[House Hearing, 107 Congress]
[From the U.S. Government Publishing Office]
H.R. 4840, ``SOUND SCIENCE FOR ENDANGERED SPECIES ACT PLANNING ACT OF
2002''
=======================================================================
LEGISLATIVE HEARING
before the
COMMITTEE ON RESOURCES
U.S. HOUSE OF REPRESENTATIVES
ONE HUNDRED SEVENTH CONGRESS
SECOND SESSION
__________
June 18 & 19, 2002
__________
Serial No. 107-130
__________
Printed for the use of the Committee on Resources
Available via the World Wide Web: http://www.access.gpo.gov/congress/
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______
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COMMITTEE ON RESOURCES
JAMES V. HANSEN, Utah, Chairman
NICK J. RAHALL II, West Virginia, Ranking Democrat Member
Don Young, Alaska, George Miller, California
Vice Chairman Edward J. Markey, Massachusetts
W.J. ``Billy'' Tauzin, Louisiana Dale E. Kildee, Michigan
Jim Saxton, New Jersey Peter A. DeFazio, Oregon
Elton Gallegly, California Eni F.H. Faleomavaega, American
John J. Duncan, Jr., Tennessee Samoa
Joel Hefley, Colorado Neil Abercrombie, Hawaii
Wayne T. Gilchrest, Maryland Solomon P. Ortiz, Texas
Ken Calvert, California Frank Pallone, Jr., New Jersey
Scott McInnis, Colorado Calvin M. Dooley, California
Richard W. Pombo, California Robert A. Underwood, Guam
Barbara Cubin, Wyoming Adam Smith, Washington
George Radanovich, California Donna M. Christensen, Virgin
Walter B. Jones, Jr., North Islands
Carolina Ron Kind, Wisconsin
Mac Thornberry, Texas Jay Inslee, Washington
Chris Cannon, Utah Grace F. Napolitano, California
John E. Peterson, Pennsylvania Tom Udall, New Mexico
Bob Schaffer, Colorado Mark Udall, Colorado
Jim Gibbons, Nevada Rush D. Holt, New Jersey
Mark E. Souder, Indiana Anibal Acevedo-Vila, Puerto Rico
Greg Walden, Oregon Hilda L. Solis, California
Michael K. Simpson, Idaho Brad Carson, Oklahoma
Thomas G. Tancredo, Colorado Betty McCollum, Minnesota
J.D. Hayworth, Arizona
C.L. ``Butch'' Otter, Idaho
Tom Osborne, Nebraska
Jeff Flake, Arizona
Dennis R. Rehberg, Montana
Tim Stewart, Chief of Staff
Lisa Pittman, Chief Counsel/Deputy Chief of Staff
Steven T. Petersen, Deputy Chief Counsel
Michael S. Twinchek, Chief Clerk
James H. Zoia, Democrat Staff Director
Jeffrey P. Petrich, Democrat Chief Counsel
------
C O N T E N T S
----------
Page
Hearing held on June 18 & 19, 2002............................... 1
Statement of Members:
Hansen, Hon. James V., a Representative in Congress from the
State of Utah.............................................. 1
Prepared statement on June 18, 2002...................... 3
Prepared statement on June 19, 2002...................... 29
Statement of Witnesses:
Calvert, Hon. Ken, a Representative in Congress from the
State of California........................................ 24
Cannon, Hon. Chris, a Representative in Congress from the
State of Utah.............................................. 21
Prepared statement of.................................... 22
Cubin, Hon. Barbara, a Representative in Congress from the
State of Wyoming........................................... 13
Prepared statement of.................................... 14
DeFazio, Hon. Peter A., a Representative in Congress from the
State of Oregon, Prepared statement of..................... 12
Duncan, Hon. John J., Jr., a Representative in Congress from
the State of Tennessee..................................... 18
Flake, Hon. Jeff, a Representative in Congress from the State
of Arizona................................................. 20
Prepared statement of.................................... 21
Gallegly, Hon. Elton, a Representative in Congress from the
State of California, Prepared statement of................. 26
Gibbons, Hon. Jim, a Representative in Congress from the
State of Nevada............................................ 19
Hogarth, Dr. William, Assistant Administrator for Fisheries,
National Oceanic and Atmospheric Administration, U.S.
Department of Commerce..................................... 35
Prepared statement of.................................... 37
Inslee, Hon. Jay, a Representative in Congress from the State
of Washington.............................................. 20
Manson, Craig, Assistant Secretary for Fish and Wildlife and
Parks, U.S. Department of the Interior..................... 30
Prepared statement of.................................... 33
Osborne, Hon. Tom, a Representative in Congress from the
State of Nebraska.......................................... 5
Prepared statement of.................................... 8
Otter, Hon. C.L. ``Butch'', a Representative in Congress from
the State of Idaho......................................... 23
Radanovich, Hon. George P., a Representative in Congress from
the State of California, Prepared statement of............. 26
Rahall, Hon. Nick J. II, a Representative in Congress from
the State of West Virginia................................. 4
Rehberg, Hon. Dennis R., a Representative in Congress from
the State of Montana....................................... 16
Prepared statement of.................................... 17
Solis, Hon. Hilda L., a Representative in Congress from the
State of California, Prepared statement of................. 27
Walden, Hon. Greg, a Representative in Congress from the
State of Oregon, Prepared statement of..................... 27
Additional materials supplied:
American Society of Civil Engineers, Statement submitted for
the record on H.R. 4840.................................... 63
Thune, Hon. John R., a Representative in Congress from the
State of South Dakota, Statement submitted for the record.. 63
LEGISLATIVE HEARING ON H.R. 4840, TO AMEND THE ENDANGERED SPECIES ACT
OF 1973 TO ENSURE THE USE OF SOUND SCIENCE IN THE IMPLEMENTATION OF
THAT ACT. ``SOUND SCIENCE FOR ENDANGERED SPECIES ACT PLANNING ACT OF
2002''
----------
Tuesday, June 18, 2002
U.S. House of Representatives
Committee on Resources
Washington, DC
----------
The Committee met, pursuant to call, at 2 p.m., in room
1334, Longworth House Office Building, Hon. James V. Hansen
(Chairman of the Committee) presiding.
The Chairman. The Committee will come to order.
STATEMENT OF THE HON. JAMES V. HANSEN, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF UTAH
The Chairman. The Endangered Species Act of 1973 sought
to create a means by which threatened and endangered species
and their ecosystems could be preserved from extinction. Like
most other laws, it began with good intentions. Landmark
species that were obviously imperiled, such as the American
bald eagle, California condor, grizzly bear, and gray wolf were
made the subject of the new conservation measures.
But this has changed dramatically in the last 30 years. We
are here today because the act's good intentions have been
convoluted by courts, Federal agencies, and a few special
interest groups. As a result, we have a law that punishes
landowners for good stewardship of their private property. We
have a law that does not give priority to field-tested peer
review science. We have a law that does not protect species.
We can talk for weeks about the best way to fix all the
problems of the Endangered Species Act and never reach a
conclusion. In fact, that is what we have been doing for years.
That is why this Committee has decided to take a different
approach.
The legislation before us takes one specific issue and
proposes a commonsense solution. I believe this legislation is
a step in the right direction to put the Endangered Species Act
back on track and truly protect species that are in need of
protection.
This Committee believes that a good starting point is to
ensure that all policy decisions are made with sound science.
It only makes sense that decisions with such far-reaching
effects and consequences should be based on scientific
information that can be defended before a Committee of experts
from the scientific community. We know from experience that
decisions are only as good as the data that goes into them. As
I said earlier this year, unless policy decisions are based on
sound science, good decisions are possible only by chance.
Sound science is founded upon two basic principles: honest
scientists and legitimate scientific process. When both of
these are together, good results are produced and good
decisions are made. But lately the agencies' use of sound
science has been questioned, and rightly so.
The Committee held hearings in March that dealt with the
submission of false samples of hair from the threatened
Canadian lynx by scientists participating in an interagency
survey. If this incident had not been report by a retiring
Forest Service employee on his last day of work, the false
samples could have influenced management decisions in 15
different States and 57 national forests. Fortunately, this
Committee was notified and we took appropriate action.
An even stronger argument for a sound science standard
exists in last year's tragedy at Klamath Basin. The Secretary
of the Interior was forced to shut down the irrigation water to
more than 200,000 acres of cropland in California and Oregon
because of biological opinions issued by the U.S. Fish and
Wildlife Service and the National Marine Fisheries Service.
These opinions that claim higher lake and stream flows were
necessary to protect three endangered species of fish. The lack
of irrigation water throughout the warmest months of the year
contributed to a direct loss of approximately $135 million and
long-term losses exceeding $200 million.
Because many people argued that the decision to cutoff
irrigation water was not based on sound science, Secretary
Norton asked the National Academy of Sciences to conduct an
independent review of the data used in the biological opinions.
The NAS panel preliminarily found that the high water levels
could actually be lethal to the fish in the Klamath River
because of the increased water temperature.
The panel also found that the data in the biological
opinions could not justify the conclusion. Because of the lack
of a sound science standard for ESA decisions, both the farmers
and the fish were harmed.
I have heard many other horror stories like those. No one
knows how many decisions were made based on false data or by
simple human error. That is why we need this legislation.
We all understand that this legislation will not resolve
the entire sound science debate. Congress cannot legislate
ethics, no matter how hard we try. But we can improve the
process. This legislation integrates the sound science standard
into the decisionmaking process. It gives greater weight to any
scientific or commercial study or other information that is
empirical or has been field tested or peer reviewed. It
prohibits the Secretary of the Interior from determining that a
species is endangered or threatened unless data collected in
the field supports such a determination.
This legislation also revises the contents of a listing
petition and establishes a higher threshold to be met before
the petition can be considered.
This legislation also establishes a peer review process by
a board composed of scientists that meet National Academy of
Sciences standards. Peer review would be initiated for the
listing and delisting of species as endangered or threatened,
the development of recovery plans, and in jeopardy opinions if
the Secretary finds that there is significant disagreement or
significant economic impact. This board would submit a report
within 90 days, describing their opinion as to the scientific
validity of the determination, along with any recommendations
they may have. Additionally, this legislation provides for
improved interagency cooperation and use of State information.
This is necessary legislation and I believe a commonsense
solution to one problem with the Endangered Species Act. I look
forward to today's discussion and turn to the gentleman from
West Virginia.
[The prepared statement of Mr. Hansen follows:]
Statement of The Honorable James V. Hansen, a Representative in
Congress from the State of Utah
The Endangered Species Act of 1973 sought to create a means by
which threatened and endangered species and their ecosystems could be
preserved from extinction. Like most other laws, it began with good
intentions. Landmark species that were obviously imperiled, such as the
American bald eagle, California condor, grizzly bear, and gray wolf,
were made the subject of the new conservation measures.
But this has changed dramatically in the last 30 years. We're here
today because the Act's good intentions have been convoluted by courts,
Federal agencies, and a few special interest groups. As a result, we
have a law that punishes landowners for good stewardship of their
private property. We have a law that does not give priority to field-
tested, peer-reviewed science. We have a law that does not protect
species.
We could talk for weeks about the best way to fix all of the
problems of the Endangered Species Act and never reach a conclusion. In
fact, that's what we've done for years. That's why this Committee has
decided to take a different approach. The legislation before us takes
one specific issue and proposes a common-sense solution. I believe this
legislation is a step in the right direction to put the Endangered
Species Act back on track and truly protect species that are in need of
protection.
This Committee believes that a good starting point is to ensure
that all policy decisions are made with sound science. It only makes
sense that decisions with such far-reaching effects and consequences
should be based on scientific information that can be defended before a
committee of experts from the scientific community. We know from
experience that decisions are only as good as the data that goes into
them. As I said earlier this year, unless policy decisions are based on
sound science, good decisions are possible only by chance.
Sound science is founded upon two basic principles: honest
scientists and legitimate scientific processes. When both of these are
together, good results are produced and good decisions are made. But
lately, the agencies' use of sound science has been questioned, and
rightly so. This Committee held hearings in March that dealt with the
submission of false samples of hair from the threatened Canadian Lynx
by scientists participating in an interagency survey. If this incident
had not been reported by a retiring Forest Service employee on his last
day of work, the false samples could have influenced management
decisions in fifteen different states and fifty-seven national forests.
Fortunately, this Committee was notified, and we took appropriate
action.
An even stronger argument for a sound science standard exists in
last year's tragedy at Klamath Basin. The Secretary of Interior was
forced to shut off the irrigation water to more than 200,000 acres of
cropland in California and Oregon because of biological opinions issued
by the U.S. Fish and Wildlife Service and the National Marine Fisheries
Service. These opinions that claimed higher lake and stream flows were
necessary to protect three endangered species of fish. The lack of
irrigation water throughout the warmest months of the year contributed
to a direct loss of approximately $135 million dollars, and long-term
losses exceeding $200 million dollars.
Because many people argued that the decision to cut off irrigation
water was not based on sound science, Secretary Norton asked the
National Academy of Sciences to conduct an independent review of the
data used in the biological opinions. The NAS panel preliminarily found
that the high water levels could actually be lethal to the fish in the
Klamath River because of the increased water temperature. The panel
also found that the data in the biological opinions could not justify
the conclusions. Because of the lack of a sound science standard for
ESA decisions, both the farmers and the fish were harmed.
I've heard many other horror stories like those. No one knows how
many decisions were made based on false data or by simple human error.
That's why we need this legislation.
We all understand that this legislation will not resolve the entire
sound science debate. Congress cannot legislate ethics, no matter how
hard we try. But we can improve the process. This legislation
integrates a sound science standard into the decision-making process.
It gives greater weight to any scientific or commercial study or other
information that is empirical or has been field-tested or peer-
reviewed. It prohibits the Secretary of Interior from determining that
a species is endangered or threatened unless data collected in the
field supports such a determination. This legislation also revises the
contents of a listing petition and establishes a higher threshold to be
met before the petition can be considered.
This legislation also establishes a peer review process by a board
composed of scientists that meet National Academy of Sciences
standards. Peer review would be initiated for the listing and delisting
of species as endangered or threatened, the development of recovery
plans, and in jeopardy opinions if the Secretary finds that there is
significant disagreement or significant economic impact. This board
would submit a report within 90 days describing their opinion as to the
scientific validity of the determination along with any recommendations
they may have. Additionally, this legislation provides for improved
interagency cooperation and use of state information.
This is necessary legislation and I believe a common-sense solution
to one problem with the Endangered Species Act. I look forward to
today's discussion.
______
STATEMENT OF THE HON. NICK RAHALL, A REPRESENTATIVE IN CONGRESS
FROM THE STATE OF WEST VIRGINIA
Mr. Rahall. Thank you, Mr. Chairman.
Mr. Chairman, it is my understanding that the purpose of
today's hearing was to allow our fellow colleagues to come
before this Committee and relate ESA horror stories, and I am
looking out across the room and I do not see many of them. As a
matter of fact, I see an empty witness table at the current
time. Maybe they are waiting to flood in at the last minute.
I am impressed by the large number of members who chose not
to take you up on your very kind offer, Mr. Chairman, to not be
before the Committee today. I am just wondering, could it be
because there are only isolated instances where the ESA has
been a problem, and those instances have been blown out of
proportion to be larger than life, than what they are? There
are still, if we look at the whole perspective, there are still
some folks who, when they hear helicopters buzzing overhead in
the night, wonder whether they are in fact Blackhawk
helicopters. There are still those who are concerned over a new
world order and believe that the United Nations really controls
America's Federal lands.
So I am wondering if perhaps some of those people are not
behind some of the larger-than-life-proportion horror stories
that are related to the ESA, and perhaps they are now trying to
destroy America's faith in the Endangered Species Act. And I do
not mean that the Act is perfect, but I do not believe that we
should be portraying the Endangered Species Act as being the
source of all evil.
Tomorrow's hearing is yet another example of what I fear
may be a trend or a conspiracy to portray it as all evil.
The fact of the matter is that the Endangered Species Act
over the past 29 years has been responsible for keeping 99
percent of listed species from going extinct. And it is a fact
that since the law was passed in 1973, of the 129 domestic
species listed, 59 percent have been recovered or are improving
or are in stable condition.
And when I look at my own congressional district in New
River County, I see that there is the Peregrine falcon
sightings that exist today because of the ESA. Our national
symbol, the bald eagle, was almost extinct. I think it was it
was Ben Franklin who proposed that our national symbol be some
type of turkey. If not for the ESA, we might have had to
revisit that question.
So there are countless examples of ESA success stories and
our country is a better place for it. So as I said in the
beginning, I am not here to suggest that the law is perfect,
that it cannot be implemented better. I think, for example,
more adequate appropriations to the Fish and Wildlife Service
could go a long way toward addressing any concerns in that
regard.
I have also offered to work with you, Mr. Chairman. I know
you have been of the type that it is not ``my way or the
highway'' position, and I appreciate that. And your staff has
contacted mine about working on a proposal of mine, and I hope
that we can continue to work together on this, and I appreciate
that offer of yours to work together and I hope we can resolve
our differences. Otherwise, I guess next week's markup will be
a lively debate.
Thank you Mr. Chairman.
The Chairman. I thank the gentleman.
The Chairman. The gentleman from Nebraska, Mr. Osborne.
STATEMENT OF THE HON. TOM OSBORNE, A REPRESENTATIVE IN CONGRESS
FROM THE STATE OF NEBRASKA
Mr. Osborne. Thank you, Mr. Chairman, I appreciate the
opportunity to testify. I certainly do not believe the
Endangered Species Act is evil. However, I do believe that
there are some significant changes that could occur that would
benefit our whole country. You have mentioned some of the
aberrations, and I believe they are aberrations: the Canadian
lynx problem; the Klamath Basin in which $2,500-an-acre
cropland was reduced to $35 an acre. We have all seen that the
national Forest Service designated 920 million visitors a year
ago, and there are actually only 209 million. And so as a
result of some of these issues, I think there has been a loss
of trust and a loss of credibility among some of the
constituents that I have.
I would particularly like to discuss one issue that I think
is of paramount importance to the State of Nebraska. This has
to do with the endangered species listing of the whooping
crane, which is certainly appropriate, because back in the
1970's there were less than 50 whooping cranes in existence and
so the listing was absolutely necessary. In 1978, 56 miles of
the central Platt River in Nebraska was designated as critical
habitat for the whooping crane, and therein began some of the
difficulties.
Gary Lingle, who is a program director for the Whooping
Crane Trust--and I would like to point out that the Whooping
Crane Trust is an environmental group. Gary Lingle would be, I
believe, on most counts labeled as someone who was an
environmentalist or is an environmentalist. And so he wrote a
commentary on March 22nd of 2000. This is what he said. He
said:
``From 1970 through 1998, a total of 29 years, there are 11
years where there were no whooping cranes sighted at any time
in the Platt River Valley.'' that is, 40 percent of the time,
this so-called critical habitat had no whooping cranes at all.
He goes on to say this: ``on the average, less than 1
percent of the population of whooping cranes was ever confirmed
in the Platt Valley during that same timeframe.'' if something
is critical habit, you would think that more than 1 percent of
the whooping crane population would at some time visit that
area.
Then he goes on to say this. He said: ``I wonder if the
Platt River would even be considered if the Fish and Wildlife
Service was charged with designating critical habit today?
Certainly, no one would be willing to state on a witness stand
that the continued existence of the species would be in
jeopardy if the Platt River were to disappear.''
Again, this is a commentary based on the views of someone
who worked primarily for an environmental organization for 15
years in the central Platt River.
Probably the most telling study that was done was a radio
tracking survey that was done from 1981 through 1984. And
during that period of time, there were 18 whooping cranes that
were fitted with radio collars and they were tracked for 2-1/2
years. Three of those, three southbound migrations, two
northbound migrations. Those 18 whooping cranes constituted
roughly 20 to 25 percent of the total crane population
existence at that time. The interesting thing was over that 2-
1/2 years, at no time did any one of those 18 whooping cranes
visit the Platt Valley.
Again, you would think that if that was critical habit they
would have visited the Platt Valley at some point.
Fish and Wildlife has monitored the Platt River with two
airplane flights a day over that so-called critical habitat
area, and they have had some sightings. They are currently
claiming as much as 2 or 3 percent of the whooping crane
population visits the Platt. However, there is no way to
determine if those are not multiple sightings. Many believe
that they are.
So, at any rate, no matter how you slice it, there really
is almost an insignificant number of whooping cranes that ever
visit that critical habit, and most of the cranes that do only
stay overnight. They do not mate there. They do not nest there.
It is not a critical area.
So you may say, so what? Maybe they made an incorrect
designation. What does that have to do with it? In order to
comply with this critical habit designation, we have had to
enter into a cooperative agreement between the States of
Colorado, Wyoming, and Nebraska. It involves three States. And
what they have had to do is to come up with some ways to meet
the standards. And so 134,000 acre-feet of water are designated
to an environmental account at the present time. And this water
is mostly stored in Lake McConaughy in Nebraska. That, of
course, is a significant loss of irrigation water. Nebraska has
to contribute 100,000 acre-feet, Colorado 10,000 and Wyoming
the remaining 20-some-thousand remaining acre-feet.
Also they have established endstream flows. Many biologists
and people who knew something about the whooping crane said
that 1,350 cubic feet per second at Grand Island would be
adequate. The Fish and Wildlife said no, it would have to be
2,400 cubic feet per second, which most people say is way too
deep for cranes to wade around in. So anyway, that water has to
flow down the river in April and May. It is lost to irrigation.
It cannot be recovered for any other purpose.
Also there are no new depletions, which means that since
1997, no one can drill a new well, no community can water from
the Platt River Valley. So it has certainly restricted any type
of new development in that area. The cost is estimated to be
$146 million. And in 10 years, phase 2 will go into effect,
which is 417,000 acre-feet, which happens to be the total of
all the irrigation water in the Platt Valley.
So if we look at the Klamath Basin as a difficult
situation, this is the same situation, only magnified many
times over. We think this is a critical issue that needs to be
looked at.
Also I might mention that we are now in a comment period on
the critical habitat for piping plover. Again, Gary Lingle
writes this in his report. He said: ``That the central Platt
does not offer any naturally occurring nesting habitat for
these species, i.e. The piping plover and the least tern, is
amply demonstrated by the fact that no tern or plover chicks
were known to have fledged on any natural river sandbar during
the entire decade of the 1990's.'' so for 10 years, there was
no known fledgling or nesting activity on natural sandbars in
the central Platt during that period of time. And yet they are
going to designate, apparently, the central Platt and 430 other
miles of river in the State of Nebraska as critical habit for
the piping plover.
Now, the concern that we have is this: In 1985, the Fish
and Wildlife said that critical habitat for the piping plover
was ephemeral. Ephemeral means you cannot pin it down. It
changes day to day, week to week. Sometimes there is a sandbar,
sometimes there is one there. So they said at that point, we
will not designate critical habitat for the piping plover or
the least tern because it is ephemeral. 1985.
Now, today, they will designate 430-some miles of stream in
Nebraska and thousands throughout Minnesota, North Dakota,
South Dakota, and Montana. So that is certainly a change.
Last, let me mention this, Mr. Chairman. In the 1980's, EA
engineering did a study about the piping plover on the Platt
River. And generally speaking, the gold standard I believe for
many groups is that you want to go back to the way it was
before people got there. How was it before Lewis or Clark, or
when Lewis and Clark saw it? How many buffalo? How many prairie
dogs, and so on? So EA Engineering tried to determine what the
piping plover and least tern population in the Platt River was
in the 1800's.
In the early 1900's they can find no recorded data that
indicates any evidence that piping plover or least tern were on
the Platt River during those years. They said this is the
reason why: The snowmelt off of the Rocky Mountains hits
Nebraska in June, which causes flooding which wipes out all the
nests. In August, the Platt River dries up, which means there
is no habit for the young birds. Therefore, they said they do
not believe and there is no record that there ever has been any
habit for these birds. So the Kingsley dam was built in 1940,
and after that time there did occur some habitat.
So if the standard was how was it originally, what we would
have to say is that originally it does not appear that there
were any piping plover and least terns on the Platt River.
Overall we feel this would be an erroneous designation. We
feel because of the economic impact on the area, because the
designation appears to be incorrect for the critical habitat,
that we would like to see an independent peer review. We did
not want to overthrow--we do not want to overturn the
Endangered Species Act. We would like to simply see somebody
evaluate and determine whether this is an accurate
determination or not. It should not be Fish and Wildlife. It
has to be an independent agency.
With that, I conclude my testimony, Mr. Chairman, and thank
you for your time.
The Chairman. I thank you.
[The prepared statement of Mr. Osborne follows:]
Statement of The Honorable Tom Osborne, a Representative in Congress
from the State of Nebraska
Mr. Chairman and Members of the Committee, I appreciate having the
opportunity to testify today at this important hearing. I represent a
very large rural area in Nebraska. Ninety-seven percent of this
district is privately owned. Currently, landowners are very concerned
about property rights and they are especially concerned about the
Endangered Species Act because this Act can be tremendously invasive.
I believe there is a crisis of confidence among my constituents
regarding the administration of the Endangered Species Act. I am going
to mention just a few things that have happened that have led to this
crisis of confidence. First, as you are well aware, the irrigation
water for many farmers in the Klamath Basin was cut off abruptly,
causing a great deal of financial hardship. There were two types of
suckers in Klamath Lake, and coho salmon in the river below that were
supposed to be protected by this action. As a result, the farmers lost
their crops, some lost their farms, land values declined from $2,500 an
acre to $35 per acre in that particular area. Oregon State University
estimates that the loss of water cost the economy $134 million in that
area. This was a tremendously costly and a very invasive situation.
Recently, the National Academy of Sciences, in an independent peer
review, determined that there was insufficient data to justify the
decision to shut off the irrigation water in the Klamath Basin. In
other words, they said that this was something that should not have
happened. Factors other than the lower levels in Klamath Lake were
endangering the sucker fish. The National Academy of Sciences
determined that the larger releases of water, the irrigation water that
normally went down the irrigation canals, actually harmed the coho
salmon because this water was warmer due to being held in the lake for
a longer period of time. So the true result was the reverse of what
they had tried to accomplish.
Second, more recently, in a congressional hearing, we heard from
officials from the Fish and Wildlife Service and the Forest Service
because seven employees of these agencies and a Washington State agency
falsely planted Canadian lynx hair in the forests of Washington and
Oregon. You might ask why in the world would somebody do this? Why
would you go out and bother to take hair from a captive lynx and plant
it in widespread areas? Apparently, this would result in a wider
declaration of critical habitat for the Canadian lynx, which they felt
in some way would help preserve the Canadian lynx.
Obviously, it was a falsehood and, according to testimony, others
within government agencies were aware of the planted lynx hair and did
not report it. The interesting thing was that after all of this
happened, the guilty parties were subjected to counseling as a
punishment, and most of them received their year-end bonuses and
raises. What kind of a message are we sending if somebody falsifies
data and yet practically no consequences occur as a result of that
falsification?
Furthermore, the National Park Service recently indicated some
false and inflated numbers of visitors. While 209 million people
actually visited our national forests, they reported 920 million
visitors, which was roughly a 400 percent increase. Why in the world
would an agency do this? They certainly can count better than this.
Some would assume that this had something to do with the fact that they
wanted to point out overcrowding, and that maybe some more roads or
some more areas of the parks needed to be restricted to visitors
because of overcrowding.
Recently here in Washington, D.C., the Environmental Protection
Agency gave the Corps of Engineers permission to dump thousands of tons
of sludge into the Potomac River. Of course you would think that this
was in direct violation of the Endangered Species Act because the
short-nosed sturgeon occupies the Potomac River and it is endangered.
Why would they do this? How in the world could you get by with this
when out in the West you cannot do these things? It has caused beavers
and ducks to be mucked up to the point where they have had a hard time
surviving. It appears that if these tons of sludge are not pumped into
the Potomac River, they would have to be put in dump trucks and trucked
through the city of Washington, D.C., which is not real politically
popular in this area.
Not surprisingly, this results in people in rural areas having the
feeling that maybe there is a double standard and maybe people in some
urban areas, because of the size of the population and the economic
impact, do not pay quite the same price. This is a serious concern for
my constituents.
An issue that is critical to the future of rural Nebraska involves
the Central Platte River in the State of Nebraska. In 1978, 56 miles of
the Central Platte were declared critical habitat for the whooping
crane. At that time, there were not very many whooping cranes, probably
less than 50, so they were listed as an endangered species and rightly
so. They are now doing better. There are roughly 175 whooping cranes
that generally fly through Nebraska today.
However, as a result of that designation, some things occurred. As
a result, in order to protect critical habitat for the whooping crane,
the Platte River Cooperative Agreement began to take shape. In-stream
flows have been proposed for the Platte River, including 2,400 cubic
feet per second of water in the critical habitat area in the spring.
Interestingly, the original recommendation by many biologists was not
2,400 cubic feet per second, but 1,300 cubic feet per second. By
tweaking it one way or another, the Fish and Wildlife Service almost
doubled the flow and the amount of water that goes down the river. They
want 1,200 cubic feet per second during the summer, and they want pulse
flows of 12,000 to 16,000 cubic feet per second for 5 days in May and
June of wet years. This is a huge amount of water in the Platte River,
and it results in some flooding. The main issue here is that it deepens
the channels in the river when you have these large pulse flows, and
then how do you compensate for the loss of sediment in the river?
The problem with those pulse flows is as follows: the 12,000 to
16,000 cubic feet per second will deepen the channel in the river and
will remove sediment. As part of its contribution to the Cooperative
Agreement, Nebraska is being asked to contribute 100,000 acre feet of
water, stored in Lake McConaughy; which will be distributed down the
Platte River when people feel the cranes might need it. Wyoming
contributes 34,000 acre feet of water and Colorado 10,000 acre feet of
water, so the total contribution is 140,000 acre feet of water. This is
a fairly expensive premise.
In addition, no new depletions are allowed in the Platte River
basin. So we not only have these flow limits, but within 3 to 4 miles
of either side of the Platte River, my constituents have not been able
to establish a new well since 1997. This limits the expansion of
communities, businesses, and farms.
The sediment that is lost in the river from the large pulse flows
has to be replaced. At one time, there was a proposal to haul in 100
dump truckloads of sediment per day, and this would go on for years and
years. You can imagine the cost of doing this. This was supposed to
replace the sediment that these large pulse flows removed from the
river. This proposal has been abandoned, but now the Federal agencies
involved are reportedly talking about taking bulldozers and pushing
islands into the river to cause more sediment. This is a very invasive
and expensive process. The above plan is only Phase 1.
After 10 years, Phase 2 kicks in, and requires 417,000 acre feet of
water, which about triples the amount of water required. This would be
practically all of the irrigation water used in the Platte River
system. Nebraska's farmers and ranchers are rightly concerned that at
some point the Endangered Species Act could be used in a way that would
cut off all irrigation up and down the Platte River, which is several
hundred miles long, and could make the Klamath Basin situation pale by
comparison.
For the water to get to the beginning of the habitat area, which is
100 miles downstream from Lake McConaughy, it takes 5 days. It takes 7
days to get to the lower end of the habitat. Water is being released
out of Lake McConaughy to control the flow. Rain often swells the river
in those 5 days, resulting in much higher flows in the Platte River
those required under the Cooperative Agreement. It does not seem
possible to accurately regulate in-stream flows when the supply source,
Lake McConaughy, is so far from the critical habitat area.
The current estimated cost of planning the Cooperative Agreement is
$160 million. That is just to create the agreement. It is a small cost
compared to the cost of the lost irrigation water, the lost power, and
the sediment dumping.
Many people believe that the Cooperative Agreement has been time-
consuming, expensive and burdensome to landowners. However, the aspect
that is even more important is that the need for the Cooperative
Agreement appears to be based on a false premise. The false premise is
that the 56-mile stretch of the Platte River is critical for the
existence of the whooping crane.
The area from Lexington to near Grand Island is the critical
habitat for the whooping crane. Because the purpose of a critical
habitat designation is to protect habitat whose removal or damage would
further endanger the species, one would assume that this would be an
area that would really be critical to the migration of the whooping
cranes as they go north and south.
However, Gary Lingle, who served as the watershed program director
for an environmental group called the Whooping Crane Trust for 17
years, filed comments on March 22, 2000, with the Fish and Wildlife
Service. The comments state: ``From 1970 through 1998, that is a total
of 29 years, 11 years there were no whooping cranes.'' Almost 40
percent of the time, no whooping cranes were sighted at any point in
this stretch of river, which is supposedly critical habitat. If this
habitat is truly critical, it does not seem likely that no whooping
cranes would be observed in 40 percent of the years.
The comments go on to say: ``On average, less than 1 percent of the
population of whooping cranes was ever confirmed in the Platte Valley
during that same time frame.'' Again, if it is critical habitat, one
would think that a higher percentage of cranes would be observed. But
only 1 percent or less has been seen in that region of the river over
29 years, according to his comments.
The most convincing evidence that I have encountered that this
segment of the Platte River is not critical habitat is that from 1981
to 1984, there was a radio-tracking study of 18 whooping cranes using
electronic tracking devices. This study was conducted on three southern
migrations and two northern migrations. Eighteen cranes at that time
represented somewhere between 15 and 20 percent of the total whooping
crane population. This research determined that none of those 18
whooping cranes used the Platte River at any time during the study.
Surely if this is critical habitat for the whooping crane, at least
some of those cranes would have regularly used the river, but yet not
one of them did over that 2-1/2 years. This was not a case where they
could slip into the area under the radar screen. They were monitored
electronically, so researchers knew their whereabouts at all times.
They were simply not in that area of the river.
The Whooping Crane Trust comments go on to say: ``I wonder if the
Platte River would even be considered if the Fish and Wildlife Service
was charged with designating critical habitat today. Whooping crane
experts that I have visited would be hard-pressed to consider the
Platte River, given our current state of knowledge.''
The comments also say: ``Certainly none would be willing to state
on a witness stand that the continued existence of the species would be
in jeopardy if the Platte River were to disappear.'' If this area of
the Platte River for some reason went away, he does not know of any
experts who would say that would harm the whooping crane. Yet this area
is designated as critical habitat, which has caused all of the proposed
in-stream flow regulations, the proposed 140,000 acre feet of water and
the proposed sediment dumping into the Platte River to compensate for
pulse flows. All who live in the Platte River valley will be
potentially impacted in some way by what appears to be an erroneous
designation.
When whooping cranes pass through Nebraska, a scattergram of where
they stop is developed. The cranes travel through most of the state,
and normally stay overnight. If this is critical habitat, they would
stay for several days, a week, a month to regroup and mate; but they do
not. Their stay in Nebraska is brief and, for the most part, random.
However, this central part of the Platte River is truly critical
habitat for a group of cranes, called the Sand Hill cranes. There are
roughly 400,000 to 500,000 Sand Hill cranes that come into that area,
and they spend 2 to 4 weeks every year. They come from Arizona, Texas,
Oklahoma, Arkansas and Louisiana. They funnel into this area, and are
heavily concentrated. They later go to their nesting grounds in Canada
and North Dakota.
It is possible that early on the Fish and Wildlife Service and
others made an honest mistake. They could have assumed that the
whooping crane has the same pattern as the Sand Hill crane, and that
the whooping crane really needed this area to stage, to mate, to gain
strength for the rest of their trip. But this is not the case.
One whooping crane was apparently imprinted with the Sand Hill
cranes. It has even been named ``Oklahoma.'' This particular crane
flies with the Sand Hill cranes, and stays around for 3 or 4 weeks like
the other Sand Hill cranes, because he apparently thinks he is a Sand
Hill crane. One wonders how many of the sightings in the area have been
of Oklahoma. He may have been sighted many times and counted
accordingly.
The Fish and Wildlife Service is doing everything it can to make
the habitat fit the whooping crane. Twice a day they fly the river
looking for whooping cranes. If you look hard enough, you may find
something. But, still, only 1 to 2 percent of the whooping cranes are
spotted in that area as they come north or as they go south.
Additionally, the Fish and Wildlife Service is expected to declare
450 miles of the Platte River, the Loup River, and the Niobrara River
as critical habitat for the piping plover and the least tern. Ninety-
seven percent of these rivers flow through private land. Many of the
same issues that apply to the whooping crane apply to the designation
of critical habitat for these species.
The Whooping Crane Trust's comments also address the piping plover
and the least tern. ``[T]hat the Central Platte does not offer any
naturally occurring nesting habitat for these species, i.e., the piping
plover and least tern, is amply demonstrated by the fact that no tern
or plover chicks were known to fledge on any natural river sandbar
during the entire decade of the 1990s.''
For some reason, the sand pits and the lakes and the other areas
where the piping plover and the least tern have been successfully
fledgling have not been declared as critical habitat only the rivers.
This is a puzzle, at least to me.
The Whooping Crane Trust's comments go on to say: ``This begs the
question as to whether it is in the best interests of the species' long
term well-being to attract them to an area where they are likely to be
flooded or eaten by predators.'' This is the likely result because as
the river is adjusted in the spring to hold down the flows, the birds
nest on the sandbars in the river. Over the next 50 or 60 days, it is
likely that the birds are going to get flooded out. The apparent intent
of the proposed critical habitat is to attract them into an area that
probably is going to result in their destruction. They would be much
better off if they went to a sand pit or lake where they are not going
to be flooded out by fluctuating river flows. The programs intended to
save the piping plover and the least tern may actually contribute to
their demise.
A study done by EA Engineering in the late 1980s indicated that the
Central Platte did not play a significant role in the maintenance of
the least tern or the piping plover prior to the construction of
Kingsley Dam in 1941. According to the study, there are several reasons
for this. The first is that as the river ran unimpeded; the snow pack
melted; and the highest water would occur in June, which was the peak
nesting time for the piping plover and least tern. The birds were wiped
out because that water rose and washed out the nests that are built
near the water level. In August, the Platte River would usually dry up.
Most years there would not be any water in the river, which meant
essentially that there was no feed or habitat for the young birds if
they did manage to survive. Lastly, there was no historical data of
tern or plover sightings on the Central Platte at all during the late
1800s and the early 1900s. The logical conclusion must be that this is
not critical habitat that is indigenous to the species. If it is
habitat at all, it is due to the creation of the dam. But even then, it
has not been effective.
Because of these questions, I have requested the Secretary of the
Interior to provide an independent peer review by the National Academy
of Sciences of the science used in making these decisions. It is my
understanding that the three states involved in the Cooperative
Agreement, Colorado, Nebraska, and Wyoming, are now interested in
having a National Academy of Sciences study completed prior to moving
forward with the Cooperative Agreement. These states would also like
assurances that the data used by the Fish and Wildlife Service is
accurate. I know that Secretary Norton is dedicated to making decisions
based on accurate data. I have talked to her, and I believe that she is
committed to sound science.
It is important that those listening do not assume that I oppose
endangered species. I enjoy wildlife and certainly do not want to see
the whooping crane, the piping plover, or the least tern eliminated. It
is important to remember that sometimes the Endangered Species Act may
not only negatively impact farmers and ranchers, it may actually harm
the species, as was the case with the coho salmon in Klamath Falls. I
think it is only fair to say this, too. Certainly the great majority of
Federal employees who work with endangered species are ethical and
hard-working. I have met them and have worked with them. Unfortunately,
it appears that an end-justifies-the-means mentality has become more
and more pervasive. The absolute authority granted by the Endangered
Species Act has given license, I believe, to rather serious abuses.
For those reasons, legislation like H.R. 4840 is important to the
true protection of endangered species. The Chairman's bill will require
that the Secretary of the Interior set standards for the scientific and
commercial data that is used to take actions under the Endangered
Species Act. The bill also will give greater weight to data that has
been field-tested or peer-reviewed, which is very important to my
constituents who have lost faith in the process. The insertion of sound
science into the Endangered Species Act will only serve to enhance the
protection of these species by proving to people throughout the country
that the species in question truly needs to be protected. I thank the
Chairman for his efforts and the opportunity to testify here today.
______
The Chairman. As you folks have noticed, we have a vote on.
We have a 15-minute vote, and then two 5-minute votes following
that. So what do you want to do?
Mr. Rahall. We are being pretty loaded on the floor with
votes, Mr. Chairman.
The Chairman. First, I will recognize the gentleman for a
unanimous consent.
Mr. Rahall. I ask unanimous consent that all Members on my
side of the aisle be allowed to put statements in the record,
and Mr. DeFazio to follow immediately.
The Chairman. Without objection, so ordered.
[The prepared statement of Mr. DeFazio follows:]
Statement of The Honorable Peter DeFazio, a Representative in Congress
from the State of Oregon
I have been a strong advocate for Endangered Species Act (ESA)
reform since the bill expired in 1992. I sincerely believe that we can
make changes to the ESA that make it work better for individuals and
communities impacted by management decisions made due to the ESA, and
for species we are trying to recover.
In 1995, I favored ESA reforms that would help both communities and
endangered species. The bill I supported would have maintained the core
principles of the ESA, but could have prevented the fish versus people
situation that we saw in the Klamath Basin last year. The reforms would
have involved the state in any proposed species listing. It would have
allowed the state to propose a Habitat Conservation Plan or other long
term recovery strategy to prevent a listing. It would have also
required Federal agencies to weigh social and economic impacts prior to
listing a species. Unfortunately, the moderate, bi-partisan reforms I
supported were rejected. Instead, a virtual repeal of the ESA, by
Representative Pombo, was pushed through the Committee. Fortunately,
the Majority's approach to reforming the ESA was rejected by the
Republican leadership and never allowed to reach the House floor. I
hope that is not the direction the Committee takes this time around.
I wholeheartedly support making sure management decisions are based
on sound science. I don't think anyone wants to see ESA decisions being
made based on science that is faulty or inaccurate; especially when the
impacts of those decisions can have devastating social and economic
impacts on local communities.
At the same time, we must allow scientists within our Federal
agencies to do their job, and give them the resources to do it well.
They must be allowed to use all the tools available to them, such as
modeling, in an effort to make good decisions based upon available
data. In addition, simply requiring more and better science of agencies
that are severely underfunded will lead to worse science and therefore
worse management decisions not better. Through stringent peer review of
some key management decisions, and the science that informs them, we
can move a long way toward weeding out seemingly arbitrary or
capricious management decisions. I believe this can be done without
drastic reforms that will undermine the ESA.
I hope the Committee recognizes that a better ESA can result from
working together on a bi-partisan solution in the push for sound
science. I am certainly willing to work with my colleagues on both
sides of the aisle to ensure that the best science possible is used in
making ESA decisions.
______
The Chairman. The gentlewoman from Wyoming is next.
This is kind of important stuff. I would appreciate your
coming back at the conclusion of the gentlewoman's comment.
STATEMENT OF THE HON. BARBARA CUBIN, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF WYOMING
Mrs. Cubin. Thank you, Mr. Chairman. I would like to
respond to Mr. Rahall's comments before I start my formal
remarks.
First of all, I do not accept that there are countless
success stories in the Endangered Species Act, especially when
you consider the costs to the State and the cost to private
individuals due to their inability to use their land to make
their living. But I accept that there are some. And I think
what we need to do is we need to find out, as you said, Mr.
Rahall, what the facts actually are and what is exaggerated and
what is not exaggerated.
Another remark that was made is 99 percent of listed
species have been prevented from going extinct. We need to look
at what is an endangered species. The wolf was put back in
Yellowstone under the Endangered Species Act. There are 60 to
70,000 Canadian gray wolves alive and well on the North
American Continent, but they live in Canada. Because there is
an imaginary circle drawn by Bruce Babbitt around Yellowstone
National Park, it was determined that the gray wolf was
endangered, even though 60- to 70,000 were alive. That is
another thing. I do not consider that a success story for
saving the gray wolf from extinction. So there is another area
that we need to look at.
There is one thing that binds most of us together who live
in the West, it is the Endangered Species Act. While I could
testify on how this law does not work or how it is only
enforced in the rural West, which we know when we look at the
Woodrow Wilson Bridge being built out here, or about how many
billions of dollars that it has cost those who live near our
public lands. That is not the purpose of our testimony today.
Today I wish to share a textbook case which highlights why
passage of H.R. 4840, the Sound Science for Endangered Species
Planning Act of 2002, and peer-reviewed science, is so vital to
achieve fair and just enforcement of the ESA.
On May 13, 1998, the Preble's meadow jumping mouse was
designated as threatened in Wyoming and Colorado. Later, in
March 2001, the Fish and Wildlife Service reached an out-of-
court settlement with Biodiversity Associates, a quasi-local
environmental group, to set aside critical habitat for the
Preble's meadow jumping mouse.
I have to add as an aside that the State of Wyoming has
continually been thwarted when trying to determine just how the
science was done to make these determinations, such that the
State was forced to file a Freedom of Information Act request.
At any rate, this action affects over 19 areas in southern
Wyoming and thousands of square miles in Wyoming and Colorado.
According to the Fish and Wildlife Service, these recovery
areas were chosen through three different methods, and this
really is important:
First, a trapper who was holding a live mouse looked at it
and said, it looks like a Preble's or a subspecies of the
Preble's mouse. Very few of these eyeball judgments were
recorded by a photograph. No pictures, just a judgment by a
trapper looking.
Second, the trapper took hole punches, the size of a pen
tip, from the mouse's ear for a DNA sample. These samples were
proven to be inconclusive in showing that the mice are Preble's
meadow jumping mice.
Third, a mouse died, or was killed, and the skull was used
in morphology studies, along with comparison to other skulls
held in museums, to measure within one-hundredth of a
millimeter to determine if the sample skull was a subspecies of
the mouse. These, too, have proven inconclusive to those who
reviewed the work.
Each time one method gets discredited, a new ineffective
method crops up. Many times during the Preble's recovery team
meeting, several different well-respected scientists and
statisticians from across the country have shown that these
approaches were totally ineffective. However, the shoddy
science collected by the Fish and Wildlife still stands, and
folks are still going to lose some of the beneficial use of
their private lands to recover a jumping mouse, who no one has
yet shown to ever have existed in Wyoming.
Is it unreasonable to ask that a law require a sound
scientific basis before restrictions are placed on thousands of
acres?
Further, in many instances private property owners, with
good reason, did not allow Fish and Wildlife Service onto their
property for a survey. These landowners were concerned that the
use of their private land to support their families would play
second fiddle to the recovery of a jumping mouse that has not
been proven to ever have existed in Wyoming. They were
justified in their concerns, and I do not blame them.
I have been told that some of these private lands were
designated through drive-by surveys--that people did not even
get out and look at the ground--and aerial photos.
These are real people who have real concerns, and I request
sound science be the basis for the enforcement of ESA, not
eyeballing mice for an identification that even DNA samples
cannot prove conclusively.
I request that Federal agencies cooperate with the States
involved and not hide the data from the States to make these
determinations. It is an unfortunate day when the science used
to restrict public and private land is so sloppy that it must
be hidden out of the fear that it will be exposed for what it
is.
Thank you, Mr. Chairman.
The Chairman. Thank you.
[The prepared statement of Mrs. Cubin follows:]
Statement of The Honorable Barbara Cubin, a Representative in Congress
from the State of Wyoming
I thank the Committee for the opportunity to testify today.
If there is one thing that binds those of us who live in the West
together, it is the Endangered Species Act. While I could certainly
testify on why this law does not work, or how it is only enforced in
the rural west, or about the many billions of dollars it has cost those
who live near our public lands, that is not my purpose today.
Today I wish to share a text book case which highlights why passage
of H.R. 4840, the Sound Science for Endangered Species Planning Act of
2002, and peer reviewed science, is so vital to achieve fair and just
enforcement of ESA.
On May 13, 1998, the Preble's meadow jumping mouse was designated
as ``Threatened'' in Wyoming and Colorado areas. Later, in March 2001,
the Fish and Wildlife Service reached an out-of-court settlement with
Biodiversity Associates, a quasi-local environmental group, to set
aside ``Critical Habitat'' for the Preble's meadow jumping mouse.
I might add as an aside that the state of Wyoming has continually
been thwarted when trying to determine just how the science was done in
these determinations, such that the State was forced to file a Freedom
of Information Act request.
At any rate, this action affects over 19 areas in southern Wyoming
and thousands of square miles in Wyoming and Colorado. According to the
Fish and Wildlife Service, these recovery areas were chosen through
three different methods:
First, a trapper, holding a live mouse, looked at it and said the
mouse looks like a Preble's or a subspecies of the Preble's. A very few
of these ``eye ball judgements'' were recorded by photograph.
Second, the trapper took hole punches, the size of a pen tip, from
the mouse's ear for a DNA sample. These have proven to be inconclusive
in showing these mice are Preble's meadows jumping mice.
Third, a mouse died or was killed and the skull was used in a
morphology study, along with comparison to other skulls held in
museums, to measure to the one-hundredth millimeter to determine if the
sample skull was a sub-species. These too have proven inconclusive to
those who review the work.
Each time one method gets discredited, a new ineffective method
pops up. Many times during Preble's Recovery Team meetings several
different well respected scientists and statisticians from across the
country have shown these approaches ineffective.
However, the shoddy science collected by the Fish and Wildlife
still stands, and folks are still going to lose some of the beneficial
use of their private lands, to recover a jumping mouse who no one has
yet shown to ever exist in Wyoming. Is it unreasonable to ask that law
require a sound scientific basis before restrictions are placed on
thousands of acres?
Further, in many instances private property owners, with good
reason, did not allow the Fish and Wildlife Service onto their property
for a survey.
These land owners were concerned that the use of their private land
to support their families would play second fiddle to the recovery of
the jumping mouse that has NOT been proven to ever have existed in
Wyoming!
They were justified in their concerns. I'm told some of these
private lands were designated through ``drive by'' surveys or aerial
photos.
These are real people, who have real concerns. I request that sound
science be the basis for enforcement of ESA, not ``eyeballing'' mice
for an identification that even DNA samples cannot prove conclusively.
I request that Federal agencies cooperate with the States involved, and
not hide the data used to make determinations.
It is an unfortunate day when the science used to restrict public
and private land is so sloppy that it must be hidden out of fear that
it will be exposed for what it is.
______
The Chairman. We will stand in recess. I urge members to
come back.
[Recess.]
The Chairman. The Committee will come to order.
The last person to testify, I believe, was Mrs. Cubin from
Wyoming. I do not see anybody on the Minority side. So next in
line was Mr. Rehberg.
STATEMENT OF THE HON. DENNIS R. REHBERG, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF MONTANA
Mr. Rehberg. Thank you, Mr. Chairman. I appreciate the
opportunity to commend you, Mr. Chairman, for the introduction
in the hearings of this opportunity on 4840. I spoke to a group
of students this morning, and when asked how I got into
politics, I told the story that my great grandfather created
the Milk Control Board in Montana. My grandfather served on the
Milk Control Board, and my dad sued them.
That is just what the Endangered Species Act reminds me of.
By the way, when I was Lieutenant Governor, we eliminated it,
so it took four generations to get back to where we should have
been in the first place.
When the Endangered Species Act was created, it had a good
motive, and the motive was try to save plants and animals. None
of us disagree with the premise behind the Endangered Species
Act. But I have to tell you when you have bumper stickers in
the State of Montana that say, ``Shoot, shovel and shut up,''
something is not working.
You have created an opportunity within the U.S. Congress
and the court system where we are more litigation-driven than
we are driven by creating the incentives to do the right thing.
And so, while I hold some optimism over the legislation in
front of us, sometimes I worry that perhaps we do not own the
term ``reform'' when we talk about tax reform. There is good
tax reform and bad tax reform. When we introduce legislation
that has sound science and peer-review Committees, I worry that
sometimes by establishing a standard such as ``sound science,''
that we do not own that term either, and we may not like the
sound science that some of our colleagues on either side of the
aisle might implement to determine what an endangered species
is or what a critical habitat may be.
I had an opportunity to travel to Nebraska on behalf of the
Committee and have an endangered species hearing with
Congressman Osborne. And with due respect to our colleague from
West Virginia, maybe this Committee and some of the members on
this Committee need to get out more and travel around the
country, because they will find that emotions have not cooled
when we are talking about endangered species.
When people in Washington, D.C. are considering listing the
prairie dog as an endangered species, I would like to take them
out to my ranch and show them four towns that have entirely
decimated the grasses on that ranch. I would like to take them
down to Nebraska, where we were, and show them the habitat of
the crane that has never existed, but they want to make a
determination that it is a critical habit.
And so I do not know if I hold out a lot of optimism that
even this legislation will have the desired effects that we
would like it to. I commend you for introducing it, getting the
debate underway. I thank the Chairman for appointing me to the
ad hoc Committee that you did to try and solve the issue. It
was a bipartisan coalition of unlike-minded people. It took us
2 months to decide where to meet and when, so that will tell
you how contentious the issue is.
But I came to the conclusion during these meetings that we
all look at the Endangered Species Act from a different
perspective. And while those that represented urban areas
served on the Committee with their own desire to try to get
back to something that was in the past, those of us who
represent constituencies like mine in the State of Montana look
at the Endangered Species Act as sometimes not being enforced
consistently.
In Montana, I frequently use the example that the good guys
are finally suing the urbanites over the Wilson Bridge and the
aqueduct along the Potomac. Despite the fact that there is an
endangered species being impacted within the Potomac, it seems
like that project carries forwards. And yet if we have a
project that we want to consider in Montana, the project cannot
move forward, and so the law is being enforced inconsistently.
I hope these types of legislative proposals will allow us
the opportunity to bring some sense back to the Endangered
Species Act, and for that I commend you, Mr. Chairman, and
wholeheartedly support your bill. Thank you.
The Chairman. I thank the gentleman from Montana.
[The prepared statement of Mr. Rehberg follows:]
Statement of The Honorable Dennis R. Rehberg, a Representative in
Congress from the State of Montana
Mr. Chairman, I commend you for holding this hearing on your
legislation, H.R. 4840, which amends and reforms the Endangered Species
Act to ensure the use of ````sound science``'' in its implementation.
The ESA as it stands is flawed in several respects:
it is driven not by sound science but by litigation;
it focuses on undeveloped land while discouraging
positive management techniques to increase species populations;
it inflicts human, economic, and social costs with little
or no evidence of success in the recovery of endangered species; and
it imposes undue financial and regulatory burdens on
landowners when valuable resources are found on their property.
It is time we do something more than discuss existing endangered
species laws, regulations, and policies and complain about the problems
and hardships they impose.
It is time to, instead, address these issues and come up with real
world solutions. It is time to take a hard look at the Act and offer
suggestions and solutions to the unique challenges of ESA
implementation.
The ESA itself gives little guidance as to what information or
````science``''--these scientists and wildlife biologists need to
consider before justifying a species'' inclusion on the list. This
leaves an enormous amount of discretion to those gathering information.
However, H.R. 4840 addresses a major problem with the ESA--the fact
that it lacks definitions as to what constitutes the ````best``''
science. The ````best``'' science is that which is collected by
established standards or protocols and analyzed in the manner most
appropriate. The ````best``'' science is not necessarily the science
that ````proves``'' what one wants it to approve. That is simply the
most ````convenient``'' science.
H.R. 4840 streamlines the scientific process involved and creates
an avenue to allow the BEST science to serve as the basis of endangered
species decisions, as opposed to the ````most convenient``'' science.
In Montana, the overreaching effects of the ESA affect Montanans on
a daily basis. Foresters are precluded from harvesting timber because
of possible implications on a species; ranchers fear for their herds
because of wolves. But before any of that, scientists must determine
whether a species deserves to be ````listed``'' as endangered or
threatened.
It is imperative that everyone reads off the same page. We need
consistency in the Endangered Species Act, from scientific basis to
enforcement of the law, but enforcement is another discussion for
another day.
In general, the ESA needs to be reformed. This legislation is the
first step towards resolving the bureaucratic nightmare of policies and
regulations and the multitudinous litigation associated with the Act. I
look forward to hearing testimony on this aspect of ESA reform.
______
The Chairman. The gentleman from Tennessee.
STATEMENT OF THE HON. JOHN J. DUNCAN, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF TENNESSEE
Mr. Duncan. Thank you very much, Mr. Chairman. I thank you
for calling these hearings.
This is a very important issue. And some people are
surprised to learn that my home State of Tennessee has the
fourth-highest number of endangered species or candidates for
the endangered species list. And the U.S. Supreme Court case
mentioned in the briefing paper over the Tellico dam is a case
that came out of my district. The construction of the Tellico
dam in Tennessee was held up for years because of something
called the snail darter that supposedly was endangered. And
then, after we added many millions of dollars to the costs, and
delays and so forth, probably several hundred million more than
what that dam cost than what it should have, they found snail
darters all over the whole country.
And when you use the Endangered Species Act to tell farmers
and ranchers and other property owners that they cannot use
their property in the way that they wanted to, you take away an
important element of the freedom that people have always valued
so highly in this country, so you have a less free Nation, and
I think that is an important consideration.
And when you tell people that they cannot develop but just
a small portion of their property, then you jam people closer
together in smaller and smaller areas and you drive up the
costs for homes and other things, and the costs of building
projects, and those costs have to be passed on. And so who gets
hurt by that? Not wealthy environmentalists, but the poor and
lower-income and now the middle-income type people.
The Washington Times in the mid-1990's ran an editorial
that said this: ``the Federal Endangered Species Program is out
of control. Expenditures identified in recovery plans grossly
understate the actual costs of recovery, because many tasks
called for in the plans do not include cost estimates, and none
of the costs imposed on the private sector are included. The
government has no idea of the true cost of the Endangered
Species Program. Though unmeasured, the cost of implementing
the Act as currently written are in the multibillions. Yet, in
over 20 years, not a single endangered species has legitimately
been recovered and delisted as a result of the Endangered
Species Act.''
They gave examples of--at that time, the Fish and Wildlife
was trying to spend, that year, $70.2 million to help the
blunt-nosed leopard lizard recovery, $85.9 million for the
loggerhead turtle, $53.5 million on the Black-capped Vireo, $29
million on the Swamp Pink, whatever that is.
One gentleman said earlier something about a conspiracy.
Nobody is saying this is a conspiracy. And they talked about
helicopters and the U.N. and things that were totally off base,
I think. When people cannot argue something on the merits, they
sometimes get into childish sarcasm or name calling, and I am
not saying that is what the gentleman intended to do. I do not
think he intended that at all. But we need to talk about the
merits of this legislation, and there need to be some changes
to the Endangered Species Act if it is to do what it was
intended. But we also are still going to balance that with the
needs and desires of a free country.
Thank you very much, Mr. Chairman.
The Chairman. I thank the gentleman.
The Chairman. The gentleman from Nevada.
STATEMENT OF THE HON. JIM GIBBONS, A REPRESENTATIVE IN CONGRESS
FROM THE STATE OF NEVADA
Mr. Gibbons. Thank you, Mr. Chairman. I too want to join
and applaud you for your leadership for bringing this
critically important issue before this Committee.
As I have explained to this Committee on many occasions,
those of us west of the Mississippi are in desperate need of
some real reform on the Endangered Species Act in its
application to the purpose of what it was created for. And if
we fail to implement some of these commonsense changes to the
ESA or the Endangered Species Act, the Act itself will become
endangered.
I think that is one of the critical reasons we are here
today, Mr. Chairman, is to try to put some common sense back
into it. Too often local ranchers, farmers, and State and
county governments are finding themselves and their scientific
data overruled by the emotion of the U.S. Fish and Wildlife
Service, and who are often guided in their decisions by well-
funded and emotionally driven environmental groups on some of
these issues.
My colleagues, the abuses of the ESA and the reasons we are
exploring this effort to reform the act, occur because the
preservation of our wildlife is an issue driven too often by
emotion and not enough by good, sound science that is going to
be to the benefit of the species that it is intended to
preserve.
I would like to commend you, Mr. Hansen, for holding this
hearing and for your bold efforts on this issue. And I want to
thank the Chairman for also allowing me the opportunity to take
this issue back to my home State of Nevada, and on July 27 we
are going to hold a Full Committee hearing in Elko, Nevada on
the controversial listing of the bull trout in the Jarbidge
River in Elko County, Nevada.
In this particular instance, let me explain, the Nevada
Department of Fish and Wildlife had nearly 20 years' of
scientific data recommending that the bull trout not be listed,
because there was no threat to the population data of that
species that they studied in that river, in that area, for
nearly--more than two decades. And that information and that
data was completely ignored and thrown out.
And in testimony, the U.S. Fish and Wildlife Service
admitted they had not studied the issue, they had no data on
the fish, but they were going on an emotional recommendation to
list the bull trout. They threw out the scientific data by the
State, the State biologists, and listed the bull trout as an
endangered species. And this action was motivated by a petition
drive of a special interest group, Trout Unlimited, not in an
effort to save the bull trout, but in an effort to close an
access road to the upper parts of the river by this
organization. So they used the Endangered Species Act, without
science, to accomplish a purpose that had nothing to do with
the saving of the bull trout.
That is the kind of abuse and misuse of this Act that
occurs in the West, and this is why we need to support H.R.
4840. Again, I want to thank the Chairman for granting the
opportunity to have a hearing in Elko, I certainly would
welcome any of the members of this Committee out to the Second
Congressional District of Nevada. I think you will find Elko to
be much more accommodating than even Washington, D.C., and I
hope we can continue to highlight the importance of this effort
across the country, and I would hope that my colleagues will
join me in Elko on the 27th.
Thank you, Mr. Chairman, for this opportunity. I appreciate
the opportunity.
The Chairman. When did you say it was? The 27th?
Mr. Gibbons. July 27. Let me repeat that. July 27 at 10
a.m. In Nevada.
The Chairman. If it was Wendover, we probably all be there.
Mr. Gibbons. It is actually about 3 hours to the west of
Wendover.
The Chairman. The gentleman from the State of Washington,
Mr. Inslee.
STATEMENT OF THE HON. JAY INSLEE, A REPRESENTATIVE IN CONGRESS
FROM THE STATE OF WASHINGTON
Mr. Inslee. Thank you, Mr. Chairman. I guess the only
observation I would like to make is I just wonder what people,
200, 300, 400 years from now, will be looking at if somehow the
Archives--somebody pulls open the Congressional Record 3- or
400 years from now and sort of looks at our discussion about
the Endangered Species Act and sort of asks, did our generation
save too many species or did we save too few? And I kind of
think the way things are going, that they would conclude that
we did not save enough of them because the science is pretty
compelling that we are having a rate of extinction that is
pretty compelling, that we will have a rate of extinction that
is extraordinary for the last 10,000 years.
I do not know that I will be able to collect on a dollar
bet on that, Mr. Chairman, because we will probably not be
around then, but I will bet they will conclude we did not save
enough. And I am not sure this bill heads in that direction,
but as always I appreciate the discussion.
Thank you, Mr. Chairman.
The Chairman. Thank you.
The Chairman. The gentleman from Arizona, Mr. Flake.
STATEMENT OF THE HON. JEFF FLAKE, A REPRESENTATIVE IN CONGRESS
FROM THE STATE OF ARIZONA
Mr. Flake. I too commend the Chairman for bringing this
legislation forward. Most of what I want to say has been said
more articulately by Mr. Rehberg, so I will not go on. But
Arizona has many issues here. For example, our series of
reservoirs are drawn down substantially now. Roosevelt Lake,
the largest of the reservoirs, is down to about 20 percent of
capacity. The problem is, in the meantime in the drawdown area,
the willow fly catcher has nested, and now when we receive some
much-anticipated rain, if it comes, we cannot fill it. We
cannot fill it unless we charge the ratepayers substantial
amounts, in the millions and millions of dollars, to purchase
alternative habit elsewhere or go through other extreme
measures.
So we do need to inject a bit of common sense here again,
and for that I commend the Chairman for bringing this bill
forward.
[The prepared statement of Mr. Flake follows:]
Statement of The Honorable Jeff Flake, a Representative in Congress
from the State of Arizona
Dam construction has been halted in Maine; interstate highways have
been diverted in Mississippi; on military bases and lands, everything
from bombing range practice to amphibious landings has been curtailed,
restricted, or cancelled. It has been used to restrict the use of
private land for farming, ranching and development. Called by many the
single most powerful law ever passed, the source of this land-use
control is the Endangered Species Act (ESA). I believe the Endangered
Species Act needs to be reformed and it needs to be done this year.
My home state of Arizona is addressing its own concerns with the
ESA as we speak. Roosevelt Lake, a reservoir of the Salt River Project
(SRP), provides 1.6 million people in the cities of Phoenix, Mesa,
Chandler, Tempe, Glendale, Gilbert, Scottsdale, Tolleson and Avondale
with water. The endangered Southwestern willow flycatcher breeds in
large numbers within the draw-down zone of Roosevelt Lake. After an
extended period of drought, the capacity of Roosevelt Lake is at 20
percent. When the rainy season arrives, and the reservoir fills, the
current habitat of about 250 flycatchers will be submerged, thus
causing a violation of the ESA.
The Salt River Project has been proactively planning for such a
time. SRP, through research and experience, estimates that to mitigate
that loss and to develop habitat, either above the water line at
Roosevelt Lake or elsewhere, will cost between 10 and 20 million
dollars. The flycatcher spends its winters in the tropics of Central
America. Currently we are uncertain whether it is the loss of this
breeding habitat that may be causing the species to decline. Either
way, the enormous cost of addressing its Roosevelt Lake habitat will be
passed along to the water and power users of Phoenix and other nearby
cities.
As SRP plans to address its endangered species situation and we
look to modifying the act, Zimbabwe, Namibia and South Africa have
experimented in private wildlife management that might serve as a
lesson to us. Tsessebe, a type of African antelope, were once
threatened throughout Zimbabwe. They have been able to recover on
private ranches thanks to changes in the law that granted private
landowners full control over their land and the wildlife on it. Prior
to this change, landowners had limited incentives to increase wildlife
populations because the government denied them the full opportunity to
profit from wildlife.
Our current system is a warning to any land manager that the
presence of an endangered species on that land--even the potential
habitat for a species--will likely change how that land may be used. A
regulatory taking of that land could result. This leaves no incentive
to make land attractive to endangered species, and in fact potentially
accelerates the destruction of that habitat.
Reform is needed. As we look to that reform not only must we
address sound science but we must consider innovative methods for
change, and the advantages of environmental Federalism versus political
centralization in our approach to the Endangered Species Act.
______
The Chairman. Mr. Cannon from Utah.
STATEMENT OF THE HON. CHRIS CANNON, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF UTAH
Mr. Cannon. Mr. Chairman, I apologize for being in and out.
We had a mark-up in the Judiciary Committee.
I want to thank you for holding this hearing on the
Endangered Species Act. I appreciate the comments of my
colleagues. I would like to submit a statement for the record.
But let me point out that I think it is important that we
focus on what the Endangered Species Act does so that we can
actually help species. It is my sense that we have not had a
single species that has been removed from the list of
endangered species through acts that come under the purview of
the act. Rather, you had species delisted because they are
improperly listed in the first place or because species became
extinct or because of other actions from groups or agencies
outside of the purview of the Endangered Species Act.
So from my perspective, this is an enormously important
hearing. I care about the stewardship we have of the Earth and
the animals and the plant life on it. I hope that we can focus
better on how we use our resources and less on a mechanism that
is invidious, that costs huge amounts of money to people that
are uncompensated for their losses, and which distorts our
public processes and our systems so deeply.
So I thank you for bringing this bill in and having this
hearing and I look forward to it.
[The prepared statement of Mr. Cannon follows:]
Statement of The Honorable Chris Cannon, a Representative in Congress
from the State of Utah
Thank you, Mr. Chairman, for holding this hearing on the Endangered
Species Act. This bill addresses one of the most basic deficiencies of
the ESA: the lack of good science in the implementation of the Act.
Clearly, many changes to the ESA are needed. Though H.R. 4840 is a very
good bill, it only represents the first step towards fundamental
reform. It is my hope that H.R. 4840 will be the first of many reforms
of the Act.
Simply put, the Endangered Species Act has not accomplished its
principle aim of saving species. The original intent of the ESA was to
conserve and protect American species of plant and wildlife that are
threatened with extinction. While the preservation of species is a
laudable goal, it must be achieved in a common-sense manner. The
Endangered Species Act was never intended as a tool to limit the
public's access to public lands or use of their own lands yet that is
exactly how it has been implemented.
Since its passage in 1973, the ESA has been fraught with problems.
Numerous species have been listed improperly. Enforcement decisions
have been speculative and often erroneous. Enormous, uncompensated
costs have been imposed upon private landowners. And still, to this
date NOT ONE SINGLE SPECIES has been removed from the list due to
actions resulting from the ESA. Instead, species have been de-listed
due to improper listing, other actions not related to ESA enforcement,
and species extinction.
All too often the implementation of the ESA has been based on
questionable scientific data that have received no independent peer
review. This simply cannot continue. H.R. 4840 will give greater weight
to empirical or field-tested data and will create a new, more
reasonable threshold for petitioners to meet before a listing petition
can be considered. It's past time for the Department of Interior to use
sound, objective and unbiased science for all listings and delistings.
Sound science needs to be the modus operandi for implementing the
ESA, not politics. H.R. 4840 will help remedy this problem.
______
The Chairman. The gentleman from Idaho, Mr. Otter.
STATEMENT OF THE HON. C.L. ``BUTCH'' OTTER, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF IDAHO
Mr. Otter. Thank you, Mr. Chairman. I would echo the
comments that I have heard thus far of my colleague from
Arizona, and also my colleague from Utah, and I do not see any
need in duplicating those same comments. But it does strike me
of the 24 species that we have on the endangered list in
Idaho--and we have gone through all of those, time and time
again, so I will not go through and enumerate them once more--
but we have done a better job of helping the survival of the
law schools and the graduates from the law schools than we
really have done on most of the species.
So I would hope that we could move most of these decisions
out of the courts, and do that with sound science, do that with
the best science in many cases.
I am wondering what science we call that in the Winachi
National Forest, when the results were extremely clouded from
the best scientists that were put up there to find as to
whether or not there were Canadian lynx. And, of course, we
have since heard of many other circumstances where the best
science was used in order to establish a listing either of
endangered or threatened or whatever.
But I would not disagree with Mr. Inslee, and it is too bad
that this is the first time in 19 months that I have not
disagreed with him and he is not here to hear it. So maybe I
will drop by his office and just give this speech over again.
If I could have selected 200 years ago, I suspect in all
appreciation and deference to my colleagues here who are LDS,
excuse me for calling it the Mormon cricket, but we have the
worst infestation in Idaho of the Mormon cricket. I apologize
for that, Mr. Chairman. I cannot get any lower down here.
So I would just say to you that that is one that 200 years
ago, that is one I probably would have selected and said, OK,
we will not go any further with this one. The cricket, not the
other.
Anyway, Mr. Chairman, I applaud you for your leadership and
your continued efforts in order to bring some common sense to
the whole endangered species question. Thank you, Mr. Chairman.
I yield back.
The Chairman. I thank the gentleman.
The Chairman. I point out to you that the sea gulls have
become socialists, because instead of going after the crickets
and working hard like they should, they go to the garbage dumps
where they get a free ride.
Mr. Otter. If the Chairman would yield, it would be all
right with me if you want to call them Catholic crickets, and I
would still like to name them gone, no matter what. We have a
devastating migration going on in Idaho right now, and we are
without the authority to stop them from the greatest
infestation in the location where they are, and that is all in
the public lands. We can control them on the private lands, but
we cannot control them on the public lands, and the result is
they are migrating to the private lands where all the food is.
Thank you, Mr. Chairman.
The Chairman. The gentleman from California, Mr. Calvertse
30.
STATEMENT OF THE HON. KEN CALVERT, A REPRESENTATIVE IN CONGRESS
FROM THE STATE OF CALIFORNIA
Mr. Calvert. Thank you, Mr. Chairman. I know for the 10
years we have been--I have been on this Committee, we have
discussed the Endangered Species Act and reform, and I think
this legislation is certainly timely.
In my own case in southern California, some people believe
that because it is the fastest-growing area in absolute
numbers, not in percentages like Arizona and Nevada, but in
absolute numbers, that we are ``ground zero'' for ESA. In fact,
the Carlsbad office is somewhat infamous, having an audit that
you were very helpful in obtaining for that problem of
mismanagement in Carlsbad.
And not only do we have problems in the way the law is
written, but the way the law is presently implemented. In many
cases, government agencies are not properly fulfilling their
responsibilities--and that is also wrong--and not meeting time
guidelines and so forth that is required under both section 7
and section 10 of the endangered species law. So I am looking
forward to working on changing this.
We have difficulties in California. We have the famous
Delhi flower-loving sandfly which has caused millions and
millions and millions of dollars, and probably in the hundreds
of millions of dollars in difficulties in southern California.
We would like to work with it. Unfortunately, nobody has yet
seen the fly.
But I remember one time that there was a mitigation that
was considered, that they wanted to close the Interstate 10
freeway during the alleged breeding cycle of the alleged Delhi
flower-loving sandfly, and somebody properly pointed out that
that might not be a reasonable mitigation, to close the
Interstate 10 freeway. So someone in the particular office went
back to work and apparently came up with an idea to place speed
bumps down the Interstate 10 freeway to slow down the traffic
to about 15 miles an hour, and that way, as the sandfly flew
across the freeway, it would not impact itself on the
windshield. I do not make this up, Mr. Chairman. I am just
reporting the facts.
We also have the Stevens kangaroo rat, the San Bernardino
kangaroo rat, and the Pacific kangaroo rat, all of which come
from the same base stock per se. They are all rats, but various
kind of rats. I guess over the years they have kind of mixed
and mingled and there are now variants of the Stevens kangaroo
rats. We also built a wall. Somebody decided we had to keep
rats on one side of the wall, and so they brought in the best
engineers and somebody did a study on how high kangaroo rats
jumped, and they figured out it was no more than 18 inches. So
they built this wall 18 inches around this filtration plant.
People travel from distances to see this wall. It is like the
``great wall of rats.'' I do not make this up, Mr. Chairman.
This wall was built. This wall now exists. Of course, if you
fly over it, you will see that Stevens kangaroo rats happily
live on both sides of this fence. I do not know if the Israelis
will have any more luck with their fence than the Stevens
kangaroo rats, but it did not work.
Finally, just recently we are building a new dam in my
hometown of Corona to protect our friends downstream in Orange
County. We love those people in Newport Beach. After 30 years
of mitigation, they finally came to the fact that they are
actually going to build the dam. But somebody had brought up
that the least Bell's vireo breeding cycle is about the same
time they were going to grade, and they needed to build this
privacy fence between where the grading operation is and the
trees, the willow trees on which the least Bell's vireo nest.
So we spent hundreds of thousands of dollars of taxpayers'
money building this privacy fence so the birds can do whatever
they are doing, without somebody on a tractor watching, I
guess. As I said, Mr. Chairman, I do not make these things up.
What I am trying to say is we need some commonsense reform
this to this law. We all are concerned about the environment
and certainly concerned about species protection, but sometimes
we get caught in the fly, if you know what I mean. Anyway, I
appreciate you bringing this up, Mr. Chairman.
The Chairman. I thank the gentleman from California. I will
state that all of the statements that are printed will be put
in the record as entered. Any objection? If not, so ordered.
This is going to be a very serious piece of legislation and
I think the gentleman from California is right when he says
common sense is what we are lacking in this. There are horror
stories like you can't believe about this. They just go on and
on. But it is a very emotional issue. I found that out this
morning. I foolishly went on C-SPAN on this issue and had my
head handed to me by a bunch of people pointing out that we on
the Republican side don't see the big picture and that it is
stupid to even work with it.
Well, a lot of folks don't realize that this bill is just
taking a little bite. We are not taking much at all. This is a
small bite, but one to start improving the act. And I am sure
most of us possibly would have voted for the Act in 1973. I
remember one past speaker saying to me, the one thing is the
biggest regret I ever had was voting for the Endangered Species
Act, as he lost an election. Doesn't normally happen to
speakers, as you know.
I appreciate the testimony of each person who has been
here, and I would like to point out to you that tomorrow at 2
o'clock in this room that we will have the Honorable Craig
Manson, Assistant Secretary, Fish, Wildlife and Parks,
Department of Interior, and Dr. William Hogarth, Assistant
Administrator for Fisheries will be here to testify on this
bill. I appreciate having as many of you here as we possibly
could and intend to push this and see how far we can take it. I
think it is very important that we move this bill and cover
some of the areas that we feel important.
With that, I thank you all for being here and we are
adjourned until tomorrow.
[Whereupon, at 3:35 p.m., the Committee was adjourned.]
[Additional material submitted for the record follows:]
[The prepared statement of Mr. Gallegly follows:]
Statement of The Honorable Elton Gallegly, a Representative in Congress
from the State of California
Mr. Chairman, the time for reforming the Endangered Species Act is
long overdue. The problems of the ESA, which have been highlighted by
recent debacles such as Klamath Basin and the Canada Lynx Survey, have
been of no surprise to most members of this Committee.
Both in the 104th and 106th Congresses, this Committee passed ESA
reform. I have supported both of those efforts and support this
legislation as well. We must finally enact into law the peer reviews
and stronger scientific controls that will make the ESA protective of
species, while also protecting the rights of private property owners.
While it has often been proven otherwise by outside scientific
reviews, bureaucrats have incorrectly claimed to this Committee on
numerous occasions that they acted on the best science available to
them. This is small consolation to the communities adversely affected.
Nothing can be gained by ignoring sound scientific data, including
valid data collected from all sides of an issue.
Mr. Chairman, the Endangered Species Act was meant to protect and
restore threatened and endangered wildlife. I support these goals, but
these objectives should be achieved using sound science. Instead, by
using less than sound science on occasions, the Act has had a negative
impact on the lives of farmers and landowners, while in some cases also
hurting the species the Act was intended to save. The environment and
the public's faith in the government has suffered. Let us move forward
with improving this act.
______
[The prepared statement of Mr. Radanovich follows:]
Statement of The Honorable George Radanovich, a Representative in
Congress from the State of California,
Thank you, Mr. Chairman, for holding this hearing today on H.R.
4840 to ensure the use of sound science in Endangered Species Act (ESA)
implementation.
In the San Joaquin Valley district that I represent in California,
the ESA is often viewed as a threat to many individuals, especially
those who own property. It is a threat for so many because few positive
results and many negative results have occurred since the Act was
signed into law in 1973.
One such example is the new University of California, Merced
campus, which is near my congressional district. The new UC Merced
campus went through a very public, very laborious and very long
decision-making process to determine the most appropriate campus site.
Beginning in 1988, every conceivable factor was taken into account to
develop the selected location. In fact, thirty-eight factors were
applied to eighty-five potential sites. These factors included the
level of local public support, availability of transportation systems,
and environmental issues; including air and water quality, and
endangered species. After significant adjustments of the proposed
footprint of the University were made thanks to good and thorough
science, the University rightfully thought that all significant
environmental issues had been satisfactorily addressed.
To the dismay of the University and many others, the Corps of
Engineers said, ``maybe it would behoove you to look somewhere else''
to build the campus (Merced Sun-Star, April 16, 2002). Further, the
Sacramento Bee and Modesto Bee say that the Corps ``has not received
from the University of California evidence that this campus is the most
environmentally benign of the alternatives.'' (Editorial, April 24,
2002 and April 28, 2002). It now looks like the use of sound science
does not fit into the vision of the Corps of Engineers. As a result,
the first University of California campus in the central San Joaquin
Valley is now being unduly delayed.
Similarly, I have come across a situation here in our nation's
capitol with regard to ESA and sound science. It involves the Potomac
shortnose sturgeon and the Washington Aqueduct. As you know, the
aqueduct, owned and operated by the Army Corps of Engineers, is the
source of some 200,000 tons of sludge dumped into the river every year.
The sludge, surprisingly, is dumped directly into the primary spawning
ground for the endangered sturgeon.
At a Subcommittee hearing I chaired last October, the Corps
defended this practice by referring to a study they had done on the
effects of the discharges on the river. Since I was skeptical of this
study, I commissioned a peer review authored by a highly respected
panel of scientists and biologists at the Institute for Regulatory
Science. The panel's conclusion after reviewing the study was that the
science was ``inconsistent with known scientific and engineering
standards.'' The panel further concluded that the dumping should cease
immediately, and a sludge treatment facility should be constructed.
Unfortunately, the sludge dumping continues.
These inflammatory examples demonstrate that it is critical we
support the small steps H.R. 4840 takes ensure sound science is brought
back into the ESA process. H.R. 4840 achieves this first by giving
greater weight to empirical science when Federal agencies are making
ESA decisions. Second, listing petitions, under the legislation would
be improved by requiring each petition to contain clear and convincing
proof that the species is in peril. Also, the legislation adds balance
to the current implementation of the ESA by creating a peer-review
process for the listing and delisting of species, in addition to the
drafting of recovery plans and jeopardy opinions. Furthermore, the
Secretary of the Interior must accept data from landowners regarding a
species and include the statistics in the rulemaking record. As a
farmer, I can tell you the mantra among my constituents is that if you
find an endangered species then you ``shoot, shovel and shut-up''
because the consequences against landowners are so harsh. This is not
the way to encourage landowners to protect species. The bill before us
today would help reverse the current mindset by acknowledging data
collected by farmers and provide a positive step toward a better-
working law.
In closing, I hope this Committee will move forward with H.R. 4840
as a modest bill to guarantee that Federal agencies use sound science
when executing the ESA. With over 1,200 species currently listed, and
very little if anything being done to actually recover endangered
species, it is time for Congress to provide some direction to the Act.
H.R. 4840 is a good place to start.
______
[The prepared statement of Ms. Solis follows:]
Statement of The Honorable Hilda L. Solis, a Representative in Congress
from the State of California, on H.R. 4840
Mr. Chairman, Congressman Rahall and Members of the Committee, I
want to take this opportunity to voice my opposition to H.R. 4840, the
Sound Science for Endangered Species Act Planning Act.
This bill is a step in the wrong direction. If enacted, it will
create impossible standards for listing a species for protection under
the Endangered Species Act. Although advocates for this bill believe
that it will add balance to the listing of endangered species, it will
actually serve only to put our most fragile plants and animals at risk.
I am especially concerned that we don't have enough scientists to
do the independent evaluations that are demanded in this bill. Our
expectations of evaluation need to be realistic so that we have a clear
understanding of the system and the process of listing endangered
species.
I look forward to hearing the testimony of the witnesses and am
hopeful that they can provide guidance for us so that we can have a
meaningful bill that will provide for the protection of species and
people.
______
[The prepared statement of Mr. Walden follows:]
Statement of The Honorable Greg Walden, a Representative in Congress
from the State of Oregon
There was ``no sound scientific basis''.
This was the finding of 12 scientists convened by the National
Academy of Sciences at the request off the Secretary of Interior when
they were asked to review the science used for last year's decision to
cut off irrigation water to nearly 1400 farmers in the Klamath Basin of
Oregon.
``No sound scientific basis'' for preventing water from being
diverted down canals like it has for nearly 100 years to grow crops.
``No sound scientific basis'' for destroying the livelihoods of
many farmers and ranchers in the basin and causing some to go bankrupt.
``No sound scientific basis'' for the emotional turmoil in the
basin caused by the cut off.
``No sound scientific basis'' that water held in Upper Klamath Lake
to create higher lake levels would benefit the endangered sucker fish.
And finally, ``no scientific basis'' that sending more water down
river to the endangered coho salmon would net any benefit.
In fact Mr. Chairman, the NAS study acknowledged that just the
opposite should have happened in every case I listed because the
evidence and the data showed that sucker fish kills happened less
frequently in years of low lake levels and the hot water sent down
river for the supposed benefit of the coho salmon was most probably
lethal to the very fish they were trying to save.
This is what we found when there was a sensible peer review of the
science used to make endangered species decisions. What would have
happened if the review had not been done? Would the water have remained
off this year too? Possibly devastating the lives of all farmers and
ranchers in the Basin and ending irrigated farming in the region
forever.
The bill before us today does not ``gut'' the Endangered Species
Act.'' It is not ``the systematic destruction'' of the Act that some in
the environmental committee would have you believe. It is a sensible
amendment to a law that is out of control. It basically says that these
decisions made by some of the most junior government employees affect a
lot of people. Therefore, we need to make sure that these decisions are
based on sound science and not biased or unsubstantiated information or
views.
By some estimations, the economic costs of the decision to shut off
water in the Klamath Basin reached $200 million. The cost of the NAS
review was just over $300,000. I believe that is a very good return on
an investment.
Mr. Chairman, you have highlighted the need for this legislation in
many ways. You have been very generous with your time and the time of
your staff when it comes to the Klamath Basin. The Committee has had
several hearings on the issue including a hearing in Klamath Falls that
was attended by more than 1500 people. But there are other areas of the
country that have similar situations. Earlier this year, this Committee
had a hearing on the endangered Canada Lynx and the questionable
scientific practices that went on with the Forest Service and the Fish
and Wildlife Service in that case. We have also highlighted some
problems with science on the Platte River in Congressman Osborne's
district. The list could go on and on. How many other communities have
to be impacted before we put credibility back into the Endangered
Species Act. I think it should be now and I think this bill is the way
to go about it.
The bill before us would:
Sound Science and ESA Actions
Requires the Secretary to set standards for the
scientific and commercial data that is used to take actions under the
ESA.
Requires the Secretary to give greater weight to
scientific or commercial data that is empirical or has been field-
tested or peer-reviewed.
Sound Science and the Listing Process
Sets minimum standards for the scientific and commercial
data used in listing determinations.
Listing actions must be supported by field data on the
species.
The listing agency must accept data on the species
collected by landowners.
Sound Science and Recovery Planning
Agencies preparing recovery plans are required to
identify, solicit, and accept scientific or commercial information that
would assist in preparing a recovery plan.
Sound Science and Peer Review
Every proposed listing, delisting, recovery plan, or
consultation under the ESA would be reviewed by a peer review panel.
Mr. Chairman, this bill is sensible. We should perfect it as much
as possible and pass it as soon as possible to prevent another
``Klamath'' from happening.
______
CONTINUATION OF LEGISLATIVE HEARING ON H.R. 4840, TO AMEND THE
ENDANGERED SPECIES ACT OF 1973 TO ENSURE THE USE OF SOUND SCIENCE IN
THE IMPLEMENTATION OF THAT ACT
----------
Wednesday, June 19, 2002
U.S. House of Representatives
Committee on Resources
Washington, DC
The Committee met, pursuant to call, at 2 p.m., in room
1334, Longworth House Office Building, Hon. James V. Hansen
(Chairman of the Committee) presiding.
The Chairman. Today's hearing is a continuation of
yesterday's hearing concerning H.R. 4840, The Sound Science for
Endangered Species Act of 2002.
We are pleased to have with us today the Honorable Craig
Manson, the Assistant Secretary of Fish, Wildlife and Parks,
the Department of the Interior; and Dr. William Hogarth,
Assistant Administrator for Fisheries, Oceanic and Atmospheric
Administration of the Department of Commerce. We welcome you
gentlemen here.
Yesterday's hearing brought up many important issues
dealing with this legislation. I appreciate the input from my
colleagues on both sides of the aisle. I will look forward to
more important discussion on this matter today. I hope our
discussion will be as productive as yesterday's.
[The prepared statement of Mr. Hansen follows:]
Statement of The Honorable James V. Hansen, a Representative in
Congress from the State of Utah
Today's hearing is a continuation of yesterday's hearing concerning
H.R. 4840, the Sound Science for Endangered Species Act Planning Act of
2002. We are pleased to have with us today The Honorable Craig Manson,
Assistant Secretary of Fish, Wildlife, and Parks of the Department of
the Interior, and Dr. William Hogarth, Assistant Administrator for
Fisheries, National Oceanic and Atmospheric Administration of the
Department of Commerce. Welcome, gentlemen.
Yesterday's hearing brought up many important issues dealing with
this legislation. I appreciate the input from my colleagues on both
sides of the aisle, and look forward to more important discussion on
this matter today. I hope our discussion will be as productive as
yesterday's. With that, I turn the time to the Ranking Member of this
Committee from West Virginia, Mr. Rahall.
______
The Chairman. With that, I would turn to the Ranking Member
of the Committee from West Virginia, Mr. Rahall, but I don't
see Mr. Rahall here. In that case, I guess I wont.
With that in mind, oh, we Mr. Miller here. Maybe he would
like to give the speech for Mr. Rahall. Mr. Miller,
Mr. Miller. I wouldn't dare speak for Mr. Rahall.
The Chairman. OK. In that case then, does anyone else have
an opening comment they would like to make? Mr. Osborne, Mr.
Pombo?
[No response.]
The Chairman. All right. We welcome our two witnesses. It
is good to see you gentlemen again, and we will turn to you,
Judge Manson, and appreciate your being here.
STATEMENT OF HON. CRAIG MANSON, ASSISTANT SECRETARY OF FISH AND
WILDLIFE AND PARKS, U.S. DEPARTMENT OF THE INTERIOR
Judge Manson. Thank you very much, Mr. Chairman. I am
pleased to be here to offer the administration's perspective on
H.R. 4840, The Sound Science for Endangered Species Act
Planning Act of 2002.
We continue to appreciate the Committee's interest in this
issue of the use of best available science, and we hope that we
can make some progress with our comments here today and
continue to work with the Committee on some of the issues that
are of interest to the Congress.
We support H.R. 4840 with some modifications that I will
outline. If implemented, this legislation will broaden
opportunities for scientific input and assure additional public
involvement in Endangered Species Act implementation. We also
believe that it will improve the Fish and Wildlife Service's
decisionmaking process and result in increased public
confidence in the decisions made under the Endangered Species
Act.
I appeared here several weeks ago as you know, to discuss
two related bills, H.R. 2829 and H.R. 3705. And I noted at that
time that it is important that our endangered species
conservation decisions are based on the best available science
because these decisions have a great impact on species,
communities and importantly, individuals. And one of Secretary
Norton's highest priorities is to improve the Department's
science. I have been working with Dr. Steve Williams, Director
of the Fish and Wildlife Service, and Dr. Chip Groat of the
U.S. Geological Survey and Dr. Jim Tate, Science Advisor to the
Secretary, to ensure that the Secretary's vision of improved
science becomes a reality.
At that hearing back in March I gave a description of the
guiding principles that embodied the administration's view of
how--the Department's view of how independent scientific review
should be integrated. We believe that a framework for review
should allow the service to take advantage of the expertise of
outside groups such as state fish and wildlife agencies.
On a related note, I would add that I was in Tucson
yesterday and spoke to the Department of Defense Conservation
Conference, and there are a number of highly qualified
biologists and wildlife professionals working for the
Department of Defense, and the are another group with respect
to issues concerning the Department of Defense that is an
example of an outside group that we should take advantage of as
well.
Our framework should provide an opportunity for scientists
and other stakeholders to air the differences and
interpretation of science, and it should provide flexibility to
allow a more robust independent review process for significant
resource decisions. While we continue to move ahead with our
administrative efforts, we believe that H.R. 4840 could be a
significant step forward in meeting that vision.
I want to commend the Committee for its efforts in
undertaking what is not an easy task in any context. it is
important to note that the independent review process will not
be a political process, but one that is meant to ensure that
the science behind our decisions is in all cases the best
available to our decisionmakers. In this respect H.R. 4840
requires that an independent review of science be carried out
by qualified individuals as determined by National Academy of
Science standards. The Department has had significant
experience with the National Academy of Science review process,
and we are comfortable that this provision will help ensure a
truly independent scientific review process.
In reviewing this bill one is struck by the fact that a
number of its provisions are familiar. Many have been discussed
and presented and debated before. For example, Section 4 of the
legislation, which requires solicitation of information from
states and provides an opportunity for affected persons to
participate in consultations, is substantially similar to
provisions contained in S. 1180 in the 105th Congress
introduced by Senator Kempthorne with the backing of the
previous administration and Secretary Babbitt.
I want to take a moment to mention some of the key
provisions of the bill followed by some of our concerns. First,
Section 2(c) would require that listing petitions contain
certain uniform information. These are similar to provisions in
H.R. 4579 to reauthorize the Endangered Species Act, recently
introduced by Congressman Miller. These requirements are
straightforward, common sense, which dictates that it should be
included in any listing petition. Section 3, which establishes
the requirement for independent scientific review is really the
cornerstone of the bill, and since the March hearing additional
language has been added, which provides that the Secretary must
appoint a review panel for proposed jeopardy determinations and
proposals of reasonable and prudent alternatives if the
Secretary finds they contain significant disagreement regarding
the determination or proposal or it may have significant
economic impacts.
Under the current practice the service seeks independent
review of listings. While this provision would include both
proposed jeopardy determinations and reasonable and prudent
alternatives, the language will significantly narrow the number
of actions that would be covered under this legislation. We
believe it provides balance and is an important addition to the
bill.
Further, for streamlining the review processes found in
Section 3, requirement that the Secretary develop protocols for
independent review and ensure that science panels are provided
with clear guidelines consistent with the protocols.
Another provision that the Department greatly favors is
Section 3(b) which provides that when an agency provides a
biological assessment, it must solicit and review scientific
and commercial that a perspective applicant for a license or
permit believes is relevant and make that information available
to the Secretary.
Finally, there is a growing recognition that effective
results in species conservation can be achieved by enabling
those who live and work on the land to play a greater role in
conservation of the species. The bill works toward that goal by
creating opportunities for potentially affected parties to
participate in the collection of data for use in the listing
and recovery process. We believe that that type of involvement
leads to greater scientific validity in the listing process.
I do have several suggestions regarding some specific
provisions of the bill. I note that my time has expired. I
would be pleased to discuss those at the Chairman's discretion.
The Chairman. Mr. Secretary, this is critical material to
us, and if you want to take a couple minutes more and go
through it, by all means. If you would rather do it afterwards
or another time, that would be fine.
Judge Manson. Well, I would be pleased to note just a
couple of things that we have some concerns about. First, as I
noted in March, we do have some concerns with the timelines
provided in the bill and how those timelines would work in
light of the statutory timelines already contained n the
Endangered Species Act, specifically the review for listing and
delisting should be concluded no later than the end of the
public comment period. We would like to eliminate the 90-day
period for the Secretary to consider the findings.
Additionally I would recommend that the Committee also
provide that the Secretary has the ability to convene a review
panel in cases where similar questions may exist when a no-
jeopardy determination is made. Presently the bill provides
when a jeopardy determine is made, a review panel would be
concluded.
Now, this change to allow a review panel where questions
exist on a no-jeopardy determination would allow the
Department, when warranted, to ensure that sound science
supports these decisions and provides adequate protection to
species.
Additionally the bill requires the Secretary to compensate
reviewers at a rate equivalent to a GS-14 pay grade. We
understand and agree with the intent to improve the response
from the independent reviewers by providing compensation, but
our current budget constraints would make implementation of
that provision difficult.
In addition, we have reviewed the bill and identified a few
technical issues which need further clarification and
correction. These are, as I said, mostly technical in language.
I don't think they are substantive, but we would be pleased to
work with the Committee and the staff to address those
technical issues.
On the whole we believe that this is balance legislation
that will ensure public involvement and the use of the best
available science in our ESA decisions, and we support the bill
with the modifications that I have noted.
[The prepared statement of Mr. Manson follows:]
Statement of Craig Manson, Assistant Secretary for Fish and Wildlife
and Parks, U.S. Department of the Interior
Mr. Chairman and Members of the Committee, I am Craig Manson,
Assistant Secretary for Fish and Wildlife and Parks at the U.S.
Department of the Interior (Department). I want to thank you for the
opportunity to present the Administration's views on H.R. 4840, the
``Sound Science for Endangered Species Act Planning Act of 2002.'' The
Administration appreciates the Committee's interest in ensuring the
continued use of the best available science in the protection and
recovery of endangered and threatened species.
As discussed more fully below, the Administration supports H.R.
4840 with modifications to address our concerns. We believe that, if
implemented, this legislation will broaden opportunities for scientific
input and assure additional public involvement in Endangered Species
Act implementation. We also believe it will also improve the U.S. Fish
and Wildlife Service's (Service) decision-making process and result in
increased public confidence in the Service's decisions.
As I noted several weeks ago when I appeared before you to discuss
two related Endangered Species Act sound science bills, H.R. 2829 and
H.R. 3705, it is important that the species conservation decisions we
make are based on the best available science because our resource
management decisions can have a great impact on species, communities,
and individuals. One of Secretary Norton's highest priorities is
improving the Department's science, and I am working with Steve
Williams, the Service's Director; Chip Groat, Director of the U.S.
Geological Survey; and Jim Tate, Science Advisor to Secretary Norton,
to ensure that this priority becomes a reality.
At the March 20, 2002, hearing, I provided a brief description of
the guiding principles that embody the Department's view of how
``independent scientific review'' should be integrated into our
decisions. The Department believes that a framework for review should
allow the Service to take advantage of the expertise of outside groups,
such as state fish and wildlife agencies. It should also provide the
opportunity for Department scientists and other stakeholders to air
differences in interpretation of the science behind the Service's
decisions, and it should provide the flexibility to allow a more robust
independent review process for significant resource protection
decisions. While we continue to move ahead with our administrative
efforts, we believe that H.R. 4840 could be a significant step forward
in meeting the Department's vision.
Before I discuss the specific provisions of the bill, I want to
acknowledge that addressing these issues in any context is not an easy
task, and I would like to commend the Committee for its efforts in this
regard. It is also important to note that the independent review
process will not be a political process, but one which is solely meant
to ensure that the science behind our decisions is, in all cases, the
best available to our decision-makers. In this respect, H.R. 4840
requires that an independent review of science be carried out by
``qualified individuals,'' as determined by National Academy of Science
(NAS) standards. The Department has had significant experience with the
NAS review process, and is comfortable that this provision will help
ensure a truly independent scientific review process.
In reviewing this bill, one is struck by the fact that a number of
its provisions are familiar; many have been discussed, presented, and
debated before. For example, Section 4 of this legislation, which
requires solicitation of information from states and provides
opportunity for affected persons to participate during consultations,
is substantially similar to provisions contained in S. 1180, introduced
in the 105th Congress by Senator Kempthorne with the backing of the
previous administration and then-Secretary Babbitt. As a result, we
believe that most of the provisions are reasonable, and should garner
bipartisan support.
When I testified before you in March, I outlined some of the
Department's concerns regarding the provisions in the two bills then
being considered by the Committee. These concerns included a lack of
flexibility and increased workload and costs, and our requirement to
meet statutory time frames. While many of H.R. 4840's provisions are
similar to the provisions in those two bills, the legislation addresses
some of the Department's concerns with those bills. We still have
concerns with increased workloads, costs, and timing requirements. If I
may take a moment, I would like to mention briefly several of the key
provisions of this bill followed by some of our concerns.
First, Section 2(c) of the bill would require that listing
petitions contain certain uniform information. These provisions are
similar to provisions in H.R. 4579, a bill that would amend and
reauthorize the Endangered Species Act, recently introduced by
Representative George Miller. These requirements are straightforward,
common sense which dictates that they should be included in any listing
petition.
Section 3, which establishes the requirements for independent
scientific review of decisions, is really the cornerstone of H.R. 4840.
These requirements are not a new proposal. Similar, albeit less
extensive, provisions were found in S. 1180 in the 105th Congress. As
noted above, the Department expressed some concern with the
implementation of these provisions. Since the March hearing, however,
additional language has been added to subsection (j)(1)(A)(iv) in
Section 3 which provides that the Secretary must appoint a review panel
for proposed jeopardy determinations and proposals of reasonable and
prudent alternatives if the Secretary finds they contain ``significant
disagreement regarding the determination or proposal'' or that it may
have ``significant economic impacts.''
Under current practice, the Service seeks independent review of
listings and the development of recovery plans. Thus, while this
provision would include both proposed jeopardy determinations and
reasonable and prudent alternatives, the above language will likely
significantly narrow the number of these actions that will be ``covered
actions'' under this legislation. We believe this provision provides
balance and, from the Department's perspective, it is an important
addition to H.R. 4840.
Further potential for ensuring a streamlined review process is
found in Section 3's new subsection (j)(4)(B), which requires the
Secretary to develop protocols for independent review and ensure that
review panels are provided with clear guidelines that are consistent
with the protocols. I believe that if clear protocols and guidelines
are presented to review panels at the beginning of the process, it will
expedite review and reporting and will keep those panels focused on
their true role--reviewing the adequacy of the science underlying the
decisions.
Another provision that the Department greatly favors is Section
3(b), which provides that when an agency prepares a Biological
Assessment, it must solicit and review scientific and commercial data
that a prospective permit or license applicant believes is relevant,
and it must make that information available to the Secretary. According
to Service career staff, the Service often has problems getting
complete information from other agencies. Because a robust Biological
Assessment is essential to preparation of the Biological Opinion, other
agencies should ensure that their Biological Assessments are complete.
Moreover, a complete and comprehensive Biological Assessment means a
more timely Biological Opinion. The Department enthusiastically
supports this provision.
Finally, there is growing recognition that effective results in
species conservation can be achieved by enabling those who live on and
work the land to play a larger role in the conservation of species.
H.R. 4840 works toward that goal by creating opportunities for
potentially affected parties to participate in the collection of data
for use in the listing and recovery processes as well as in the Section
7 consultation process. The Department believes this type of public
involvement leads to better species conservation decisions.
For example, Section 4(a) of the legislation provides that, when
conducting a consultation, the Secretary shall actively solicit and
consider information from state agencies in each affected state.
Secretary Norton has often cited her belief in the ``Four C's''--
Communication, Consultation, and Cooperation, all in the service of
Conservation. Consistent with this philosophy, we believe this
provision will further the Department's cooperative relationship with
states in the conservation of species.
Similarly, Section 4(b) of H.R. 4840 requires the Secretary to
provide applicants an opportunity to participate early in the
development of draft biological opinions, and it provides for access to
certain information used by the Service in the development of the
biological opinion. It also provides applicants with the opportunity to
submit comments on and discuss findings in the draft biological opinion
with the Secretary and the Federal agency. Finally, H.R. 4840 ensures
that the Secretary provides reasonable justification based on the best
data available when she declines to include in the biological opinion
alternatives proposed by a person during the development of that
document. The Department believes that this type of enablement will
lead to better species conservation decisions.
If the Chairman will allow me to make several suggestions regarding
specific provisions of the bill to address some of our concerns. As I
noted back in March, we do have concerns with the timelines provided in
the bill and how those periods would work in light of the statutory
timelines in the Endangered Species Act, and we would like to work with
you to revise the bill on this point. Specifically, we would like to
have the review for listing and delisting concluded no later than the
end of the public comment period, and to eliminate the 90 day period
for the Secretary to consider the findings.
Additionally, I would recommend that the Committee also provide the
Secretary with the ability to convene a review panel in cases where
similar questions may exist when a ``no jeopardy'' determination is
made. This small change will allow the Department, when warranted, to
ensure that sound science supports those decisions and provides
adequate protection to species.
Subsection (j)(3)(E) under Section 3 would require the Secretary to
compensate reviewers at a rate equivalent to a GS-14 pay grade. While
we understand and agree with the intent to improve responses from
independent scientific reviewers by providing compensation, current
Department of the Interior budget constraints would make implementation
of this provision difficult. Therefore, this provision must be removed.
In addition, we have reviewed this bill and have identified some
technical issues which need further clarification and correction. We
are committed to working with you and the Committee to address them.
Implementing this legislation will undoubtedly present both the
Department and the Service with challenges, particularly in light of
existing statutory time frames and budgets. We believe this is balanced
legislation will ensure public involvement and use of the best
available science in the Service's Endangered Species Act decisions,
both now and into the future. As such, we support H.R. 4840 with
modifications to address our concerns.
Mr. Chairman, this concludes my statement. I am happy to answer any
questions that you may have.
______
The Chairman. I thank you for your testimony, Mr.
Secretary.
Dr. Hogarth?
STATEMENT OF WILLIAM HOGARTH, Ph.D., ASSISTANT ADMINISTRATOR
FOR FISHERIES, NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION,
U.S. DEPARTMENT OF COMMERCE
Mr. Hogarth. Good afternoon, Mr. Chairman, and Members of
the Committee. I appreciate the opportunity to discuss science
in the implementation of the Endangered Species Act.
As the Director of NOAA Fisheries, I am a firm believer in
using the best available science in all of our decisions
regarding management of our living resources, and I support the
Committee's commitment to these efforts.
In our 30 years of implementing ESA, our goal has been to
administer the Act as officially and consistently as possible.
As you know, that task is quite challenging. ESA requires NOAA
Fisheries to use the best available scientific and commercial
data when evaluating the impact of actions on endangered and
threatened species. However, frequently we lack specific
conclusive data and analysis on how a particular proposed
project may affect a listed species or the status of a species
considered for listing. Nevertheless, even with information
that is incomplete, we must make a decision as mandated by the
Endangered Species Act.
NOAA Fisheries face an increased workload in consultations,
listing decisions and critical habitat designations. We have
also been subjected to increased litigation in our
implementation of ESA. There are some areas in which the ESA
process can be streamlined, which we are attempting to do. The
number of actions is increasing and we must ensure the changes
to the ESA add to the quality of the actions rather than length
or cost to the process.
We are also concerned about any modification to ESA that
could increase the likelihood of litigations. While more data
and scientific analysis is always desirable, we must focus on
using the best possible information available.
In my comments on specific sections of H.R. 4840, I will
focus on how we can work together to improve the science, while
minimizing the impact on the process, particularly any effects
on the length of time as well as the cost of implementing the
ESA mandate.
Section 2(b)(D), Sound Science and Decisions, these
provisions will require the Secretary to give greater weight to
scientific or commercial studies that are empirical or have
been field tested or peer reviewed. We support the goal of
basing our decisions on sound and peer-reviewed science, and we
agree that empirical field-tested data are important. However,
we would not want to diminish the use of models of populations,
habitat use and/or life histories, which frequently do
represent the best available science and are based on field-
collected data. We welcome data from sources such as landowners
or fishermen, for we can evaluate this data and compare it to
data that has been systematically collected.
Section 3, Independent Scientific Review. This section
would require agencies to use independent scientific review
boards to review listing or delisting decisions, recovery plans
and jeopardy decisions. NOAA Fisheries currently uses
independent review of use in our listing and recovery plan
proposals during the public comment period. However, we would
want to work with the Committee to ensure that the bill's
requirements would not duplicate, override or compete with the
current processes. In particular, certain specific projects
already have independent peer-review processes under way.
Regarding the independent peer reviews of jeopardy decisions,
we appreciate the bill's flexibility in allowing the Secretary
to determine whether or not decisions should be subject to peer
review. We would hope that the bill would not preclude the
reviews of non-jeopardy decisions as well. These are important
decisions and we would appreciate having the opportunity to use
reviews.
Our primary concern with reviews is the potential for added
time and government cost in implementing ESA. As you know, NOAA
Fisheries is under enormous pressures to process a large number
of ESA actions. In fact we process some 90 actions per year.
And independent peer review process could potentially add 6
months to each action that is reviewed, and this type of delay
could have tremendous economic impact to businesses including
the fishing industry when we were trying to open and close
seasons and also public projects.
Regarding costs. These would include creation and oversight
of the list of the scientific reviewers and each independent
review board. Administrative nomination and selection process,
as well as the logistics of the meeting and travel will require
additional FTEs. In fact the administration opposes a
compensation position because it would require several million
dollars not included in the Department of Commerce budget. A
final concern regarding independent scientific review is a
requirement that the Secretary may not delegate the authority
to conduct all actions under this paragraph to NOAA Fisheries.
It may only be delegated to someone who has been confirmed by
the Senate, which would result in a significant demand on the
schedule of the Assistant Secretary of Commerce, and would not
be the most effective method for getting direct input into the
process.
Section 4, Interagency Cooperation. We agree fully with the
intent of this section to promote interagency cooperation in
ESA activities. Indeed we currently include information from
states in listing and recovery activities and support
opportunities to expand participation by states, the action
agency and the applicant in the development of biological
opinions. We would want to work with the Committee to ensure
the expansion of participation is meaningful and allows us to
meet our statutory deadlines on ESA tasks.
In conclusion, Mr. Chairman, NOAA Fisheries recognize that
we must continue to ensure that we integrate better science of
ESA, actions and their policy decisions, and that our process
must be transparent to gain public confidence in our efforts to
recover species. We believe that we can work with the Committee
on H.R. 4840 to reach common goals of better science and
transparency while ensuring an effective and efficient process.
We, as the Department of Interior, support the intent of the
bill, and look forward to working with you and our partner
agency to improve our implementation of ESA, and I will be
happy to answer any question.
[The prepared statement of Mr. Hogarth follows:]
Statement of Dr. William T. Hogarth, Assistant Administrator for
Fisheries, National Oceanic and Atmospheric Administration, U.S.
Department of Commerce
Good afternoon, Mr. Chairman and members of the Committee. I am
William T. Hogarth, Assistant Administrator for Fisheries at the
National Oceanic and Atmospheric Administration (NOAA) at the
Department of Commerce. I appreciate the opportunity to be here today
to discuss H.R. 4840, the ``Sound Science for Endangered Species
Planning Act of 2002.'' I commend you and the Committee for your
efforts to improve implementation of the Endangered Species Act (ESA)--
and specifically, to ensure the best available science continues to
guide agency actions and decisions regarding endangered and threatened
species.
H.R. 4840 builds upon areas of consensus by codifying existing
administrative policies, incorporating provisions similar to prior
legislative efforts that have been supported by the previous
Administration and members from both parties, and including portions of
legislation introduced by members of this Committee. Although NOAA
Fisheries has a few concerns that I will describe in my testimony, we
anticipate that these can be resolved administratively or with the
cooperation of the Committee. It is in this spirit that we join the
Department of the Interior in supporting H.R. 4840, with modifications
to address our concerns.
Since passage of the ESA almost 30 years ago, NOAA Fisheries, with
the U.S. Fish and Wildlife Service (USFWS), has sought to administer
the Act as efficiently and consistently as possible. As you know, our
task has become quite challenging. As written, ESA requires NOAA
Fisheries and USFWS to use the best available scientific and commercial
data when evaluating the impact of actions on endangered or threatened
species. When uncertainty exists, we must err toward the conservation
of the species. However, we must also ensure that the policy decisions
we make affecting a diverse range of interests are based upon sound
science. This is difficult when decisions must be made using data and
science that are still being developed, or does not have the confidence
of the public.
The situation in the Klamath Basin demonstrates how difficult our
policy decision making can become. In 1997, NOAA Fisheries listed
Southern Oregon/Northern California Coast coho salmon as threatened
under the Endangered Species Act. Critical habitat was designated
shortly after that. We acknowledge that prior to 1997, very little
information was available regarding the relationship between Klamath
River flows and the biological requirements of salmon and steelhead.
Coho salmon have been difficult to study both because of its life
history, and because the populations of coho salmon have become
depressed. Since 1997, a number of groups have gathered data and
developed analyses regarding the relationship between the Klamath
Project operations and river flows, fish habitat, and water quality.
NOAA Fisheries has worked diligently to understand and incorporate
this information, almost as soon as we have received it, in conjunction
with the annual planning process and consultations. During the
development of the 2001 biological opinion, NOAA Fisheries considered
all known minimum Klamath River flow recommendations developed over the
past 50 years, including the Phase I Flow Study by the Institute for
Natural Systems Engineering (The Hardy Study). Unfortunately, we did
not have a great deal of recent data regarding the coho to analyze.
On March 13th, I testified before this Committee regarding the
National Academy of Sciences' draft report on NOAA Fisheries' 2001
biological opinion regarding coho salmon in the Klamath Basin. The
Academy concluded that ``there is no substantial scientific foundation
at this time for changing the operation of the Klamath project to
maintain...higher minimum flows in the Klamath River main stem for the
threatened coho population.'' On June 1st, NOAA Fisheries issued a
biological opinion that will begin to develop and implement a research
program to identify and fill gaps in existing knowledge and, hopefully,
produce better, peer-reviewed science in the Klamath Basin.
We have many more examples of how we currently integrate science
into policy decisions, and I would be happy to discuss those with you
further. However, I will now provide specific comments on sections of
H.R. 4840.
Section 2(b),(d)--Sound Science in Decisions
H.R. 4840 includes provisions which would require the Secretary to
give greater weight to scientific or commercial studies or other
information that are empirical or have been field-tested or peer-
reviewed when making decisions about listing, delisting, or when
designating critical habitat. The agencies would be required to
promulgate regulations establishing criteria for scientific and
commercial data, studies, and other information used as a basis for
these determinations. It would also prohibit the agencies from
determining that a species is endangered or threatened unless data
collected in the field support the determination.
We support the goal of basing our decisions on sound and peer
reviewed science. In prior testimony, we have expressed concerns about
giving greater weight to scientific or commercial data that are
empirical or field tested, because we acknowledge that there are also
other scientific methods (e.g., modeling and statistical analyses) that
produce valuable scientific data. While it is usually a combination of
various types of scientific data that have formed the basis of our
evaluations, we recognize that utilizing empirical and peer-reviewed
information enhances public confidence in decisions.
Section 2(c)--Contents of Listing Petitions
We commend Section 2(c) of the bill, which outlines measures to
ensure the sufficiency of the contents of petitions to add a species to
the list of threatened or endangered species. This language is similar
to current policies used by NOAA Fisheries to determine whether a
petition presents information that would lead a reasonable person to
believe that the petitioned action may be warranted. The provision will
help ensure the consistency and integrity of information considered in
listing petitions.
Section 3--Independent Scientific Review
This section would require the agencies to use independent
scientific review boards to review decisions to list a species, delist
a species, or develop a recovery plan. Agencies would also be required
to employ a review board if they determined that a proposed Federal
action is likely to jeopardize the continued existence of a species,
and also in cases where the Secretary finds that there is significant
disagreement regarding a determination or proposal, or that a
determination may have significant economic impact. The section defines
who is qualified to sit on a review board, how the list of reviewers
should be developed, the appointment of the boards, how many reviewers
should sit on the board, their compensation (GS-14 pay), who may
appoint boards (only those who have been confirmed by the Senate), and
how the agencies will consider the opinions of reviewers. The
Administration opposes the compensation provision, however, because it
would require several million dollars not included in the Department of
Commerce's budget.
Currently, NOAA Fisheries incorporates independent peer review in
listing and recovery activities during the public comment period. We
would like to work with the Committee to ensure that these requirements
would not duplicate, override, or compete with existing Federal, state,
tribal, and local efforts to provide personnel and resources for peer
review of ongoing species recovery projects, such as the Independent
Scientific Review Panel that currently reviews salmon recovery projects
in the Columbia River Basin in the Pacific Northwest. Also, we would
caution that new independent scientific review requirements will create
new demands on the agencies without changes to statutory deadlines.
We commend this section of the bill for allowing the Secretary the
flexibility to determine whether a review board is necessary for
biological opinions that conclude that actions may jeopardize species.
However, we would want to work to ensure that the requirement for a
review of certain jeopardy opinions would not delay the completion of
the biological opinion or economic activities that require a biological
opinion. We are open to working with the Committee to ensure that a
process is developed to maintain timely biological opinions.
We believe that the discretion to employ review boards must be
consistent for all listing decisions, including decisions not to list a
species. The Secretary should be allowed the flexibility to convene a
review board for non-jeopardy biological opinions as well as jeopardy
opinions. This would ensure that all decisions are supported by a
rigorous review process.
Section 4--Interagency Cooperation--Consultations under Section 7 of
ESA
We commend Section 4 of the bill, which would require NOAA
Fisheries and USFWS to actively solicit and consider information from
every affected state. We currently include information from states in
recovery activities, and this provision will strengthen the cooperation
between the states and the Federal Government.
NMFS also supports opportunities for the action agency and the
applicant to participate in the development of biological opinions our
existing regulations provide. We would like to work with the Committee
to expand meaningful participation, including states, in a way that
would continue to allow us to meet our statutory deadlines for
completing opinions.
Mr. Chairman, while there may be some issues that we may need to
resolve administratively or with your help, NOAA Fisheries recognizes
we must continue to ensure that we integrate better science into our
policy decisions, and that our process must be transparent to gain
public confidence in our efforts to recover species. We believe H.R.
4840 includes some provisions to help move us in that direction. We
look forward to working with the Committee and our partner-agency, the
USFWS, to improve the implementation of the Endangered Species Act.
This concludes my testimony, Mr. Chairman. I would be glad to
answer any questions you may have.
______
The Chairman. Thank you very much, Dr. Hogarth.
And now questions for our witnesses. Mr. Pombo?
Mr. Pombo. Thank you, Mr. Chairman.
Mr. Hogarth, in your testimony you talked about the
difference between using field data or commercially available
data versus modeling, and you raised an objection to the
preference in the bill that science had included field-gathered
information would have a preference over modeling. And I am not
exactly sure what your point is with raising an objection
there. It would seem to me that actual scientific information
that is gathered in the field would be more accurate than a
computer model developed in an office.
Mr. Hogarth. I think there is some truth to that. What we
are concerned about is that if you have a limited amount of
field-collected data, sometimes a modeling exercise, if you
worked on your model, would give you a much better long-term
look at the data, and to be able to project over the long term
the impacts, rather than if you just base it on a little bit of
data from a small area. And we think that they should use a
combination, but we did not want to lose the opportunity to
have the models and to try to use the models and to perfect the
models as we get additional data. We think they go hand in
hand.
Mr. Pombo. I don't dispute what you are saying in terms of
your answer, but I would call into question what is in your
prepared testimony, because I think the answer that you gave to
the question is different than the impression at least that is
left by your prepared testimony.
Mr. Hogarth. Thank you. I will look back at that because it
is not that we oppose the field data. We think you should have
specific data.
Mr. Pombo. The purpose, I believe of including that is that
a lot of times it has come to our attention over the past
several years that your agency and others put more weight
behind a computer-generated model than they do behind actual
biological evidence that is gathered in the field, and that has
many times called into question the validity of the answer that
you come to.
I would also like to ask you, in terms of your prepared
statement you state that: ``We would want to work to ensure
that the requirement for a review of certain jeopardy opinions
would not delay the completion of the biological opinion or
economic activities require a biological opinion.''
What we are attempting to do in the bill is force you to
use good science before you make your decision, and what you
are saying in your prepared statement is: we will use good
science as long as it doesn't delay us. And you are at odds
with what I think the purpose of this bill is in terms of
sometimes it is better for you to be delayed a month or two in
coming to a final decision and making the right decision,
versus you just making your decision based upon whatever
science you have.
Mr. Hogarth. Maybe again not worded as clearly as we
tried--we did not want to add delays to this process under the
mandates we have, plus at certain times not only are we using--
you know, we do this process to open a fishery, and then, for
example, we have to do a Section 7 consultation, a biological
opinion for many of the fisheries that we open each year. And
we are concerned that if we have a delay in any of these that
that would cause undue hardship on the industry. We would like
to try to work to make sure we do this up front and within the
timeframe that we have and not add an additional 90 days or so
to the process is what we are getting at. Some we are under
important mandates and some we can plan ahead and some are
fishing season connected.
Mr. Pombo. There is I think a legitimate concern in terms
of the 90 days. The effort that the Committee is making, that
those of us that were drafting this legislation, was to have
specific timelines so that things don't just drag on forever.
There are cases where having that specific timeline may
ultimately delay a decision that should be made, and I
understand the concern behind that. And we have had discussions
and I am not exactly sure how we fix that yet, but we do not
want you to delay a decision forever because you do not have
that statutory timeline in place, and that is one of the
purposes behind that.
In your testimony you state that when uncertainty exists,
your agency must err toward the conservation of the species.
Where is that mandate in the law?
Mr. Hogarth. It is in the Endangered Species Act that you
have to make--we are mandated to make the decision, plus we
have to--I do not know the exact words on the precautionary
approach, the principle.
Mr. Pombo. I have not been able to find that in the law.
Mr. Hogarth. OK. I will see if I can locate it.
Mr. Pombo. That may be policy. That may have become common
practice, but I don't find it in law, and if you find it
there--
Mr. Hogarth. I stand to be corrected, and I will look for
it and let you know one way or the other.
Mr. Pombo. If it is there, I would appreciate it, you
pointing it out to me. Do you believe that erring on the side
of the species is using good science if no science exists?
Mr. Hogarth. Is good science? I think erring on the side of
the species if it is going extinct is the best science, yes.
Mr. Pombo. But if you do not have the science to back up
that opinion, it is just your opinion that it is becoming
extinct.
Mr. Hogarth. That is the opinion of the--as in a group that
we get together to make that decision, yes.
Mr. Pombo. But if you don't have the science to back up
that opinion, you are not using good science.
Mr. Hogarth. Well, I think you are using what you have at
hand to make the best decision you can make, and you make it on
the science you have. And if you have zero science I think we
would probably not list or we would set up a program to begin
additional information.
Mr. Pombo. But I think that your answer points out exactly
why many of us believe this bill is necessary, and that is that
a lot of times I believe that there is incomplete science
available and decisions are being made.
Mr. Duncan. [Presiding] Thank you very much, Mr. Pombo.
Mr. Miller?
Mr. Miller. Thank you, Mr. Chairman.
And, Dr. Hogarth, let me continue with you. As I understand
this legislation and legislation I have been involved in, that
is we obviously are trying to make sure that the scientific
process by which a determination is made to list or delist or
to provide recovery plans is on the best scientific evidence.
What I don't understand in this legislation, and your dialog
touched on it and you touched on it in your discussion with
Congressman Pombo, and that is why are we now giving then
preference to one kind of information versus another? it seems
to me there is an internal inconsistency when you say we want
the best science, but we are going to give higher standing to
field-tested work or we are going to give higher standing to
commercial studies as opposed to what, as opposed to
governmental studies? If you want the best science, it seems to
me--the concern I have heard out there from people who have to
live and work with the ESA on a daily basis from the commercial
side, from our cities and counties and developers and others,
is whether or not they are confident that all of this has been
considered. It is not about whether it has been weighed or not
or whether their science has been judged the best science or
not, but in many instances I think there is a proper claim that
sometimes it hasn't been fully considered, because maybe people
don't like it because it is commercial. That is not the test.
The test is does it add to the debate and is it probative and
is it helpful in arriving at the conclusion? And so I think I
share your concerns with this legislation that we put a
preference for empirical field tested and peer-reviewed data.
Is that fair to say that you have that concern? I don't want to
put words in your mouth.
Mr. Hogarth. No, no. That is what we say. We do have that
concern. We want all the data to come forward and to evaluate
it, and we don't want to just base the decision on that limited
data and to exclude the use of models that give us some
predictive capability. We use models in everything we do today.
I think if you look at hurricane predictions and everything we
do, it is based on model projections, and we think that a model
that is field tested is an excellent way to go for the long
term. But we use all data that we can come forward with in
making our decisions, all data that is available.
Mr. Miller. Because the current law says that the Secretary
shall make a determination as required by Subsection (a)(1)
solely on the basis of the best scientific and commercial data
available to him--we will probably want to amend that when we
get back to it--available to him after conducting a review of
the status of species. I mean that is what is driving it. I
think there are legitimate questions about whether or not that
in fact takes place, but whether or not you are giving greater
weight to one type of evidence versus another. Field-tested
data may be completely flawed. One of the reasons we are here
is because some people tried to pretend that they had field
tested some data that didn't turn out to be real. So how do we
give greater weight to that?
Commercial data may be driven, as we know, by the payment
of the contract. That is not to denigrate all commercial
studies, but you have to weigh that in the universe, don't you,
of what science you have available?
Mr. Hogarth. The way we go through this process, and maybe
this will explain it better, we put together a panel and that
panel usually includes Federal people, State people, and
sometimes independent people, and we bring all the data that we
can find to that panel to make a decision or recommendation on
listing, and then that is then reviewed up through the chain of
command to make the final decision, but the scientists use
every bit of data. Now, when you go to a model sometimes some
data may be left out because you do not have the specifics of
that that would fit into the model, but it is discussed when
you make the final decisions on the listing or delisting of the
process. And recovery plans also include a wide variety of
people who come together with all of that information.
So we use a team approach and use all the data we can get,
but I think there are sometimes situations where people feel
like that, ``Well, I had some data that I saw in my stream that
wasn't given the full consideration that others may have''--
Mr. Miller. We have anecdotal evidence. When you deal with
endangered species everybody has a story they want to tell you
about the guy down the street who had 100 critters on his front
porch or something.
The other concern for me is on page 3 of the bill. It says,
``For the purposes of paragraph B, evidence is clear and
convincing if a preponderance of the evidence is based upon
reliable scientific and commercial information.'' A minute ago
we were talking about this being the best science available.
``The evidence is sufficient to support a firm belief.'' In one
paragraph we have three different legal standards. We have
clear and convincing. We have a preponderance of the evidence,
and we have a firm belief. I don't see how this clarifies or
keeps you out of litigation. if I have got to sue on whether or
not there is a firm belief, I think I can probably get through
the courtroom door. And then the question is whether or not you
have a preponderance of the evidence based upon reliable
scientific evidence, but the law said you have to make it based
upon the best scientific evidence, and then of course the
question is whether all of that meant the clear and convincing.
In your testimony you say you are concerned about entering
into increasing litigation, given your workload. It seems to me
that in that paragraph alone, there is enough hooks for every
lawyer in town to hang their coat on. Do you think that is all
one legal standard?
Mr. Hogarth. Well, I think that, as we said earlier, we
think that this bill is going the right direction, but we would
like to work to try to tighten it up some because we are
concerned about anything that gives increased litigation. And I
think we can work with the staff and can work through those
issues. We all want better science, and I think we can work
through these issues.
Mr. Miller. The other question is, on the consultation
process, the question is who gets involved in the Section 7
consultations? I don't have the language right in front of me,
but it is essentially, it looks to me like the person who gets
to be involved is the person who has moved the action. But what
about other people who are impacted by that action? We will
take one close to our hearts, Klamath River. Does that mean
just the irrigation district and/or its constituents get to be
involved in that, or do the tribes downstream? Do the
downstream farmers? Do the commercial fishermen, all of who are
impacted by that decision, do they get to be involved in that?
Mr. Hogarth. After we did the Section 7 consultation on
Klamath and we did the biological opinion, we submitted it to
the Bureau of Reclamation and they put it on the website for--I
think in this instance it was--
Mr. Miller. No, I understand that. But this one suggests
who gets involved in the beginning of the process of Section 7.
Mr. Hogarth. Well, basically in the beginning is the
applicant, the one that comes forward is the one that is
involved.
Mr. Miller. So other impacted parties would not get to
participate. They get to look at it on the website when it is
done?
Mr. Hogarth. In a draft form. They get to see a draft.
Mr. Miller. But the immediate party gets to be involved--
Mr. Hogarth. Right, because you negotiate with the party on
actions that can be taken, and how you can work through the
reasonable prudent actions, what is reasonable and--and you
have to understand the project, so you have to work with them
to get the details of the project and have the project--
Mr. Miller. No, I understand that. But you also have to--my
understanding of Section 7 is also about understanding the
impacts and so you kind of take a survey of other agencies and
parties to determine how they see that impact of your action;
is that not correct?
Mr. Hogarth. No, no. Once we understand the project we do
the evaluation of the potential impacts of that. The only time
you get to review that is when the draft of biological opinion
goes out. Then everyone has a crack at saying, ``Well, you did
this wrong or your economics are wrong.''
Mr. Miller. I would be interested in--and you don't have to
do it here, but in writing, let me submit a question to you
about how this is drafted, about the beginning of that process
before the draft is done.
And then let me just finish, Mr. Chairman, by saying I
thank you for your remarks because I think this has to work on
both sides of the streets, when you list and when you don't
list. You have got to have this kind of ability to review that
decision with the best science. It has got to work both ways
because both of those decisions are critical decisions to
interested parties here.
Mr. Duncan. All right. Thank you very much, Mr. Miller.
Mr. Osborne?
Mr. Osborne. Thank you, Mr. Chairman, and I thank you for
introducing this legislation, and appreciate you two gentleman
being here today.
I would like to get Dr. Hogarth off the hook here a little
bit. You have been bearing the brunt of the hearing.
And I would like to address the remarks to Mr. Manson, and
I would like to thank you, Mr. Manson, for what I heard to be
general support of H.R. 4840, and I agree with you that this
legislation in some ways would help end some of the negative
perception of the way the Endangered Species Act is currently
being enforced. Sometimes perception is worse than reality. And
so I think an independent review is certainly very much in
order.
And I am also glad to hear you say that you would like to
have a little bit more credence given to those most affected by
the process, landowners, people who bear the brunt of the
Endangered Species Act. And I can tell you from personal
experience that many people in Nebraska have felt somewhat
disenfranchised and feel that they have been--you know, they
make recommendations that are largely ignored, and so I think
this would be very much appreciated.
And so, as you know, I have talked to you before about this
project. I am going to take maybe a minute and just kind of go
through it again. As you know, in 1978 there was 56 miles of
Central Platte River was designated as critical habitat for the
whooping crane, and out of that designation, we saw a number of
issues come up. First of all, Fish and Wildlife said, ``Well,
we ought to have certain instream flows in the Platte River,
2,400 cubic feet per second in April and May, which is
essentially non-irrigation time.'' Many recommendations were
made in the 1,300 cubic feet per second range, which means that
almost the Fish and Wildlife doubled the requirement. Some
people say that is even too deep for whooping crane. So anyway,
the instream flows are a problem.
Sediment replacement, Fish and Wildlife said, ``Well, we
need to put more sediment in the river,'' so we are talking
about 100 dump truck loads a day for years and years. And then
they changed that to pushing some islands into the stream. That
is very expensive. So that is one of the issues. The 130,000
acres for the conservation account of water, which is a
tremendous amount, and so on and so on. And the reason this is
called into question is that I think it has been pretty well
documented that no more than 1 to maybe 2 percent, at the very
most 3 percent of the whooping cranes in existence ever use
that or even visit that stretch of Platte River.
There was a study of 18 whooping cranes that had radio
tracking devices put on them, and over 2-1/2 years none of them
ever even approached that area. So we have kind of built a
house of cards here. It is very expensive. It could be
analogous to the Klamath Basin in terms of cost, because
eventually they want to work the 417,000 acre feet, which would
be in an environmental account which is equivalent to all of
the irrigation water in the North Platte Valley. And if that
was eventually taken we would have a huge economic impact.
So from our experience with Klamath, what we are asking for
is simply a study, independent study before we go forward any
further. The total cost is 160 million right now, and it is
going to get much higher than that. And I know your concern is
the cost of a study and where is the money.
And so what I would like to mention today, and I will give
you a letter to this effect, currently there is a fair amount
of money, Federal dollars going into the cooperative agreement
to help formulate the plan. And so we are suggesting that some
of that money be used for a study, and I think you will
probably get some agreement by those in the cooperative
agreement. I am not sure, but I think you will. So we would
just like to have you take a look at that. We think that is a
source of money that you already have. And if you could do
this, we would very much appreciate it.
And so I really haven't asked a question. I have made a
statement. But I am kind of interested in this, and we have
quite a big stake in it and appreciate your help. So any
comments you have, I would appreciate.
Judge Manson. Well, we would look at that and determine if
there are monies already appropriated that could be used for
that purpose.
The other thing is that with respect to the 1978
designation of critical habitat, what I would like to be able
to look at that again and see if it would meet the current
standards for designation of critical habitat. The one issue
there is that the service is currently occupied with a number
of court-ordered designations of critical habitat under court
deadline. And if we can work past that, then we can get to
looking at things like that '78 designation and see if it would
meet the current standards.
Mr. Osborne. Thank you very much. I see my time has
expired, and I yield back.
Mr. Duncan. Thank you very much, Mr. Osborne.
Ms. Solis? You want to yield to Mr. Udall?
Ms. Solis. Yes, Mr. Udall.
Mr. Duncan. All right. Ms. Solis yields her time to Mr.
Mark Udall.
Ms. Solis. Mr. Chairman, he was here before I was.
Mr. Duncan. It is listed wrong on Mr. Hansen's list. I am
sorry. We will go to Mr. Mark Udall then.
Mr. Udall of Colorado. Mr. Chairman, I think more
accurately, I was here, but Ms. Solis, she sat down and was
ready to do business and I was standing in the back, but I
will--
Mr. Duncan. Whichever.
Mr. Udall of Colorado. But I will be happy to ask some
questions.
Mr. Duncan. Go ahead.
Mr. Udall of Colorado. I want to thank my colleague, Mr.
Osborne from Kansas, for not reminding people that sometimes
people from Kansas think those of us in Colorado have actually
taken the water from the Platte River and that is why you have
the problems. And the folks from Nebraska as well have
legitimate concerns, but we will continue to work with you.
I want to thank both of the witnesses for taking time to
come to the Hill today. And at the last hearing you testified
that the provisions of the bill might prohibit final action on
listings or biological opinions until a review is conducted,
and you thought perhaps this might conflict with the statutory
timelines in the law. I get the sense now that you don't think
that's much of a concern. My question will be, are you not
afraid that you might be subject to more litigation if you
cannot meet statutory deadlines, and what type of activities
would be impacted if biological opinions cannot become final?
Either one of you want to respond?
Judge Manson. Well, I did express a concern that the
deadlines in the bill may be inconsistent with the deadlines
that are currently in the ESA. I think that that is an issue
that can be fixed. I do agree that the opportunity for review
and the use of good science is important.
There are several ways to deal with that. One, without
amending the bill, of course, a project applicant could agree
to an extension of the time to conduct consultations, but I
think that I terms of making the deadlines in the bill
consistent with the deadlines in the Act itself, that just
requires sitting down with staff and working through some of
the issues. I don't think that is a significant stumbling block
to the bill.
Mr. Udall of Colorado. Mr. Secretary, in March you
testified that the processes required in the legislation,
including assembling and compensating review boards, would be
costly to implement. It doesn't appear to me that H.R. 4840
provides any additional funding for this requirement. Do you
still have those concerns or have you seen another way to meet
those--
Judge Manson. No. I am still concerned about the cost of
compensating the review board.
Mr. Udall of Colorado. Do you think we should include some
further language in the legislation if it were to move ahead,
that would provide that additional support?
Judge Manson. Well, that certainly is at the discretion of
the Committee. Obviously, it is not something that is in the
President's budget currently.
Mr. Udall of Colorado. Mr. Chairman, I want to thank the
witnesses for taking their time to join us on the Hill today,
and I look forward to further discussions about this very, very
important act, the Endangered Species Act, and--
Mr. Miller. Would you yield?
Mr. Udall of Colorado. I would be happy to yield to my
colleague from California.
Mr. Miller. On that point in the discussion of the
timelines, if I might, in what I guess is now referred to as
the March testimony, NOAA testified that--and again, I go back
to your discussions that you and Mr. Pombo had--that, ``We
believe that giving greater weight to scientific and commercial
data that is empirical or field tested when evaluating
comparable data, we may not be using the best information.'' Is
that consistent with your testimony today?
Mr. Hogarth. Yes, sir.
Mr. Miller. And I assume that is again because it is about
taking all of the information to arrive at the best scientific
conclusion, is it not?
Mr. Hogarth. That is correct. We are not trying to
belittle, by any stretch of imagination, any empirical or
field-tested data. That is part of the package that you look
at.
Mr. Miller. And one of the things in this legislation is
about fluctuations in populations and whether they are normal
or not. It would seem to me that modeling there may be very
helpful, because if you could model climate, wet years, dry
years, stream flows, and then compare that with whatever we
know about those populations, you may have a reason or you may
have an understanding of the fluctuations in those populations.
So modeling would contribute to the other data that is
available, would it not?
Judge Manson. That is correct.
Mr. Miller. And in many instances, I assume that we believe
the modeling is accurate. I mean, we model missile systems, and
weapon systems, and brain surgery, and the genome. I mean, we
do all kinds of modeling today that we have high, high reliance
on, and a sense of reliability is I guess what I mean to say,
that we place a great deal of reliability on, do we not?
Mr. Hogarth. That's correct, yes. Most things, at this day
and time, look like they have a model associated with them. I
said earlier we predict hurricanes by models, we predict
weather by models. We feel like we need good field data to
verify the models, and we try to go out and gather the data
that will supplement the models and to verify the models to
make them more accurate. So the modeling is a vital part of
what we do, but so is all data that people could bring forward
because that helps you verify the model in the long run.
Mr. Miller. Twenty-five--go ahead. You are right.
Mr. Duncan. Mr. Udall's time has expired, and so I am going
to go next to Mr. Walden.
Mr. Walden. Thank you very much, Mr. Chairman. I appreciate
the courtesy of the Committee. We are in a markup in Energy and
Commerce right now--well, we will resume in 10 minutes, so I
have to go back over there, but I do appreciate it.
Dr. Hogarth and Mr. Manson, thank you for being here. I
have read through your testimony, and Dr. Hogarth, especially
your comments relative to the Klamath Basin because you know
that's one concern I obviously have shared with you and this
administration.
In that case, do you feel the decisions made by the
National Marine Fisheries Service last year followed empirical
data and was there science to back them up on the river flow
issues?
Mr. Hogarth. We feel like the biological opinion that we
just put out, the one that just went out, we relied a lot on
what the NRC had said, and what the audit study said and all.
We tried to base it on all of the data we had in hand. We
realized that, in doing that biological opinion, a lot of that
you know is a 10-year biological opinion, and we felt like
there was a lot of things that needed to be field-tested based
on NRC comments, the audit comments and our own biologists'
opinion. So there was a lot of things built into that
biological opinion to verify for long term.
Mr. Walden. You are using Hardy 2 data now, right?
Mr. Hogarth. That is correct.
Mr. Walden. Has the Hardy 2 data that you are using been
peer reviewed?
Mr. Hogarth. It is in the process now. It has been, to a
certain extent, but it is in the process of being peer
reviewed, and also the NRC is looking at it as part of the
final report that they will give us probably next March.
Mr. Walden. Has there been any issue raised, that you are
aware of, involving the baseline data used by Hardy 2? Has
there been any change?
Mr. Hogarth. There has been some question, and I am not
aware of all of the details, but there has been some questions.
Mr. Walden. My understanding is that the original data
being used for Hardy 2 was disallowed because it was collected
for another purpose and was not allowed to be used for
something else, Hardy 2, and so they have had to go back and
kind of start over.
Mr. Hogarth. There were two, the Hardy 1 and the Hardy 2,
and they are both I think being looked into.
Mr. Walden. I think this was within Hardy 2, actually. You
might want to check on that.
Mr. Hogarth. Yes.
Mr. Walden. Because I think that raises the issue, and I
have had this conversation with some of my colleagues on the
other side of the aisle. I am trying to get it where we make
sure the science that is used is peer reviewed, whether you are
listing or delisting, whether you are doing consultation or
recovery or even the issue that came up about the data leading
up to a decision to list or not list, that is fine with me if
you want to peer review that.
But I just watch what happened in the Klamath Basin, and
the follow-up that the NAS did, the Research Committee for the
NAS, that basically said both your agency, NMFS, and the U.S.
Fish and Wildlife Service made decisions that weren't fully
supportable by the available science.
Mr. Hogarth. I think, from the standpoint of some of the
temperature stuff, the NRC did say that they don't agree, we
may be right or we may be wrong, but they don't see the
supporting evidence on it.
Mr. Walden. I think they said it more--
Mr. Hogarth. And we do have--we have stated up front there
is a lack of data on the Klamath on Coho, and that is why I
think you are looking at a biological opinion to see that it
does buildup to the flows, but it gives time to get the
information. We did not stick with the 2400 CFFs that we had
said earlier was necessary. We did go back to the NRC study,
and we pretty much negotiated based on that.
Mr. Walden. Let me ask you a question, following up on what
Mr. Miller said a few minutes ago, this issue of how we weight
the data, whether it is the field-collected empirical. In line
8, on Page 2, talks about, ``In making any determination under
this section, the Secretary shall give greater weight to any
scientific or commercial study or other information that is
empirical or has been field tested or peer reviewed.''
That wouldn't preclude, though, him giving some weight or
him--whoever the Secretary is on out--giving some weight to
modeled studies. That doesn't stop that, does it?
Mr. Hogarth. That is what we want to make clear. We hope
not, and that is why we wanted to work it out with the staff.
We just want to make sure that we have that option. That is
correct.
Mr. Walden. Are you aware of any modeling that occurs where
there isn't field data collected?
Mr. Hogarth. It would be very difficult, but there are
probably some developmental models that have been done without
a lot of field data.
Mr. Walden. So most of them would have field-collected
data.
Mr. Hogarth. Yes, some good field data. That is correct.
Mr. Walden. Because that is an issue that certainly comes
up out in my district, and people I talk to on this issue is
they really want to make sure that the data that are used, that
you give some weight to that, where people have gone out and
done in-field, in-stream studies, as opposed to somebody just
kind of coming up with some theoretical model. That is, I
think, really important.
There was a question that apparently came up about the
decisions made in the Klamath Basin on some rules versus what
has been done here in the Washington area. Are there different
applications of rules?
Mr. Hogarth. Not in my opinion, they are not. We looked at
that very closely, and I am not aware. I know there has been
some questions about ESA and Potomac River.
Mr. Walden. As you probably know, I think it is the short-
nosed sturgeon has been on the list forever out here, and year-
after-year raw sewage and storm runoff goes into the Potomac
and the Anacostia by the billions of gallons, and we have heard
all about the Wilson Bridge construction and supposedly how you
just relocate the feeding beds of clams so that the sturgeon
won't feed there while the bridge is being constructed. I can't
imagine that being an alternative available to the farmers and
ranchers in the Klamath Basin.
Mr. Hogarth. First off, there is no evidence of shortnose
sturgeon within 50 to 60 miles of the Washington Aqueduct. What
few sturgeon have been seen look like it came through the
Delaware canal, and we are not sure that that was, you know,
but just based on water levels. We are going to find out. I can
tell you that.
I have heard so many comments here that we have gone
through the Potomac River Commission and the D.C. Fishery
Commission, and talked to the State of Maryland, and we will
find out about shortnose sturgeon either way around and look at
the habitat. We will do the studies to determine it, and if
they are in the area and if they have got critical habitat,
then we will take appropriate action based on that.
Mr. Walden. But I understand that your agency just
determined a ``may affect'' on those fish.
Mr. Hogarth. Right, because the ``may affect'' is--you see
the ``may affect'' is they are not in that area. So the ``may
affect'' goes back to we are not sure what would happen if they
were here. We haven't seen them in the area. We don't know. We
have no evidence of them being in the area, and so that is the
way--
Mr. Walden. But shouldn't we protect that habitat just in
case they were to stray there?
Mr. Hogarth. I think that is a point that we are looking at
now.
Mr. Walden. The reason I ask that is we are having the same
debate on lynx in my State. The Department of Fish and Wildlife
in Oregon has said we don't think they have been here ever or
at least, you know, like 10 cases in 100 years, and yet we are
seeing the Federal Government come in and say, oh, gee, maybe
we better restrict any activity in the forest around there
because they may be showing up.
Now I realize that is not in your agency, and I realize I
have also run over my time, but could it be that the fish
aren't there because of what is getting dumped in the river? I
mean--
Mr. Hogarth. I think if the fish were in the river, we
would have seen them in this stretch, the 50- to 60-mile
stretch, the other topical habitats up and down the Potomac, we
think. That is something we will be documenting.
As I said, the question has come up, and I think it is a
valid question, and we need to go to get the evidence.
Mr. Walden. Would this have been historical habitat for
them potentially?
Mr. Hogarth. We just don't know. It could be. I mean, there
is some evidence that the habitat is suitable in that vicinity
for shortnose sturgeon, as it is in some other areas of the
river. We need to document that.
Mr. Walden. I appreciate that.
Thank you, Mr. Chairman.
Mr. Duncan. Thank you very much.
Ms. Solis?
Ms. Solis. Thank you, Mr. Chairman, and thank you witnesses
for being here.
As I understand it, the law already gives both agencies the
authority to do much of what is being presented in the bill,
and what I would like to know is if you think this legislation
is essential and if you are just saying you are supporting it
for the sake of supporting it or is it going to, you know, be
something that is going to be dramatically different from what
you are doing?
Mr. Hogarth. I will take the first go and then let Judge
Manson.
I think there are definitely, from a public perception we
are dealing with today, a lot of criticism. The Native Species
Act has administered the data that we make decisions on.
I think this bill goes a long ways toward refining that,
making it more precise, concise, and we are going to--we
conduct ESA science in the future. So I think, from that
standpoint, it is good. I think it does, in several instances,
as I say, I think we need to work with the staff to look at
timing, to look at some of the other things.
For example, in my instance, and I think this may be an
oversight, I am a political appointee, but I don't go through
confirmation. Whereas, the Director of Fish and Wildlife
Service goes through confirmation. The way this bill is
written, we wouldn't have, you know, the Secretary or the Under
Secretary would be the one that would have to do all of this,
and so he would be getting data and talking to fishermen. We
would be the ones making the decisions. I think that is
probably just an oversight on how the bill was written.
I do want to make sure that we talk about ``based on
belief,'' and things like that. That is something else we want
to talk to the staff.
A lot of that litigation comes from process, and I hate to
see us write another bill that sets up something that is not
clear, and that will just give the public more of an
opportunity to sue. Whether we win or lose, it does take a lot
of time and money.
This bill does cost us over $2 million to do the peer
review in the process that is set up. It is over $2 million
because we do 90-some actions a year. Those are the concerns we
have.
But, overall, I think the bill goes a long ways to give the
public, hopefully, a better feeling and clarifies the things we
need to do under the ESA because it is a tough bill and one
that I think causes a lot of sort of controversy, and we need
to make it clearer, and we support the bill because we feel
like there are some things in here that really do go a long
ways toward, hopefully, making the science better and perceived
as being better, also.
Ms. Solis. In your earlier testimony, though, you mentioned
that these authorities are already there within your agency,
and they are already being exercised. So isn't this redundant?
Mr. Hogarth. I think some of them are, but some of them I
think, again, a real clarification goes maybe a step further
than we go. For example, in the use of what is best science, to
talk about the empirical data and the commercial data. They
said that in the law now. How we utilize this data I think this
does clarify that, and it does, I think, point out that or it
makes it clear that we will have peer review. It sets out a
process for that involvement, which is not set out now.
Ms. Solis. So are you saying that Congress should be
allowed to define what that science is?
Mr. Hogarth. Well, I hope that the Congress would, as I
interpret this, that Congress will say use all of the science,
and I think that is, hopefully, what the bottom line says; that
we should take into consideration when we make these listing,
delisting and recovery decisions, we take into consideration
all data that is brought forward and that we use it all--
empirical field data and peer-review data--we use it all. And
if we use actual data, I think this bill says, if we use actual
data, it should be a step above just using strictly models. As
long as we can continue the modeling process, we are happy with
that, but we want to make sure we can do that.
Ms. Solis. If I might, I think one of the concerns that was
raised earlier was who is at the table to make those decisions
early on and if that, in fact, is representative of all
interested parties or stakeholders, and I think that, you know,
I find some difficulty in realizing how all of that is going to
be implemented.
Mr. Hogarth. Sometimes this has not been a--I think we are
finding in our agency, and we are trying to do this now--it has
not been as streamlined as we would like to see the process
work.
We are delegating a lot of our Section 7 to the field now,
where it has been done in headquarters, to try to make sure
that the people who are being affected have an input from the
beginning. We also asked in our council process we have to
start at the beginning with scoping, looking into various
alternatives early in the game so that the public is involved.
We have, in the past, not released a lot of our biological
opinions in draft form. We have completed them, and then we
have released them as a final biological opinion. We are now
making those available in a draft form to the people that are
affected so they can have a time to look at the draft
biological opinion and give us input before we finalize it.
So we are trying to make the process more transparent, an
that is another thing I think this bill does is try to make
sure that we have a transparent process and have the people
affected involved in it.
Ms. Solis. I would ask the Secretary the same question.
Judge Manson. I would say, first of all, that the vast
majority of the provisions of this bill are not either in
existing policy, nor are they things that could be done
administratively.
I would say, second, to the extent that we might find
things in here that could be done by way of something other
than legislation, the legislation is important because it
underscores the need for the agencies to follow processes, and
it enhances public confidence.
The third thing I would say is that these issues are
sufficiently important enough that it is most appropriate for
the Congress to examine them and to legislate--
The Chairman. [Presiding.] Does the gentlelady have
something more you wanted to ask?
Ms. Solis. Not at this time.
The Chairman. The gentleman from Tennessee, Mr. Duncan?
Mr. Duncan. Thank you, Mr. Chairman.
Judge Manson, yesterday I read a portion of a Washington
Times editorial which said that the Endangered Species Act was
simply out of control and one member said yesterday that the
bill had done more to protect lawyers than it had endangered
species. Member after member, yesterday, told all kinds of
examples of horror stories that have occurred because of this
act.
I don't suppose you have had a chance to review some of
those statements that were given yesterday in here, but have
you read some of these horror stories, and do you agree that
this act, that we need to take another look at it, because in
the last almost 30 years since this Act first came into being
that there have been some pretty unfair, even ridiculous
actions taken because of this act?
Judge Manson. I aware of the statements that the members
made yesterday, and I have heard a number of those examples
given before. I have said publicly, on a number of occasions,
as recently as yesterday in Tucson, that the administration of
the Endangered Species Act requires improvement, and there are
a number of ways to improve the act, and we hope to undertake
some of those as a matter of policy, and perhaps some as a
matter of rulemaking, and certainly work with the Congress on
bills such as this that go down the road to improve the
administration of the act.
Mr. Duncan. All right. Thank you.
Mr. Hogarth, in the Klamath Falls controversy, you say in
your statement that the National Marine Fisheries Service ``did
not have a great deal of recent data regarding the Coho to
analyze when forming the 2001 biological opinion, yet the
Agency went ahead and issued a jeopardy opinion anyway.''
Also, in your statement, you mentioned the fact that the
National Academy of Sciences said there was ``no substantial
scientific foundation for the actions that were taken.'' Don't
you think that this bill would help improve that? There was an
implication or several implications a while ago that this bill
would preclude data, when actually one of the main goals of
this bill is to get agencies to take into consideration even
more data, and specifically field data, for instance, more
emphasis on field data, but also input from landowners. Many
landowners have felt like they have really had no voice or no
input in some of these decisions.
What do you say to all of that?
Mr. Hogarth. I think, as I said earlier, we do have a
scarcity of data. There is no doubt about that. I think if you
look at the status, even based on what we have got--the Coho--
is that we have a real problem with the numbers of Coho
returning, and that is one of the things I think we had to take
into consideration.
I think, based on experience that we have, I think there is
a great deal of experience in the literature, and also we know
that you have to have habitat and flow, and that is one of the
concerns we had during the critical time that, you know, what
the flow--we may have had a difference of opinion as to the
amount of flow that is needed, but I think even the NRC talked
about thermal effusion and things that we knew we had to
examine, and that is what we are doing now.
I think any data, yes, in response to the question about
additional data in this bill and additional data, we want
additional data. If the timber companies, which I know some of
them do work out there, have brought it forward, that should be
utilized. If the landowners have it, then we should utilize it,
and I think that is what this bill says, and I think we should
make sure that is done.
Mr. Duncan. All right. And, finally, before my time runs
out, let me just mention, Mr. Osborne, yesterday, said about
the Klamath Falls controversy that farmland that had been worth
$2,500 an acre almost overnight went down to $35 an acre.
Around that time, Kimberly Strassel, who is a deputy
assistant editor of the Wall Street Journal and a columnist for
them, wrote a column called ``Rural Cleansing.'' And she had
gone to the website of specifically the Sierra Club, and I
think some of the other environmental organizations, and had
language that they had, saying that their goal really was to
get people off the land and get more land into public
ownership, and so forth, and that we needed greater density of
people in the cities and so forth, and their concern really
wasn't for the environment, it was just it was sort of a power
grab in a way. I would like to place that column, called
``Rural Cleansing,'' in the record, at this point, and I would
also like to request that each of you read that column. I will
send it to you, and you consider that as you think about the
ramifications of this act.
Thank you very much, Mr. Chairman.
Mr. Pombo. [Presiding.] Without objection, it will be
included in the record.
[The Wall Street Journal column ``Rural Cleansing'' has
been retained in the Committee's official files.]
Mr. Pombo. I would like to also ask unanimous consent that
our colleague, Congressman Thune, be allowed to sit on the dais
during this hearing.
Without objection.
Mr. Inslee?
Mr. Inslee. I would agree to that only if Mr. Thune agrees
not to play baseball tomorrow night.
[Laughter.]
Mr. Inslee. My 15-year-old son is visiting Washington,
D.C., and he would like to know what your opinions are as to
whether or not he should feel relatively confident that species
in the United States of America will not go extinct during his
lifetime.
Could you each give me your view as to whether you believe
you can give us a reasonable assurance that Federal policy will
prevent the extinction of any species during his lifetime?
Judge Manson. There inevitably will be species that will go
extinct in your son's lifetime. As to some of those species,
there is no amount of Federal policy or law that will prevent
that, at least no amount of Federal policy or law that is
acceptable in the democratic process that we have.
Species extinction, with respect to some of those species,
is completely unrelated to policy issues that we might face.
Now, as to the other ones, where policy, that is, acceptable
policy in the context of the democracy that we do have, I can
assure him that the law and, if the implementation of the law
and the administration of the law is improved, we will do a
great deal to protect the biological diversity of the United
States.
I think that it has to be done in a context--one of the
things that is important about this, it seems to me, that is
relevant to your question is that we are talking ultimately
about public policy decisions informed by good science, and as
such, there are always competing priorities, and we have to
make the public policy decisions with respect to species
protection in the context of all of the other public policies
that we have to weigh and implement. But having done that, we
will, if the implementation of the law is improved and if it is
done in a manner that is consistent with public policy
priorities, we will do a lot to preserve biological diversity.
Mr. Hogarth. I pretty much agree with what the Judge said.
I think one of the concerns is the will of the people. Some of
these decisions are going to have some great economic I think
price tags attached to them to maintain some of the species,
and so I think it is the will of the American public as to if
they want to pay that price and does Congress want to keep a
tough bill.
The Endangered Species Act is a very tough bill, and if we
can implement it properly, I think that is no problem, but I
think it is a very tough bill. There are a lot of economics.
When you start talking about the impact of recovering some of
the salmon on the West Coast, for example. I am not sure they
will ever be back in all of the streams that they were in 100
years ago, but I think we will have coho, we will have sockeye,
we will have the salmon available, but I think there are some
tough decisions that the American public will have to make and
Congress in the future.
Mr. Inslee. I note in this proposal, at least the way it
has been described, it would allow input in a certain context
from the permit applicants, but from other interested people.
So, in a context here, it would allow an applicant for a land
use to put in additional information, but not the fishers or
the people concerned, from an environmental perspective. Does
that make any sense to you to do that, to just allow the one
side, if you will, to make input on this and not everyone?
Judge Manson. Well, from my point of view, the input of the
applicant should take preference over the input of other people
because the applicant is the one who will be granted or denied
a license or a permit. The applicant is the one who will bear
the greatest economic burden as a result of the potential
denial of a permit.
I would say, however, that the bill does not preclude the
agencies from considering the input of other people who may
have an interest or who may be affected, and I would suggest
that a great deal of that is done presently. I think it is
worthwhile and important to underscore the primacy of the
applicant in this process, however.
Mr. Inslee. I can't let that pass, just to note
disagreement, at least from one Member of Congress, that any
American has any greater interest in any of these decisions
than any other great interest. I mean, that is like saying--I
guess what you are saying is, is that in a Klamath Basin
context, the water users for agriculture would have a leg up or
a greater right in consideration, as one American citizen, than
those of the tribal members, for instance, or those who are
interested in fish preservation.
Can you tell me, I guess you are saying because they have a
greater economic interest, they have a greater interest worthy
of consideration by the American democratic system?
Judge Manson. Well, it is important to understand what we
are talking about. We are talking about, in the bill, what is
talked about is the ability of the applicant to sit down with
the agencies and discuss the terms that the applicant
ultimately will be responsible for implementing, that the
applicant ultimately will be responsible for bearing the burden
of.
Now, at the same time, I indicated that the bill does not
preclude the taking into account the interests of other
individuals. It doesn't bar that at all and, indeed, the
agencies frequently, for example, the Fish and Wildlife Service
has long published draft biological opinions and has accepted
comment from other individuals about those, but the key part
about the bill is the ability of the applicant to be the person
involved in determining what conditions the applicant
ultimately must bear.
Mr. Miller. Would the gentleman yield?
Mr. Inslee. Certainly, if I have any time.
Mr. Miller. I just can't disagree with you more. That is a
very serious consideration, but to suggest that that is where
the impact or the major impact will fall, I mean, one of the
things we have learned about the environment, and we will go
back to Klamath, is this watershed stretches all of the way
from up in Oregon all of the way out to the Pacific Ocean, and
its impacts, small changes can have huge impacts on
populations, treatyholders and others downstream.
And to suggest that one person, one group gets to go in and
sit down, as it says in the bill, and discuss with the
Secretary this information is kind of contrary to sort of
fairness to all. We are not talking about everybody gets to
talk to the Secretary, but people who are directly impacted by
these actions. The purpose of the consultation is to determine
the impacts on various constituencies within the expertise of
the agencies or whatever, and now you run in one party who gets
to sit down, and submit, and discuss with the Secretary and the
Federal agencies information about their reasonable
alternatives.
Well, the tribes may have a reasonable alternative, the
timber companies may have a reasonable alternative, the
commercial fishermen may have a reasonable alternative or the
tourism industry down on the coast may have a reasonable
alternative, and they are all directly impacted, and some may
be financially more impacted because they don't get Federal
subsidies, they don't get direct payments that some of these
other people get in different watersheds. They are treated as
second-class citizens here?
Mr. Miller. Mr. Chair, just to make one parting comment.
Mr. Pombo. The gentleman's time has been expired.
Mr. Miller. Would you allow me just one parting 10-second
comment? Just to comment, you two gentlemen disagree, the
witness and the Congressman. I just think both need to be
heard. You both need to be heard on ESA issues, too.
Thank you, Mr. Chair.
Mr. Pombo. Mr. Otter?
Mr. Otter. Thank you, Mr. Chairman, and thank you,
gentlemen, for being here.
Your Honor, how long have you been with the Agency?
Judge Manson. About 4 months now.
Mr. Otter. And yourself?
Mr. Hogarth. Eight years, but I have only been the
assistant administrator since last September.
Mr. Otter. Mr. Chairman and members of the Committee, it
strikes me that one of the problems that we are having here is
many of the horror stories that we are reviewing here today
were really the result of other people making those decisions,
and we are trying to have these two gentlemen answer for all of
those decisions that were made prior to their arriving at these
agencies. So, unlike my colleagues, I am prepared to give you
folks the benefit of the doubt.
It also strikes me that of all of the science, and the true
science, and the good science, and the bad science, and
everything else, common sense is never mentioned anywhere in
this.
During this morning's hearing, we had a lot of discussion
about whether or not the laws, and the Clean Water Act was one
of those that came up, were being applied equally in the West
as to the East, and one of the panelists said that, well, one
of the problems that we have is that the East has been
industrialized, as has the West Coast, for a long period of
time, and so there was already a high level of contaminants
available.
And so when we asked you to clean up a water body in the
East, it has been that way for 150 to 200 years or has been
contributing that way for 150 to 200 years, and so when we ask
you to remove 50 percent of the pollution, you are starting
from a much higher level of pollution. Then, when we ask you to
do it in the West, we say we want you to remove 50 percent of
the pollution, we haven't had all of this buildup for 150 to
200 years, and so it is much more difficult for us to remove 50
percent of a very little bit, as opposed to 50 percent of a
whole lot.
I don't know if I am getting through to you here. It made
sense when I thought of this question, maybe it doesn't on
reflection now, but it seems to me that the agencies are trying
to apply the laws equally, but we are maybe using the wrong
models.
And if we want to reach a certain level of acceptable
contaminant in the water that is not going to endanger a fish
or endanger a species, that that is what we ought to be
speaking to, rather than percentages, but everything that we
heard from the EPA this morning was expressed in percentages,
and maybe that is what gives us the impression out West that it
is a much--it is an unfair application of the law, because, you
know, we are getting away with dumping 200,000 tons of sludge.
And I heard the folks this morning, on the other side of
this dais explaining away, well, what about all of the other
pollution that is going on with cruise ships and things like
that? But we were willing to overlook the 200,000 tons of
sludge, and it was stated because of the economic hardship that
would be put on the local folks if they had to remove that
sludge or build another catch basin or build a tertiary,
preliminary secondary and tertiary treatment to keep that out
of the Potomac River.
Well, I have to tell you, we have had some pretty good
hardships on our watershed. We have shut down 32 lumber mills
during the Clinton years, we idled 12,000 miners all because
every activity that we have in Idaho is on the watershed.
To Mr. Miller's point, there isn't anything that we can do
that we don't have to account for some part of the Endangered
Species Act or the Clean Water Act or some other rule or
regulation, and so I guess that is the frustration that we, who
come from the West, have with it because it seems so patently
unfair.
Let me ask you a question, now that my time is almost up,
Your Honor. When you are looking at a species, do you look at
it holistically in the United States or specifically to a
geographic region? When the U.S. Fish and Wildlife decides to
look at a species for threatened or endangered classification,
how do you look at that?
Judge Manson. Well, they actually look at both.
Mr. Otter. Well, then, how is the determination made?
Judge Manson. Well, the issue is whether--there are several
layers to this--but the issue is whether it is facing
extinction throughout all or a portion of its range.
Mr. Otter. I see. Well, let me give you an example. When
wolves were reintroduced in Idaho in 1994, there really hadn't
been substantiated that there was a presence there, but we
found out in other States there is actually not a bounty on
them, but there is a taking for management purposes in one of
our other 49 sister States, that they were actually taking
wolves.
But when those wolves were introduced into Idaho, let me
tell you exactly what happened. We lost the activity on all of
the watershed in the managed area as a result of that, which
included a lot of grazing for the livestock, included logging,
included mining. The logging and mining, especially the logging
that we could no longer do, has now allowed for a lot of
overgrowth. Now that has been going on for a long time because
of the suppression of fires and stuff like that.
Now we find out that we are getting perilously close to an
endangered species, a potential threatened species listing on
species like the Rocky Mountain elk and the Clearwater herd,
which at one time was the world's gene pool for elk. We are
down to 3 calves, 3 calves this year, per 100 cows of calf-
bearing age. In any other herd, you would expect a minimum of
28 for sustained numbers, but because of the wolf introduction,
and the elk, especially elk calves, happens to be the preferred
meal of a wolf, and by the U.S. Fish and Wildlife's own
numbers, each wolf pack will take 87 onglets a year, and 80
percent of those will be--87 onglets--and 80 percent of those
will be elk. So now we have another species that is being
threatened because of the introduction of a species through the
``may affect'' rule and ``could have been'' rule.
So it just seems like the faster we go, the behinder we get
in this thing. That is why it is so confusing to us. I would
like to help my colleagues figure out how we can live with this
and exist with it.
My question, I guess, comes down to do you, when you are
figuring out whether to displace or replace a species that may
have been there, like the wolf, is there an effect taken in on
the other wild species that are there?
Judge Manson. Decisions are to be made an ecosystemwide
basis, and that should include a consideration of all of the
other species that depend upon the same ecosystem and what the
effect on other species will be in that ecosystem by action
that affects one particular species.
I am not intimately familiar with the situation with the
elk.
Mr. Otter. The very nature of a wolf, and we knew this when
it was introduced, the very nature of a wolf is, once there are
sufficient numbers in a certain area, the alpha wolf is going
to take over, and everybody else sort of has to leave. They
have got to go someplace else.
So, even though we may have directed that into the Lemhigh
Range, and that is where the wolf is going to be and
reestablished, they are now in, you know, they have grown by 13
times the size that was originally intended, without a
management plan, without a plan to protect the rest of the
ecosystem, an ecosystem that they hadn't been planned to go
into. How are we going to recover, how are we going to protect
the other habitat and the other species that are now going to
be endangered?
Judge Manson. The only thing I would say is that wolf
management is a complex issue. We are trying to work with the
States affected to develop management plans for the wolf, and
in doing so, we will look at it on an ecosystemwide basis.
Mr. Otter. Thank you.
Thank you, Mr. Chairman.
Mr. Pombo. Mr. Flake?
Mr. Flake. I appreciate the testimony, and I wish I could
have been here for more of it.
But just a follow-up question. Mr. Hogarth was talking
about the sturgeon, and the aqueduct, the waterway, and the
plans to protect here, and I am struck by the measurement used
that, you know, what the threshold is, is it suitable habitat
or was it here before, has it been displaced, whatever. And
just looking at Arizona, we have a situation with the Mexican
spotted owl, where nobody has claimed that it has ever lived in
Arizona, simply that Arizona provides suitable habitat, and the
logging industry has been completely decimated--completely--in
Arizona, simply to protect what has been deemed suitable
habitat, with no claim whatsoever that it ever lived there.
It seems, I don't know how anybody could reach any other
conclusion, but that there is a different standard West and
East of the Mississippi, different thresholds as to how species
are protected.
Could I just get a brief answer from Mr. Manson on that?
Judge Manson. There should not be a different standard
between East and West, in terms of species protection. The
Agency should be applying the same legal standards, the same
biological standards, East and West, and--
Mr. Flake. Do you concede that there is a problem or that
someone could easily reach that conclusion?
Judge Manson. Well, I certainly think that I have heard
enough to be convinced that there is a perception of a problem,
and the perception needs to be dealt with either by figuring
out that it is true, and fixing that truth of it, or figuring
out where we have gone wrong in the process to leave the
impression.
Mr. Flake. How long should that process take?
Judge Manson. In terms of?
Mr. Flake. How long will it take you to determine whether
that is simply a perception or if that is reality?
Judge Manson. Well, I am not sure I could give you a 30-day
or a 90-day time line, but I will tell you this; that I will
ensure that the Fish and Wildlife Service is sensitive to that
perception and that they work diligently to ensure that that
does not become fact in any specific case that comes before
them and to understand where in the process things have gone
wrong to leave that impression.
Mr. Flake. Mr. Hogarth, you were nodding your head a minute
ago. Do you see that as a perception or a--
Mr. Hogarth. I think it is a perception. It has come to my
attention quite a bit. Like I say, I have been in this job
since September, and I think I was aware of it before then, but
I have heard it quite a bit with the Washington Aqueduct.
We are in the process now of reviewing all of the data we
can find on the Potomac River. I worked on the Potomac River
back in the--I am going to age myself now--but back in the
1960's. It was so green then you could cut it with a knife, and
you could see exactly where you had been. And I know, for a
fact, I sampled it for 5 years, there were no sturgeon in the
area.
Mr. Flake. Is the Potomac, in your view, is it suitable
habitat?
Mr. Hogarth. And that is what we have got to determine. I
think we can do that between now and next spring.
Mr. Flake. Why is it that in Arizona they can determine
that it is suitable habitat pretty quickly in order to shut
down logging operations, but here it takes a lot longer?
Mr. Hogarth. Well, I think we have to sample from the type
of bottom habitat that is there, what type of bottom it is, and
what the temperature ranges are, and we will look at that.
There is some evidence that, without a doubt, there is some
habitat in the vicinity that is suitable for shortnose
sturgeon.
Mr. Flake. Well, that should be, in the Arizona standard,
that is enough evidence to shut down logging. Why isn't it
here? I would submit that it is more than a perception. It has
gone beyond perception. There is a problem, and it is one that
I think, Mr. Manson, it would be well to deal with.
One other quick question along these same lines and along
the lines of where this bill could help, I believe, with sound
science.
In Arizona, we have a whale of a problem here with the
Southwestern Willow Flycatcher. We have a situation--and you
mentioned you were just in Arizona, and you know we are under a
severe drought, as is most of the West--the Roosevelt Lake,
which provides about 70 percent of the water used by about 80
percent of the urban residents of the Phoenix area, over 3
million people, is about 20-percent capacity at the moment.
Over the past couple of years, as the lake has been drawn down,
the Southwestern Willow Flycatcher has nested in the draw-down
areas. Now we are under a problem of filling the lake. If we
are blessed to receive enough rain, we can't fill the lake
without burdening the rate payers with extreme cost to buy or
to maintain or establish suitable habitat elsewhere. The
Southwestern willow flycatcher is a migratory bird that spends
most of its time in Central America. We don't know, haven't a
clue, no science says whether or not the habitat has been
destroyed down there or where we are, leading to declining
populations. This is an area where sound science can really
help us determine where the problem is. Do you agree?
Judge Manson. I would agree that sound science would help
us determine exactly where the issues are that caused the
decline of that species. I would add that there is, as I
understand it, fairly well in progress a habitat conservation
plan for that species that is being developed, and that
certainly will have the benefit of allowing water supply issues
to be dealt with while preserving the species at the same time.
Mr. Flake. I thank the Chairman.
Mr. Pombo. Thank you.
Mr. Manson and Mr. Hogarth, I don't expect you to admit
that there is a different standard between the east and the
west, but if there is a question in your mind, I am sure the
Committee would be more than happy to share with you the
hearing records from hearings that we have had over the last 7
years, and I think we are probably up somewhere around 50
hearings that we have had, and if you need any information, we
would be more than happy to share that with you. And to hear
Mr. Hogarth talk about the shortnose sturgeon and not knowing
if there is any evidence that it had ever been there--and we
just went through the listing of habitat on the red-legged
frog, where about 5 percent of California was set aside as
critical habitat. Much of that area is in Mr. Miller's
district, is area that has houses built on it, and
subdivisions, and malls, and it was considered critical habitat
for the red-legged frog, and Fish and Wildlife admitted that in
much of that area that they didn't know if the red-legged frog
had ever been there, but that it was suitable habitat if one
wanted to live there.
The kit fox, the San Joachim Valley kit fox, a very similar
situation, we are protecting tens of thousands of acres in my
district as habitat for the kit fox with fully admitting, the
Fish and Wildlife Service fully admitting that the kit fox does
not exist on much of that land, but it is suitable habitat.
In your area we have a suspected sighting of an endangered
species of an endangered salmon in the Mokelumne River. Just
the suspected sighting of a salmon in that river was enough to
alter the pumping schedules and the use of that river, because
someone thought they may have seen one.
In terms of the shortnose sturgeon, there are a number of
suspected sightings. There is no science to back that up, but
there are a number of suspected sightings, fishermen that have
said that they have seen sturgeon, that they have caught
sturgeon within the Potomac. I would not want you to base your
decision based upon that alone, but there is a definite
difference in the way the law is being implemented in some
parts of the country versus other parts of the country, and I
don't think anyone can say that there is not a difference. And
if any of you really do believe that, I think you really need
to research it much more thoroughly. I am not going to ask you
to further answer that because I think both of you have given
your positions on that already.
I would like to ask Mr. Manson. There were questions
brought up earlier that much of what is in this bill can be
done administratively or is already done. And your response to
that was that there is very little here; there are a few things
that you may be able to do administratively, but there is a lot
of things that are not currently done.
Just for the record I would like you to expand upon that
somewhat. Peer review is part of the process you go through,
but the peer review that we outline here is very different than
what has been done in the past.
Judge Manson. Yes, I would agree with that. Both agencies
have a peer review process in policy that is published in the
``Federal Register.'' The process in this bill, however, is
significantly different than the process in the policies that
currently exist, so this does not duplicate anything that is
presently being done. There are other provisions here that
clearly are different from anything that has been done before,
and so this bill is not just surplusage. This bill makes some
significant changes in the way the Act is implemented.
Mr. Pombo. Let me ask you in terms of the information that
is gathered that you base your decisions on, does the bill in
its current form require you to gather as much information as
you can and to base your decision on that?
Judge Manson. I would say it does in the sense that it does
not change the requirement that we use the best available
science, and that means gathering the best available science.
The bill doesn't preclude that. The bill encourages that by
indicating that there will be a review process.
Mr. Pombo. One issue that--and I would like to ask both of
you gentlemen this question, but I will start with you, Mr.
Manson. One issue that comes up repeatedly and it has come up
in the past with similar legislation, was that if you are
required to do peer review, to gather more information, to
spend the time to give us the confidence that your decision is
based upon the best available science, that that will in some
way slow down the process? I would like yo to comment on that
because I would much rather have you take a little longer to
make a decision and have that decision be based on good
science.
Judge Manson. Well, I have to agree with that as a matter
of policy, that it would be better to take a little longer and
make a better decision than to make a hasty decision. The only
issue I had was that the timelines don't fit together right
now, and I regard that more as a technical issue than a real
substantive issue.
Mr. Pombo. And I will grant you that, that we do need to
relook at the timelines.
Judge Manson. Right. But I would agree that it is better to
make a considered decision, even if it takes a little longer,
than to make a hasty decision.
Mr. Pombo. Mr. Hogarth?
Mr. Hogarth. I agree with that unless--the problem I have
is if you have a timeline and you don't meet it, you set
yourself up for litigation and you set yourself up then for the
court to take an action because we didn't meet the timeline.
And that is the thing that bothers me. You could be out of time
and then you could have a judge taking control of it. So we
have to be very careful till we make sure the timing works
together so that we don't add something that gets up to a
timeframe that we can't meet.
I have 105 lawsuits right now. I hate to have another law
that adds more to it.
Mr. Pombo. Well, none of us want, if at all possible, to do
anything that is going to increase in any way the number of
lawsuits. I know the people who drafted this bill had the
intention of trying to eliminate a number of these lawsuits in
the future.
I would like to thank you both for testifying and for
spending the time here with us this afternoon. This is an
extremely important issue, an extremely important piece of
legislation. I will pledge, along with Mr. Walden and myself,
that we will, and the Chairman, continue to work with you guys
and try to iron out some of those differences that exist, some
of the concerns that you have. I believe that a number of the
concerns that were raised are legitimate that we can fix before
this bill comes up for a markup. So I appreciate your time and
effort in being here. So thank you very much.
Judge Manson. Thank you, Mr. Chairman.
Mr. Hogarth. Thank you, Mr. Chairman.
Mr. Pombo. The hearing is adjourned.
[Whereupon, at 3:41 p.m., the Committee was adjourned.]
[Additional statements submitted for the record follow:]
[The prepared statement of Mr. Thune follows:]
Statement of The Honorable John Thune, a Representative in Congress
from the State of South Dakota
Mr Chairman, I would like to start my statement today on a note of
thanks. I appreciate the opportunity you and the Committee have given
me to share the effects of the Endangered Species Act (ESA) on my
constituents, in South Dakota.
Earlier this year, I met with a number of South Dakotans who have
had significant problems with the Fish and Wildlife Service (FWS) and
how it interprets and implements the ESA. This is important in my state
because the ESA is not some abstract or limited regulation that merely
touches upon the lives of a few. It has the potential to devastate the
economy in some parts of my state should the FWS decide to list the
black tailed prairie dog.
I certainly believe that the ESA was passed in good faith and with
noble intentions. Unfortunately, its impact on South Dakota is not
entirely noble.
Mr. Chairman, there needs to be a point at which the ESA gets an
injection of common sense. For example, right now there is no empirical
or hard data on the population of prairie dogs in the State of South
Dakota, and there has not been a statewide prairie dog inventory
conducted to determine their population. Yet, the Fish and Wildlife
Service has proposed that the prairie dog be listed as threatened. This
is a concern to my constituents. When they can't even rely on the
Federal Government to use real, empirical data to make a change that
could have devastating impact on their livelihoods, who can they rely
on? That's why I have introduced H.R. 3920, the Rancher Protection Act.
My bill would require the Federal Government to use the best
scientific and commercial data available to determine whether the
black-tailed prairie dog is truly a threatened species. Importantly,
the bill also requires the Fish and Wildlife Service use peer reviewed
data to ensure greater accuracy and data that counts actual population
of the prairie dog rather than estimates.
In addition, the bill requires the FWS to accept and acknowledge
data from local landowners, and include the data in the rule-making
record compiled for any determination that the species is an endangered
or threatened species. Local landowners have a wealth of knowledge
concerning the population of local species and their input should be
given greater weight.
In summary, what this really comes down to is one simple fact:
there is an absolute necessity to reform of the Endangered Species Act.
South Dakota ranchers are suffering because of the excesses of this
law. My legislation would address this problem with regard to the black
tailed prairie dog, but more needs to be done. What we need is
comprehensive reform of the Endangered Species Act. I hope that this
hearing is another step in addressing this critical need.
Again, Mr. Chairman, I thank you again for giving me this
opportunity, and I look forward to the results of this hearing and hope
that this Committee will be able to address the problems with the ESA
this year.
______
[A statement submitted for the record by the American
Society of Civil Engineers follows:]
Statement submitted for the record by the American Society of Civil
Engineers on H.R. 4840
Mr. Chairman and Members of the Committee:
The American Society of Civil Engineers (ASCE) appreciates the
opportunity to present this statement for the record to the Committee
on H.R. 4840, the Sound Science for Endangered Species Act Planning Act
of 2002, an original bill introduced by the Chairman and two Members on
May 23, 2002.
ASCE was founded in 1852 and is the country's oldest national civil
engineering organization. It represents more than 125,000 civil
engineers in private practice, government, industry and academia who
are dedicated to the advancement of the science and profession of civil
engineering. ASCE is a 501(c)(3) non-profit educational and
professional society.
Civil engineering, considered one of the oldest engineering
disciplines, encompasses many specialties. ASCE members practice
engineering in the professional areas of surface water and groundwater
hydrology, agricultural irrigation systems, environmental and water
resources systems, watersheds and wetlands management, highway and
construction engineering and other fields subject to the jurisdiction
of the Endangered Species Act (ESA).
Engineers apply the theories and principles of science and
mathematics to research and develop economical solutions to technical
problems. Engineers design, plan, and supervise the construction of
buildings, highways, and transit systems. They develop and implement
improved ways to extract, process, and use raw materials, such as
petroleum and natural gas. They develop new materials that both improve
the performance of products and take advantage of advances in
technology. They analyze the impact of the products they develop or the
systems they design on the environment and people using them.
Engineering knowledge is applied to improving many things, including
the quality of health care, the preservation of endangered species, the
safety of food products, and the efficient operation of financial
systems.
The Society sponsors numerous specialty conferences each year and
publishes 29 rigorously peer-reviewed technical journals in such fields
as ports and waterways, hazardous materials, cold regions engineering,
structural engineering, energy engineering, environmental engineering
and construction engineering.
I. Summary
ASCE would be pleased to support enactment of H.R. 4840, with
certain important modifications.
Section 2 of the bill, Sound Science, should be retitled
to drop the reference to ``sound science.'' Additionally, the section
should be further modified to remove the terms ``commercial data'' and
``commercial study'' in reference to the material to be used in making
determinations under the ESA. Such a requirement already is in the Act.
Section 3, Independent Scientific Review, should be
stricken in its entirety. The ``independent review'' contemplated by
the bill is unnecessary and would result in burdensome and duplicative
peer reviews that would be carried under an impossibly short deadline.
II. ASCE Policy on the Endangered Species Act
The Endangered Species Act (ESA) should integrate science and
engineering in the process of identifying and listing species and their
critical habitats. Species listing and critical habitat decisions
should require peer review and improved collection and field testing of
data. The law should allow concerned individuals to consult with the
U.S. Department of the Interior to determine whether a proposed action
will jeopardize a species.
The Act should require that a scientific demonstration of a take of
individuals of a species precede enforcement actions. If a species is
determined to be in jeopardy, economically feasible and prudent
alternatives for its preservation must be considered. ASCE encourages
consideration of social and economic impacts of critical habitat
designations and supports incentives for conservation of species,
including ``no surprises'' assurances and provisions for multispecies
conservation plans. Environmental mitigation alternatives should be
reasonable and prudent and related to the nature and extent of the
environmental impact.
Government, business and industry must make significant investments
to protect and enhance the habitat of endangered species. It is
essential that these financial resources are allocated based on sound
engineering and science as well as a balance between environmental and
economic concerns. The law should focus on incentives and ``no
surprises'' assurances for habitat preservation rather than penalties
and single species listings.
Background
A. The Endangered Species Act
The Endangered Species Act (ESA) of 1973is a comprehensive attempt
to regulate the destruction of all species and to consider habitat
protection as an integral part of that effort. Under the ESA, species
of plants and animals (vertebrate and invertebrate) may be listed as
either ``endangered'' or ``threatened'' according to assessments of the
risk of their extinction. In addition, distinct population segments of
vertebrate species may also be listed as threatened or endangered.
The ESA, enacted in the early years of the contemporary
environmental movement, sweeps broadly, requiring extensive and costly
preservation efforts for thousands of plant and animal species. It does
so one species at a time, however, and fails to consider ecosystemwide
issues in species conservation. Nevertheless, the Act and its economic
consequences were controversial almost from its inception. Some have
argued that this was due largely to congressional innocence of its
potential to affect a wide range of species--and economic interests.
Once a species is listed, powerful legal tools, including citizen-
suit provisions, are available to aid the recovery of the species and
the protection of its habitat. If a species is listed as threatened or
endangered, the appropriate agency must use section 4 of the ESA to
designate critical habitat (areas where the species is found, and any
other areas where features essential to the species' conservation
exist) at the time of listing. If the publication of this information
is not ``prudent'' because it could harm the species (e.g., by
encouraging vandals or collectors), the appropriate agency may decide
not to designate critical habitat.
Congress placed a heavy emphasis on designating critical habitat.
It provided for exceptions where the economic benefits of these
designations exceeded their costs, where the habitat simply could not
be determined, or in those few cases where the designations would not
be prudent.
The ESA permits ``incidental take'' of species listed as threatened
and endangered as long as a habitat conservation plan (HCP) is
concurrently developed. But HCPs do not require recovery of listed
species; they only must ensure that ``the taking will not appreciably
reduce the likelihood of survival and recovery of the species in the
wild.''
Finally, the Act requires the Secretary to consider, in addition to
scientific data, commercial data that might affect species or property
owners in the listing of a species as endangered or threatened.
B. The Decline of Species
The decline of plant and animal species has accelerated in recent
years. Scientists disagree over the precise reasons for this
diminution, but habitat destruction and fragmentation are seen as a
major factor in the loss of species. Anthropogenic alterations in the
environment, however, could become the more consequential element in
the loss of speciation in future.
Nevertheless, the current consensus among scientists is that
habitat loss is the greatest threat to plant and animal species; the
protection of critical habitat has been a focus of Federal efforts
under the ESA. Indeed, the preservation of habitats is seen by many
observers as the best method of protecting ecosystems from destruction.
The Fish and Wildlife Service (FWS) clearly agrees. ``Virtually
every major study of the conservation of imperiled species considers
habitat as a major component in a species' conservation and eventual
recovery.''
Other experts, however, believe the use of habitat conservation
plans (HCPs) may not do enough to address the problems of habitat loss.
``HCPs are not 'plans provid[ing] protection for currently endangered
species' because there is no promise of recovery of these species. The
cumulative effect of this planning process across the landscape on
survival of endangered species has not been adequately addressed by the
Department of the Interior, which implements the ESA.''
The agency may postpone designation for up to one year if the
information cannot be determined. While any area, whether or not
Federally owned, may be designated as critical habitat, private land is
affected by designation primarily if some Federal action (e.g.,
license, loan, permit, and the like) is also involved. In either case,
Federal agencies must avoid ``adverse modification'' of critical
habitat, either through their own actions or activities that are
Federally approved or funded.
C. The ESA Process
Federal progress in species preservation under the ESA has been the
subject of a great deal of commentary, much of it highly critical. As
of November 30, 2001, the FWS and the National Marine Fisheries Service
(NMFS), which is responsible for marine species under the ESA, had
listed a total of 1,252 U.S. species (512 animals, 740 plants) as
endangered or threatened.
As of late 2001, the FWS and the NMFS had designated critical
habitats for only 150 of these 1,252 endangered or threatened domestic
plant and animal species, according to the agencies. This represents
approximately 12 percent of all listed species. Of the 150 completed
critical-habitat designations, 140 have been promulgated by the FWS.
The effect of this failure to designate critical habitat is to
identify certain species as needing special help, and then allow the
overwhelming majority of them to remain either homeless or on the brink
of homelessness. The dearth of ESA success stories must be considered
at least in part the predictable consequence of this fundamental
disconnect.
IV. Policy Considerations
A. Section 2, H.R. 4840
As introduced, section 2 of H.R. 4840 would amend section 4 of the
ESA to require the Department of the Interior to rely on ``sound
science'' and any ``commercial study'' that, taken together, have been
``field-tested and peer-reviewed.''
1.) Science is a systematic body of knowledge that aims to produce
reliable explanations of physical and material phenomena. Scientists
use experimentation, observation and deduction to achieve this aim. The
laws of science are taken to be universally applicable; they form the
theoretical structure of the physical sciences.
The phrase ``sound science'' is a political term, not a scientific
one. There is science, and there is everything else. The term ``sound
science'' is meaningless to the scientist or engineer, to whom all data
that are (1) empirically determined, (2) testable and (3) incapable of
being falsified are by definition science. In this sense, all science
is sound.
With rare exceptions, the science of any subject is incomplete at a
given moment. It frequently is speculative, hinting at half-seen
solutions. It may not lead in the direction that the political
communities in Congress or at the regulatory agencies wish to go (or
provide a perfectly illustrated path for those inclined to follow it).
Science certainly cannot foresee every unfortunate consequence of a
policy decision or provide perfect certainty for policymakers. To
suppose that there is another, greater level of ``sound science''
somewhere in the universe just waiting to grant such clarity is a myth.
The phrase ``sound science'' is meaningless to scientists and
engineers and should not be included in the statute.
2.) The bill's requirement for the Secretary to consider a
``commercial study'' when taking any action under the ESA duplicates
the current requirement in section 4 of the Act. Moreover, the
modifiers ``field-tested'' and ``peer-reviewed'' before the phrase
``commercial study'' add no weight to the present statutory directive.
A commercial study is in no sense a form of scientific evidence; it is
not susceptible to peer review in the standard sense.
If the Committee considers that the Act needs greater clarity on
this point, it may wish to extend the economic-impact test for
critical-habitat designations found at Sec. 1533(b)(2) to the listing
of a species as endangered or threatened. Economic literature, like
studies from the physical sciences, is universally subject to rigorous
peer review.
B. Section 3, H.R. 4840
Section 3 of the bill would require the Interior Department to
carry out a 90-day ``independent scientific review'' of all actions
taken under the Act, including listing decisions and the development of
recovery plans. The provision would require the Secretary to appoint
five-member independent review boards to ``review and report'' on ``the
scientific information and analyses'' relied upon by the government for
any major ESA action. The reviews would have to be completed within 90
days of the creation of the review board.
Such a requirement would be burdensome on the Act's implementation,
which already lags badly. More importantly, this short-term review
could add nothing to the months-long (even years-long) peer reviews
already accorded to the thousands of scientific articles published in
dozens of journals on biology, evolution, conservation ecology and the
like.
The objective of thorough peer review is to evaluate and rate the
scientific and technical merit of the research in a given field. These
reviews focus on the quality of the science and the impact it might
have on our understanding of the phenomena, rather than on details of
technique and methodology. A proper review can take weeks, months, or,
in some cases, years.
The requirement for a peer-review board in H.R. 4840 seems to be an
effort to bring into focus the character of the agency's regulatory
effort rather than the quality of the science itself. As such, it can
do nothing to resolve whatever remaining scientific disagreements exist
with respect to species extinctions and other subjects relevant to the
ESA.
Mr. Chairman, that concludes our statement on H.R. 4840. If you or
Members of the Committee have any questions, please do not hesitate to
contact Michael Charles of our Washington Office at (202) 789-2200 or
by e-mail at [email protected].