. Even what
they do allow for cattlemen to graze up there aren't doing it,
because it is simply becoming cost-prohibitive, in terms of
everything you have to comply with under ESA and other issues,
as well.
But, there is a loss of opportunity, and you are seeing
that in our rural communities.
Mr. LaMalfa. And what have you seen on the positive side
for grazing, maybe, with helping on fire control or even
limiting noxious weeds, things like that?
Mr. Johansson. I think it is a lack of grazing, and one of
the things, in terms of--we just had an important bill in
California which we could get you the wording for, that would
liberalize what we can do in our state lands, and making sure
that we can better fight wildfires, and that which we have been
having the last few summers.
So, yes, at the end of the day we could do much better. And
I thank you for the opportunity to talk on these nine bills
that go toward that end.
Mr. LaMalfa. Mr. Renkes, again, what has your experience
been in the Department when you get a blizzard of petitions and
you fall behind just because there are so many that you then
feel the pressure that you are going to get sued? Tell me what
that looks like from your scenario.
Mr. Renkes. Well, the way that has played out, it has been
the exposure to litigation, and then the diversion of resources
to fight litigation, as opposed to working on recovery plans or
other aspects of the Act that would help. So, there really is
no defense that we have against litigation over petitions that
are overdue.
We are in a position right now, as I mentioned, where we
have a decade worth of work to reduce to deal with the current
backlog.
Mr. LaMalfa. As I recall, there was a backlog where about
700, maybe just a few short years ago, that it was easier for
previous administrations to just try to make deals on so many
of them to get them off their back. If you could, elaborate on
that a little bit.
Mr. Renkes. I am not----
Mr. LaMalfa. And how this legislation can help, instead of
having to settle in a hurry, but more methodical.
Mr. Renkes. Well, yes, I can speak to that. I am not
familiar with the settlement process in the previous
administration in any detail, but this bill would, by creating
this petition backlog status and changing some of the rules,
reduce the pressure of litigation on that process and allow
those resources to be dedicated to actually dealing with the
petitions at hand. That could be very helpful, and we support
the bill in that regard.
Mr. LaMalfa. OK, thank you.
Mr. Wood, please touch on that, too, from your perspective.
Mr. Wood. I agree. Codifying the approach adopted by the
Obama administration will provide the agency cover, and give
certainty to everyone that the prioritization schedule that has
been adopted is law, and cannot be blown up by litigation.
Mr. LaMalfa. OK, all right, thank you. We are really on the
edge on time here. So, indeed, I want to thank the witnesses,
all of you, for your travel, for your time here today, and your
expertise.
The members of the Committee might have additional
questions. We will ask you to respond to those in writing.
Under Committee Rule 3(o), members of the Committee must submit
those witness questions within 3 business days following
today's hearing by 5:00 p.m. on that day. The hearing record
will be held open for 10 business days for those responses.
If there is no further business, without objection, the
Committee stands adjourned.
[Whereupon, at 5:12 p.m., the Committee was adjourned.]
[ADDITIONAL MATERIALS SUBMITTED FOR THE RECORD]
Prepared Statement of the Hon. Andy Biggs, a Representative in Congress
from the State of Arizona
I thank Chairman Rob Bishop and Ranking Member Raul Grijalva for
holding this important legislative hearing. I am honored to join
Western Caucus Chairman Paul Gosar and colleagues in introducing the
Western Caucus ESA Modernization package. This package includes my
bill, the LIST Act of 2018, which makes a number of improvements to
bring the ESA into the 21st century.
The LIST Act authorizes the Secretary of the Interior to de-list
species from the endangered species list when he receives an objective,
measurable, and scientific study demonstrating a species has recovered;
and penalizes those who intentionally submit false or fraudulent data
in order to cause a species listing. The Act does not eliminate
protections for truly endangered species. Rather, these actions will
allow the Federal Government to focus resources toward protecting
species that actually need it.
The ESA is one of the most intrusive Federal policies on western
states. Over the last four decades, ESA regulations, including the
listing of endangered species, have done more to infringe on private
property and states' rights than they have to recover endangered
species. The ESA was created to protect threatened species and their
habitats; however, biased science and de-listing regulations are often
used to harm western priorities instead of protecting endangered
species.
Hundreds of species are listed as endangered under the ESA,
including the infamous Gray Wolf. Scientific data shows that this
species has fully recovered and no longer needs Federal protection, but
inexplicably remains on the list. This listing allows unelected Federal
bureaucrats, in the name of protecting the Gray Wolf, to limit the use
of public lands. It also prevents farmers and ranchers from protecting
their land and livestock from these predators.
ESA listings are meant to give short-term support for species
recovery; it is not supposed to turn into a permanent classification.
Current regulations make it much easier for the U.S. Fish and Wildlife
Service to list new species as endangered instead of examining the
current list for potential removal. Over the last 45 years, less than 2
percent of the total species listed have eventually been de-listed--42
distinct species out of 2,386 to be exact. Unfortunately, several of
the bureaucratic processes for de-listing recovered species have broken
down or failed entirely.
Listing a species is not insignificant. These classifications
impose costly requirements on private landowners and Federal agencies,
and limitations on private and public project proposals.
Radical environmental groups exploit false or fraudulent data in
order to cause a species to be listed as endangered. Oftentimes, newly
discovered or poorly understood species are quickly listed and later
turn out to be ecologically abundant. This leads to unnecessary costs
and burdens for everyone impacted by the listing.
The Arizona Farm Bureau, which is headquartered in my district,
warns that ``as the law is written today, the Fish and Wildlife Service
is forced to rely on existing data however faulty it might be, and
petitioners know this and use the lack of scientific evidence to force
listings.''
ESA regulations not only harm westerners, but Americans across the
country. Mr. Chairman, we have an opportunity to make a significant
change by cutting job-killing regulations and passing legislation to
fix their unintended consequences. The Western Caucus ESA modernization
package is long overdue and will help millions of Americans around the
country by protecting local interests--not special interests.
______
Rep. Bishop Submissions
List of 170+ organizations and letters of support endorsing H.R. 6356,
H.R. 6345, H.R. 6344, H.R. 6355, H.R. 6364, H.R. 6360, H.R. 6346, H.R.
6354, and H.R. 3608
Aethon Energy Land Conservation Assistance
Network
American Exploration &
Mining Association National Aquaculture Association
American Exploration &
Production Council National Association of
Conservation Districts
American Farm Bureau
Federation National Association of Counties
(NACo)
American Highway Users
Alliance National Association of Home
Builders
American for Limited
Government National Association of Realtors
American Loggers Council National Cotton Council
American Petroleum
Institute National Endangered Species Act
Reform Coalition (NESARC)
American Sheep Industry
Association National Grazing Lands Coalition
Colorado River Energy
Distributors Association National Mining Association
Family Farm Alliance National Rural Electric
Cooperative Association
Federal Forest Resource
Coalition Neiman Timber Company
Free Market America Safari Club International
Hardwood Federation United Water Conservation
District
Healthy Forests Healthy
Communities U.S. Chamber of Commerce
Independent Petroleum
Association of America Western Energy Alliance
Intermountain Forest
Association
*****
Agribusiness & Water
Council of Arizona La Paz County Supervisor Duce
Minor
Arizona Cattle Feeders
Association La Paz County Supervisor D.L.
Wilson
Arizona Farm Bureau
Federation Minnesota State Cattlemen's
Association
Arizona Mining Association Missouri Sheep Producers
Arizona Pork Producers
Council Mohave County Supervisor Buster
Johnson
Arizona Rock Products
Association Mohave County Supervisor Gary
Watson
California Wool Growers
Association Montana Woolgrowers Association
Campbell County Board of
Commissioners New Mexico Association of
Conservation Districts
Colorado Cattlemen's
Association New Mexico Cattlegrowers'
Association
Colorado Farm Bureau New Mexico Federal Lands Council
Colorado Pork Producers
Council New Mexico Wool Growers
DC Cattle Co LLC Oregon Water Resources Congress
Florida Farm Bureau
Federation Pima Natural Resource
Conservation District
Food Resource Group Salt River Project
Hawaii Aquaculture and
Aquaponics Association Utah Mining Association
Idaho Farm Bureau
Federation United Dairymen of Arizona
Idaho Water Users
Association Wyoming Senate President Eli
Bebout
Imperial Irrigation
District Yavapai Cattle Growers
Association
Lake Havasu Area Chamber of
Commerce Yuma County Chamber of Commerce
La Paz County Supervisor
Holly Irwin
*****
Arizona Sportsmen's Groups:
Apache County BigGame
Forever Mognlian Sporting Association
Arizona BigGame Forever Northern Arizona BigGame Forever
Arizona Deer Association Phoenix BigGame Forever
AZ Bass Nation Southwest Fur Harvesters
Bass Federation Sportsmen's Business Alliance
BASS Junkyz SRT Outdoors
Flagstaff BigGame Forever Tuscon BigGame Forever
Malihini Sports Association Wild at Heart Adventures
Mesa/Gilbert BigGame
Forever
*****
Colorado Sportsmen's Groups:
Boulder BigGame Forever Colorado Sportsmen Make America
Great
Centenial BigGame Forever Colorado Springs BigGame Forever
Colorado BigGame Forever Colorado Wool Growers
Colorado Mule Deer
Association Grand Junction BigGame Forever
Colorado Outfitters
Association Pagosa Springs BigGame Forever
*****
Idaho Sportsmen's Groups:
BigGame Forever Idaho Northern Idaho BigGame Forever
Idaho Falls BigGame Forever Pocatello BigGame Forever
Idaho for Wildlife Save Western Wildlife
Idaho Sportsmen for
Wildlife Twin Falls BigGame Forever
*****
Montana Sportsmen's Groups:
BigGame Forever Gallatin
City Citizens for Balanced Use
BigGame Forever Missoula Montana Sportsmen for Wildlife
BigGame Forever Montana Montana Trappers Association
BigGame Forever Park County Southwest Montana SCI
BigGame Forever Sweet Grass
County
*****
Oregon Sportsmen's Groups:
Oregon United Sporting Dog
Association.
*****
Utah Sportsmen's Groups:
Sportsmen for Fish and
Wildlife Utah BigGame Forever
*****
Washington State Sportsmen's Groups:
Boeing Employees Everett
Gun Club Ruffed Grouse Society--WA
Borderline Bassin'
Contenders Safari Club International--
Central WA
Capitol City Rifle/Pistol Safari Club International--
Columbia Basin
Cascade Mountain Men Safari Club International--Inland
Empire Chapter
Cascade Tree Hound Club Safari Club International--
Northwest
Cedar River Bowmen Safari Club International--
Seattle Puget Sound
Citizens for Responsible
Wildlife Management Safari Club International--
Southwest Washington
Double U Hunting Supply Seattle Sportsmen's Conservation
Foundation
Edison Sportsmen's Club Skagit Sportsman and Training
Association
Inland NW Wildlife Council Tacoma Sportsmen's Club
KBH Archers Vashon Sportsmen's Club
Kittitas County Field &
Stream Washington Falconer's Association
National Wild Turkey
Federation--South Sound
Longbeards Washington for Wildlife
North Flight Waterfowl Washington Game Fowl Breeders
Association
Northwest Sportsman's Club Washington Muzzleloaders
Association
NW Field Trial & Hound
Association Washington State Archery
Association
Okanogan Hound Club Washington State BigGame Forever
Pacific Flyway Washington State Hound Council
Pateros Sportsman's Club Washington State Hunter Heritage
Council
Paul Bunyan Rifle and
Sportsmen's Club Washington State Trappers
Association
Pheasants Forever Chapter
#257 Washington Waterfowl Association
Pierce inlandCounty
Sportsmen's Council Washingtonians for Wildlife
Conservation
Richland Rod & Gun Club Wildlife Committee of Washington.
______
Morning Consult Poll
Available at: https://morningconsult.com/wp-content/uploads/
2018 /09/180941_crosstabs_POLITICO_v1_HS.pdf
Rep. LaMalfa Submission
Pit Resource Conservation District,
Bieber, California
September 14, 2018
Secretary Ryan Zinke
U.S. Department of the Interior
Mail Stop 6242
1849 C Street, NW
Washington, DC 20240-0001
Dear Mr. Zinke:
The Pit Resource Conservation District (RCD) has been working with
the USFS Modoc National Forest staff to develop a salvage sale on the
30,000+ acre Cove Fire area. The RCD proposed to treat a minimal 1,380
burned acres that include: 1) hazard trees along roads and trails; 2)
salvaging fire-killed conifers; 3) fuels treatments; and 4) site prep
and reforestation. The RCD would have preferred to have treated a much
large area, but given the time restraints, chose to focus on areas of
extreme importance to the landscape. The partnership was made possible
by using a Stewardship Agreement that the RCD currently has with the
Forest Service to expedite the process and assure that valuable timber
resources would be utilized and important reforestation efforts could
be attained. An Environmental Assessment (EA) was completed and an
Emergency Situation Determination (ESD) was signed by the Chief. All
NEPA requirements were fully met, and the RCD staff and local
consultants led this effort. Pre-advertisements and advertisements were
noticed in the newspapers of record and a list of potential bidders was
also noticed by email. A bid packet along with timber cruise
information was compiled and interested bidders contacted the RCD for
the information. The process to complete all required activities was
very lengthy which caused the sale date to be moved several times. This
action precluded several interested parties as they were concerned that
the timber might not be marketable due to the bluing and bug
infestation possibilities. On July 20, 2018, a public meeting was held
to accept and award the bid. There was only one bid received which was
awarded to Tubit Enterprises, Inc. Tubit began the removal process
around the end of July and has been actively working on the project
since.
Last week, the RCD was notified that Conservation Congress was
planning to submit a lawsuit against the Forest Service with the intent
of an immediate stop work order. The basis of the lawsuit is not only
unfounded but numerous items stated in the court docket are not
factual. The Forest Service and the RCD have been proactively working
together with the Contractor to prepare for the potential litigation
and severe hardship this will place on all parties.
The Pit RCD is requesting your support with this process. We
believe that salvage is vital to forest health and we strongly advocate
for the utilization of burned timber which promotes economic vitality
and helps restore the landscape for public and wildlife benefit. The
RCD is also interested in future outcomes regarding litigation and
would like to request that an effort be made to amend current
legislation to include language that would prevent frivolous lawsuits.
It is the belief of the RCD that if those parties that are interested
in prosecuting be responsible for court costs and damages incurred
through their actions, this type of litigation could be greatly
reduced. To that end, we ask that your office work to promote such
legislation to assist in future endeavors.
Thank you for your attention to this extremely time sensitive issue
and we look forward to hearing from you. Please contact our Project
Manager, Todd Sloat or Business Manager, Sharmie Stevenson for
additional information or questions.
Sincerely,
Andy Albaugh,
Chairman.
______
Rep. Grijalva Submissions
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
September 25, 2018
Re: Please Oppose H.R. 3608, H.R. 6344, H.R. 6345, H.R. 6346, H.R.
6354, H.R. 6355, H.R. 6356, H.R. 6360, and H.R. 6364 (the
``Expanded Wildlife Extinction Package'')
Dear Representative:
The House Natural Resources Committee meets this week for a
legislative hearing on nine bills. This package of legislation would
dramatically weaken the Endangered Species Act and should be labeled
the ``Expanded Wildlife Extinction Package.'' These bills would
undermine the role of science in the listing process, transfer undue
authority to state officials, make it more difficult for species to
gain federal protections (and easier to lose them), and undercut
citizens' vital role into helping to enforce the law. On behalf of our
millions of members and activists nationwide, we urge you to oppose the
``Expanded Wildlife Extinction Package.''
Science shows that we are currently facing a devastating sixth mass
extinction. According to the latest scientific studies, three-quarters
of all species could disappear in the coming centuries.\1\ The
Endangered Species Act is America's most effective law for protecting
wildlife in danger of extinction. It serves as an essential safety net
for imperiled plants, fish, and wildlife. Since its enactment, ninety-
nine percent of listed species have avoided extinction and many more
have been set on a path to recovery, including the iconic American bald
eagle, the grizzly bear and the Florida manatee. The Endangered Species
Act has seen such remarkable success--even in the face of dramatic
underfunding--because it relies on best-available scientific data to
make listing decisions and empowers citizens to participate in and
ensure adequate implementation of the law. The bills before Committee
attack these fundamental strengths and the very foundation on which the
ESA was written, representing a clear and present danger to wildlife
preservation nationwide.
---------------------------------------------------------------------------
\1\ ``Accelerated modern human-induced species losses: Entering the
sixth mass extinction,'' ScienceMag. 2015. http://
advances.sciencemag.org/content/1/5/e1400253.
The Endangered Species Act is our nation's declaration of the
fundamental value of protecting species from extinction. Recent peer-
reviewed research from the Ohio State University shows that roughly
four out of five Americans support the law.\2\ Members of Congress
should recognize this broad public support and protect the Endangered
Species Act so that it can continue working to save our nation's
remaining plants, fish and wildlife from extinction. We therefore urge
you to oppose these harmful bills.
---------------------------------------------------------------------------
\2\ Jeremy Bruskotter, John Vucetich, Ramiro Berardo, ``Support for
the Endangered Species Act remains high as Trump administration and
Congress try to gut it.'' The Conversation, July 20, 2018.
H.R. 3608 (``The Endangered Species Act Transparency and
Reasonableness Act'') would undermine the use of sound science in
Endangered Species Act listing decisions by declaring that state and
local data is by definition the best available science, regardless of
whether it is scientifically inferior. Under current law, the federal
government already works extensively with the states, considers state
and local data when making listing decisions, and notifies affected
states of proposed listing determinations. This bill also threatens to
undercut citizen enforcement of the Endangered Species Act. Indeed,
under H.R. 3608, citizens who successfully challenge illegal government
actions under the Endangered Species Act would be subject to fee
recovery restrictions that could make it difficult for them to obtain
counsel. In doing so, this bill would make it easier to violate the law
---------------------------------------------------------------------------
with impunity.
H.R. 6344 (``Land Ownership Collaboration Accelerates Life Act'')
would create a loophole in the Endangered Species Act's prohibition on
take \3\ of endangered species by requiring the Secretary to determine,
upon the request of an individual, whether a given activity complies
with the law. If the Secretary does not provide a written determination
of compliance within 180 days of receiving the request, the proposed
activity will be automatically deemed not to constitute unlawful take
of a species, effective for five years. If the Secretary determines
that the proposed activity is in compliance with the law, then any use
or action taken by the property owner in ``reasonable reliance'' would
not be considered a violation of the law, and would remain effective
for 10 years. This loophole could result in the harm and/or death of
endangered and threatened species, as well as in the destruction of
critical habitat. Most disturbing, if the Secretary finds that the
proposed use would not comply with the Endangered Species Act's take
prohibition (or withdraws a no take determination), H.R. 6344 would
entitle the landowner to financial compensation. Thus, the government
would have to expend taxpayer dollars simply to ensure compliance with
the law. This potential cost would cripple enforcement of the Act.
---------------------------------------------------------------------------
\3\ The term ``take'' is defined in the Endangered Species Act to
mean harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or
collect, or to attempt to engage in any such conduct.
H.R. 6345 (``Ensuring Meaningful Petition Outreach While Enhancing
States Rights Act'') would severely undermine the Endangered Species
Act's science-based listing process by giving state and local
governments de facto veto authority over decisions to list species as
threatened or endangered. Under H.R. 6345, if the Secretary finds that
a species' listing may be warranted, he or she must solicit information
and advice from each state and county in which the species is located.
If the state or county advises that the listing is not warranted, the
Secretary may not proceed unless he or she demonstrates that the
information submitted in support of an unwarranted finding is
---------------------------------------------------------------------------
incorrect.
H.R. 6346 (``Weigh Habitats Offsetting Locational Effects Act'')
would increase the likelihood that a federal agency action would
jeopardize the continued existence of a threatened or endangered
species or result in the destruction or adverse modification of
critical habitat. The Section 7 consultation process is designed to
prevent this outcome in part by reviewing a federal agency action's
negative effects and considering any offsetting measures, such as
avoidance, minimization, or mitigation. Yet H.R. 6346 would allow the
Secretary to consider non-binding offsetting measures. In doing so,
this bill increases the risk that a federal agency action will have
detrimental impact on a species or its habitat.
H.R. 6354 (``Stop Taking On Reserves Antithetical to Germane
Encapsulation Act'') would restrict designations of critical habitat
for threatened or endangered species. Specifically, the bill would
prohibit the Secretary from designating as critical habitat any area in
water storage, diversion, or delivery facilities where habitat is
periodically created and destroyed as a result of changes in water
levels caused by the operation of such facility. This could prevent the
designation of a sufficient amount of a critical habitat necessary for
a species to survive.
H.R. 6355 (``Providing ESA Timing Improvements That Increase
Opportnnities for Nonlisting Act'') would undercut citizens' ability to
participate in and ensure adequate implementation of the law by
weakening the citizen petition process and limiting judicial review.
H.R. 6355 would automatically trigger denials of petitions to list or
uplist species in the event of a ``petition backlog'' as declared by
the Secretary under the procedures set forth in the bill. Once the
backlog has been declared, the Secretary would be required to
prioritize petitions to delist or downlist species over petitions to
list or uplist species. In effect, the bill would create additional
barriers to listing species and automatically deny most listing
petitions in the event of a declared backlog. What's more, these
automatic negative petition findings would be exempt from judicial
review.
H.R. 6356 (``Less Imprecision in Species Treatment Act'') would
make it easier to delist species that may not be fully recovered, while
simultaneously deterring the public from petitioning to list imperiled
species deserving of protection. First, the bill would require the
Secretary to delist a species without regard to the Endangered Species
Act's listing requirements if he or she receives ``substantial
scientific or commercial information'' demonstrating that a species is
recovered or that recovery goals set for a species have been met.
Second, if the Secretary determines that a listing was in error, the
bill would shield a subsequent delisting decision from judicial review.
In doing so, this bill eliminates a vital check on delisting decisions
that may not have been based on the best available science. Finally,
the bill would prohibit a citizen from submitting a listing petition
for 10 years if they ``knowingly'' included inaccurate, fraudulent, or
misrepresentative information in a listing petition, but does not
adequately define how such an inquiry would take place.
H.R. 6360 (``Permit Reassurances Enabling Direct Improvements for
Conservation, Tenants, and Species Act'') would weaken existing
regulations governing cooperative conservation efforts between the Fish
and Wildlife Service and landowners. Agency regulations currently allow
landowners to voluntarily enter into Candidate Conservation Agreements
with Assurances, which address conservation measures for species that
are anticipated to be listed, and Safe Harbor Agreements, which address
conservation measures for listed species. These agreements benefit
landowners because they grant ``take permits'' and provide assurances
that if circumstances involving a species change, they would not be
required to undertake additional conservation activities. H.R. 6360
would weaken requirements for landowners entering into such agreements
and make it more difficult to terminate agreements if a landowner fails
to meet his or her responsibilities.
H.R. 6364 (``Localizing Authority of Management Plans Act'') would
undermine the ability of federal agencies to conserve threatened or
endangered species by delegating significant management authority to
state governments and individuals and removing a prohibition against
state laws that are less restrictive than the Endangered Species Act.
The Endangered Species Act currently allows states and the federal
government to enter into cooperative agreements, wherein states propose
programs to conserve listed species and the Secretary assists with
management of these programs. However, H.R. 6364 would delegate
management to the states and non-federal parties with little to no
federal oversight. Furthermore, the bill would allow states to enact
laws regarding the take of listed species that are less restrictive
than federal laws, effectively allowing less protective laws to replace
federal Endangered Species Act protections.
Please protect the Endangered Species Act, our nation's most
effective and important law for species conservation, by voting ``no''
on the ``Expanded Wildlife Extinction Package,'' including H.R. 3608,
H.R. 6344, H.R. 6345, H.R. 6346, H.R. 6354, H.R. 6355, H.R. 6356, H.R.
6360, and H.R. 6364. These bills constitute an extreme assault on our
nation's wildlife, public participation, and one of our most popular
and successful laws.
Thank you for your consideration.
Sincerely,
Alaska Wilderness League National Audubon Society
American Bird Conservancy National Parks Conservation
Assoc.
American Rivers Natural Resources Defense Council
Animal Welfare Institute NY4WHALES
Blue Heron Productions Oceana
Born Free USA Oregon Wild
Braided River Public Interest Coalition
Center for Biological
Diversity Quality Parks
Clean Water Action RE Sources for Sustainable
Communities
Defenders of Wildlife Save Animals Facing Extinction
Delaware Ecumenical Council
on Children and Families Save Wolves Now Network
Earthjustice Sierra Club
Earthworks Students for the Salish Sea
Endangered Habitats League The Bay Institute
Endangered Species
Coalition The Humane Society of the United
States
Environment America The Jane Goodall Institute
Environmental Protection
Information Center The Maine Wolf Coalition, Inc.
Friends of Blackwater, Inc. The Rewilding Institute
Friends of the Earth Trap Free Montana
Great Old Broads for
Wilderness Trap Free Montana Public Lands
Hip Hop Caucus Turtle Island Restoration Network
Howling For Wolves WE ACT for Environmental Justice
Humane Society Legislative
Fund Wildlands Network
International Marine Mammal
Project, Earth Island
Institute Wolf Conservation Center
Klamath Forest Alliance Wolf Haven International
League of Conservation
Voters
______
GreenLatinos
September 26, 2018
Hon. Raul M. Grijalva, Ranking Member,
House Committee on Natural Resources,
1329 Longworth House Office Building,
Washington, DC 20515.
Re: OPPOSITION TO Endangered Species Act ROLLBACKS
Dear Ranking Member Grijalva:
On behalf of GreenLatinos--a national network of Latino
environmental and conservation advocates--I write to you with concerns
over the continued rollbacks and legislative attacks to the Endangered
Species Act (ESA); one of this nation's bedrock environmental laws. The
ESA is one of our most important conservation laws. Over 99% of the
species that have received ESA protection are still with us today, and
90% of listed species are on track to meet their recovery goals.
GreenLatinos conducted a post-election survey in 2016 that found
that 97% of Hispanic voters felt that they and those that represent
them have ``a moral responsibility to take care of the earth--the
wilderness and forests, the oceans, lakes, and rivers.'' It is our
view, this protection of critical landscapes and habitat extend to the
rich biodiversity that those habitats support--especially those species
that are threatened or endangered.
Tomorrow, your committee will mark up several bills that would
further weaken the critical protections enshrined in the ESA.
GreenLatinos has deep concerns with any attempts to weaken such
protections, in particular with H.R. 6345 (Rep. Pearce)--The EMPOWERS
Act; H.R. 6355 (Rep. Westerman)--The PETITION Act; H.R. 3608 (Rep.
McClintock)--The Endangered Species Transparency and Reasonableness
Act; and H.R. 6346 (Rep. Johnson)--The WHOLE Act. The goal of each of
these bills is to weaken the ESA, not to make it ``work better,'' and
enacting these bills into law would drive to the extinction of fish,
wildlife, and plants in America and around the globe.
The ESA has strong support among our membership, and among the 27.3
million Latino voters that our organization and its members interface
with regularly in communities across the country. It does not need to
be ``reformed'' or ``modernized.'' It is an effective law that gives
all stakeholders an incredible amount of flexibility to proceed with
projects in a way that protects biodiversity.
We urge you to consider these views and encourage you and your
fellow committee members to defend the ESA and its protective
provisions from being weakened by the continued attacks represented
through these ESA rollback bills.
Thank you for your attention to this matter.
Sincerely,
Jessica M. Loya,
National Policy Director.
______
September 25, 2018
Dear Members of Congress:
As denominations representing a broad spectrum of religious
traditions and more than 10 million congregants, we write to you today
unified in our support for the protection of God's precious and good
creation and in particular the Endangered Species Act. This bedrock
piece of conservation law has been extremely effective in preventing
species from becoming extinct and we urge Congress to uphold this
critical piece of legislation. Dismantling it or entangling it in
unnecessary and damaging modifications or loopholes will only serve to
diminish its effectiveness.
Our Scriptures are filled with messages about taking care of
Creation. In those passages, we are reminded that the world belongs to
God and we are instructed to be stewards of God's earth. The story of
Noah's ark sets forth an example for us to follow as we care for
creatures great and small. God's instructions were clear to Noah:
protect each and every one, two by two. We note that in the story,
following the flood, God's covenant with Noah and his descendants as
well as with the entirety of Creation makes it clear that God views
Creation, both human and non-human, as valuable and as being in
relationship with one another.
It is with this perspective that we view the Endangered Species
Act, a modern day Noah's Ark that can preserve the creation that God
has bestowed in our care. Any action, legislative or otherwise, that
weakens the Endangered Species Act or puts economics or individual
interests before our duty as stewards runs contrary to our moral
charge.
Because of our strong conviction that God entrusted the care of
Creation to us, including the most vulnerable species, religious
denominations over the years have released policy statements urging
that we, as a nation, uphold our duty to steward God's creatures. In
1993, the General Synod of the United Church of Christ passed a
resolution entitled ``Respect for Animals,'' that reminds church
members that God has given humanity responsibility for the care and
protection of all living creatures.
Following that resolution, a 2001 statement passed by the 213th
General Assembly of the Presbyterian Church that called for government
``face the severity of thus (mass extinction) threat, and to take the
steps in practice, polity and systemic change that will prevent mass
extinction and preserve the biodiversity essential to the flourishing
of life.'' The United Methodist Church, one of the largest religious
denominations in the country, also issued a policy statement on the
``Preservation of the Diversity of Life,'' which stated ``that the
wondrous diversity of nature is a key part of God's plan for creation.
Therefore, we oppose measures which would eliminate diversity in plant
and animal varieties, eliminate species, or destroy habitats critical
to the survival of endangered species.'' Inspired by the commandment of
Bal Taschit, do not destroy, the Union for Reform Judaism passed a
resolution in 1991 calling on the government to ``protect our current
wilderness areas, create new ones, and work to protect ecologically
sensitive and endangered bioregions of the world'' and ``ensure the
continuation of animal and plant species.''
The set of nine bills introduced this summer run counter to our
stewardship mandate for species protection. Taken collectively, these
nine bills would work to undermine the current Endangered Species Act,
which has been one of our most successful tools for preventing
extinction. This package of bills creates loopholes, allows for state
veto rights, limits legal recourse, and resurrects barriers to listing
species. These bills are not science-based and will undercut the
ability of current and future endangered and threatened species to
survive.
We urge the House Natural Resources Committee to reject this
package of nine bills that would be detrimental to the Endangered
Species Act and thus to God's creation.
Sincerely,
Rev. Jimmie R Hawkins,
Director, Rabbi Jonah Pesner Director,
Presbyterian Church (USA)
Office of Public Witness Religious Action Center for
Reform Judaism
Rev. Sandy Sorenson,
Director, Washington Office Rev. Dr. Susan Henry-Crowe,
General Secretary,
United Church of Christ,
Justice and Local Church
Ministries General Board of Church and
Society, The United Methodist
Church
______
Comments of the Attorneys General of Massachusetts, California,
Maryland, New York, Oregon, Pennsylvania, Rhode Island, Vermont,
Washington, and the District of Columbia
Available at: https://ag.ny.gov/sites/default/files/
multistate_ag_
comments_on_esa_listing_interagency_cooperation.pdf
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