Copyright 2000 Federal News Service, Inc.
Federal News Service
February 2, 2000, Wednesday
SECTION: PREPARED TESTIMONY
LENGTH: 2475 words
HEADLINE:
PREPARED TESTIMONY OF WM. ROBERT IRVIN VICE PRESIDENT FOR MARINE WILDLIFE
CONSERVATION AND GENERAL COUNSEL CENTER FOR MARINE CONSERVATION
BEFORE THE HOUSE COMMITTEE ON RESOURCES
SUBJECT - H.R. 3160: "COMMON SENSE PROTECTIONS FOR ENDANGERED SPECIES ACT"
BODY:
Mister Chairman and Members of the
Committee, on behalf of the Center for Marine Conservation (CIVIC),1 thank you
for the opportunity to present our views on H.R. 3160, the "Common Sense
Protections for Endangered Species Act." A little over four years ago, I had the
privilege of appearing before this Committee to testify on another Endangered
Species Act bill introduced by you, Mr. Chairman, H.R. 2275, the "Endangered
Species Conservation and Management Act." In my testimony then, I was critical
of nearly every provision of that bill, which would have seriously weakened
protection for endangered species. Although the bill you are considering today,
H.R. 3160, is an improvement over your earlier bill, it still contains a number
of provisions that would weaken endangered species protection and, consequently,
CMC cannot support H.R. 3160 in its present form. I will address both the
positive and negative aspects of H.R. 3160 in my testimony today. Before turning
to the specifics of H.R. 3160, Mister Chairman, I want to commend you for your
efforts to improve this bill. As you have demonstrated by your leadership on
such legislation as the Sustainable Fisheries Act of 1996, the National Wildlife
Refuge System Improvement Act of 1997, and the Conservation and
Reinvestment Act, bipartisanship is the key to progress on conservation
legislation. And as you know, Mr. Chairman, Mr. Miller has also introduced an
Endangered Species Act reauthorization bill, H.R. 960, the "Endangered Species
Recovery Act of 1999." Mr. Miller's bill contains a number of provisions that
would enhance endangered species conservation and provide incentives to
landowners to conserve endangered species. I encourage you to work with Mr.
Miller to incorporate the best provisions from both bills and craft a bipartisan
Endangered Species Act reauthorization bill that enhances endangered species
conservation.
With that in mind, I will now turn to specific comments on
H.R. 3160. On the positive side, Section 304 of the bill authorizes safe harbor
agreements with private landowners to encourage them to do more to promote
endangered species conservation than the law requires. The U.S. Fish and
Wildlife Service is already entering into safe harbor agreements with landowners
under existing law, so it may not be necessary to separately authorize them.
Nevertheless, to the extent that Section 304 encourages additional use of safe
harbor agreements and provides grants to private landowners to assist in
implementing the agreements, it is a positive step.
H.R. 3160 also
contains some positive provisions on recovery planning. Section 401 would give
priority to the development of recovery plans that address multiple species,
including candidate species and species proposed for listing, dependent on the
same habitat. Adopting conservation measures for imperiled species before they
have to be listed as threatened or endangered is precisely the type of proactive
step that is needed to enhance species conservation and avoid future conflict
with other land users.
Section 401 also authorizes the Secretary to
delegate authority to develop and implement recovery plans to State agencies
that have entered into Section 6 cooperative agreements with the Secretary and
that have demonstrated the authority and capability to carry out recovery plans.
Of course, any such delegations must be carefully scrutinized to ensure that
endangered species conservation is not reduced in the process. Currently, the
provisions of Section 6 of the Endangered Species Act governing federal-state
cooperative agreements are too general to ensure that this careful scrutiny
occurs. While Section 401 of the bill directs the Secretary to publish standards
and guidelines for the development of recovery plans by the States, CIVIC
recommends that those standards and guidelines be specified in the statute
itself. In addition, while Section 401 correctly authorizes the Secretary to
withdraw the delegated authority from any State that is not fulfilling its
obligations, CMC recommends that this obligation be mandatory, not
discretionary, by providing, in new Section 5(1)(7), "Withdrawal of Authority,"
that "The Secretary shall withdraw the authority from a State" not fulfilling
its obligations.
H.R. 3160 also authorizes increased appropriations for
endangered species conservation. As you have recognized, Mr. Chairman, with your
efforts to increase conservation funding through the Conservation and
Reinvestment Act, more money is needed if we are to conserve the
Nation's natural resources, including endangered species, for our children. In
recent years, while debate over reauthorization of the Endangered Species Act
has continued, the Administration has requested larger appropriations for
implementation of the Act and Congress has provided increased appropriations,
albeit not as much as the Administration has requested. CMC applauds the
increased funding that would be authorized by H.R. 3160, but notes that the
amounts are significantly below those requested this year by the Administration
for Endangered Species Act implementation. Accordingly, CMC urges you to
increase the authorization levels to match the Administration's requests. In
addition, CMC urges you to establish a permanent funding mechanism for
endangered species conservation in this or other legislation.
While H.R.
3160 contains several positive provisions, unfortunately it still contains a
number of provisions that would undermine endangered species conservation. As a
result, CMC cannot support HR. 3160 in its present form. I would like to
highlight some of the more problematic provisions of the bill:
Undermining the Duties of Federal Agencies Under Section 7: Section 7 of
the Endangered Species Act imposes special obligations on federal agencies to
conserve endangered species. It is the key to the effectiveness of the
Endangered Species Act and sets it apart from other federal wildlife laws. Since
the Supreme Court's landmark ruling in Tennessee Valley Authority v. Hill, 437
U.S. 153 (1978), it has been well-established that federal agencies cannot evade
their special obligations under the Endangered Species Act by arguing that
conservation of endangered species is not their primary mission. Thus, the
Tennessee Valley Authority must consider the fate of native fish when it builds
dams. The Department of the Navy must consider the impact of water diversions
from Nevada's Truckee River on endangered fish in Pyramid Lake.3 The Federal
Emergency Management Agency must consider the impact on endangered Key deer of
making federal flood insurance available in the Florida Keys.4 In each of these
instances, and in thousands of others, the institutionalized caution imposed on
federal agencies by Section 7 has proven beneficial to endangered species and
workable for the agencies. However, Section 201 of H.R. 3160 would reverse this
long-established obligation, 'requiring a federal agency to engage in Section 7
consultation only if the agency deems it consistent with its primary mission. In
short, HR. 3160 would transform the solemn obligation of Section 7 of the ESA
into a matter of casual convenience.
Shifting the Risk to Imperiled
Species: Another strength of the Endangered Species Act is that it errs in favor
of conserving threatened and endangered species. Thus, under the precautionary
approach of the Endangered Species Act, if there is incomplete information about
the status of a species but the available indications are that the species is in
trouble, the Secretary may list and protect the species. Similarly, a species
should not run the risk of its habitat being destroyed simply because the
Secretary is late in making a decision whether a particular activity jeopardizes
the species' continued existence.
H.R. 3160 would abandon the
precautionary approach and shift the risk to imperiled species in these and
other cases. For instance, Section 101 of the bill would require the Secretary
to demonstrate by a preponderance of scientific evidence that a species should
be listed whenever a Governor or tribe provides scientific evidence, regardless
of the quality of that evidence, to support a claim that the species should not
be listed. Section 201 requires the Secretary to demonstrate that consultation
pursuant to Section 7 of the Endangered Species Act is warranted and that the
proposed action will jeopardize the continued existence of a species. Thus,
under H.R. 3160, any doubt is to be resolved in favor of the proposed action,
not the threatened or endangered species. Section 201 also provides that, if the
Secretary fails to meet a deadline for completing Section 7 consultation, the
proposed action may go forward, regardless of the reason for the delay or the
impact on a threatened or endangered species. Consequently, a species could be
extinguished if snow in Washington, D.C. forced the government to close for a
day, causing the Secretary to miss the deadline for completing consultation on a
project threatening to destroy the species' remaining habitat.
Creating
Unnecessary Hurdles to Endangered Species Conservation: Public notice of, and an
opportunity to comment on, proposed actions affecting endangered species is
essential. Moreover, with growing public access to the Internet, the days are
numbered in which one must have either a Washington-based lobbyist on retainer
or subscribe to the Federal Register to stay abreast of such proposals. Rather
than offering measures to enhance the effectiveness and accessibility of the
Endangered Species Act in the Digital Age, however, H.R. 3160 imposes additional
roadblocks to endangered species conservation and full public participation. For
example, Section 101 requires the Secretary to give notice of a species'
proposed listing to "each State and local government within which the species is
believed to occur or which is likely to experience any effects of any measures
to protect the species .... "Suppose that the Secretary is proposing to list a
species that contains a potential cure for cancer. Read literally, Section 101
would require the Secretary to give notice to every single local government in
the United States, since every community would be likely to experience the
beneficial effects of protecting such a species. Clearly this would be an
enormous task and a major hurdle to listing and protecting species.
Section 101 imposes another roadblock to species conservation by
requiring that the Secretary, in cooperation with the Secretary of State, give
notice to, and consult with, every nation whose citizens, on the high seas, take
a marine species proposed for listing. Thus, before the Secretary could list and
protect a marine fish species that spends most of its life within the United
States' Exclusive Economic Zone, but is also found on the high seas, the
Secretary would be required to consult with nations such as North Korea, Cuba,
and China, whose citizens take such fish on the high seas.
While
requiting this type of unnecessary process before species can be listed, H.R.
3160 also implicitly excludes members of the public from endangered species
conservation decisions. Section 302 specifies that persons alleging "a
reasonable threat of economic injury" may intervene as a matter of right in any
civil suit brought under Section 11 of the Endangered Species Act. H.R. 3160
fails to provide a similar right of intervention to persons seeking to protect
endangered species in civil suits filed by persons alleging economic injury from
endangered species conservation. Similarly, while Section 401 of the bill
requires that "representatives of persons who may be directly, economically
impacted" be part of the team developing a recovery plan, conservationists are
not given a designated seat at the table.
Creating Unnecessary
Exemptions from Section 7 Consultation: Under existing law, pursuant to Section
7(p) of the Endangered Species Act, in any area declared to be a major disaster
area, the President may exempt from the Act's requirements the repair or
replacement of a public facility if an emergency exists and it is necessary to
prevent the recurrence of a natural disaster and to reduce the potential loss of
human life. By enacting this provision, Congress recognized that, in
emergencies, human needs would take precedence over those of endangered species.
At the same time, Congress also intended that suspension of the Endangered
Species Act's requirements should only occur when truly necessary. H.R. 3160
would upset this careful balance by creating broad exceptions from Section 7 for
"routine operation, maintenance, rehabilitation, repair or replacement to a
Federal or non-Federal project or facility." This sweeping exemption could apply
to virtually any human activity. H.R. 3160 creates an equally sweeping exemption
from Section 9's prohibition against take of endangered species for a host of
activities associated with the operation or repair of pipelines, water projects,
and power transmission lines.
As these examples show, Mr. Chairman, the
Center for Marine Conservation believes that, while H.R. 3160 offers some
improvements to the Endangered Species Act, it also contains a number of
provisions that would seriously weaken endangered species conservation. As a
result, CMC cannot endorse H.R. 3160 in its current form. However, CMC strongly
supports improving and reauthorizing the Endangered Species Act. In our view,
the long stalemate over Endangered Species Act reauthorization benefits no
one-not landowners, not resource users, not the conservation community, not
federal or state agencies, and certainly not threatened and endangered species.
Accordingly, CMC urges you, Mr. Chairman, to continue your efforts to improve
your Endangered Species Act reauthorization legislation and to craft bipartisan
conservation legislation. We look forward to working with you, Mr. Miller, and
other Members of this Committee on this important task.
Thank you for
this opportunity to present CMC's views. I will be happy to answer any questions
you have for me.
FOOTNOTES:
1 The Center for Marine Conservation
is the largest national nonprofit organization committed solely to protecting
ocean environments and conserving the global abundance and diversity of marine
life through science-based advocacy, research, and public education, as well as
informed citizen participation. Headquartered in Washington, DC, CMC has
regional offices in California, Florida and Virginia and field offices in
Alaska, Maine, and the Florida Keys.
2 Tennessee Valley Authority v.
Hill, 437 U.S. 153, 185.
3 Pyramid Lake Paiute Tribe of Indians v. U.S.
Department of the Navy, 898 F. 2d 1410, 1417-18 (9th Cir. 1990)
4
Florida Key Deer v. Stickney, 864 F. Supp. 1222 (S.D. Fla. 1994)
END
LOAD-DATE: February 3, 2000 
