Copyright 2000 Federal News Service, Inc.
Federal News Service
February 2, 2000, Wednesday
SECTION: PREPARED TESTIMONY
LENGTH: 4629 words
HEADLINE:
PREPARED TESTIMONY OF STEVEN J. SHIMBERG VICE PRESIDENT OFFICE OF FEDERAL AND
INTERNATIONAL AFFAIRS NATIONAL WILDLIFE FEDERATION
BEFORE THE
HOUSE RESOURCES COMMITTEE
SUBJECT - IMPROVING
ENDANGERED SPECIES PROTECTION
BODY:
Mr.
Chairman, my name is Steve Shimberg, I am the Vice President for the Office of
Federal and International Affairs at the National Wildlife Federation. Thank you
for the opportunity to testify before the House Resources Committee.
In
1973, Congress passed the Endangered Species Act (ESA) and made a commitment to
protect our nation's diverse array of plant and animal species. Twenty-six years
later, we recognize that it is a commitment worth keeping. The links between
wildlife protection and our own quality of life are becoming ever clearer.
Simply put, protecting species and the habitat upon which they depend is a
sensible thing to do. For decades, the American public has recognized this and
has demonstrated strong and enduring support for endangered species protection.
It is appropriate and vital that Congress demonstrate the same enduring
commitment.
We now have 26 years of experience under the ESA with which
to evaluate what has and has not worked for protecting species. We know that the
challenges before us are more substantial than were originally anticipated and
have learned that species recovery often requires long-term, concerted efforts.
We have observed the significant contributions that the ESA has made to species
conservation, including some notable success stories. It is also clear, however,
that there are ways we can and should improve our efforts to protect our
nation's fish, wildlife, and plant species. Threatened and endangered species,
for instance, would benefit considerably from increased restoration efforts on
private lands. Wildlife and regulated interests alike would be better off if we
could actively intervene earlier in a species' decline before listing becomes
necessary. Fortunately, these and other needed improvements to endangered
species protection can all be achieved Without amending the underlying
ESA.Reauthorization has remained an elusive goal since the ESA came up for
renewal in 1992. The annual Congressional struggles over reauthorization have
been time-consuming, unproductive, and at times, so bitter that they have had
negative consequences for endangered species protection efforts. The most recent
ESA reauthorization proposal to be introduced, H.R. 3160, the "Common Sense
Protections for Endangered Species Act," is certain to engender the same
controversy. In its efforts to accommodate private landowners and industries
that use federal lands and waters, H.R. 3160 undermines nearly every component
of the ESA. The proposal would substantially weaken existing protections for
threatened and endangered species and as such, is not a useful starting point
for constructive dialogue about ESA reauthorization. H.R. 3160 stands in direct
contrast to an alternative ESA reauthorization proposal H.R. 960-the "Endangered
Species Recovery Act of 1999"-- which is focused on strengthening the Act's
provisions and redirecting its focus from survival of a listed species to
recovery. The vast areas of divergence between these bills indicates this
Committee lacks consensus around the need to maintain our nation's commitment to
endangered species protection and recovery. Until such fundamental issues can be
reconciled, the National Wildlife Federation strongly discourages pursuit of a
full ESA reauthorization bill. Instead, we urge this Congress to focus on more
constructive mechanisms, such as those outlined below, for improving species
recovery efforts.
Funding Endangered Species Programs
Inadequate
funding has proven perennially to be a significant hurdle to effective species
protection and recovery. Recently, federal funding for the U.S. Fish and
Wildlife Service and National Marine Fisheries Service (the Services) to
implement the ESA has averaged approximately $300 million.
Funding for these programs has not kept pace with the increased number of listed
species or the growing obligations of the Services. The consequences can be seen
in the large backlog of candidate species awaiting listing, the vast number of
listed species for which no critical habitat has been designated, and the
sizeable number of listed species that lack recovery plans. In essence, we have
asked the Services to recover threatened and endangered species with one hand
tied behind their back. This inadequate funding has slowed the rate of species
recovery and limited the Services' ability to provide regulated interests with
appropriate permits and technical assistance in a timely manner. Congress would
significantly improve conditions for threatened and endangered species, and
allow the Act to work more efficiently for those it regulates, by providing a
substantial increase in the amount of annual funding available to the Services
for their endangered species operations. The National Wildlife Federation
estimates that realistic funding for these programs should be at least several
times the levels currently provided.
In addition to increasing annual
appropriations for the Services' basic endangered species operating expenses,
the National Wildlife Federation encourages support for specific programs that
will promote positive partnerships with private landowners. The ESA is limited
in the amount of affirmative management and restoration it can elicit on private
lands. Landowner incentive programs that encourage and reward landowners who
take steps to protect and restore species offer tremendous promise. These kinds
of programs are feasible under the existing authority of the Act- there simply
has not been adequate funding to make them meaningful. Due in large part to the
tremendous leadership of Chairman Don Young and Congressman George Miller,
Congress now has before it a landmark conservation bill- H.R. 701, the
Conservation and Reinvestment Act of 1999 (CARA). This proposal
provides a substantial mount of funding automatically for a variety of important
conservation programs, including $50 million annually to
support private landowner efforts to recover threatened and endangered species.
This type of landowner program will fill a significant gap in our species
protection efforts and contribute greatly to the recovery of threatened and
endangered species. CARA also provides $350 million annually to
state fish and wildlife agencies to assist in their programs to protect other
wildlife species. These funds will dramatically increase the states' ability to
intervene early, when a species is beginning to decline, and help prevent the
need for listings. Funding proactive, early intervention is a sound, sensible
investment that will help reduce the burden that now falls on the ESA.
Tax incentives for private landowners who improve habitat conditions or
otherwise help species on their lands offer yet another mechanism for assisting
species. Private landowners who engage in some type of species conservation
program should be granted an estate tax deferral in order to help keep the lands
from being developed. Tax deductions could similarly be given to those
landowners that enroll their lands in a species conservation program. Tax
credits could be given to landowners for the costs of implementing proactive
species conservation measures that are above and beyond the existing
requirements of the Act. These types of measures offer the proverbial win-win
solution by providing benefits to species and habitat while also building
positive relations with private landowners.
Encouraging Flexibility
within the Existing Framework
Beyond the funding context, Congress could
be doing much more to support and promote creative, effective implementation of
the existing ESA. Over the years, the Act has proven to be a flexible and
resilient law, capable of responding to changing times and unique local needs.
For several years, the National Wildlife Federation has worked
collaboratively with timber interests in Montana and Idaho to develop and
promote the concept of a citizen management committee for dealing with grisly
bear reintroduction. The citizens' management committee would have authority
over the reintroduction and management of grizzly bears in the Selway-Bitterroot
region. The establishment of such a committee, which would give local citizens
and their governments an unprecedented role in the management of an endangered
species, can be accomplished within the existing framework of the ESA. The
concept should be heralded by Congress as an example of innovative
implementation of the ESA that works for both species and people. Instead, this
proposal has been regularly challenged by Members of Congress and funding for
grizzly bear reintroduction has been blocked.
The experience with wolf
reintroduction in Yellowstone offers a similar example of the ESA's
adaptability. In this instance, the U.S. Fish and Wildlife Service designated
the Yellowstone wolves as an "experimental population;" thereby allowing for
more flexible management provisions than normally allowable for a listed
species. This enabled the Service to craft special regulations that would meet
the needs of local ranchers and other landowners who were concerned about the
impact wolves would have on them. The reintroduction has since proven to be a
tremendous success. The wolves are proliferating and have become a major tourist
attraction. Landowners have found that the wolves have had minimal impact on
them and that the ESA can accommodate these conflicts when they do occur. The
successful use of the "experimental population" designation is something that
can and should receive Congressional support and promotion. Unfortunately, many
Congressional discussions about wolf reintroduction have focused mound emotional
rhetoric and misinformation, instead of highlighting the constructive, creative
solutions that were employed.
Impacts of H.R. 3160
While
increased funding for endangered species programs and Congressional support for
creative implementation of the ESA would help advance the recovery of endangered
species, H.R. 3160 (the "Common Sense Protections for Endangered Species Act")
leads us in the opposite direction. The bill ensures that species are listed
only after they have declined to a ridiculously precarious point; it then
severely limits the protective measures that can be employed to recover them. A
hobbled ESA, which never achieves the recovery of species, is harmful to both
wildlife and regulated interests.
Outlined below are the impacts that
H.R. 3160 has on the primary components of the ESA, including: listing and
critical habitat designation; federal agencies' duty to conserve species and the
consultation process; the take prohibition and protection on private lands; and
recovery planning.
Listing and Critical Habitat Designation
A
species must be listed as threatened or endangered before it becomes eligible
for ESA protections. Although the Act currently requires that a species be
listed as threatened or endangered solely on the basis of biological
information, the listing process has become highly politicized. It is rare for
any species whose conservation would have potential economic impacts to be added
to the list without accompanying litigation either supporting or opposing the
listing. This litigation consumes a vast amount of the Services' staff time and
fiscal resources while doing nothing to aid the species. The result is that
hundreds of imperiled species are left languishing, without protection, waiting
to be listed. H.R. 3160 does nothing to address the needs of these unlisted
imperiled species; instead it contains numerous provisions that make it' even
harder to list a species.
To begin, the bill redefines sub-species and
threatened species in ways that significantly narrow the number of species
eligible for listing. It also prevents distinct populations of a species from
being listed and receiving federal protections if the species is already listed
under,a state law that prohibits the taking of the species. The bill increases
the consideration given to unproven, voluntary conservation measures that may,
or may not, occur in the future and allows them to serve as a basis for not
listing a species. More harmful, however, are the new requirements that economic
factors and cost/benefit analyses be considered when deciding whether or not to
list a species. Listings, by definition, reflect the biological status of a
species. Economic considerations relate to what management approaches are
warranted and therefore, should be addressed only after a species has been
listed. Less obvious, but perhaps more destructive, are the layers of additional
bureaucratic requirements that must be fulfilled before a species can be listed
(e.g. a listing petition must include scientific documentation from a published
source, a description of all available data, at least one study by someone not
associated with the petition, etc). These new requirements create significant
legal hooks that guarantee new listings will be endlessly challenged in court
over unimportant procedural questions. Another provision that will give rise to
unproductive litigation allows currently listed species to be delisted if it can
be demonstrated that the science used in the listing process had not been
adequately peer reviewed.
H.R. 3160 also fundamentally changes the
listing process by giving Governors and tribes near veto authority over the
listing decision. At nearly every step in the process, the Secretary is required
to consult with affected Governors and tribes. Ultimately, the Secretary can
only list a Species over the objection of an affected Governor or tribe if
he/she overcomes a high standard and shows "by a preponderance of the scientific
evidence that the information submitted by the Governor or tribe is incorrect."
In practice, this change will mean that it will be almost impossible to list a
species without the agreement of all affected Governors and tribes or protracted
litigation.
Currently, the Act requires that critical habitat be
designated for a species at the time of listing. The designation of critical
habitat is crucial to species protection efforts as it provides an indication to
landowners and others what habitat is considered vital for the species'
continued survival, as well as its actually recovery. In particular, critical
habitat designation allows special attention to be given to habitat that is
unoccupied, but necessary for the survival and recovery of the species.
Unfortunately, critical habitat designation can be a controversial process and
the Services have sought to avoid it whenever possible. H.R. 3160 eliminates the
requirement that critical habitat be designated, thereby dramatically reducing
the likelihood that this important recovery tool will be used. Instead, it makes
critical habitat designation an optional feature, done as part of the recovery
planning process. Finally, the bill expands the role of economic considerations
and economic interests in the determination of critical habitat.
Federal
Agencies' Duties to Conserve and the Consultation Process
Under Section
7 of the current ESA, all federal agencies have a duty to support the
conservation of threatened and endangered species. In addition, Section 7
requires that federal agencies consult with the Services about any activity they
authorize, fund, or carry out that might jeopardize the continued existence of a
listed species or adversely modify its habitat. This provision has served as one
of the most effective and reliable tools for conserving threatened and
endangered species on federal lands. Time and again, the courts have interpreted
the ESA to mean that the protection of listed species supersedes other agency
obligations. This has meant, for instance, that the Bureau of Land Management
could not allowing grazing on public lands if it would jeopardize the desert
tortoise and the Department of Defense could not conduct military training
maneuvers in areas that would disturb red-cockaded woodpeckers. H.R. 3160 would
fundamentally change that by reversing the order of federal priorities. The bill
specifies that federal agencies' obligations under the ESA are limited to
actions that are consistent with the agencies' primary mission (i.e. that the
ESA will not supersede the agencies' other duties). This limitation on Section 7
is so broad that the majority of federal activities will be exempt from review
under the ESA. The proposal also goes on to issue exemptions from Section 7 for
a variety of other actions, including vaguely defined "emergency" situations and
any action that is a routine operation, maintenance, rehabilitation, repair, or
replacement of a federal or non-federal project or facility. This means that
actions like replacing a small flood control structure with a major dam would no
longer be subject to review and consultation under Section 7. The combined
effect of these provisions is a fundamental erosion of Section 7 protections
that will significantly increase the likelihood of extinction.
In those
cases where the Section 7 consultation process still applies under H.R. 3160,
the level of protection offered is seriously compromised. As part of the
consultation process, the Services are currently required to produce a
biological opinion assessing the impacts of the project on a listed species.
Under H.R 3160, the Services must confer with the permit applicant although not
with the general public during the development of the biological opinion.
Requiring the Services to discuss the draft biological opinion with the
permit applicant, but not the broader public, allows the applicant
disproportionate access during this key decision-making process and may lead the
agencies to downplay the impacts that a project/activity will have on a species.
Under the current law, the Services must suggest a series of reasonable
and prudent alternatives that the permit applicant employ in order to avoid
jeopardizing a listed species. This bill severely limits the type and scope of
reasonable and prudent alternatives that the Services can recommend, including a
requirement that they choose the least costly alternative. Finally, the bill
provides unprecedented "No Surprises" type assurances to Section 7 permit
applicants that go much further than the current Administration ever intended
with its already controversial "No Surprises" policy for habitat conservation
plans. Once the consultation has been completed, the Secretary is prohibited
from issuing any additional requirements of the permit applicant, regardless of
changed circumstances or new information about the impact of an activity. Thus,
if a Section 7 consultation approves a particular set of timber sales, but new
information indicates that logging is having a more detrimental impact on the
species than was anticipated, there would be no way to revisit the issue. Given
the limits of our knowledge about species at the time a project is approved,
these assurances could easily prove disastrous for species.
The Take
Prohibition and Protection on Private Lands
Section 9 of the ESA now
prohibits the "taking" (i.e. harassing, harming, pursuing, hunting, etc.) of
threatened and endangered species. This prohibition provides an important source
of protection to listed species and offers one of the few ways the Act can
protect listed species on private lands. H.R. 3160 inexplicably waives the
taking prohibition for a broad category of activities including: anything
related to government actions taken for public health or safety purposes;
ongoing maintenance, routine operations, and emergency repair of pipelines,
flood control facilities, fire breaks, transmission lines, water storage, and
water conveyance structures; and road and right-of-way maintenance. These
exemptions are so sweeping that a tremendous number of environmentally damaging
projects would be allowed to proceed without regard for their impact on
threatened and endangered species.
The current law allows private
landowners and others to obtain a permit for the incidental take of listed
species if the permit applicant completes.a habitat conservation plan (HCP). The
use of HCPs has proliferated under the Clinton Administration and has become a
major tool for working with private landowners and other non-federal entities.
To make HCPs more palatable to landowners, the Administration created its "No
Surprises" policy, which gives landowners long-term assurances that the HCP
agreement will fulfill all of their obligations under the Act for the length of
the agreement. Leading voices in the scientific and conservation communities
have challenged the sensibility of granting long-term assurances to landowners
without adequate safeguards. Additionally, they have questioned the levels of
unmitigated habitat destruction allowed by recent HCPs. In response, the
Administration has begun to take small steps to ensure that clearer conservation
benefits are derived from HCPs and to clarify a mechanism for adjusting the plan
if a listed species begins to decline during the life of the agreement.
H.R. 3160 codifies a "No Surprises" type guarantee for landowners that
engage in an HCP. Rather than seek more conservation benefits from HCPs,
however, the bill severely limits the types of conservation duties that the
Secretary can ask of a landowner in an HCP. All actions required under an HCP,
for instance, must be "reasonable and economically feasible" to the landowner.
The bill severely limits the nature and scope of mitigation options that a
landowner can be required to fulfill as part of an HCP and then requires that
they be the least costly mitigation measures possible. The combined effect of
these provisions is to dramatically weaken the amount of conservation benefit, a
species can receive under an HCP. A provision prohibiting any reopening of the
HCP without the landowner's agreement is even more troubling. Even if a species,
were being driven to extinction as a result.of the agreement, the Secretary
would have no recourse for reopening the agreement. Given how little we know
often know about species and the challenges associated with their recovery, it
is irresponsible and short-sighted to allow large blocks of land to be locked
away under long-term management agreements that cannot be adjusted to
accommodate new information or changing circumstances. The National Wildlife
Federation has repeatedly called for No Surprises guarantees to be accompanied
by sensible provisions that require adequate funding for HCPs, monitoring
throughout the length of the agreement, flexibility to allow for adaptive
management in response to changing circumstances, and stronger more meaningful
conservation benefits. This bill provides none of those features. Furthermore,
the bill waives N-EPA for HCPs involving private landowners, which-in turn,
eliminates the public's primary opportunity for participating in the process. In
addition, the bill dramatically, limits the public's ability to challenge an HCP
(it must be done within 45 days after the permit has been submitted). This
change drastically reduces a permittee's legal accountability and will encourage
ESA violations.
Recovery Planning The ESA requires that the Services
generate recovery plans for all species unless there is some reason why this
would not benefit the species. Unfortunately, the Services have been unable to
keep up with demand and there are many species either without recovery plans or
with plans that need to be updated. H.R. 3160 takes some positive steps forward
by setting a clear deadline for the development and revision of recovery plans.
Furthermore, it provides some useful new requirements that a recovery plan
include not only clear, measurable objectives, but also benchmarks for measuring
whether progress is being made toward the recovery goal.
H.R. 3160 also,
however, gives the Secretary the opportunity to avoid doing a recovery plan if
an existing conservation plan or strategy can serve as the "functional
equivalent" to a recovery plan. This concept is sensible when accompanied by
sufficient guidelines that clearly distinguish what constitutes a "functional
equivalent" to a recovery plan. H.R. 3160 provides no such guidelines; and as a
result, nearly anything could be used in lieu of a recovery plan. This is
particularly problematic under H.R. 3160 because the bill waives Section 7 and
Section 9 provisions for any action deemed to be consistent with a recovery plan
(and in turn, a "functional equivalent"). Thus, a vague, unreviewed conservation
plan, prepared by a state or a private entity, could be deemed a "function al
equivalent" to a recovery plan and used as the basis for waiving two of the
ESA's most fundamental protections.
The bill also imposes detailed new
requirements about the makeup of the recovery team so that experts in economics
and property law, representatives from each affected state and local government,
and individuals with an economic interest at stake are all guaranteed a seat at
the table. The constitution of these new recovery teams will be heavily balanced
in favor of development interests with nothing to ensure equal access for
pro-species interests. Additionally, the bill requires that the recovery team
conduct elaborate assessments of the economic and social impacts of various
recovery strategies. Recovery measures, under this bill, must be chosen so as to
impose the least costs and result in the least socioeconomic impacts. The
combined effect of these new provisions gives economic considerations and
economic interests a disproportionate voice in setting the recovery strategy for
a species and may seriously compromise recovery efforts.
Conclusion
H.R. 3160 erodes nearly every type of protection that the ESA currently
provides to listed species. The impact on the nation's threatened and endangered
species will be disastrous. The bill creates elaborate new hurdles in the
listing process that will unnecessarily consume the Services' limited resources
and make it generally much harder to list a species. The bill fundamentally
undermines the federal government's commitment to species protection by making
the needs of listed species secondary to all other federal obligations.
Additionally, H.R.3160 provides sweeping exemptions from the Section 9 take
prohibition (which prohibits actions that are harmful to species) and the
Section 7 consultation process (which requires federally authorized or approved
actions to be reviewed by the Services in order to minimize the impacts to
listed species). The bill provides waivers of these fundamental ESA protections
for a broad array of special interests engaged in a wide variety of destructive
activities. It severely limits the types of conservation benefits that can be
required under an HCP. Furthermore, the bill makes it nearly impossible to
reopen an HCP, regardless of changing circumstances or new information about the
needs of the species. For all of these reasons, H.R. 3160 fails to provide a
constructive starting point for future ESA discussions.
The National
Wildlife Federation urges Congress to focus its attention on alternative
measures for improving conditions for threatened and endangered species.
Specifically, the following actions would directly benefit efforts to protect
and recover listed species: increasing annual appropriations for threatened and
endangered species to a level that reflects the real level of need; providing
reliable and automatic funding for landowner incentive programs and proactive
species protection through passage of CARP, creating tax incentives to reward
landowners who engage in habitat restoration or other species protection
efforts; and supporting positive examples of flexible implementation of the
existing ESA.
END
LOAD-DATE: February 4, 2000
