[House Hearing, 109 Congress]
[From the U.S. Government Publishing Office]
LESSONS LEARNED PROTECTING AND RESTORING WILDLIFE IN THE SOUTHERN
UNITED STATES UNDER THE ENDANGERED SPECIES ACT
=======================================================================
OVERSIGHT FIELD HEARING
before the
COMMITTEE ON RESOURCES
U.S. HOUSE OF REPRESENTATIVES
ONE HUNDRED NINTH CONGRESS
FIRST SESSION
__________
Saturday, April 30, 2005, in Jackson, Mississippi
__________
Serial No. 109-11
__________
Printed for the use of the Committee on Resources
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______
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COMMITTEE ON RESOURCES
RICHARD W. POMBO, California, Chairman
NICK J. RAHALL II, West Virginia, Ranking Democrat Member
Don Young, Alaska Dale E. Kildee, Michigan
Jim Saxton, New Jersey Eni F.H. Faleomavaega, American
Elton Gallegly, California Samoa
John J. Duncan, Jr., Tennessee Neil Abercrombie, Hawaii
Wayne T. Gilchrest, Maryland Solomon P. Ortiz, Texas
Ken Calvert, California Frank Pallone, Jr., New Jersey
Barbara Cubin, Wyoming Donna M. Christensen, Virgin
Vice Chair Islands
George P. Radanovich, California Ron Kind, Wisconsin
Walter B. Jones, Jr., North Grace F. Napolitano, California
Carolina Tom Udall, New Mexico
Chris Cannon, Utah Raul M. Grijalva, Arizona
John E. Peterson, Pennsylvania Madeleine Z. Bordallo, Guam
Jim Gibbons, Nevada Jim Costa, California
Greg Walden, Oregon Charlie Melancon, Louisiana
Thomas G. Tancredo, Colorado Dan Boren, Oklahoma
J.D. Hayworth, Arizona George Miller, California
Jeff Flake, Arizona Edward J. Markey, Massachusetts
Rick Renzi, Arizona Peter A. DeFazio, Oregon
Stevan Pearce, New Mexico Jay Inslee, Washington
Devin Nunes, California Mark Udall, Colorado
Henry Brown, Jr., South Carolina Dennis Cardoza, California
Thelma Drake, Virginia Stephanie Herseth, South Dakota
Luis G. Fortuno, Puerto Rico
Cathy McMorris, Washington
Bobby Jindal, Louisiana
Louie Gohmert, Texas
Marilyn N. Musgrave, Colorado
Steven J. Ding, Chief of Staff
Lisa Pittman, Chief Counsel
James H. Zoia, Democrat Staff Director
Jeffrey P. Petrich, Democrat Chief Counsel
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C O N T E N T S
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Page
Hearing held on Saturday, April 30, 2005......................... 1
Statement of Members:
Crapo, Hon. Mike, a U.S. Senator from the State of Idaho..... 3
Prepared statement of.................................... 4
Pickering, Hon. Chip, a Representative in Congress from the
State of Mississippi....................................... 2
Pombo, Hon. Richard W., a Representative in Congress from the
State of California........................................ 1
Statement of Witnesses:
Bowen, James Randy, National Recording Secretary, Southern
Pine Region Director, Pulp and Paperworkers' Resource
Council, Bastrop, Louisiana................................ 8
Prepared statement of.................................... 11
Response to questions submitted for the record........... 13
Briggs, Eddie, Representing the Head Companies, LLC, Jackson,
Mississippi, Oral statement of............................. 43
Cummins, James L., Executive Director, Mississippi Fish and
Wildlife Foundation, Stoneville, Mississippi............... 13
Prepared statement of.................................... 16
Response to questions submitted for the record........... 22
Davidson, Paul L., Executive Director, Black Bear
Conservation Committee, Baton Rouge, Louisiana............. 61
Prepared statement of.................................... 63
Response to questions submitted for the record........... 66
Hartfield, Libby, Director, Mississippi Museum of Natural
Science, Mississippi Department of Wildlife, Fisheries, and
Parks, Jackson, Mississippi................................ 5
Prepared statement of.................................... 7
Head, David H., Sr., Chief Executive Officer, Head Companies,
LLC, Point Clear, Alabama, Prepared statement of........... 45
Response to questions submitted for the record........... 48
Johnson, Rhett, Director, Solon Dixon Forestry Education
Center, School of Forestry and Wildlife Sciences, Auburn
University, and Co-Director, The Longleaf Alliance,
Prepared statement of...................................... 79
Robohm, Donald, President, SeaChick, Inc., Escatawba,
Mississippi................................................ 68
Prepared statement of.................................... 69
Tazik, Dr. David J., Chief, Ecosystem Evaluation and
Engineering Division, Environmental Laboratory, U.S. Army
Corps of Engineer Research and Development Center,
Vicksburg, Mississippi..................................... 23
Prepared statement of.................................... 24
Response to questions submitted for the record........... 82
Vaughan, Ray, Executive Director, WildLaw, Montgomery,
Alabama.................................................... 48
Prepared statement of.................................... 50
Response to questions submitted for the record........... 58
Waldon, Donald G., Administrator, Tennessee-Tombigbee
Waterway Development Authority, Columbus, Mississippi...... 31
Prepared statement of.................................... 34
Response to questions submitted for the record........... 41
Additional materials supplied:
Barbour, Hon. Haley, Governor, State of Mississippi,
Statement submitted for the record......................... 79
Map showing Endangered and Threatened Species in the Southern
U.S........................................................ 81
OVERSIGHT FIELD HEARING IN JACKSON, MISSISSIPPI, ON ``LESSONS LEARNED
PROTECTING AND RESTORING WILDLIFE IN THE SOUTHERN UNITED STATES UNDER
THE ENDANGERED SPECIES ACT''
----------
Saturday, April 30, 2005
U.S. House of Representatives
Committee on Resources
Jackson, Mississippi
----------
The Committee met, pursuant to call, at 9:00 a.m., at the
Mississippi Museum of Natural Science, Rotwein Theater, 2148
Riverside Drive, Jackson, Mississippi, Hon. Richard W. Pombo
presiding.
Present: Representatives Pombo and Pickering and Senator
Crapo.
STATEMENT OF THE HON. RICHARD W. POMBO, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF CALIFORNIA
The Chairman. Good morning. The oversight hearing by the
House Committee on Resources will come to order.
The Committee is meeting today for your testimony on the
Endangered Species Act. I want to thank you for the opportunity
to bring the Committee to Mississippi and the Southern United
States. I look forward to listening, and gaining greater
insight from the witnesses today on how the Endangered Species
Act is being implemented in this region of the country.
First off, I would like to thank Governor Haley Barbour for
his invitation and encouragement to hold this hearing in the
great State of Mississippi. I've enjoyed spending the last
couple of days here, well, day and a half, and meeting with
folks and getting a better understanding of the prevailing
wildlife issues.
I would also like to thank my friend and colleague,
Congressman Chip Pickering, and thank you for having me here
and working with me on such an important issue.
Born of the best intentions more than 30 years ago, the
Endangered Species Act has failed to live up to its promise of
recovery of threatened and endangered species to healthy
populations. In fact, of the roughly 1,300 species listed under
the Act in its entire history, only 10 have recovered and been
removed from the list. This translates into a less than one
percent success rate for the species recovery. We can and must
do better.
It is clear that the current system is broken and in need
of updating and improving in order to protect, cooperatively
conserve and recover America's species for future generations.
In regard to the announcement that we had a day and a half
ago on the ivory-billed woodpecker, and the discovery of the
species that was believed to be extinct, it's great news, and
it also gives us the opportunity to step in and try to bring
back a species which most people believed had become extinct,
and I salute what the Fish and Wildlife Service is trying to
do, they had their announcement, I believe it was Thursday
morning, and are moving ahead, and the Secretary, Judge Manson,
is very excited about moving forward on this.
Cooperative conservation is also the key to success. You
can't have a successful Endangered Species Act without the
cooperation of the landowners, and in a relationship between
the Fish and Wildlife Service and property owners that
encourages them and gives them the kind of incentive they need
in order to recover those species.
Private property owners must be part of the solution. Too
often we have tried to over regulate them, and regulate them
out of a business, and as a result of that we have had the
failures over the last 30 years. They must be, and have to be,
part of an ultimate solution in moving forward.
I look forward to having the opportunity to hear our
witnesses. I looked through the list and looked through the
testimony that's been submitted ahead of time. I believe this
will be very important in terms of our efforts to draft
legislation and approve the Act, and I look forward to hearing
your testimony here this morning.
I would like to recognize Congressman Pickering for any
opening comments he would like to make at this time.
STATEMENT OF THE HON. CHIP PICKERING, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF MISSISSIPPI
Mr. Pickering. Chairman Pombo, we want to welcome you to
Mississippi. We want to welcome Senator Crapo. This is a great
opportunity for those of us in Mississippi, and those of us
across the Southeast who care about our national resources and
our wildlife, and conserving and protecting those in the most
effective and efficient way possible.
If you look at the cooperative conservation model that
Chairman Pombo discussed and programs like the Conservation
Reserve Program (CRP) and Wetland Reserve Program (WRP), as
well, all of those are incentive-based approaches where we
build cooperative partnerships with private landowners,
communities, and all those who have a stake in making sure that
our natural resources are protected and promoted, and those are
successful examples and successful models.
If you look at the Endangered Species Act, however, I think
that that has created more of an adversarial model than a
cooperative model, and a regulatory and commanding control
versus the cooperative incentive-based model. But our hope is
that as we go forward that we will build off the successful
examples of cooperative conservation versus the adversarial
relationship that we have seen too much across the country as
it relates to the Endangered Species Act.
I'd like to recognize James Cummins with Mississippi Fish
and Wildlife Foundation, he's done tremendous work in this
area; all of those who are on the panel, and we look forward to
hearing each and every one of you.
David Bowen, David where are you? Former Congressman David
Bowen-- who was in the House of Representatives on the old
Merchant Marine and Fisheries Committee back in the 70's and
80's--was there in the early days of the Endangered Species Act
and brings efforts to modify and reform it. It's good to have
you here, David.
This is a great opportunity. We truly appreciate, Mr.
Chairman, that you came to Mississippi to do this and we hope
that we give you a good story and good information as you take
it back to Washington, and we want to do everything we can to
help you in your reform efforts. Thank you.
The Chairman. Thank you. I'd now like to recognize Senator
Mike Crapo for his opening comments. But before I let him start
I'd just say that Senator Crapo originally was elected to the
House at the same time I was, and after serving several terms
in the House of Representatives was elected to the Senate, and
since he has been a member of the Senate he has been a key
figure in the Senate in dealing with the Endangered Species Act
and wildlife issues, and has been extremely involved.
It looks like at this time that he will take the lead on a
number of issues in the Senate, one of those being the
Endangered Species Act, so we are very fortunate to have him
here today. Senator Crapo.
STATEMENT OF THE HON. MIKE CRAPO, A UNITED STATES SENATOR FROM
THE STATE OF IDAHO
Senator Crapo. Thank you very much, Chairman Pombo, and I
really do appreciate being invited here for this House hearing.
It's not extremely common for a Senator to be invited. I think
it's our friendship that maybe got me the invite to be here,
but I truly appreciate the opportunity to come here to
Mississippi and to learn in the experiences that we have on the
Endangered Species Act in the south.
And Chip, thank you for inviting me, as well. It's great to
come to your great state. The hospitality here has just been
tremendous. I truly do appreciate the hospitality that the
folks here in Mississippi have shown to me during this visit.
I also want to thank Governor Haley Barbour, who was very
instrumental in making sure that we were able to get down here
and that this hearing was held in Mississippi.
The announcement this week of an ivory-billed woodpecker
being seen in Arkansas is a fitting inspiration for today's
hearing. The ivory-billed woodpecker, a long period extinct,
has been seen after 60 years of being basically absent. And as
we mobilize the recovery program for the ivory-bill, the bird
itself is a lesson for our need for strong recovery provisions
in the Endangered Species Act. The comments that have been made
by Chairman Pombo and Representative Pickering are very, very
accurate and appropriate. We need to make sure that we deal
with the reasons and the fact that it has not been as
successful in the past.
It seems to me that we have succeeded before in some cases
where we can learn how to proceed in the many cases where we
haven't yet found success. For example, the whooping crane and
the California condor were both at one time down to a hand full
of remaining individuals, and today they're making progress
toward recovery because of active and intensive efforts and the
latest technology.
We should do the same for the ivory bill, and we should do
the same for almost--well, for all of our deeply endangered
species.
To guarantee that we can normalize recovery efforts for all
of the most endangered species, we must make today's hearing
the first step toward breaking many years of gridlock on the
issues. We all understand that the ESA is a powerful law, one
that touches both our wildlife and our property, both of which
are precious. That power, however, does not always produce
conservation that helps wildlife and protects property.
Frequently, both wildlife and property have endured
conflicts brought by the power of the Act misdirected, and
today we begin a new and different path forward. On the new
path we've got to focus on points of agreement, and I'm
determined to help improve the ESA with bipartisan support from
both the House and the Senate, which again, is one of the
reasons I think it's very significant that we have both the
House and the Senate represented here today, and I again thank
the Chairman for reaching out to help that happen.
The key to agreement is an improved recovery program that
respects landowners. The steps to the agreement must be
improving habitat and conservation and recovery and providing
more and better incentives and enhancing the role of states. We
must insist on improvements that strengthen the ESA for
wildlife and for property owners alike. And if we take this
path the Endangered Species Act will be less contentious and
more effective, and very importantly we'll have the votes to be
able to win in Congress.
The time is right for this new path for the Endangered
Species Act, and this first hearing of the year is the right
place to get started. I'm encouraged by the willingness of
businesses and private groups around the country to focus on
recovering species. And I see from the testimony today that we
will be getting a lot more encouragement in this process.
Again, thank you, Mr. Chairman, for inviting me to be here.
[The prepared statement of Senator Crapo follows:]
Statement of The Honorable Mike Crapo, a U.S. Senator from the
State of Idaho
Good morning.
Thank you, Mr. Chairman, for including me in this important field
hearing to examine the lessons learned here in the South. And thank you
Chip. I appreciate the hospitality you and the folks here in
Mississippi have shown me during my visit.
The announcement this week of an ivory-billed woodpecker in
Arkansas is a fitting inspiration for today's hearing.
The ivory-billed woodpecker, long feared extinct, has been seen
after 60 years since the last confirmed U.S. sighting.
As we mobilize a recovery program for the ivory-bill, the bird
itself is a lesson of our need for strong recovery provisions in the
Endangered Species Act.
We have succeeded before in helping critically endangered birds.
For example, the whooping crane and the California condor both were at
one time down to a handful of remaining individuals. Today they are
both making progress toward recovery because of active and intensive
efforts and the latest technology.
We should do the same for the ivory-bill, and we should do the same
for all our most deeply endangered species.
To guarantee that we can mobilize recovery efforts for all the most
endangered species, we must make today's hearing our first step toward
breaking many years of gridlock on this issue.
We all understand that ESA is a powerful law: one that touches both
our wildlife and our property, both of which are precious.
That power, however, does not always produce conservation that
helps wildlife and protects property. Frequently, both wildlife and
property have endured conflicts wrought by the power of the Act
misdirected.
Today we begin a new and different path forward.
On the new path, we must focus on points of agreement. I am
determined to improve the ESA with bipartisan support in both the House
and the Senate.
The key to agreement is an improved recovery program that respects
landowners.
The steps to agreement are:
improving habitat conservation and recovery;
providing more and better incentives; and
enhancing the role of states where appropriate.
We must insist on improvements that strengthen ESA for wildlife and
for property owners alike.
If we take this path, the ESA will be less contentious and more
effective--and we will have the votes to win passage of a bill.
The time is right for this new path for ESA and this first hearing
of the year is the right place to get started.
I am encouraged by the willingness of businesses and private groups
around the country to focus on recovering species.
I see from the testimony that I will be further encouraged today.
Thank you, Mr. Chairman.
______
The Chairman. Thank you. I would like to recognize our
first panel of witnesses. Libby Hartfield, the Director of the
Mississippi Museum of Natural Sciences; Randy Bowen, Pulp and
Paperworkers' Resource Council; James Cummins, the Executive
Director of the Mississippi Fish and Wildlife Foundation; and
Dave Tazik, Army Corps of Engineers. Welcome to the Committee
hearing this morning. Ms. Hartfield, we're going to begin with
you. I just want to tell all the witnesses here today that we
limit the oral testimony to five minutes. Your entire written
testimony will be included as part of the record, so if you
could summarize your submitted testimony and try to limit your
oral comments to five minutes, we'd appreciate it. Ms.
Hartfield.
STATEMENT OF LIBBY HARTFIELD, DIRECTOR,
MISSISSIPPI MUSEUM OF NATURAL SCIENCES
Ms. Hartfield. First, I would just like to say a quick
welcome to everybody to the Natural Science Museum, and I hope
you take time to go downstairs and enjoy a little bit of what
is here.
I've worked for the Mississippi Department of Wildlife,
Fisheries and Parks for the past 27 years, and in the course of
this work I've dealt with the Endangered Species Act during
much of that time. The ESA has been good for Mississippi. The
American Alligator has been fully recovered; the status of the
bald eagle and the brown pelican has significantly improved and
they soon will be delisted.
Species such as the Mississippi sandhill crane, ringed
sawback, gopher tortoise, red-cockaded woodpecker, least tern,
piping plover, gulf sturgeon and the pallid sturgeon have seen
their populations stabilize or have increased. These and other
species would likely be extinct, or at least extirpated from
Mississippi if not for the Act.
The people of Mississippi are close to the land and their
environment, and the species listed under the ESA are highly
valued as indicators of our way of life, our quality of life
and our success at stewardship. Many are also important in
ecotourism, a significant and growing industry in our State.
The Mississippi Department of Wildlife, Fisheries and Parks
is proud of our role in these success stories, and equally
proud of other successes that are less well known.
For example, our biologists have conducted and assisted in
research efforts and negotiations with removing the need to
list two endemic species, the Camp Shelby burrowing crayfish
and the Jackson Prairie crayfish. Biologists employed by the
department have also recently discovered two previously unknown
breeding ponds for the highly endangered Mississippi gopher
frog, and have facilitated the establishment of five captive
populations in zoo populations, in zoo facilities.
Conflicts with the ESA have been few and far between in
Mississippi, and they're usually resolved by Federal
interagency consultations. With few exceptions most private
actions requiring ESA approval or permits proceed with little
conflict or attention.
The application of ESA in Mississippi, however, can be
improved. There is a need for greater consistency and
reliability in funding. It is imperative to have a standard
allocation mechanism based on the number of species within a
state. Over the past ten years, Mississippi's allocation has
declined from a high of 160,000 in 1999, fluctuated as low as
73,000, and now we're back up to about 95,000. Recovery of
endangered species usually requires much research over several
years so inconsistent funding has been very problematic for us.
Consistent funding was available for several years of research
on Gulf sturgeon, yellow blotched and ringed sawback turtles
and the information gleaned during those years has been crucial
in recovery efforts for these animals.
Conducting basic research, implementing needed recovery
actions, and assisting private cooperators are currently
hampered by the low funding. We're concerned about the
possibility of an unfunded Federal mandate to recover species
without the proper resources if more responsibility is shifted
from the government to the states.
Increasing ESA funding to the states through Section 6
cooperative agreements would only partially satisfy our funding
problems because matching requirements already strain our
resources. Our state revenues have declined, and meeting the
required 25 percent match is often very difficult. We would
like to see an overall reduction in matching percentages
required or see the matched requirement indexed to the relative
wealth of the state.
We believe a Federal funding source dedicated to the state
ESA research and recovery would lead to more successes and
fewer conflicts. Traditional wildlife and fisheries funding
sources, such as the Pittman-Robertson and Wallop/Breaux, were
instrumental in the restoration of the southeastern game and
fishes during the past century. A similar commitment is
required to recover threatened and endangered species, and
importantly to prevent other rare species from becoming
eligible for protection under the act. Some of the newer
programs such as the LIP program and many grants that we've
talked about earlier, have much potential in helping us with
species recovery if they're funded.
Much has been learned during the past 32 years of the ESA.
One major lesson learned is that it is usually easier and
cheaper to prevent the decline of a species and it's ecosystem
than to attempt to restore them after drastic decline.
Another lesson is the need to open communication with all
stakeholders and to be proactive about identifying and
resolving potential conflicts. The MDWFP is dedicated to
continuing to improve this approach.
Hopefully, during the coming decade, we can learn more from
these lessons and move forward.
[The prepared statement of Ms. Hartfield follows:]
Statement of Libby Hartfield, Director, Mississippi Museum of Natural
Science, Mississippi Department of Wildlife, Fisheries, and Parks
I have worked for the Mississippi Department of Wildlife,
Fisheries, and Parks for the past 27 years. I served as an educator in
the Museum of Natural Science for ten years, and as director of the
Museum for the past seventeen years. In the course of this work I have
dealt with the Endangered Species Act (ESA) during much of that time.
The ESA has been good for Mississippi.
Two species, the American alligator and peregrine falcon,
have been fully recovered.
The status of the bald eagle and brown pelican have
significantly improved to the point where they may soon be proposed for
delisting.
Species such as the Mississippi sandhill crane, ringed
sawback, gopher tortoise, red-cockaded woodpecker, least tern, piping
plover, gulf sturgeon, and pallid sturgeon have seen their populations
stabilize or have increased.
These and other species such as Mississippi gopher frog,
gopher tortoise, orangenacre mucket, southern combshell and pondberry
would likely be extinct or at the least, extirpated from Mississippi if
not for the ESA.
The people of Mississippi are close to the land and their
environment, and the species listed under the ESA are highly valued as
indicators of our way of life, our quality of life and our success at
stewardship. Many are also important in ecotourism, a significant and
growing industry in our State.
The Mississippi Department of Wildlife, Fisheries and Parks is
proud of our role in these success stories, and equally proud of other
successes that are less well known. For example, our biologists have
conducted or assisted in research efforts and negotiations which led to
management actions that removed the need to list two endemic species,
the Camp Shelby burrowing crayfish and Jackson Prairie crayfish, under
the ESA. Biologists employed by the Department have also recently
discovered two previously unknown breeding ponds for the highly
endangered Mississippi gopher frog, and have facilitated the
establishment of five captive populations in zoo facilities. We believe
information equals alternatives, and our Museum biologists, collections
and Natural Heritage database have proven this time and again.
Conflicts with the ESA have been few and far between in
Mississippi, and they are usually resolved by Federal interagency
consultations. With few exceptions, most private actions requiring ESA
approval or permits are also able to proceed with little conflict or
attention. Although we see the occasional headline that this or that
listed species or critical habitat will change the world as we know it,
such issues quietly fade away, usually with little actual impact.
The application of the ESA in Mississippi, however, can be
improved.
There is a need for greater consistency and reliability in funding.
It is imperative to have a standard allocation mechanism based on the
number of listed species within a state.
Over the past ten years, Mississippi's allocation has declined from
a high of $160,000 in 1999, fluctuated as low as $73,000 and is
presently at $95,536. Recovery of endangered species usually requires
much research over several years so inconsistent funding is
problematic. Consistent funding was available for several years of
research efforts on the Gulf sturgeon, yellow blotched and ringed
sawback turtles and the information gleaned from those years has been
crucial to the recovery efforts of these animals.
Many of the species protected under the ESA in Mississippi are rare
and very poorly known. Management and protection of these species will
require knowledge of their life histories and habitats. We need more
research and recovery efforts for poorly known endangered or threatened
species in Mississippi and neighboring States, including those species
that might need protection in the future.
Most ESA success stories in Mississippi result from cooperative
efforts between Federal and State agencies, and private or corporate
landowners. Guidance and assistance from the local and regional U.S.
Fish and Wildlife Service personnel has been essential to our work on
behalf of endangered species. USF&WS has the capacity to work
regionally and has the expertise to advise states on recovery actions
for both endemic and wider ranging species. Mississippi has relied on
this expertise often in developing section 6 projects.
Conducting basic research, implementing needed recovery actions,
and assisting private cooperators are currently hampered by low funding
levels. Even the highest levels of funding ever received under ESA were
never enough to address recovery of more than a handful of species. We
are concerned about the possibility of an unfunded federal mandate to
recover species without the proper resources if more responsibility is
shifted from the federal government to the states.
Increasing ESA funding to the states through Section 6 cooperative
agreements would only partially satisfy our funding problems because
matching requirements already strain our resources. With state revenues
declining, meeting the required 25% match is often very difficult. We
would like to see an overall reduction in the matching percentage
required or see the match requirement indexed to the relative wealth of
the states. Finding alternative funding sources through existing grant
avenues requires substantial financial and time commitments, and may
also have matching requirements. These grants are often competitive and
prone to go to more charismatic species or to states which have better
means to attract the grants.
We believe a Federal funding source dedicated to State ESA research
and recovery would lead to more successes and fewer conflicts.
Traditional wildlife and fisheries funding sources, such as Pittman-
Robertson and Wallop-Breaux, were instrumental in the restoration of
southeastern game and fishes during the past century. A similar
commitment is required to recovery threatened and endangered species,
and to prevent other rare species from becoming eligible for protection
under the ESA.
Some newer federal programs such as the Land Owner Incentive
Program (LIP)have the potential to aid in species recovery if funded
adequately. Mississippi received a tier 1 LIP grant of $180,000 to plan
and initiate a program but now must compete for very limited funding
before the program can be fully implemented.
Many of Mississippi's listed species are aquatic and draw attention
to ecosystems in need to management. If we are to recover our aquatic
species, we need to manage and protect their river and stream
ecosystems. This may require improving water quality, preserving
habitat through conservation easements, or re-introductions of species
into formerly occupied habitats. These recovery actions will require
cooperation between federal, state, and local governments and will
require much greater commitment of funding from the federal government
than has hitherto been available.
Much has been learned during the past 32 years of the ESA. One
major lesson learned is that it is usually easier and cheaper to
prevent the decline of a species and it's ecosystem than to attempt to
restore them after drastic decline. Hopefully, during the decades to
come, we can better apply what we have learned.
Another lesson learned is the need to ensure open communication
with all stakeholders and to be proactive about identifying and
resolving potential conflicts. The MDWFP is dedicated to continuing and
improving this approach.
______
The Chairman. Thank you. Mr. Bowen.
STATEMENT OF JAMES RANDY BOWEN,
PULP AND PAPERWORKERS' RESOURCE COUNCIL
Mr. Bowen. I would like to take this opportunity to thank
the House Resources Committee for having this very important
hearing on the Endangered Species Act.
I'd like to give a brief history of the PPRC. We're a non-
profit, grass roots organization concerning the fiber supply,
forest practices and the Endangered Species Act for dedicated
men and women with one common cause, and that cause is needing
our jobs.
We began in the Pacific Northwest where the spotted owl was
successful in shutting many mills down, thereby causing us to
lose thousands of good living wage American jobs in the forest
products, pulp and paper sectors. As time progressed, we
realized this job loss would not just stay in the Pacific
Northwest, nor would it just relate to the endangered species
and our purpose statement is ``To establish a grass root
coalition concerned with fiber supply, the Endangered Species
Act and our environment in a way that promotes knowledge and
political activism so we may influence legislation and policies
that affect our jobs''.
The PPRC proposes the Endangered Species Act be updated to
give equal consideration to social and economic, as well as
biological, concerns. Currently, too many ESA listings lack a
substantial basis in hard scientific data.
The House Resources Committee passed legislation (HR1662-
The Endangered Species Data Quality Act of 2004) that focused
on the importance of using field-tested data and community
research. In addition to this language, provisions to the Act
should insure that the ESA decisions are based on sound
science, including peer review of listening and recovery
decisions.
ESA should limit the definition of threatened and
endangered species to those species which are biologically
unique, excluding those that are only geographically isolated
from other populations of the same species.
To stop the current tactic by environmental officials of
targeting state officials who issue permits to private parties
to merely conduct activities on their land, Congress and the
Administration should consider actions to limit the liability
of state officials various means, including legislation if
necessary.
The current consultation process in ESA has mushroomed into
an unnecessary lengthy and expensive process. Congress should
support the Administration efforts to update these processes
and provide legislative direction as necessary. Agency meetings
to list or de-list should be held in geographic areas that are
economically impacted. After a listing decision is made a full
consideration should be given to all social and economic issues
in all subsequent steps of the ESA.
Litigation by environmental groups has made the critical
designation process a costly drain of financial and human
resources with a very little gain in regard to species
conservation. Congress should focus the critical habitat
process on species restoration by removing it from the
regulatory arena and making it part of the recovery process.
Wood products employees support ESA reform. Protecting
truly endangered species is in the best interest of the public.
The impact on people, property and jobs should be evaluated
when making these regulations.
The ESA mandate system is not working. The ESA should be on
equal footing with and not superior to, all Federal laws. The
ESA needs to be absolutely based on objective and verifiable
science. The ESA should be a flexible and rational Act and
apolitical in all decisions.
There should be a greater role for states and local
governments in all ESA decisions. State constitutional
authority over plants and animals should be restored. There
should be compensation for private property owners when ESA
diminishes property values.
The Act should be amended to ensure the species will not be
listed until a recovery plan is developed and appropriations
are approved. The word reform means the improvement or
amendment of what is wrong or corrupt. The PPRC believes the
time for reform is now and only real reform will help both
plants and animals and preserve the American way of life.
The PPRC wants to conserve the Nation's endangered species
but wants it done in partnership with the Federal government,
not under the command and control authority of Federal
agencies.
The PPRC supports access to information used by the
government in the ESA decisionmaking processes. The PPRC feels
that in order to simplify the process and make the Act work,
ESA decisions should be based on sound science and include peer
review of listing and recovery decisions.
The PPRC feels that true scientific facts and field data
should be weighed more heavily than computer modeling. The PPRC
supports limiting the definition of threatened and endangered
species to those which are biologically unique, excluding those
that are only geographically isolated from other populations of
the same species. Create economic incentives to encourage
species and habitat protection among private landowners.
Recognize the importance and value of private property rights
and that private property landowners should not have to bear
all the expenses of species recovery. You should consider
economic impacts to landowners and adjacent communities during
all phases of ESA implementation. As you mentioned since ESA
first became law, there were only 10 species have been
recovered out of 1300 that's been listed, so that shows that it
doesn't work.
The forest products industry is a vital part of the economy
of the United States, especially here in the southern states.
Most property in the Southern United States is privately owned.
Besides all the other environmental hurdles we face, without
fiber our industry would not survive, and ESA directly affects
fiber supply. That is why reform is needed.
Imagine how excited people from the economic community
would be if a company was looking to come and invest their
millions of dollars and have millions of dollars of payroll.
Taxes that are paid. The people that work at that plant are
involved heavily in community affairs. They gave to the local
United Way. Think of what the economic impact would be for the
state. I work at such a plant and it's threatened right now,
and without reform, that's why I'm here. I'm fighting for my
job. Bottom line, I'm fighting for a pension. Our organization
has a real close--I know you've seen it before, and it's a sad
state of affairs. And the sad thing is that amount is
continually growing with plants that are closing down and
closing down, and it all started over the Endangered Species
Act; which I know various country boys, Senator Crapo and
Congressman Pombo are from, know a lot about it. It started
with the spotted owl and it's just mushroomed into something
that's just out of control.
So again, I appreciate y'all holding this hearing for us
and look forward to the reform in the future.
[The prepared statement of Mr. Bowen follows:]
Statement of James Randy Bowen, National Recording Secretary, Southern
Pine Region Director, Pulp and Paperworkers' Resource Council (PPRC)
I would like to take this opportunity to thank the U.S. House of
Representatives Committee on Resources for holding this very important
hearing concerning the Endangered Species Act.
I would like to give a brief history about the Pulp and
Paperworkers' Resource Council, more commonly known as the PPRC. We are
a ``grassroots, non-partisan'' organization, formed in 1992, made up of
hourly employees who work in the forest products industry. We work on
fiber supply, forest practices, endangered species and environmental
issues that impact our jobs. We are dedicated to the conservation of
our environment while taking into account the economic stability of the
workforce and our surrounding communities. We are dedicated men and
women working together for one common cause. That cause being ``OUR
JOBS''.
The PPRC began in the Pacific Northwest where the spotted owl was
successful in shutting down many mills, thereby causing us to loose
thousands of good living wage American jobs in the forest products,
pulp and paper sectors. As time progressed, we realized this loss of
jobs would not just stay in the Pacific Northwest, nor would it only
relate to endangered species.
PPRC PURPOSE STATEMENT
``To establish a grassroots coalition concerned with fiber supply,
the Endangered Species Act, and our environment in a way that promotes
knowledge and political activism, so we may influence legislation and
policies that affects our jobs.''
The Pulp and Paperworkers' Resource Council (PPRC) proposes the
Endangered Species Act (ESA) be updated to give equal consideration to
social and economic, as well as biological, concerns.
Currently, too many ESA listings lack a substantial basis
in hard scientific data. The House Resources Committee passed
legislation ( H.R. 1662--The Endangered Species Data Quality Act of
2004 ) that focused on the importance of using field-tested data and
continual research. In addition to including this language, revisions
to the Act should insure that ESA decisions are based on sound science,
including peer review of listing and recovery decisions.
ESA should limit the definition of threatened and
endangered ``species'' to those species which are biologically unique,
excluding those that are only geographically isolated from other
populations of the same species.
To stop the current tactic by environmental officials of
targeting of state officials, who issue permits to private parties to
merely conduct activities on their land, Congress and the
Administration should consider actions to limit liability of state
officials various means, including legislation if necessary.
The current consultation process in ESA has mushroomed
into an unnecessarily lengthy and expensive process. Congress should
support Administration efforts to update these processes and provide
legislative direction as necessary.
Agency meetings to list or de-list species should be held
in the geographic area to be economically impacted.
After a listing decision is made, full consideration
should be given to all social and economic issues in all subsequent
steps in the ESA process.
Litigation by environmental groups has made the critical
designation process a costly drain of financial and human resources
with very little gain in regard to species conservation. Congress
should focus the critical habitat process on species restoration by
removing it from the regulatory arena and making it part of the
recovery process.
Wood products employees support ESA reform. Protecting truly
endangered species is in the best interests of the public The impact on
people, property and jobs should be evaluated when making the
regulations.
ESA needs to be modernized and updated after thirty years.
The ESA mandate system is not working.
The ESA should be on equal footing with, not superior to,
all other laws.
The ESA needs to be absolutely based in objective and
verifiable science.
The ESA should be a flexible and rational Act and
apolitical in all decisions.
There should be a greater role for states and local
governments in all ESA decisions.
State constitutional authority over plants and animals
should be restored.
There should be compensation for private property owners
when ESA diminishes property values.
The ACT should be amended to ensure that the species will
not be listed until a recovery plan is developed and appropriations are
approved.
REFORM (re-form'') n. 1. the improvement or amendment of what is
wrong, corrupt, etc.
The Pulp and Paperworkers' Resource Council believes the time for
reform is now and only ``Real Reform'' will help both plants and
animals and preserve the American way of life.
The PPRC wants to conserve the nation's endangered
species but wants it done in partnership with the federal government,
not under the command-and control authority of federal agencies.
The PPRC supports access to information used by the
government in the ESA decision-making process.
The PPRC feels that in order to simplify the process and
make the Act work, ESA decisions should be based on sound science and
include peer review of listing and recovery decisions.
The PPRC feels that true scientific facts and field data
should be weighed more heavily than computer modeling.
The PPRC supports limiting the definition of threatened
and endangered ``species'' to those which are biologically unique,
excluding those that are only geographically isolated from other
populations of the same species.
Some other consideration:
Create economic incentives to encourage species and
habitat protection among private landowners.
Recognize the importance and value of private property
rights and that private landowners should not have to bear all the
expenses of species recovery.
Consider economic impacts to landowners and adjacent
communities during all phases of ESA implementation.
Since ESA was enacted in 1973,over 1300 species have been listed as
either threatened or endangered, but only 10 domestic species have been
recovered sufficiently to be removed from the list. That's less than a
1% success rate. The radical environmental community love ESA as it is
now. They sue the landowners and governmental agencies to stop
development and harvesting and management of timber resources. The
results are violations of private property rights, interference with
decisions based on sound science, prevention of projects, valuable
resources access denied, mismanagement of government-owned land, and
rural America suffers the economic hardship of such actions.
The forest products industry is a vital part of the economy of the
United States, especially the southern states. Most property in the
Southern United States is privately owned. Besides all the other
environmental hurdles we face, without fiber our industry would not
survive. ESA directly affects fiber supply.
ESA reform is needed now!
Imagine how excited economic developers would be if they got word
of a business that provided 850 high paying jobs with an annual payroll
of nearly $60 million.
This business would pay more than $11 million in state and local
taxes every year. This would surely be the largest taxpayer in the
parish. Purchases in a two-parish area alone would top $20 million.
This business would also provide for nearly 500 associated jobs for
area residents in transportation and harvesting.
Employees of this business would be active in almost every aspect
of the community. Collectively, the group would give an average of
$150,000 a year to the local United Way.
Conservative estimates of the total economic impact of that
operation would be well over 3,000 jobs and $250 million annually. That
doesn't even include statewide purchases of $110 million for wood
fiber, raw materials and chemicals and $30 million annually for energy
to sustain the operation.
That would have economic development experts, local and area
elected officials and the general public jumping through hoops to see
what they could do to land such a prize.
But what if that business is one that already exists? I know of one
that already exists. The facts I stated are about International Paper's
Louisiana Mill in Bastrop, Louisiana. June 13th, I'll have 31 years
employment there.
Can you imagine what would happen to the employees and the
community if we lost that? That is why we are working as hard as we can
every day to see that we do everything we can to make sure that doesn't
happen.
The economic environment for the forest products industry in the
United States is not good. We see most of the growth overseas and in
the Pacific Rim.
Again, fiber supply is vital and ESA affects us. ESA reform is
needed! You can make a difference. I ask you to put a human face on ESA
when you consider reform.
Thank you.
______
Response to questions submitted for the record by James Randy Bowen,
National Recording Secretary, Southern Pine Region Director, Pulp and
Paperworkers' Resource Council (PPRC), Bastrop, Louisiana
Question submitted by Senator Crapo:
1. All of the panelists spoke of contributing time and money to
species conservation--some more willing than others. If we could
guarantee that your investment gave you a seat at the table to take
part in hiring scientists, planning recovery, and taking action on the
ground--would you be better off?
Response:
Many private property landowners already contribute time and money
to species conservation. For example: since 2001, International Paper
Company has been an active partner with U.S. Fish and Wildlife Service,
Tennessee Wildlife Resources Agency, Alabama Department of Conservation
and Natural Resources, and Conservation Fisheries, Inc. in
reintroduction of the boulder darter into Shoul Creek, located in
Tennessee and Alabama. The boulder darter has been on the federal
endangered species list for 17 years. This is just one example.
Many private property landowners already contribute but many may
not be able to afford the expense. The ones who can't afford this
should still be provided a seat at the table if it affects their
private property land usage rights or may affect their property value.
My answer is YES if they are affected.
______
The Chairman. Thank you, Mr. Bowen. Mr. Cummins.
STATEMENT OF JAMES CUMMINS, EXECUTIVE DIRECTOR,
MISSISSIPPI FISH AND WILDLIFE FOUNDATION
Mr. Cummins. Chairman Pombo, Congressman Pickering and
Senator Crapo, thank you for the opportunity to speak on the
Endangered Species Act. With the discovery of the ivory-billed
woodpecker, this is a great time to begin a frank discussion
about recovery.
I'm James Cummins, I'm Executive Director of the
Mississippi Fish and Wildlife Foundation. I'm a certified
fisheries and wildlife biologist as well as a private
landowner. Two of our many accomplishments at the foundation
include conceptualization of the wildlife habitat incentives
program as well as the Healthy Forests Reserve Program.
Private lands provide habitat for 90 percent of our
nation's listed species. Eight of the top ten states with the
most listings are in the south. This region also provides 60
percent of our nation's timber. More timber is harvested
annually from the National Forests in Mississippi than all of
the entire National Forests in the Pacific Northwest combined.
Because of this you may wonder why you've not heard a lot
more about ESA problems here in the south. Most of the
biologists in the south have a fish, wildlife with management
background, or in education, not just biology, so they're used
to trying to resolve conflicts. We try to solve problems in the
south, not create them. We have very good leadership here as
well. Sam Hamilton is our Regional Director in Atlanta and he's
doing a great job.
The ESA has been very effective in preventing many species
from becoming extinct, but it has not been successful at
recovering them. Although recovery will take time for most
species, it is certainly achievable.
The ESA should not be a permanent life support system. And
like a quality health care system, restoring the health of our
nation's listed species requires significant dollars, but
spending money is certainly no guarantee of results.
Emphasizing recovery can build confidence if funds are spent
wisely.
I have quite a few suggestions to improve the ESA. Some
I'll outline today, and others I'll fully describe in my
written statement. Although the Act can be improved, don't
forget that many of its problems are in the rules and
regulations. Stewardship of listed species can certainly
respect private property rights. Although a free market economy
is the preferred means of improving environment, it does not
always worked in this situation and incentive should be
provided.
In some cases, like that of aquatic ecosystems, incentives
do not always work, and a stronger commitment from some of the
public works agencies is needed. Habitat is the basis for every
plant, fish and wildlife population, and should be the basis of
recovery. We're not taking full opportunity of the consensus
over the importance of habitat management.
Our nation depends on private lands for economic uses. We
also depend on them to provide many free services for society,
such as oxygen, sequestering carbon dioxide and providing
habitat. We expect all of this while rarely thinking about how
landowners can afford to provide them free of charge.
Landowners need the encouragement, the financial, as well as
the technical support to undertake projects to recover the
listed species found on their property.
Incentives provide the basic operating frame work to
accomplish this objective. Congressman Pickering has certainly
seen the evidence of that in the Wetland Reserve Program, as
he's introduced the Wetland Reserve Restoration Act prior to
this last Farm Bill.
We also need to recognize that there are other
opportunities that exist, and many of you are familiar with
that as you serve on your respective bodies, Agriculture
Committee. Recovery can be incorporated into the Conservation
and Reserve and Environmental Quality Incentives Program, and I
certainly encourage you to work with your colleagues on the Ag
Committee as we start looking at the 2007 Farm Bill.
The Administration and the Congress need to fully fund the
Healthy Forest Reserve Program to develop the first agreements
prior to year's end. I appreciate Congressman Walden and
Senators Cochran, Lott, Chambliss, Lincoln and Crapo and others
requesting funds for it, along with the support of 47 national
conservation organizations.
The Healthy Forest Reserve Program is the perfect program
for recovery efforts of the ivory-billed woodpecker. An
enormous opportunity exists to allocate funding to it that
really can provide the greatest benefit to the bird.
A significant recovery title should be incorporated into
any new ESA legislation. A recovery and prevention program
consisting of tax credits should be established.
These tax credits can be used by the landowner or even
sold. This will allow the credit to help meet the needs of all
landowners, including those with limited resources. The origin
of this idea came with conversations and meetings I had with
the late Senator John Chafee.
Eligible land should be in close proximity to existing
populations where significant recovery can occur, rather than
including its entire range. Priority should be on lands where
the opportunity exists to resolve conflicts. The program could
also consist--should consist of several components committed
with a voluntary either long term or perpetual easement where
the landowner would receive a tax credit equal to the appraised
value of the property plus a half percent of the restoration
cost.
The second component could consist of a 30 year easement
where the landowner would receive 75 percent of the appraisal
cost as a tax credit, as well as the restoration cost at that
same amount.
The third component would consist of a voluntary 10 year
agreement where the landowner would receive a tax credit equal
to 75 percent of the restoration cost.
Those are some of the very similar type provisions that
you're familiar with in the Wetland Reserve Program and what
Congressman Pickering had introduced.
Finally, safe-harbor language should be included so that an
owner should not be liable for take of a species from altering
habitat once that agreement has expired. The Safe Harbor
Program is a tool that began in the south in 1995 to encourage
voluntary management by landowners to benefit listed species
without imposing additional regulations on property.
We need legislation for a strong invasive species control
program. In 2003 Senator Cochran introduced such a program as
an independent title to the Healthy Forest Restoration Act;
however, it was certainly not included in the final version of
the bill.
While many people solely blame economic development,
invasive species ranked as the second most important threat to
listed species behind habitat destruction, having contributed
to the decline of 42 percent of listed species.
These types of proactive approaches that I've described
will help de-list threatened and endangered species by placing
an emphasis on recovery and emphasizing economics. They will
also aid a species before it reaches the list, a status of
either threatened or endangered, as Libby mentioned earlier,
thus making it unnecessary to list. Working with private
property owners and enabling them to restore the habitat is the
kind of proactive strategy that can head off a regulatory
crisis, while improving the environment and providing
opportunities that don't threaten jobs.
Mr. Chairman, Congressman Pickering and Senator Crapo, this
concludes my remarks. Thank you.
[The prepared statement of Mr. Cummins follows:]
Statement of The Honorable James L. Cummins, Executive Director,
Mississippi Fish and Wildlife Foundation
The Endangered Species Act:
A Unique Approach To Recovering Threatened And Endangered Species
``Timely disbursements to prepare for danger frequently prevent much
greater disbursements to repel it.''
George Washington
``Conservation will ultimately boil down to rewarding the private
landowner who conserves the public interest.''
Aldo Leopold
``Nothing is more priceless and more worthy of preservation than the
rich array of animal life with which our country has been
blessed. It is a many faceted treasure, of value to scholars,
scientists and nature lovers alike, and it forms a vital part
of the heritage we share as Americans.''
Richard Nixon
Introduction
Chairman Pombo, Ranking Member Rahall, Members of the Committee,
Congressman Pickering and Senator Crapo, thank you for the opportunity
to appear before you today to speak on the Endangered Species Act
(ESA), specifically how we can improve the recovery of species. With
the announcement, this past Thursday of the discovery of the ivory-
billed woodpecker, I know of no better time to begin a frank discussion
about recovery. We have worked hard over the past 15 years to develop
programs for recovery and work with private landowners and public
agencies in the South on recovery efforts. Many of you have spent a lot
of time on it as well and a lot of us in the conservation community
appreciate it.
I am James L. Cummins, Executive Director of the Mississippi Fish
and Wildlife Foundation. I am a certified fisheries biologist, a
certified wildlife biologist and a private landowner. Some of the
Foundation's more significant accomplishments include conceptualization
of the Wildlife Habitat Incentives Program, helping pass the Grassland
Reserve Program, developing many of the components of the Wetland
Reserve Program and conceptualization of the Healthy Forests Reserve
Program. Regarding public lands, we worked with our delegation to
develop the Holt Collier and Theodore Roosevelt National Wildlife
Refuges as well as the Sky Lake Wildlife Management Area, which
contains the largest stand of ancient cypress in the world. We also
work in the area of market-based incentives for conservation, such as
tradable credits for carbon sequestration, threatened and endangered
species, wetlands and streams. I proudly serve as a member of
Environmental Defense's Center For Conservation Incentives. The
Center's most recent program, Back From The Brink, is about recovering
species. Senator Crapo, I appreciate you hosting Environmental Defense
to announce the roll-out of Bank From The Brink.
Background
Many of you represent the West where the vast majority of public
lands and threatened and endangered species conflicts occur.
Private lands provide habitat for 90 percent of our Nation's
threatened and endangered species. The South has the largest percentage
of listed and candidate species in the nation. And that is unfortunate.
For the species sake, I wish that list was shorter. Eight of the top
ten states/territories with the most listings are in the South; they
include: Alabama (115), Florida (111), Georgia (66), North Carolina
(63), Tennessee (96), Texas (91), Virginia (71) and Puerto Rico (75).
Mississippi has 38.
According to the U.S. Department of Agriculture's (USDA) Forest
Service (USFS), nationwide, public forest lands comprise 317 million
acres (42.38%) and private forest lands comprise 431 million acres
(57.62%). Private forests provide approximately 89 percent of the
nation's timber harvest. According to the latest data from the USFS,
specifically the Southern Forest Resource Assessment, nationwide, the
South alone provides 60 percent of the nation's timber supply, making
it the largest producer of timber compared to any country in the world.
Furthermore, more board feet of timber are annually harvested from the
National Forests in Mississippi than all of the National Forests in the
Pacific Northwest combined. Although many factors affect these
seemingly lopsided statistics, the primary reason that private forests
produce so much timber without substantial conflicts is simple--it is
called management.
A case can be made that the ESA has been very effective in
preventing many species from becoming extinct; however, by all
accounts, it has not been successful at restoring habitat and
significantly increasing populations. The Act has listed a great many
species and kept them from becoming extinct, however it has de-listed/
recovered very few. If our health system operated in a similar fashion,
it would need to be improved. As an example, we would have put 1,274
people in the hospital, kept 989 in intensive care (endangered), 275 in
the regular ward (threatened) and released 10 (de-listed). The ESA
should not be viewed as permanent life support system for threatened
and endangered species. There is significant room for improvement, but
like a quality health care system, restoring the health of our Nation's
candidate, threatened and endangered species requires dollars--and lots
of them.
But spending money is no guarantee of results. We need to break the
standoff over funding. Emphasizing recovery can build confidence that
our money is spent wisely, and this confidence can, in turn, build
support for more investment from both the private and public sectors.
I have quite a few suggestions to improve the ESA. Although the Act
can be made better, I want to point out that many of the problems on
the regulatory side are not always about the Act. They are about the
rules and regulations governing it. And that, for the most part, is an
Administrative issue.
Develop New Conservation Incentives and Better Use Existing Ones
The ESA can be much more effective if new, constructive ideas are
incorporated into it. Stewardship of threatened and endangered species
can be encouraged that respects property rights. Although a free-market
economy is the preferred means of improving the environment, it does
not always work in this situation and incentives should be provided.
Incentives appear to be more expensive, but many times are less harmful
to the economy than burdensome regulations. And in some cases, like
that of aquatic ecosystems, incentives do not always work and a
stronger commitment and more cooperation from the public works agencies
is needed.
Habitat is the basis of every fish and wildlife population and
should be the basis of every recovery effort. I am not persuaded that
the current ideas on the table are taking full opportunity of the
consensus over the importance of habitat protection, restoration and
enhancement.
It is obvious that we cannot set aside unlimited acres for fish and
wildlife habitat. The ESA calls for the federal government to prohibit
certain activities that would cause the take of a listed species unless
such activities are not otherwise authorized by an incidental take
permit. Many times, if the land use causes a take, the result under the
current system causes not only hostility on the part of the owner, but
sometimes damage to the species needing assistance. Ability of
government to control how property is used can make an enemy out of
even the most harmless of birds, fish or other listed species.
Our nation depends very heavily on private lands to produce the
thousands of products we need every day--from cotton to coal to
cellulose and beyond. We are also depending on these same lands to
provide many other services that benefit society, for most of which
landowners never receive compensation. These free services to society
include producing oxygen, sequestering carbon dioxide, filtering air
and water, providing fish and wildlife habitat, including that for
threatened and endangered species, improving the aesthetic beauty of
the natural landscape and providing opportunities for recreation and
solitude, just to name a few. In fact, both Governor Haley Barbour and
Congressman Bennie Thompson view these services as extremely important
to economic growth and improving Mississippi's quality of life.
We as a nation have come to expect all of this from private
landowners while rarely giving thought to how they can afford to
provide these services ``free of charge,'' when these services cost
landowners. It is a cost that can only be recovered through the selling
of timber, minerals or by divesting of the land.
While this may be possible for some private landowners, many small
and medium-sized landowners continue to find it difficult, if not
impossible, to invest in active and sustainable land management over
such a long time. Add to this the uncertainty of regulations that might
limit land management options, as well as the ever-increasing, campaign
against the use of wood products, and it is easy to see why more and
more private landowners are choosing to divest of their lands. These
lands are rapidly being developed and broken into smaller units that
cannot sustain many of the benefits and services upon which society
depends. Land having value--even for wood--is a great thing, especially
when you are competing against concrete and asphalt.
Landowners need the encouragement, financial and technical support,
and backing of federal and state governments, to undertake projects to
recover the declining, threatened and endangered species that are found
on their property. Incentive-based programs provide the basic operating
framework to accomplish this objective.
We need to better utilize existing programs to recover species.
First, the Bush Administration and the Congress need to fully fund the
Healthy Forests Reserve Program (HFRP) and develop the first agreements
under the program prior to this year's end. On the House side,
Congressman Walden, and on the Senate side, Senators Cochran, Lott,
Smith, Chambliss, Lincoln, Pryor, Breaux, Landrieu, Miller and Crapo
have requested funds with the support of 47 national conservation
groups.
The HFRP is the perfect program for recovery efforts of the ivory-
billed woodpecker. I am pleased to see that the USDA has allocated $5
million to aid in its recovery; however, an enormous opportunity exists
to allocate funding to the HFRP, one of their own programs, that can
provide the greatest benefit to the woodpecker. I hope additional
discussion will occur before all opportunities of funding for this
current fiscal year are exhausted.
The top ten states with the greatest risk of forest ecosystem loss
almost mirror those states with the most listed species. These states
are Florida, California, Hawaii, Georgia, North Carolina, Texas, South
Carolina, Virginia, Alabama and Tennessee. Restoring forest ecosystems
like the once great longleaf pine forest of the southern coastal plain,
fire-maintained natural southern pine forests, southwestern riparian
forest, Hawaiian dry forest, Southern Appalachian spruce-fir forest,
mature Eastern deciduous forest, California riparian forest, old-growth
forest of the pacific Northwest, mature red and white pine forests of
the Great Lake states, fire-maintained ponderosa pine forests and
southern forested wetlands are extremely important to the recovery of
many species.
One way to increase the rate at which species are recovered is to
change the way the U.S. Fish and Wildlife (USFWS) allocates funding. In
allocating conservation dollars, the ESA requires the USFWS and the
National Oceanic and Atmospheric Administration (NOAA) Fisheries to
give priority to species that are ``most likely to benefit'' from
recovery plans which are required for each listed species. In 1988,
2002 and 2005, the General Accounting Office reported that these
agencies were instead allocating funds to regions based on other
factors, such as office workload instead of ``most likely to benefit.''
In addition to providing funds for species in dire need, the USFWS
should allocate funds to species that have significant potential for
recovery. The USFWS should also take into account partnerships among
diverse stakeholders.
Recovery can be further incorporated into the programs of the USDA,
specifically the Conservation Reserve Program and the Environmental
Quality Incentives Program. I urge you work with your colleagues on the
House Agriculture Committee to utilize the conservation provisions of
the Farm Bill to assist in recovery and incorporate specific language
in the 2007 Farm Bill.
Furthermore, USDA employees, specifically those of the Natural
Resources Conservation Service, work with thousands of landowners every
day. If they were more knowledgeable about threatened and endangered
species conservation tools and needs, and had more authority in species
conservation efforts, they, along with State Technical Committees,
could develop appropriate conservation practices which could reduce
private landowner anxiety and better enlist them in conservation of the
species in need.
A significant recovery title should be included in any new piece of
legislation concerning ESA reauthorization. An Endangered Species
Recovery and Prevention Program (ESRPP), consisting of tax credits
(that can be sold) and direct payments for recovery should be
established. This potential program should emphasize recovery through
habitat restoration. Also, it should aid a species before it reaches
either a status of threatened or endangered. The origin of this idea
came from several conversations that began in Tulsa, Oklahoma, and
meetings with the late Senator John Chafee, who also felt that
incentives are critical to recover threatened and endangered species.
These tax credits can be used by the landowner. The landowner could
also transfer or sell the tax credit to another private individual,
corporation, group or association so it will help meet the needs of all
landowners, included those with limited resources.
The ESRPP would focus on restoration of habitat, which would
function similar to HFRP. This program should be limited to the area
where there is a realistic possibility of recovering a species rather
than allowing its entire historic range to be included. The ESRPP would
allow non-federal property owners to enroll land where significant
improvements in habitat would occur. Eligible lands should include
those that are in close proximity to existing habitat and populations
where significant population recovery can occur. Priority should be
given to lands where the opportunity exists to resolve landowner
conflicts with threatened and/or endangered species.
The ESRPP could consist of three components. The first component
could consist of a voluntary, perpetual easement being placed on land
that is in close proximity to existing habitat of a threatened or
endangered species; the landowner would receive a tax credit equal to
the appraised value of the property plus 100 percent of the restoration
costs.
The second component could consist of a voluntary, 30-year easement
being placed on land that is in close proximity to the existing habitat
of a threatened or endangered species; the landowner could receive 75
percent of the appraised value of the property plus 75 percent of the
restoration costs.
The third component could consist of a voluntary, 10-year agreement
being placed on land to improve a species' habitat before it reaches a
threatened or endangered status (i.e., candidate, state listed species,
rare, peripheral, special concern); the landowner could receive a tax
credit equal to 75 percent of the restoration costs.
Finally, safe-harbor language should be included so that a property
owner shall not be liable for any incidental take of any listed species
or resident species, pursuant to the Act or any other federal law, from
altering the habitat or making a different use of the area under the
agreement once it has expired. In providing safe harbor provisions,
land enrolled in the ESRPP and land in the immediate area that would
likely be impacted by the restoration plan as the species is
recovering.
The Safe Harbor Program is a very important tool. It began in the
South in 1995 as a novel approach to encourage voluntary management by
private landowners to benefit listed species without imposing
additional regulatory restrictions on property use. Today, landowners
across the nation in 17 states have enrolled and are managing 3.6
million acres of private property with Safe Harbor Agreements. In the
South, state agencies have developed and administer state-wide Safe
Harbor Plans and permits for the red-cockaded woodpecker in Louisiana,
Georgia, South Carolina and Texas from which private landowners have
enrolled over 200,000 acres. In Mississippi, the USFWS has approved and
is about to issue the first permit for a gopher tortoise and the red-
cockaded woodpecker Safe Harbor Agreement. The USFWS and its partners,
which include the Foundation, Environmental Defense and the American
Forest Foundation, are currently working to develop a range-wide gopher
tortoise Safe Harbor Plan, a black pine snake Candidate Conservation
Agreement and permits. During the first year of this plan, we
anticipate landowners enrolling approximately 5,000 acres. These
landowners will restore, grow and produce longleaf pine for timber
while enhancing habitat for these species. The Safe Harbor Program
works great and we don't see any need to change this program.
This type of proactive approach that incentives can provide will
help de-list threatened and endangered species by placing an emphasis
on population recovery. It will also aid a species before it reaches
either a status of threatened or endangered, thus making it unnecessary
to list a species. Working with private property owners and enabling
them to restore habitat is the kind of proactive strategy that can head
off regulatory crises, while improving the environment and providing
opportunities that don't threaten jobs.
Lastly, to recruit landowner partners, it is critical that the
government show progress and highlight ESA success stories. The
threatened and endangered species list should not be perceived as a
permanent life support system for fading species. While fully restoring
many plants and animals will take time, recovery for the vast majority
of species is clearly achievable. Celebrating successes when they do
occur will provide the ESA with a necessary, periodic dose of hope and
optimism.
Better Utilize The National Fish Hatchery System
For more than a century, the National Fish Hatchery System has
played a valuable role in providing fish to benefit our Nation. It is
uniquely positioned to aid in the recovery of aquatic ecosystems
through leadership in development and application of the best possible
fish culture and fisheries management techniques. This includes the
maintenance of healthy, wild fish and aquatic invertebrate populations
through habitat conservation and improved harvest management,
maintenance of genetic diversity and the proper use of hatchery stocks
in achieving management objectives.
The System is doing some great things in the South regarding
recovery. The recovery plans for shortnose sturgeon, pallid sturgeon
and many freshwater mussels directly call for the development of
cryopreservation techniques or for the genetic conservation of these
species. The Warm Springs Fish Technology Center in Georgia is
currently developing cryopreservation techniques for protocols for each
of these species.
Here in Mississippi, the Private John Allen National Fish Hatchery
is working extensively on the gulf strain of walleye. They are spawning
them, stocking them into selective and suitable sites and evaluating
them for survival, movement and growth. The Lower Mississippi River
Coordination Office in Vicksburg has recently conducted six state-level
planning meetings in the Lower Mississippi River Valley to identify and
prioritize habitat restoration actions necessary to stabilize declining
aquatic resource populations protected under the Act. Due to the level
of cooperation that has developed between the Lower Mississippi River
Coordination Office and the U.S. Army Corps of Engineers at the
Mississippi Valley Division and District levels, habitat restoration
actions identified in the Pallid Sturgeon Endangered Species Recovery
Plan and the Lower Mississippi River Aquatic Resource Management Plan
are being implemented by the U.S. Army Corps of Engineers during their
annual Mississippi River operations and maintenance activities.
The Natchitoches National Fish Hatchery in Louisiana continues to
do extensive work in developing spawning techniques for the recovery of
the pallid sturgeon. In 2004, the hatchery successfully spawned pallid
crosses and maintained family lots which were stocked according to the
Pallid Sturgeon Recovery Plan. In the next few years, pallid sturgeon
will be cultured to address research needs.
Overall, the Southeast Regional Fisheries Program is addressing
tasks and needs for 16 species for the recovery and restoration of
threatened, endangered and imperiled aquatic species. The Southeast
Aquatic Resource Partnership, which consists of the USFWS, state fish
and wildlife agencies and fishery management councils, also play a
major role in habitat restoration and population recovery. The
partnership is a shining example of innovation and what can be done
when fisheries management-oriented people try to solve problems.
At my former university, Virginia Tech, my major professor, Dr.
Richard Neves, is propagating threatened and endangered mussels through
the Fresh Water Mollusk Conservation Center, and stocking them in
suitable habitat in Southwest Virginia. This is extremely important
since 90 percent of the threatened and endangered mussels are found in
the Southeast.
Unfortunately, even with this good work, the hatchery system has
developed serious problems over its 128 year history. Presently, it
faces both its worst crisis and its best chance for improvement. Since
1990, the USFWS's overall budget rose 35 percent, but funding for
hatchery operations and maintenance has declined by 15 percent. The
facilities are old and outmoded. A tremendous maintenance backlog
exists and 25 percent of hatchery personnel positions are vacant. This
is in part due to an erosion of congressional and public support as
well as an erosion of support within the USFWS.
Combined with detailed hatchery work plans, clarified tribal
agreements, re-defined fish-production responsibilities, updated
training for hatchery personnel and proper habitat restoration and
management, the system can not only help restore community lakes and
streams, reverse declines in rare and declining species of fish, but
help prevent species from becoming listed and recover threatened and
endangered species of fish and other aquatic species with the help of
appropriations from the threatened and endangered species program.
Incorporate Conservation Into Other Departments
The conservation of threatened and endangered species can be
incorporated into other departments and programs of the government. In
many instances multiple objectives can be reached on the same parcel of
land.
One good example of this is the military. The Department of Defense
is faced with a serious and growing threat to its ability to maintain
the readiness of our Armed Forces. That threat, often termed
encroachment, is caused largely by developmental pressures and loss of
habitat in the vicinity of key installations and critical military air
space and training routes. The list of bases, ranges and airspace
already seriously impacted by these pressures is long and growing.
Unless action is taken now, those pressures will become even more
severe and the adverse impacts on our military will worsen.
The most effective action we can take to protect these key bases,
ranges and airspace is to protect the land and important habitat in
their vicinity. In recognition of the remarkable success of this open
and collaborative approach in countering encroachment at Fort Bragg,
Congress authorized the military to enter into agreements with state
and local governments and conservation organizations to work together
to protect land in the vicinity of bases and associated airspace. It
authorized the military to expend operational funds to help acquire,
from willing sellers only, the minimum property interest necessary to
ensure that an installation will be able to accomplish its mission now
and in the future.
Those of us who have been privileged to work in close partnership
with the military have the deepest respect and admiration for the
dedicated professionals, uniformed and civilian, who do so much to
ensure that as they protect our Nation, they also meet their
obligations as stewards of the lands entrusted to their care.
Their efforts, and the unique nature of military activities, have
resulted in our military bases having some of the best remaining
habitat for threatened and endangered species in the country and
functioning as key reservoirs of the biodiversity so fundamental to an
enduring and healthy environment.
There is a great opportunity to not only accomplish a key need of
the military in reducing base encroachment, but recovering and
hopefully de-listing species that may hamper the mission of the base or
range.
Let me provide another example. On February 15, 2002, the Bush
Administration announced the Climate Change Initiative, which includes
carbon sequestration. Carbon sequestration is designed to meet the
carbon-offset objectives of companies by reducing greenhouse gases. A
carbon-offset program can positively impact clean air and can be used
to restore ecosystems and enhance the recovery of threatened and
endangered species, besides having other positive environmental impacts
such as reducing water pollution.
There should be an emphasis on reforestation and forest management
efforts so that it is done in a manner that both sequesters carbon and
at the same time emphasizes the recovery of threatened and endangered
species. By doing so, the United States can achieve benefits in other
national and international commitments. To date, the U.S. Department of
Interior has been a leader in working with energy companies to reforest
lands of the USFWS in a biodiverse manner. The Southeast and the
Pacific Northwest are the two most effective areas in North America for
the sequestration of carbon.
Reduce The Spread Of Invasive Species
We need legislation for a strong invasive species control program.
In 2003, Senator Thad Cochran included such a program as in independent
title in the Healthy Forests Restoration Act; however, the title was
not included in the final version of the bill.
Invasive species, sometimes referred to as nonnative, alien, exotic
or non-indigenous, introduced species, are those that evolved elsewhere
and have been purposely or accidentally relocated. It has been
estimated that invasive species rank as the second most important
threat to native species, behind habitat destruction, having
contributed to the decline of 42 percent of our Nation's threatened and
endangered species.
This invasion has gained momentum since the last century when many
of these plants were first imported or accidentally introduced, many by
the federal government. It is estimated that 100 million acres in the
United States are already affected by invasive exotic plants. This
acreage increases annually by an area twice the size of Delaware.
Almost 20 percent of the species of plants in Mississippi's forests,
parks, refuges and other open spaces are not native to our state. Some
of these exotic plants meet few natural constraints and can soon
dominate a landscape.
Invasive species can negatively impact native species in any number
of ways including: eating them; competing with them; mating with them
and decreasing genetic diversity; introducing pathogens and parasites
that sicken or kill them; and disrupting available nutrients. An
introduced species can change an entire ecosystem--changing species
composition, decreasing rare species and even changing or degrading the
normal functioning of the system. Ecosystems free of invasive species
are a key to maintaining and recovering threatened and endangered
species.
For example, the chestnut blight fungus from Asia all but wiped out
the American chestnut, thus changing the makeup of eastern forests.
Cogongrass, classified as the seventh worst weed in the world, is hardy
and tolerant of shade, high salinity and drought. It forms dense mats
that crowd out native vegetation and forage plants and displaces
species such as the threatened gopher tortoise in the Gulf Coastal
Plain. It can alter the natural fire regime by causing hotter and more
frequent fires. Water hyacinth may be the world's worst aquatic weed.
One of the fastest growing plants known, it displaces native plants,
fish and wildlife, disrupts water transportation, including that of the
Tennessee-Tombigbee Waterway, disturbs recreational fishing and blocks
water intakes at hydroelectric power-generating dams. At one time in
Florida, 125,000 acres of open water was covered with up to 200 tons of
water hyacinth per acre.
Assistance for chemical, mechanical, biological and ecological
control is needed where invasive species are impacting threatened and
endangered species.
Other Considerations
One of the biggest obstacles to restoring threatened and endangered
species is the inability of the USFWS to approve conservation
initiatives quickly. The USFWS spends too much time on paperwork and
not enough time recovering species. The long time it takes to develop
voluntary conservation agreements, such as Safe Harbor agreements and
conservation banks, damages landowner relations and hampers
conservation efforts. Increasing the USFWS efficiency will require
strong leadership, especially from the new Director.
We should seek research to develop cost-effective recovery
techniques. The species protected by the Act are usually rare and not
well known by the scientific community. Recovery requires determining
basic life history and habitat needs for many species. This is a proper
role for the U.S. Geological Survey, state agencies and universities.
Incentives are more difficult to apply on aquatic ecosystems.
Greater cooperation among federal agencies that have jurisdiction in
our waters and are involved in navigation and flood control (i.e., U.S.
Army Corps of Engineers, Natural Resources Conservation Service) is
critical. For example, the endangered least tern's status is improved
due to a partnership among the U.S. Army Corps of Engineers, USFWS and
the Mississippi Department of Wildlife, Fisheries and Parks to protect
and improve habitat. The endangered pallid sturgeon's status may be
improving due to the same agencies partnering to protect and improve
fishery habitat in the Mississippi River.
Finally, the USDA's Wildlife Services can continue, and possibly at
a greater level, providing animal damage control equipment and labor,
specifically where threatened and endangered species have conflicts
with commercial livestock, crop or aquaculture operations.
Summary
Landowners in the South, and particularly Mississippi, have done a
very good job of conservation of habitat for all species, no matter
whether they are listed under the Act or not. With a new way of
thinking to make them more attractive, economically that is, they will
be much better off.
The conservation community will support a large habitat and
population recovery program. I think you will find that both industry
and conservation groups in my part of the world will help implement
conservation measures to avoid listings, recover species that are
listed and do this in a manner that we work with private landowners
versus against them.
The type of proactive approach that I have suggested will help
remove the threatened and endangered species of our nation from their
respective lists. It will also aid a species before it reaches a status
of threatened or endangered, making it unnecessary to list a species.
Working with private property owners and enabling them to conserve
habitat on their property is the kind of proactive strategy that can
head off regulatory crises, while improving the environment and
providing opportunities for economic development.
Mr. Chairman, Ranking Member Rahall, Members of the Committee,
Congressman Pickering and Senator Crapo, this concludes my remarks. I
will be glad to respond to any questions that either of you or other
members of the Committee may have.
Thank you.
______
Response to questions submitted for the record by Honorable James L.
Cummins, Executive Director, Mississippi Fish and Wildlife Foundation
Question submitted by Senator Crapo
1. All of the panelists spoke of contributing time and money to
species conservation--some more willingly than others. If we could
guarantee that your investment gave you a seat at the table to take
part in hiring scientists, planning recovery, and taking action on the
ground--would you be better off?
RESPONSE:
In response to the question, yes we would be better off. I am not
sure how the private sector could participate in hiring scientists, but
that would help get the most qualified and practical person to respond
to the need at hand.
Planning recovery would be most valuable. Many USFWS personnel are
not aware of all of the recovery techniques and various programs of
other agencies. We have requested to be on the recovery team of the
ivory-billed woodpecker, have purchased two web sites (www.ivory-
billed.org and www.ivory-billedwoodpecker.org) to educate the public
and landowners about recovery techniques and safe harbor, for example.
It appears that some of this may be happening for the woodpecker.
Furthermore, by including others, such as the timber industry, the
bird, or whatever the species in question, will be better off.
The same goes for action on the ground.
In all cases, not only will we be better off, but conflicts can
possibly be avoided, there will be more support from all parties and
the species of concern will be better off.
Please let me know if you need additional information.
Thanks,
______
The Chairman. Thank you. Mr. Tazik.
STATEMENT OF DAVID J. TAZIK, CHIEF, ECOSYSTEM EVALUATION AND
ENGINEERING DIVISION, ENVIRONMENTAL LABORATORY, U.S. ARMY
ENGINEER RESEARCH AND DEVELOPMENT CENTER
Mr. Tazik. Good morning. Mr. Chairman and other Members of
Congress, it is my pleasure to appear before you this morning
to highlight research conducted by the U.S. Army Corps of
Engineers on this important topic.
I'm a scientist who will limit my remarks to those areas of
knowledge and the research we are conducting at the Engineer
Research and Development Center.
In regard to policy and budgetary questions, I will be
happy to take those for the record and assure that you will
receive a full and prompt answer. I intend to demonstrate that
the Corps' continued commitment to bringing good science and
technology for the conservation of endangered species and the
ecosystems----
The Corps recognizes its duty to address the prohibitive
and affirmative duties of the Endangered Species Act in the
pursuit of environmental sustainability goals under the Corps'
environmental operating principals. One important lesson for us
is that development and application of sound science is
essential in endangered species conservation planning. As such,
we actively engage in research to illustrate the effects of our
mission related activities on high priority species.
The Corps has spent from $30 million to over $100 million
per year since 1996 on over 250 federally listed species. Yet
reported expenditures may be a substantial underestimate of the
true cost of compliance. For example, we recently found
reported costs for sea turtles were only about half the actual
cost incurred by Corps districts.
In response, we are developing an approved cost accounting
system. sea turtle issues arose for dredging projects as early
as 1980. Prior to 1992, some dredging activities killed as many
as 50 to 100 sea turtles per dredging project. At the time very
little scientific data existed on sea turtle biology and
behavior and water life subject to dredging. The Corps
responded voluntarily with establishment of the sea turtle
research program in 1991, that led to development of
protectional protocols. Since their implementation less than
one sea turtle incident has been documented for a dredging
event.
The pallid sturgeon occurs in large rivers in the
Mississippi River Basin. The cause of this and other river
sturgeon is attributed to flood control and navigation
projects, water pollution and commercial fishing for caviar.
Studies of the pallid are underway through inner-agency
collaboration along the Missouri River, the middle and lower
regions of the Mississippi River. Most are fully or partially
funded by the Corps. We have documented stable populations of
the pallid in the lower Mississippi River and their presence in
the middle Mississippi River during four months of the year.
Rarity of the species requires a long term commitment to fully
evaluate the population trends relative to the ongoing mission
activities.
We're also partnering with the American Bird Conservancy to
establish a science-based data collection protocol for Interior
Least Tern (ILT). Currently accepted population models do not
account for disbursal between the coastal and interior
populations of the tern, which may be a key factor in
regulating size of the interior population, which is federally
listed. Together we are assisting with coordination of a large
scale genetic sampling that will help us understand the
relationship between these two populations.
We are also partnering with the Conservancy to develop a
range-wide monitoring plan designed to obtain an accurate
estimate of the latest Least Tern population. The plan will be
reviewed by a multi-agency working group, including numerous
Federal, state and academic institutions.
The Corps has worked with the Services since enactment of
the Act to develop science-based solutions to endangered
species challenges and Corps projects, and we will continue to
do so. Information resulting from each of the efforts described
above is intended to provide a more reliable basis upon which
to formulate habitat restoration and management.
We cannot always provide absolute certainty that our
proposed activities will not affect a given species. As a
result, the decisions about protective measures can be co-
subjective and precautionary. Once subordinates and limitation
efforts are instituted reversing them can be difficult. Our
challenge is to provide the tools to quantify the risks and
uncertainty based on the best available science and to help
evaluate the efficacy of developing additional scientific
information.
I hope that my testimony today illustrates the Corps' past
and continuing commitment to pursue and use sound science and
technology to conserve important wildlife resources in the
Southern United States under the Endangered Species Act. On
behalf of the Corps and the Engineer Research and Development
Center, thank you for allowing me the opportunity to appear
before you this morning.
[The prepared statement of Mr. Tazik follows:]
Statement of Dr. David J. Tazik, Chief, Ecosystem Evaluation and
Engineering Division, Environmental Laboratory, U.S. Army Engineer
Research and Development Center
Mr. Chairman and Members of the Committee
Introduction
I am David J. Tazik, Chief of the Ecosystem Evaluation and
Engineering Division for the Environmental Laboratory at the U.S. Army
Engineer Research and Development Center (ERDC) in Vicksburg,
Mississippi, which is a component of the U.S. Army Corps of Engineers
(the Corps). I am pleased to appear today on behalf of the ERDC and the
Corps to provide information as requested in your letter of invitation
dated 25 April 2005. The Congressional interest in the ERDC's and the
Corps' contributions to protecting and restoring wildlife in the
southern United States under the Endangered Species Act (ESA) is much
appreciated.
The theme of my testimony today is the Value of Science in
Implementation of the ESA. I intend to demonstrate the Corps'
continuing commitment to bringing good science and technology to the
conservation of endangered and threatened species and the ecosystems
upon which they depend. While some of our research does support the
Army and other military Services, I will confine my remarks to the
Corps' civil works mission.
The Value of Sound Science in Implementation of the Endangered Species
Act (ESA)
The Corps recognizes its duty to address all its responsibilities
and duties under the ESA, meet regulatory requirements, and pursue
environmental sustainability goals under the Corps' Environmental
Operating Principles. And, we have learned a key lesson in the
implementation of the ESA--that development and application of sound
science is essential in planning for the protection of threatened and
endangered species. As a result, we are actively engaged in programs to
develop empirical data that define relationships between effects on
high-priority species and mission-related activities.
Economic Costs of Endangered Species Protection
Based on recent expenditure reports, the Corps has spent from $32
to over $108 million per year since 1996 on over 250 federally listed
threatened species and endangered species. Important taxa with
significant populations in the southern United States include
sturgeons, sea turtles, mussels, and shorebirds. Reported expenditures
are suspected to be a substantial underestimate of the true cost of ESA
compliance. A recent investigation for sea turtles, for example,
revealed that reported costs were only about half the actual costs
incurred by Districts. We are now developing an improved cost
accounting system.
Sea Turtles
Sea turtle issues arose for dredging projects starting in 1980.
Prior to 1992, some dredging activities killed as many as 50-100 sea
turtles per dredging event; yet we knew that some dredging events had
no impacts on sea turtles. At that time, very little scientific data
existed on sea turtle biology and behavior in waterways subject to
dredging. The Corps responded voluntarily with establishment of the Sea
Turtle Research Program that led to development of sea turtle
protection protocols. Since 1992, when the protocols were implemented,
less than one sea turtle incident has been documented per dredging
event.
Pallid Sturgeon
The pallid sturgeon occurs in large rivers in the Mississippi River
Basin. It was federally listed as an endangered species in 1990 and a
recovery plan was approved in 1993. Decline of this and other river
sturgeon is attributed to flood control and navigation projects, water
pollution, and commercial fishing for caviar. Studies of pallid
sturgeon are underway through interagency collaboration and include
three reaches of the Mississippi River Basin: Missouri River, Middle
Mississippi River, and lower Mississippi River. Most research studies
are fully or partially funded by the Corps from Northwest or
Mississippi Valley Divisions.
Recent Corps studies have documented stable populations in the
lower Mississippi River, and pallid sturgeon are regularly captured in
the Middle Mississippi River (MMR) during cooler months. Rarity of
endangered pallid sturgeon requires a long-term effort to fully
evaluate population trends and habitat preference relative to on-going
civil works mission activities. And we continue in this endeavor.
Least Terns
The ERDC and the American Bird Conservancy (ABC) are currently
partnering to assist the Corps in a variety of issues involving the
Interior Least Tern (ILT). Our objective is to establish science-based
data collection protocols for genetic studies and population
monitoring. We will use results to improve subsequent population
modeling that ultimately will inform long-term management for this
species.
Coastal populations (other than California) of the least tern are
not federally listed. And, the relationship between interior and
coastal populations of this species remains a mystery. Currently
accepted tern population models do not account for dispersal between
the two, which may be a key factor in regulating population size,
particularly for the interior population. Planned genetic studies will
help solve the riddle, and should lead to a more reliable basis for
future management recommendations. The Corps and ABC are contributing
to a potentially definitive genetics analysis by assisting with
coordination of a large-scale genetic sampling effort.
We are also partnering with the ABC to coordinate development of a
range wide monitoring plan for the interior population of least terns.
Our goal is to obtain an accurate assessment of regional and range-wide
least tern population numbers and trends. The plan will be reviewed by
the ILT Working Group, a multi-agency group including 4 U.S. Fish and
Wildlife Service regions, 10 Corps districts and ERDC, several USGS
science centers, 8 State wildlife agencies, several universities, and
ABC. Data such as these should provide us all with a reliable basis
upon which to monitor population status and inform habitat restoration
and management decisions.
Many of these decisions are based on the best science available,
but these are complex, interdependent systems with incredible
geographic scope, and many aspects of the biology and ecology of these
species are not well-understood. Taking action necessarily involves the
agency relying on its considerable expertise and making a judgment
call, and adjusting those decisions as more science becomes available
or circumstances change.
The Corps has worked with the Services since enactment of the Act
to develop science-based solutions to endangered species challenges at
Corps projects, and will continue to do so. Information resulting from
each of the efforts described above is intended to provide a more
reliable basis upon which to formulate habitat restoration and
management decisions. Once avoidance and minimization efforts are
instituted, reversing them can be difficult, yet it is important for
those making policy and management decisions to use the best available
science in making those decisions and to be prepared to change course
in response to new scientific developments.
In conclusion, my testimony illustrates the Corps' past and
continuing commitment to the pursuit and use of sound science in an
effort to meet prohibitive and affirmative duties under the ESA.
On behalf of the Corps and the ERDC, thank you for allowing me the
opportunity to present this testimony today.
______
The Chairman. Thank you. I thank the entire panel for their
testimony.
Dr. Tazik, just to begin with you, you talked about the
true cost of compliance in your testimony, and I trust that the
true cost was higher than what had been estimated in the past--
that once you started looking into it, you believe the true
cost was higher than what has been reported. Can you expand on
that a little bit for me?
Mr. Tazik. Well, there are a lot of costs that are inherent
in some of the activities that aren't just the labor based or
Corps personnel engaged in the compliance activities. There are
contracts associated with dredging activities that often times,
because of delays in the projects, there are costs incurred
that don't get captured in the normal proceeding of expenditure
accounting. So we're trying to work with the districts now to
develop a, essentially, a spreadsheet that will identify
specific types of expenditures that may have been missed in the
past, that we're asking them to now account for and require a
lot more detail.
The Chairman. So if a project gets delayed because of
discussions and consultations being a result of that, that the
true cost of those delays was not included. It was only the
Army Corps personnel at the table that is included.
Mr. Tazik. That's my understanding, sir.
The Chairman. And as you refine this, your efforts to come
up with the true costs, are you just looking at Army Corps'
costs, or are you looking at other state, Federal, local
agencies and their costs of compliance?
Mr. Tazik. No, we're looking at our agency cost.
The Chairman. Just yours.
Mr. Tazik. Yes, just ours.
The Chairman. The other thing that or one of the other
things you talked about was having science-based solutions, and
I believe it was the Least Tern you talked about that you were
working with others to come up with surveys that were based on
science, and to try to figure out what the true picture was
that you were dealing with. Why would you have to do that?
Wouldn't Fish and Wildlife have all of the information? And if
they're regulating you and they're telling you this is what you
have to do, wouldn't they have all that information already?
Mr. Tazik. Not necessarily. You're calling upon the agency
being regulated to try to provide the best science available.
So we try to work in partnership with the Service and others,
stakeholders, to come up with methodologies that everyone
agrees to, that we agree that it's the best science that we can
bring to the best monitoring that we can. And we certainly
consult with the Service and coordinate with them and have
their input provided mutually to come to a, you know, the idea
of conservation, cooperative conservation, I think is a concern
here, that we're cooperating to come up with the methodologies
that we all agree to provide the right kind of data used to
make management decisions.
The Chairman. So when you look at these surveys you are
trying to find out what the habitat is, where the species
actually live, how many there are, what the numbers are, what
reproduction rates are, you know, all of the things that would
give you a clearer picture of whether or not that species is
endangered, and if it is, what its numbers really are, and what
you could do in terms of mitigating any impact you may have.
Mr. Tazik. Well, we certainly try to provide the data, the
determination of whether they are endangered or not, certainly
that belongs to the Service, but we try to help provide the
information that will then be evaluated relative to recovery
targets.
The Chairman. Thank you. Mr. Bowen, I found your testimony
quite compelling, and you talked about the job loss that your
industry has gone through in the last 20 years and what some of
those impacts are. But you also come up with some real
interesting suggestions on reforming the Act, and trying to
make the Act work better. And one of those, there are a couple
of them that I think the Committee has worked on in the last
year, dealing with having better science and reforming the
critical habitat process.
Do you believe that, from your experience, that if we had a
higher level of science, or a more credible level of science,
that the impacts on your industry, the job loss in your
industry, would be any different than what it is now?
Mr. Bowen. I think it would. I think the spotted owl is a
prime example. I think the spotted owl was poor science. You've
got, the biggest enemy, from what I understand, of the spotted
owl is another owl. And as far as the science that was used, I
mean--so yeah, I believe if we could get good sound science and
peer reviewed science was used, you know, I think a lot of the
species that are listed now wouldn't even be on the list. And I
think a lot of land has been tied up because of it wouldn't be
tied up right now. And that's the basis of our industry. If we
can't get the fiber off the land, we're not going to exist.
The Chairman. Thank you. Time has expired. Mr. Pickering.
Mr. Pickering. Mr. Chairman, again I want to thank y'all
for starting your hearings here in Mississippi. I am from
Clarksdale. It is great to be here in one of the treasures of
Mississippi, the Museum of Natural Science.
Mr. Bowen, I found your testimony, as well, very
compelling. And what I would like to ask all of the panelists,
it seems to me that the critical habitat designation, and then
the resulting litigations or conflict, either from listings or
non-listings, has resulted in most of the resources of the Fish
and Wildlife Service being caught up in conflicts, controversy
litigation. That does not go to protect or recover species, nor
does it go to bring communities together in partnerships, nor
does it give incentives for private parties to work together
with all agencies to actually achieve the objectives in a way
that balances the environment with our economic interest.
What would y'all recommend in improving the critical
habitat designation? What reform? What can we do to solve that
problem? I mean, I'll just start with you, Ms. Hartfield, and
then I'll go through the panel.
Ms. Hartfield. That's a hard question, but it's something
we've got to look at. You're right. There is too much resources
being spent on litigation. I know our state, and I'm sure all
of the other states, that's the only one that appears, seeing
how many start a project as to how open one can be. How can we
better negotiate creatively with all our partners if we're
constricted by what we can do so I believe that it's something
we've just got to open to further dialog.
Mr. Pickering. Mr. Bowen.
Mr. Bowen. I agree with what was just said, but it ought to
include the private landowners in anything that's done,
including the community that's involved. One way of helping
stop some of these lawsuits I would like to see Congress do
something about all of our tax dollars going to these
environmental corporations. They're not groups, they're
corporations that's got the funds to file these suits and keep
everything tied up in court.
Mr. Pickering. I hear it said sometimes that the current
ecosystem, because of the litigation and no incentives to
actually recover is a SSS policy, shoot, shovel and shut up. So
instead of having a landowner actually come forward, the last
thing a landowner would ever want to do is say I've got a red-
cockaded woodpecker in my tree. This is my children's
inheritance and I would like you to come and lock up my land
and take away my value. That is the wrong way to go about
solving the issues before us. Mr. Cummins and Mr. Tazik.
Mr. Cummins. In terms of terrestrial ecosystems, I don't
feel that critical habitat is that important, but we have to
find a substitute, and I think you're right on the mark when
you mentioned the word incentives. We're working right now with
a landowner on a longleaf pine restoration project. You may
know him. His name is Judge Charles Pickering. And he's doing a
great job in terms of--in all honesty, it's people like that
that are really concerned about conservation, that we can work
with him on incentive-based programs to help restore habitat.
When you get to the aquatic side, I think it's a little bit
more difficult. Critical habitat has some certainly important
features, but I think we've got to put some more time and
thought into how do we develop a substitute for that. I think
that there's a lot of opportunities, utilizing our natural fish
hatchery system, utilizing the Corps of Engineers as they're
going through and tweaking maintenance projects for example on
the mainline Mississippi.
But to sum it up, I think we can find a substitute in the
form of incentives on terrestrial systems. But in terms of
aquatic, I think we've got to put some more thought into what
that substitute is.
Mr. Tazik. I think our communication and dialogue are
important features of that. As far as a specific recommendation
I can't give you one for that.
Mr. Pickering. Mr. Chairman, thank you very much. And
again, we greatly appreciate you starting the hearings here.
The Chairman. Senator Crapo.
Senator Crapo. Thank you very much. And to address Senator
Pickering and say, we had introduced legislation last year that
would actually change the timing of definition of critical
habitat to base it more on the biological than a suspicion of
it, which I think would have actually reduced a tremendous
amount of litigation, which they were mostly litigating over
failed dead lines. And there are solutions to that issue.
Ms. Hartfield, again, as the rest of us, I appreciate the
invitation to be here in this great facility today. It's a
tremendous museum. I think we're going to probably have to rush
off, the airplane cannot go through these meetings, but I wish
we did have opportunity, and maybe we will be back to do that
at some time.
Your testimony indicated that the 25 percent matching
requirement for Section 6 cooperative agreement was straining
state resources. Do you have a suggestion as to how far that
matching requirement should be reduced? Do you have any idea
what would work?
Ms. Hartfield. The 25 percent match has been difficult for
us sometimes. I wish for a 15 because I could sure use it. One
of our concerns now is that we keep hearing that the match may
be increased, and already some of the programs require a 50
percent match, which just kind of puts us out of the
competition. So anything below 25 would be greatly--any of
those programs that require 50 percent match are going to be
difficult for us.
Senator Crapo. Do you think that if it had been at 15 you
think you could----
Ms. Hartfield. It would be some funds that we probably
could have made use of that we weren't able to.
Senator Crapo. Thank you very much. Mr. Bowen, I want to
tell you I can truly appreciate the work of the Pulp and
Paperworkers' Resource Council. Your counterpart in Boise,
Idaho, is Owen Squires.
Mr. Bowen. Right.
Senator Crapo. A good friend of mine, and I encourage you
to say hello for me the next time you see him.
Mr. Bowen. I will sure do that.
Senator Crapo. At one of your national meetings, I think
that the efforts that you folks have been involved in is
tremendous, and I agree with the comments that you made about
how we've got to start finding ways to create incentives for
the landowners to be able to--to basically do the things that
they want to do, but which they don't feel they have the tools
to be able to do now with the benefits, the habitat and the
recovery efforts for our species. And I just wanted to
primarily indicate to you that I believe that your focus on the
current consultation process and how lengthy and difficult it
is does need congressional attention. I don't want to expand on
that at all, but please do if you'd like to.
Mr. Bowen. That has been said already. The litigation has
just got everything so tied up. I mean, it's nothing to file a
lawsuit today, and the environmental corporations, like I said,
have unlimited funds it seems like.
Most people think about the Sierra Club, or whomever, that
it's just that local membership and all, but they're big buck
business, and that's all it is. They're using capitalism to try
to do away with capitalism in my opinion. They're trying to
completely eliminate the manufacturing base in the United
States, and if you get right down to it, I think it even comes
down to a case of national security.
Senator Crapo. I think the importance that you bring to the
focus on jobs and the economy is a very important part of this
debate, and the idea of finding working relationships is
critical.
Mr. Bowen. Well, what Congressman Pickering said awhile ago
about trying to save your land and have it for your kids and
whatever, I can tell you I'm not a big landowner. I've got a
little bit of land, but I will guarantee you if I see something
on there I'm not familiar with, I'm just going to see how it
tastes because I'm sure not going to let anybody know about it.
Senator Crapo. I think we better let that fly right there.
I had a hearing--well, I won't get into that.
Mr. Cummins, I was interested in one of the quotes at the
beginning of your testimony, your written testimony. You had a
quotation from Aldo Leopold which said, ``Conservation will
ultimately boil down to rewarding the private landowner who
conserves the public interest''. And I truly think that that
was very thoughtful analysis. Do you know when that was said
approximately?
Mr. Cummins. 1934. It was in his publication called
Conservation Economics.
Senator Crapo. So back in 1934 the idea by one of the most
preemptive conservationists of our time, or of our country, has
indicated that we've got to focus on this question of finding
ways of incentivizing the private landowners to do the right
thing.
Mr. Cummins. Absolutely. And it wasn't until 1985 when the
Food Security Act was signed for the Farm Bill that we actually
figured that out.
Senator Crapo. Sometimes we don't figure things out as fast
as we should, and hopefully these hearings will help us do
that.
I was also interested in the letter that you--that showed
up where a discussion you had with Senator, former Senator John
Chafee.
Mr. Cummins. Yes, sir.
Senator Crapo. Back in 1996, we focused on the importance
of providing incentives to improve habitat, and I thought maybe
I would invite a comment on that briefly. I think most people
should know that now John Chafee's son, Wayne, is the Chairman
of the Senate Subcommittee that handles this issue.
I think that's a very interesting historical perspective.
As far back as 1996, we had the chairman of that committee
focusing on incentives for habitat improvement.
Mr. Cummins. I've had the chance to briefly visit with
Senator Chafee about that, but I certainly hope that as this
process evolves I will have more opportunity to have a more
detailed discussion about the importance of this issue.
Senator Crapo. Thank you very much. Mr. Tazik, my time has
expired so I guess I'm not going to get to grill you.
The Chairman. Thank you. I want to thank this panel for
their testimony. There are other questions that we may have of
you, and we would submit those to you in writing, and allow you
to answer those in writing. I will hold the hearing record open
to give you an opportunity to answer those, but I would like to
have them included in the hearing record.
So I'm going to excuse this panel. Thank you again for your
testimony. Ms. Hartfield, thank you again for allowing us here.
Mr. Pickering. Mr. Chairman, if I could, while this panel
is leaving, I do want to praise the works of the Mississippi
Fish and Wildlife Foundation. They really have created example
after example of incentive-based policy and a relationship with
the State of Mississippi through conservation, maintenance and
through the advocacy of the Conservation Reserve Program, the
Wetland Reserve Program and the LIP Program. And in Mississippi
we're seeing an abundance of wildlife come back and be restored
and make use of the lands that were wetlands or that gave the
habitat for all of our species. We're really seeing tremendous
benefits from that come back to our state because of those
incentive benefits.
The Chairman. I would like to welcome our second panel. Don
Waldon, who is the Administrator of the Tennessee-Tombigbee
Waterway Development Authority; Ray Vaughan, Executive Director
of WildLaw; Paul Davidson, the Executive Director of the Black
Bear Conservation Committee; and Don Robohm, President of
SeaChick, Inc.
Welcome to the Committee, welcome to our hearing. We're
going to begin with Mr. Waldon, and I will remind the witnesses
again that your oral testimony is limited to five minutes, but
your entire written testimony will be included in the record,
so if could summarize it as much as possible I would appreciate
it. Mr. Waldon.
STATEMENT OF DON WALDON, ADMINISTRATOR, TENNESSEE-TOMBIGBEE
WATERWAY DEVELOPMENT AUTHORITY
Mr. Waldon. Thank you, Mr. Chairman, and good morning to
you and the distinguished members of this Committee. I'm Don
Waldon. I'm the Administrator of the Tennessee-Tombigbee
Waterway Development Authority. The Authority is a four state
interstate compact ratified by the U.S. Congress in 1958 to
promote the development of the Tenn-Tom and its economic and
trade potential.
The four Governors are members of the compact, and
currently Governor Bob Riley serves as our Chairman.
I'm also Vice Chairman of the Alabama-Tombigbee Rivers
Coalition. This organization is a non profit corporation made
up of business interests and trade associations and has been
actively involved in the listing of the so-called Alabama
sturgeon since 1991.
We've been plaintiffs in three lawsuits against the U.S.
Fish and Wildlife Service. We were successful in two of those,
and the other case is pending in Federal District Court in
Alabama.
The Waterway Authority and the Coalition, I think this is
important to set the stage with, we have supported this being
that we believe were distinct species and that were based on
the best available science that justified their protection.
There is something like 115 listings that are occurring in
the Tenn-Tom region. The business community has only challenged
seven of those. Eventually six of those were withdrawn and the
seventh one, the Alabama sturgeon is still pending in Federal
Court.
Let me begin by talking a little bit about what we think
are some of the more prevalent issues, particularly based on
our experience with the Alabama sturgeon.
The first is a peer review and best available science. We
believe the Service has too often relied on shoddy science to
justify its actions. That was certainly the case for the
Alabama sturgeon. While technology may have been the best
scientific information available in the past, today genetics is
playing an increasingly more important role to determine the
status of various species. As you gentlemen know the Justice
Department in coordination with the Interior Department
routinely uses DNA tests to convict individuals of illegal
importation of caviar from foreign species of sturgeon.
Two of the Service's most eminent scientists concluded that
there was no genetic distinctions between the Alabama sturgeon
and the far-reaching and abundant Mississippi shovelnose
sturgeon. Simply stated, they were of the same species,
genetically. Never the less the Service ignored this evidence
and listed the fish. The Service also carefully strains others
allowed to participate in the peer review process and as sure
as we believe the results sometimes consistently with it's own
predetermined conclusion. These biases by the Service were well
documented in two lawsuits filed by the Coalition against the
Service.
In both cases, the courts ruled against the Service and in
favor of the Coalition and both of those ruling were affirmed
by the Legislature.
Let me talk briefly about critical habitat. The concurrent
designation of critical habitat positioning as required by the
law is largely been ignored by the Service, even though the
courts have directed the agency to do so. We strongly oppose
any modifications of the annex that would change the timing of
the critical habitat designation until sometime later in the
listing and let me just briefly list three reasons.
The movement of concurrent designation requirements in the
law will only provide more opportunity for the Service to
inexcusably delay the designation of critical habitat and what
we believe is most important--beginning a recovery program for
the species. The concurrent requirement also helps insure what
we believe is a better understanding of the real economic and
other impacts of this listing and the designation of critical
habitat at a crucial time in the decision process. As you know,
only an economic impact analysis now requires that the
designation of critical habitat but not the listing.
Third, the current designation will also help insure that
landowners and others impacted by the listing are not
needlessly or illegally deprived of public participation in
this process. Especially those guaranteed by the provisions of
NEPA. As you well know, the Service largely ignored NEPA
requirements in its ESA actions. Therefore it is most important
that Congress direct the Service to comply with the provisions
of this law so that those impacted by the ESA are afforded
better opportunities to be involved in the process.
And let me close by talking about what I think is the heart
of this hearing and that's species conservation and recovery.
We support those ESA provisions and programs that encourage the
states and private entities to take a more active role in the
conservation and recovery species. But only if the Service
operates in good faith to support those efforts. And our
experience with the agency has been to the contrary.
The Coalition, not the environmental community, but the
Coalition was instrumental in developing a volunteer five-year
conservation plan for the sturgeon. It was designed to recover
the species by increasing its population through propagation.
At our request and not the Service, the Congress appropriated
$1.5 million to implement that plan. And we had the support of
Congressman Pickering and the other congressional delegation.
The Service and the Coalition of the State of Alabama and
other interested parties also approved a formal conservation
agreement and strategy. All participants including the Service
formally agreed that the plan was the best hope for recovery of
the sturgeon.
They felt that the business community as well as the State
expanded and greatly improved the fish's status and likely
foresaw the need for any Federal listing because the species
was already protected by state regulation. The State Service
stated in its final ruling that the voluntary conservation
agreement was the most viable approach to the conservation of
the Alabama sturgeon. Nevertheless, in the year 2000, they
listed the fish and because of the resource of the funding, the
Federal source of the funding for that conservation program
expired. As a result, no active recovery plan for the Alabama
sturgeon currently exists.
We also were heavily involved in establishing, over a four-
year period of voluntary work, a multi-species recovery plan in
the Mobile Basin. That entailed plans for protection of 15
species--to our knowledge, the only one that's ever been done
like that in the nation--but because, here again, the Service
listed the fish, it really destroyed the effectiveness of that
organization. The business community saw that there was no
incentive for them to work cooperatively with the Service. So,
we withdrew and all of that effort was wasted. And here again,
the big loser was the fish.
Let me conclude, I see my time is gone, that we believe
that a lot of the issues being talked today, and certainly
those that I have mentioned do not need to be fixed by
legislation. What we need to do is make sure that the Fish and
Wildlife Service complies with the congressional intent of the
endangered species laws, that's certainly true on critical
habitat, complies with NEPA and these things that I've
mentioned. We're not saying that we don't need reform but we
can make a lot of progress toward recovery and really carrying
out the congressional intent of this law by really, more
oversight by the Congress and hopefully a little bit more
direction and better management of this program within the
Department of the Interior. Thank you again.
[The prepared statement of Mr. Waldon follows:]
Statement of Donald G. Waldon, Administrator, Tennessee-Tombigbee
Waterway Development Authority, and Vice Chairman, Alabama-Tombigbee
Rivers Coalition
I. Background
Chairman Pombo and distinguished Committee members, my name is
Donald G. Waldon. I am currently the Administrator of the Tennessee-
Tombigbee Waterway Development Authority (the ``Authority''), which is
an interstate compact ratified by the United States Congress in 1958 to
promote the development of the Waterway and its economic and trade
potential. Funded solely by the member states, the compact currently
consists of the States of Alabama, Kentucky, Mississippi and Tennessee.
The Authority's membership is limited to the four governors and certain
gubernatorial appointees from each state. Governor Bob Riley currently
serves as the Authority's chairman. Current members include:
Alabama--Governor Bob Riley; Director of the Alabama
Department of Environmental Management Trey Glenn, III; Bruce Windham;
Martha Stokes; W.H. ``Buck'' Borders; State Representative Allen
Layson; and Robert Barnett.
Kentucky--Governor Ernest Lee Fletcher; Lt. Governor
Steve Spencer; Judge Mike Miller; Z.C. Enix; Judge William Shadoan; and
Brian S. Roy.
Mississippi--Governor Haley Barbour; Nick Ardillo; Bill
Cleveland; Dale Pierce; T.L. ``Bud'' Phillips; and Martha Segars.
Tennessee--Governor Phil Bredesen; Joe Barker; David
Dickey; Judge Richard Holcomb; Kathy Holland; State Representative
Randy Rinks; and Eddie Shaw, Jr.
Importantly, the Authority serves as the regional sponsor of the Tenn-
Tom Waterway, promoting the development of the Waterway, exploring
economic and trade opportunities, and addressing potential impediments
to the Waterway's beneficial use. As a result, the Authority is deeply
involved in federal and state policies affecting the Waterway,
including the Endangered Species Act (``ESA'').
In addition to serving as the administrator of the Authority, I am
also the vice chairman of the Alabama-Tombigbee Rivers Coalition
(``Coalition''), which is an Alabama non-profit corporation consisting
of sixteen businesses, trade associations and state agencies that rely
upon Alabama waterways as integral components of their businesses. The
Coalition has been actively involved in the listing of the Alabama
sturgeon since 1991, submitting numerous written comments to the United
States Fish and Wildlife Service (``FWS'' or ``Service'') during the
listing process and filing suit challenging the listing as contrary to
law--a case which is now pending before the United States District
Court for the Northern District of Alabama. See Alabama-Tombigbee
Rivers Coalition v. Norton, No. CV-01-P-0194-S (N.D. Ala.).
Given the breadth of issues the Resources Committee is addressing,
we believe it is critical for private landowners to share their real-
world experiences regarding the ESA. Perhaps the most compelling saga
in our experience that justifies changes in the administration of the
ESA centers around FWS' decade-long effort to list the so-called
Alabama sturgeon as an endangered species. 1 Thus, the bulk
of these comments are based on the Service's actions during the Alabama
sturgeon listing process. Outside the listing process, the Tennessee-
Tombigbee Waterway Authority actively participates in various
conservation efforts with the Service and is often able to reach
consensus with the Service on protecting species that merit protection
under the statute. Nonetheless, as submitted below, we believe changes
in both law and policy are crucial to achieving the ultimate goal of
the ESA: to protect and recover the Nation's truly threatened and
endangered species.
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\1\ Notably, organizations in Alabama have challenged relatively
few proposed listing decisions by FWS. For example, of the 115 species
listed as threatened or endangered in Alabama, businesses have
participated in challenging only seven of those proposals. Six of the
seven challenges resulted in withdrawal of the proposed listing
decision due to faulty science. The seventh--the challenge to the
listing of the Alabama sturgeon--is still under review by the federal
courts.
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II. Peer Review & Best Available Science
We appreciate and share the Committee's desire to improve the
quality of the science used in ESA-related decision-making. We believe
that FWS has all too often relied on shoddy scientific work to justify
its actions. For example, this Committee is likely aware of the
concerns raised by states such as Wyoming, over the lack of objectivity
in the peer review process regarding the Preble's meadow jumping mouse.
Similarly, in the case of the Alabama sturgeon, the Service relied on
flawed scientific data in taking the position that the fish is distinct
from other shovelnose sturgeon found in abundance throughout the entire
Mississippi River system. As described in more detail below, FWS has
persisted in its reliance on this flawed data in the face of mounting
evidence that the Alabama sturgeon is genetically identical to the
Mississippi shovelnose sturgeon.
At the same time, we are unconvinced that legislation is needed to
fix all the ESA's problems, nor do we believe that legislation is the
most appropriate remedy in certain instances. Much can and should be
accomplished through administrative management and policy changes by
the Service utilizing the ESA's existing authorities. Moreover, some
legislative proposals may have unintended consequences that could prove
to be quite negative. Although we certainly do not agree with many of
the policies of the FWS in this area, we see advantages in leaving
various statutory provisions, such as the ``best available science''
standard, broad enough to allow some administrative flexibility to
respond to the inevitable improvements in scientific technology. For
example, H.R. 1662 from the 108th Congress would have required FWS to
``give greater weight to interpretations of data derived from or
verified by timely field work (commonly referred to as ``empirical
data'') that have been subjected to peer-review.'' Our experience,
however, leads us to conclude that so-called peer review is not a
panacea to the problem of incorrect science.
Nonetheless, before turning to our experiences in Alabama in
greater detail, we call the Committee's attention to a matter which we
hope will not be overlooked. H.R. 1662 proposed to apply new peer
review provisions to ``covered actions,'' defined as listings and
delistings, changes in listing status, recovery plan development, and
Section 7 consultations. Importantly, this list of ``covered actions''
omitted critical habitat designations. We recommend that, whatever form
the Committee's legislation may take in this Congress, it is drafted in
such a manner as not to imply that a lesser standard of scientific care
would apply to critical habitat designations compared to other actions
under the ESA.
A. Administration Policy Should be Revised to Require the Service to
Flexibly Determine What Is the ``Best Available Science'' in
Each Specific Situation
Like the standard for ``best available technology'' employed under
other environmental statutes, what constitutes the ``best available
science'' evolves over time. While taxonomy may have been the best
scientific information the Service had available at some point in the
past, today genetics is playing an increasingly more important role in
the process of determining the status of various species. For example,
the United States Department of Justice, in coordination with the
Service, has employed genetics to convict individuals of illegal
importation of caviar from foreign species of sturgeon. The Service,
however, often refuses to employ genetics as a matter of listing
policy, even where the taxonomic data is subject to scientific dispute.
Our experience indicates that the Service often simply picks and
chooses when to use genetics based on the ends it wishes to achieve.
This is not sound science. Importantly, we do not believe that
statutory revisions to the ESA are necessary to correct this particular
concern. The better approach is, instead, to require the Service to
issue a new policy regarding the standard for best available science in
the listing process: where taxonomic data is disputed, genetics should
be used to determine the status of a species.
B. The Service Has Rigged Peer Review to Support Its Preordained
Conclusions
Even where the Service has purported to submit its scientific
findings and determinations on listing issues to a peer review panel,
at least in the unfortunate case of the Alabama sturgeon, the Service
carefully screened those allowed to participate in the process to
ensure a result consistent with its predetermined conclusions. The
Service's efforts in this regard are well documented, because they were
the subject of a Coalition lawsuit challenging the peer review process
pursuant to the Federal Advisory Committee Act (``FACA''). In that
case, the Eleventh Circuit confirmed that the Service had violated the
procedures of FACA in its conduct of peer review for the Alabama
sturgeon, and the court barred the Service from using the report
produced by that illegal process. Alabama-Tombigbee Rivers Coalition v.
Dept. of the Interior, 26 F.3d 1103 (11th Cir. 1994). That case is the
source for the anecdote provided below.
After the publication of the first proposed listing in 1993,
Secretary Babbitt ordered the creation of a ``scientific advisory
panel'' to ``consider the best available scientific information and
assess the current status of the species.'' However, a bipartisan group
of Alabama Congressmen and Senators objected on the grounds that the
small panel was biased. In response, the Service created a new panel of
nine members, but that panel included three of the four members that
sparked the initial concern, and it included none of the six scientists
suggested by the Alabama Congressional delegation.
Initially, the Service established a procedure that conveniently
allowed it to avoid the public notice and participation required under
FACA: it would have its members file individual reports. However,
shortly before the reports were due, the Service changed its procedure
and convened a private meeting, from which ``different thinking''
stakeholders and scientists were excluded. The Alabama-Tombigbee Rivers
Coalition sued, alleging that this process brought the panel's
activities within FACA, and that the secretive and exclusive meeting
clearly violated the openness requirements of that Act. See 5 U.S.C.
App. 1, Sec. 10.
The Coalition won in the district court in Alabama, which was
unanimously upheld on appeal to the Eleventh Circuit. The courts held
that the Service clearly violated FACA. Further, this violation was so
serious that the courts were compelled to order the Service not to rely
on the report produced by this illegal procedure. As both the lower and
appellate courts stated:
A simple ``excuse us'' cannot be sufficient.... FACA was
designed by Congress to prevent the use of any advisory
committee as part of the process of making important federal
agency decisions unless that committee is properly constituted
and produces its report in compliance with the procedural
requirements of FACA, particularly where, as in this case, the
procedural shortcomings are significant and the report
potentially influential to the outcome.
26 F.3d at 1106. The Eleventh Circuit elaborated further: ``Because the
matters are so serious and of such great concern to so many with
differing interests, it is absolutely necessary that the procedures
established by Congress be followed to the letter.'' 26 F.3d at 1107
n.9.
That unfortunate episode illustrates the need for a renewed
commitment to scientific integrity by the Service, especially including
openness to ideas originating from beyond the favored circle of the
Service's own staff and the Service-approved and/or favored scientists.
It also highlights the fact that legislation is not a cure for every
misdeed at the agency. Adequate laws were in place at the time of these
events which should have guaranteed an open and inclusive procedure,
but the Service refused to follow the law. We commend this Committee's
willingness to address flaws in the peer review process with
legislation, but we also urge the Committee to continue to exercise
oversight of the Service and urge the leadership at Interior and the
Fish and Wildlife Service to require its staff to act reasonably and
responsibly through administrative, management and policy changes which
are well within existing legal authorities.
III. Critical Habitat Designations Must Occur Concurrently with Listing
The ESA requires the Service to designate critical habitat
``concurrently'' with a listing decision. This Committee has considered
legislation that would change the timing of the designation of critical
habitat, such as recent legislation sponsored by Congressman Cardoza.
We greatly respect the efforts of the Chairman and other Committee
members, but we are opposed to this concept.
Our reasons are described in greater detail below. They can be
summarized as follows: (A) allowing more time only provides greater
opportunity for the Service to delay and evade its responsibility to
designate critical habitat; (B) delay would cause the loss of the very
real benefit of obtaining an economic analysis at the same time as a
listing decision (a benefit made more important by a recent change in
Service policy); and (C) we believe the NEPA process should apply to
critical habitat designations, and this NEPA process should occur early
in the decision process. Moreover, this issue is under active
litigation by the Coalition in federal court in Alabama. In the Alabama
sturgeon case, the Coalition has alleged that FWS' failure to designate
critical habitat is not only illegal, but that it also impermissibly
tainted the entire listing process. To change the ``concurrent''
requirement would undercut the position of the Coalition in this case.
A. Removing the ``Concurrent'' Requirement Only Provides More
Opportunity for Inexcusable Delays
For years, the Service has flouted the ESA and Congressional intent
by refusing to designate critical habitat concurrently with listing, in
spite of the mandate of ESA Section 4(a)(3). The Service has used--some
might say abused--the excuses available to it, namely, that it is not
``prudent'' to designate critical habitat, or that while it is prudent
to do so, the critical habitat is ``not then determinable.'' See ESA
Sec. 4(b)(6)(C). The Service has argued it would not be prudent because
of poorly substantiated claims that persons might vandalize or
otherwise harm species, or that its budget provided insufficient
funding to cover the cost of the action. For example, the Service
refused to designate critical habitat when listing the green pitcher
plant in Alabama due to fears that the designation would result in
``over-collection.'' See 45 Fed. Reg. 18930-31 (Mar. 24, 1980) (final
rule listing green pitcher plant as endangered). A wide variety of
environmental groups and regulated entities have opposed these
generally specious arguments, with considerable success in the federal
courts.
In the case of the Alabama sturgeon, the Service in 1993 declared
critical habitat to be both prudent and determinable, but it withdrew
its proposed rule the following year. In 1999, the Service changed
course, proposing not to designate critical habitat on the grounds that
to do so could result in illegal takes. The proposed rule, however,
noted that ``all Federal agencies [including the Service] are currently
aware of the location and extent of habitat occupied by the Alabama
sturgeon.'' When it issued the final listing rule in 2000, the Service
acknowledged that the ``not prudent'' finding was invalid; however, the
Service then asserted that critical habitat was not determinable,
despite having previously asserted that areas occupied by the fish were
indeed well known. The Service also acknowledged that this finding
resulted in a one-year deadline to designate critical habitat, yet it
candidly admitted in litigation that it has missed this deadline and
has offered no plans of imminent action to rectify its noncompliance.
For whatever reason, the Service simply does not like to designate
critical habitat. Unable to wish the ESA's requirements away, the
Service instead postpones compliance for years or simply ignores the
law altogether. The point is, the Service already misses deadlines to
designate critical habitat. The appropriate response to this situation
is not to give the Service more time. The Service surely will only miss
the later deadlines as well, and the species, environmental advocates,
and regulated entities alike will be that much farther from a final
critical habitat designation. Rather, both Congress and the courts
should seek to require the Service to simply follow the law--to
designate critical habitat, and to do so on time as the ESA now
requires.
We note briefly that we are aware of arguments that critical
habitat designation should occur later in the process, such as in
conjunction with a recovery planning process. Some have suggested that
FWS does not always possess adequate information to designate critical
habitat at the time of listing, and to require FWS to do so places too
great a burden on the agency. We would respond by suggesting that if
FWS does not have enough information to know what areas are critical to
the conservation of a species, it does not know enough to declare that
species to be endangered or threatened.
B. ``Concurrent'' Requirement Promotes Understanding of Economic and
other Impacts at a Crucial Time in the Decision Process
In the past, the Service has determined that the designation of
critical habitat almost never caused an adverse economic impact on the
grounds that any negative economic impacts associated with critical
habitat designation would have occurred regardless of the designation,
due to other requirements of the ESA. However, recent litigation
brought by a ranchers association resulted in a significant change in
the Service's illogical approach. New Mexico Cattle Growers Ass'n v.
U.S. Fish & Wildlife Service, 248 F.3d 1277 (10th Cir. 2001). In this
case, the court noted that FWS could have chosen to consider all
economic impacts associated with critical habitat designation, even if
a given impact was ``co-extensive with other causes.'' Given a choice
between these two methods, the court found that the ``co-extensive''
approach was closer to Congressional intent, since FWS' preferred
method effectively read out of the Act any meaning for Congress'
directive to consider economic impacts. Other courts have since
followed that Tenth Circuit approach. See Home Builders Ass'n of N.
Cal. v. U.S. Fish & Wildlife Service, 268 F. Supp. 1197, 1230 (E.D.
Cal. 2003); Home Builders Ass'n of N. Cal. v. Norton, 293 F. Supp. 2d
1, 3-4 (D.D.C. 2002); Bldg. Indus. Legal Defense Found. v. Norton, 231
F. Supp. 2d 100, 102 (D.D.C. 2002); Natural Res. Defense Council v.
U.S. Dept. of Interior, 275 F. Supp. 1136, 1141-42 (C.D. Cal. 2002);
Nat'l Ass'n of Home Builders v. Evans, 2002 WL 1205743 at *2 (D.D.C.
2002).
Although we are not aware of any formal agency guidance or policy
issuance as of yet, it appears that the Service has embraced the
reasoning of the Tenth Circuit on a national scale. For example, the
final rule to designate critical habitat for the California tiger
salamander noted that its economic analysis ``complies with the
direction from the U.S. 10th Circuit Court of Appeals, that, when
deciding which areas to designate as critical habitat, the economic
analysis informing that decision should include ``co-extensive''
effects.'' 69 Fed. Reg. 68,568, 68,579 (Nov. 24, 2004); see also 69
Fed. Reg. 59,996, 60,012 (Oct. 6, 2004) (noting in the preamble to the
bull trout critical habitat designation that the Service included
consideration of economic impacts that are co-extensive with other
causes). Several court cases also include statements that the Service
represented to the court that it intended to employ the Tenth Circuit's
rule in future critical habitat designations. Home Builders Ass'n of N.
Cal., 268 F. Supp. at 1227-28; Home Builders Ass'n of N. Cal., 293 F.
Supp. 2d at 2-4; Bldg. Indus. Legal Defense Found., 231 F. Supp. 2d at
102; NRDC, 275 F. Supp. 2d at 1140-41.
We applaud the Service for embracing the ``co-extensive'' approach
to the consideration of economic impacts, and we call to the
Committee's attention a significant implication of this policy. After
decades of failing to follow the ESA, the Service is now required to
offer a meaningful analysis of the economic impacts at the front end of
the process--that is, at the time of listing. We firmly believe this is
what Congress had in mind all along, by (1) requiring critical habitat
designations to occur concurrently with listings, and (2) requiring an
economic impact analysis for critical habitat designations. We stand at
the cusp of a significant improvement to the administration of the
ESA--now is not the time to make a change in the Act that would
preclude this significant improvement.
Another discussion of the Alabama sturgeon listing should
illustrate this point. The listing of the Alabama sturgeon carries
significant economic and social costs, ranging from impacts on the
Corps of Engineers' ability to do annual maintenance dredging on
Alabama's navigable waterways, to imposing greater restrictions on sand
and gravel mining operations. In addition, the listing could lead to
increased water flows through hydroelectric dams, which would reduce
energy generation during peak load periods. NPDES permit limits could
also be reduced thereby requiring major upgrades to both private and
publicly owned sewage treatment plants. Notably, a detailed economic
analysis jointly prepared by Troy State University and the University
of South Alabama predicted a potential $11.3 billion adverse economic
impact and the loss of almost 20,000 jobs over a 10-year period in
Alabama and Mississippi as a result of the Alabama sturgeon listing.
During the original listing process in the early 1990s, these
potential adverse economic impacts precipitated significant public
relations and political problems for the Service. As discussed above,
while the listing decision is to be made solely on the basis of the
best available science, designation of critical habitat requires the
Secretary to consider the economic and social impacts of that
designation. Therefore, the economic impacts became a big issue in the
Service's 1993 listing proposal, which also proposed to designate
critical habitat.
However, after the Service withdrew its 1993 listing proposal, FWS
relisted the Alabama sturgeon in 2000 without designating its critical
habitat. This was an obvious attempt to avoid the previous economic and
social impacts debate. Nevertheless, the ESA requires FWS to propose
critical habitat designation concurrently with the listing proposal.
Consequently, FWS was virtually guaranteed to be sued again--thereby
perpetuating the sturgeon controversy and costing the private sector
and the taxpayers even more money. Of course, this is now a critical
issue pending in the Coalition's Alabama sturgeon litigation before the
federal courts in Alabama. As a matter of policy consistent with the
mandate of the ESA, the Service should be required to designate
critical habitat concurrently with the listing decision, thus requiring
the ``up front'' consideration of economic impacts during the listing
process.
C. The Service Should Also Follow NEPA When Designating Critical
Habitat
We have already explained why the Service violates the law by not
proposing to designate critical habitat concurrently with the proposed
listing. In addition, when proposing a critical habitat designation, it
is imperative that the Service also comply with the National
Environmental Policy Act (``NEPA''). NEPA exists to improve federal
agency decisions and to provide opportunities for participation by the
public. Without fully applying NEPA when assessing critical habitat
designations, the Service could act without realizing that better
alternatives may exist to protect, restore and enhance listed species.
Landowners and users of public resources, such as waterways, are
needlessly and illegally deprived of NEPA's provisions for public
participation. Perhaps most importantly, the Service's failure to
comply with NEPA violates a clear Congressional directive. If, as we
submit, the NEPA process is good for critical habitat designations,
then any change in the ``concurrent'' requirement would also only serve
to delay the provision of NEPA's opportunities for landowners and
others to participate in an ESA decision of major importance to them.
Prior to 1983, the Service performed a NEPA analysis on actions
under Section 4(a) of the ESA, including critical habitats. In that
year, however, the Service published a policy indicating it no longer
would prepare a NEPA document for listings, delistings,
reclassifications, and critical habitat designations. 48 Fed. Reg.
49,244 (Oct. 25, 1983). The Service argued that none of its
environmental assessments on such actions up to that time had resulted
in a determination to prepare an environmental impact statement, and
that the ESA required listings to be based solely on biological
grounds. Clearly, the first justification is irrelevant. NEPA admits no
exception for actions arguably similar to past actions for which an EIS
was not prepared. The second reason is just plain wrong when applied to
critical habitat designations, for which the ESA explicitly requires
consideration of economic and other impacts.
Nevertheless, in 1995, the Ninth Circuit issued an opinion
supporting the Service's position. In Douglas County v. Babbitt, 48
F.3d 1495 (9th Cir. 1995), the court found that ESA's procedures
somehow ``displaced'' NEPA, despite the complete absence in the ESA
itself of any statement of intent to do so. Second, the Ninth Circuit
found that no NEPA process was required, because a critical habitat
designation either had no effect on the environment at all, or if it
had an impact, the impact was ameliorative. Third, the court found that
the ESA furthered the goals articulated in NEPA, and that somehow
excused compliance with NEPA's procedural requirements.
However, the Ninth Circuit case has been thoroughly refuted and
discredited by subsequent cases in the Tenth Circuit Court of Appeals
and the District Court for the District of Columbia. Catron County Bd.
of Commissioners v. U.S. Fish & Wildlife Service, 75 F.3d 1429 (10th
Cir. 1996); Cape Hatteras Access Preservation Alliance v. U.S. Dept. of
Interior, 344 F. Supp. 2d 108 (D.D.C. 2004). These cases present
persuasive arguments diametrically opposite the Ninth Circuit's
decision. First, while both NEPA and the ESA operate in the area of
natural resources and the environment, they establish different goals
and different procedures. The ESA seeks to protect species and their
habitat; NEPA seeks to improve the federal government's information-
gathering and decision making for the purpose of improving the human
environment (which includes reference to social and economic factors).
Both statutes include public participation procedures, but they are
different. NEPA, for example, includes a public scoping process in
which interested persons, among others, may participate in decisions
about what issues are appropriate for consideration. The ESA provides
no such opportunity for the public.
Second, critical habitat designations do in fact have serious
consequences. The Service has attempted to downplay the significance of
critical habitat designations--both in their impact on the regulated
community and in their benefits for species--but as discussed above,
the courts are increasingly rejecting the Service's arguments in this
area. Further, because NEPA requires consideration of a broad range of
impacts, including social and economic impacts, the fact that an action
may have certain environmental benefits does not excuse compliance with
the NEPA process.
Third, the question is not whether the ESA furthers NEPA's goals,
but rather whether NEPA furthers both its own goals and those of the
ESA. By seeking to improve the quality of federal decision making,
application of NEPA would improve the Service's critical habitat
designations.
The Service's response to the split between the Ninth and Tenth
Circuits (prior to the issuance of the recent D.C. case) was to apply
the Ninth Circuit's holding nationwide, except with respect to
designations within the Tenth Circuit. This is backward, for two
reasons. First, the Ninth Circuit decided the case wrongly, and the
recent 2004 D.C. case is further evidence of this. Second, if forced to
choose between the Ninth and Tenth Circuit opinions, the Service should
choose the Tenth Circuit position. By including the NEPA process, it
will ensure better decision making and a better process for the people
who are affected by the ESA. Unless the Service takes near term action
on its own initiative to reverse its policy and begin complying with
NEPA, the ESA should be amended to require it.
IV. The Coalition Supports Enhancing the Role of States in Species
Conservation
We support ESA provisions and programs which seek to enhance the
conservation of species by encouraging and incentivizing private
entities and states to take a more active role in various ESA-related
processes. We believe this approach can be beneficial both to industry
and to the conservation and recovery of species, but only if the
Service operates in good faith to support the program.
A. Voluntary Conservation Plans
One area where this is certainly true is the implementation of
``voluntary conservation plans'' by federal, state and private
entities. Unfortunately, when it comes to listing species, the Service
often refuses to give adequate consideration to voluntary conservation
plans, which often would make listing a species wholly unnecessary.
That was the case with the Alabama sturgeon listing. And, like other
concerns raised by this testimony, the most effective solution to this
problem is a policy change within the Service--not necessarily a
revision to the ESA unless the Service fails to act.
1. The Service Should, Where Appropriate, Use Conservation
Agreements as a Basis for Deciding Not to List a Species.
Our experience indicates that, at least in some circumstances,
regulated entities can join with state and federal governmental
interests and citizen groups to develop effective conservation plans
which may, in some situations, make listing a species unnecessary. For
example, we were instrumental in forming the Mobile River Basin
Coalition (``MRBC''), a consensus building organization actively
supported by the Service, the Corps of Engineers, and other Federal,
State, and local government agencies, businesses, industries, trade
associations, and environmental groups. These efforts culminated in the
``Recovery Plan for the Mobile River Basin Aquatic Ecosystem,'' which
detailed objectives, criteria and tasks for the recovery of 15
freshwater species in the Mobile River Basin listed under the ESA. See
63 Fed. Reg. 35277 (June 29, 1998) (public notice requesting comments
on draft recovery plan).
In addition, the Alabama-Tombigbee Rivers Coalition, the MRBC, and
the Service developed a voluntary ``Conservation Plan for Freshwater
Sturgeon in the Alabama River'' (``Conservation Plan'') in 1996. The
voluntary Conservation Plan stated that the ``primary threat to the
continued survival of the freshwater sturgeon is its limited numbers,
and its inability to maintain its population.'' Accordingly, the
Conservation Plan ``outline[d] research priorities and estimated costs
that are considered essential for conservation of freshwater sturgeon
in the Alabama River.'' Specifically, the Conservation Plan ``proposed
to develop a sturgeon propagation facility...and to undertake an
overall five-year research program to obtain ecological, biological and
genetic data needed for the long term conservation of the sturgeon, to
develop propagation techniques for the fish, to ascertain its habitat
needs, and to augment existing stocks to a sufficient level to ensure
the sturgeon's long-term survival.'' The U.S. Department of the
Interior, the U.S. Army Corps of Engineers, the Alabama Department of
Conservation and Natural Resources, and the Rivers Coalition fully
supported this five-year, multi-million dollar Conservation Plan and
committed their resources to work together toward its implementation.
In fact, Congress appropriated over $1.5 million to implement the
Conservation Plan.
Similarly, we were instrumental in the development of a formal
Conservation Agreement and Strategy for the Alabama Sturgeon
(``Conservation Agreement''), which the Service, the State of Alabama,
the Rivers Coalition, and other involved parties signed in 2000. The
Conservation Agreement was developed through a long and often difficult
process of discussion and negotiation. All participants, including the
Service, agreed the plan represented the best hope for conservation and
recovery of the Alabama sturgeon. It was supported by substantial
funding and in-kind assistance from business interests.
Throughout the process of negotiating the Conservation Agreement,
business interests were frank in expressing their desire to implement a
program which would forestall the need to list the Alabama sturgeon.
Despite the clear position of the State, businesses and industries, the
Service subsequently listed the sturgeon anyway. Predictably, this
caused industry and the Rivers Coalition to immediately withdraw their
support, financial and otherwise, for the Conservation Agreement. Not
surprisingly, since the failure of that process and the loss of broad-
based support, the Service has been unable to implement adequate
conservation measures in terms of effectiveness and available resources
for implementation. As a result, no active recovery plan for the
Alabama sturgeon presently exists.
In the final rule listing the Alabama sturgeon as endangered, the
Service explained that, in their view, the Conservation Agreement was
the ``most viable approach to conservation of the Alabama sturgeon.''
65 Fed. Reg. at 26456. However, the Service decided to list the Alabama
sturgeon anyway, resulting in the destruction of the Conservation
Agreement because, in the Service's words, ``the certainty of the
effectiveness of these efforts in removing existing threats remain
unproven and [are] dependent upon many factors beyond human control.''
We still do not understand that reasoning, and the sturgeon has been
the big loser of the Service's bad decision.
The Mobile River Basin Coalition was another innocent victim of the
Service's decision to ignore the Conservation Agreement and list the
Alabama sturgeon. That action destroyed the four plus years of trust
and credibility which had been carefully nurtured among the members of
the Coalition and had produced the only multi-species Recovery Plan for
listed species anywhere in the country. As a result of the Service's
listing decision, the Rivers Coalition and other business and
industries terminated their membership in the MRBC, and to date none of
those parties have been willing to engage in any further similar
discussions with the Service. The Service demonstrated it did not
really value those relationships developed with the private sector, and
it will be very difficult, if not impossible, for the Service to ever
recreate that dynamic in the Mobile River Basin. In the words of Forest
Gump, ``Stupid is as stupid does,'' which was applicable to the
Service's actions.
As discussed above, the formal Conservation Agreement would have
guaranteed the best possible approach to restoring the Alabama
sturgeon. In fact, we believe the ESA currently mandates that the
Service should forego listing a species where an extensive state
conservation plan would provide the species with a greater chance of
recovery. For example, Congress stated in the ESA that ``encouraging
the States and other interested parties...to develop and maintain
conservation programs...is a key to...better safeguarding, for the
benefit of all citizens, the Nation's heritage in fish, wildlife and
plants.'' 16 U.S.C. Sec. 1531 (a)(5). In addition, the ESA states that
a ``policy of Congress [is] that Federal agencies shall cooperate with
State and local agencies to resolve water resource issues in concert
with conservation of endangered species.'' 16 U.S.C. Sec. 1531(c)(2).
Section (6)(a) of the ESA also states: ``In carrying out the program
authorized by this chapter, the Secretary shall cooperate to the
maximum extent practicable with the States.'' 16 U.S.C. Sec. 1535(a).
Finally, Section 6(c) of the ESA states: ``In furtherance of the
purposes of this chapter, the Secretary is authorized to enter into a
cooperative agreement...with any State which establishes and maintains
an adequate and active program for the conservation of endangered
species and threatened species.'' 16 U.S.C. Sec. 1535(c).
Quite possibly the strongest authority for using a Conservation
Agreement as the basis for refusing to list a species is found in
Section 4(a)(1) of the ESA, which states that the Service must
determine whether a species is threatened or endangered because of any
of the following five factors: (A) the present or threatened
destruction, modification, or curtailment of its habitat or range; (B)
overutilization for commercial, recreational, scientific, or
educational purposes; (C) disease or predation; (D) the inadequacy of
existing regulatory mechanisms; or (E) other natural or manmade factors
affecting its continued existence. 16 U.S.C. Sec. 1533(a)(1)(A).
Although this language focuses on impacts negatively affecting a
species, Section 4(b)(1)(A) requires the Service to ``tak[e] into
account those efforts, if any, being made by any State or foreign
nation, or any political subdivision of a State or foreign nation, to
protect such species, whether by predator control, protection of
habitat and food supply, or other conservation practices, within any
area under its jurisdiction....'' 16 U.S.C. Sec. 1533(b)(1)(A). Read
together, Sections 4(a)(1) and 4(b)(1) of the ESA require the Service
to consider any State conservation measures which either positively or
negatively affect a species' status (i.e., efforts which create,
exacerbate, reduce, or remove threats identified through the Section
4(a)(1) analysis). Each of these sections makes it crystal clear that
Congress intended for the Service to specifically consider any
conservation efforts being made by the State when making a listing
decision. We believe that the Service should begin giving greater
weight to state-sponsored conservation plans as a means of providing
the species with the greatest chance of recovery without triggering the
ESA's costly constraints.
______
Response to questions submitted for the record by Donald G. Waldon,
Administrator, Tennessee-Tombigbee Waterway Development Authority, and
Vice Chairman, Alabama-Tombigbee Rivers Coalition
Thank you for your letter dated May 11, 2005, which included two
questions submitted by Senator Mike Crapo following the House Resources
Committee's field hearing in Jackson, Mississippi, on April 19, 2005.
On behalf of the Tennessee-Tombigbee Waterway Development Authority and
the Alabama-Tombigbee Rivers Coalition, we appreciate the Committee's
continuing efforts to oversee the implementation of the Endangered
Species Act (``ESA'') and to identify ways to make the ESA work better.
We are grateful for this opportunity to share our thoughts and views,
and my responses to the two questions are detailed below.
Question 1: All of the panelists spoke of contributing time and money
to species conservation--some more willingly than others. If we
could guarantee that your investment gave you a seat at the
table to take part in hiring scientists, planning recovery, and
taking action on the ground--would you be better off?
Yes, we believe we would be better off with such a guarantee--with
an important caveat. Having a seat at the table does not mean that the
U.S. Fish and Wildlife Service (``FWS'') will listen. As I noted in my
April 19, 2005, written testimony (see pages 9-10), the Alabama-
Tombigbee Rivers Coalition actively participated in a conscientious
negotiation which led to the development of a Conservation Agreement
and Strategy for the Alabama Sturgeon (``Conservation Agreement''). We
had a seat at the table from beginning to end, but FWS effectively
vetoed the unanimously agreed upon plan by their subsequent action. In
that case, FWS should have been required to abide by the decisions
reached by the participants who developed the Conservation Agreement,
which included all those parties who intended to provide expertise,
funding and resources to implement the agreement. Private industry as
well as several federal and state government agencies committed,
financially and otherwise, in writing to support the Conservation
Agreement. Moreover, FWS expressed the view, mutually shared by the
other participants, that ``implementation of the Conservation Agreement
is the most viable approach to conservation of the Alabama sturgeon,
based on current technology and information.'' As FWS well knew,
continuing support for the Conservation Agreement depended on deferring
the listing of the Alabama sturgeon; however, FWS listed the fish
anyway. Predictably, public support for the Conservation Agreement
dissolved immediately. In the years since then, conservation of the
Alabama sturgeon has languished without funding or support, and FWS has
done nothing to recover it.
Amending the ESA to provide an active role for participants from
the private sector who are willing to fund conservation measures would
go a long way toward encouraging their participation in measures which
might not otherwise be funded or implemented. Under current law, FWS
has ``legal leverage'' to incentivize so-called ``voluntary'' action
when FWS' approval is required--that is, in the context of approving a
federal action under Section 7 or an incidental take permit under
Section 10 of the ESA. Otherwise, the ESA does nothing to proactively
promote positive voluntary conservation measures. In our case, we,
along with the State of Alabama and other federal agencies, sought to
develop the best conservation plan we could design and to implement
those measures proactively for the benefit of the species in an effort
to forestall its listing. However, FWS ultimately disregarded those
good faith efforts, because FWS claimed they were not one hundred
percent certain the plan would recover the species, even though FWS
agreed the plan was the species' best chance for survival.
Our experience leads us to the view that FWS should be required to
respect the decisions and conclusions unanimously developed in concert
with a team of stakeholders which includes the private parties who
agree to provide funding for the conservation measures. In our view,
private parties would be more likely to join a process and commit
resources if they had assurance that FWS would respect the decisions
made by those participating.
Question 2: Current deadlines for critical habitat are routinely
abused, which is why many are considering changing those
deadlines. If, however, we kept a requirement for an economic
analysis at the time of listing, would that meet your
interests?
As my April 19, 2005, written testimony indicated (see pages 6-7),
we support the present requirement in the ESA to provide an analysis of
economic and other relevant social impacts, and we support the
requirement that this analysis be provided concurrently with listing--
meaning at the front end of the process. Therefore, the proposal
articulated in this question appears to address, at least conceptually,
one of our interests.
I am concerned, however, about another interest that is also served
by maintaining the present critical habitat designation at the front
end of the proposed listing process, which is public notice. One of the
promising albeit routinely ignored functions of critical habitat
designation is to provide meaningful notice of the listing proposal to
affected land owners and other members of the public. Under the ESA,
critical habitat includes areas that are currently occupied by the
species, encompass ``essential'' physical or biological features, and
may require special management considerations. We believe that those
who own land within such an area ought to have that information at the
time a species is proposed for listing. Such timely notice serves to
let private landowners know whether they should be interested in the
listing process and, ideally, brings them to the table to participate.
We also believe that continuing to require critical habitat
designation at the front end of the listing process actually improves
the science. As indicated in my April 19 testimony (see pages 5-6), we
take issue with those who have suggested that it is too difficult to
gather and process sufficient data to designate critical habitat at the
time of listing. If there is insufficient data to know what habitat is
critical for a species' survival, then we believe there is insufficient
scientific data to determine that a species ought to be listed in the
first place. Nevertheless, if my first two concerns are adequately
addressed and included at the proposed listing stage that would likely
meet our interests on this particular issue.
Thank you again for this opportunity to respond to the Committee's
questions. Please feel free to contact me if I can provide additional
information or assistance.
______
The Chairman. Thank you. We have Eddie Briggs, who
represents the Head Companies, Mr. Briggs.
STATEMENT OF EDDIE BRIGGS, ATTORNEY
Mr. Briggs. Thank you, Mr. Chairman. My name's Eddie
Briggs. I'm an attorney here in Jackson. I've participated in
environmental litigation for Head Companies and the Yates
Companies. David Head offers his apologies this morning. He's
trapped by the storm that was sweeping across Alabama as we
meet today. Senator, welcome to the great State of Mississippi,
Mr. Chairman, and to my congressman, Chip Pickering, good to
see you this morning, Chip. Chip knows full well this is the
last weekend of turkey season and if we weren't dedicated to
the issue, we'd be out in the Mississippi woodlands this
morning as I'm sure Judge Pickering is.
At 9:00 a.m. this morning, I learned that I was going to
have to summarize David Head's testimony so bear with me as I
try to make a few of the points that he would make to you
today. As a developer and investor and a private landowner and
perhaps to share with you as a practical matter just exactly
what the Endangered Species Act means for those who try to
develop our natural resources out there on a day-to-day basis.
There are four things that we want to point out to you this
morning for your consideration. First is the Endangered Species
Act, though not so intended by the Congress is to often in
practice a local land use tool. Certainly this it is no
surprise to the members of this Committee. The Act itself is
primarily used by those who would oppose development as its
number one weapon in stopping certain types of land
development.
Second, the Act has serious economic and other impacts upon
private landowners whose property provides habitat for
threatened and endangered species and you've already heard
testimony in that regard this morning. Third, as currently
drafted, the Act forces the U S Fish and Wildlife service to
make the decisions and take positions based on poor data and
information.
And fourth, the Act's provisions regarding critical habitat
designation are neither necessary nor effective as a
conservation measure, and I mean actually the designation of
critical habitat doesn't insure the conservation of the species
at all but the designation of critical habitat does impose
significant costs to the agency and to the public as a result
of relatively meaningless rulemaking procedures and consequent
permitting obligations.
Like it or not, the Endangered Species Act is the most
significant local land use tool used by those who oppose
development. The Act is all too easily invoked as the most
ultimate zoning tool. I'm going to give you today, a little bit
of history of two projects that we're currently involved in on
the Fort Morgan Peninsula in Southern Alabama. These projects
are in an area that is designated as Alabama beach mouse
habitat.
Some several years ago, we started a project called The
Beach Club there and over the course of development of that
project, it took us some three years to get through the
permitting process. We were forced to expend at that time about
$1.8 million in order to get our project approved. Those costs
came from resulting litigation, necessary consultants involved,
and a settlement ultimately with the plaintiff's in that case.
The current project that we're working on there is called
the Beach Club West. It's a companion project to another
project called The Highlands, where some 1,000 additional units
are planned to be built out on Fort Morgan Peninsula. Those
facilities will involve an investment of between $300 million
and $500 million by my client that will ultimately develop a
real estate value out on that peninsula we believe in excess of
$1 billion.
These projects are vehemently opposed by some who would
oppose multi-family development lots at the same time allowing
the development for single family residences in this same area
with no restrictions, virtually no restrictions whatsoever.
Currently we feel that we've been discriminated against by Fish
and Wildlife Service because while our projects are held in
abeyance by Federal Court lawsuit, there are single family
permits that are being considered or already have been granted
for some 108 single family units that are going to actually
occupy more beach mouse habitat than the Beach Club and
Highland Projects.
At the same time, the single family projects are not
required to mitigate their use of the habitat whatsoever and in
our project we have used about 35 or so acres in developing
these two condominiums and, at the same time, we set aside an
interment conservation easement, 110 acres of beach mouse
habitat to be permanently conserved at a cost of around $90
million to the developers.
When you look at the total cost of these two projects and
these two projects and two facilities over the course of the
last few years, projects for development and litigation in this
area and the cost of the delays being included, we've spent
some $8.5 million on NEPA, the NEPA process, and currently the
Beach Club West Club project has been held in abeyance for some
five years while we deal with litigation and with continuing
road blocks raised by Fish and Wildlife Service.
One of the things that I feel is most strongly needed in
this revision of the ESA is to require some time limits, some
time lines, be met that the agencies that administer this Act
be required to act in a timely fashion so that they can't just
delay it and delay it and delay it. At one point during the
course of this situation we were needing some environmental
information that could only be provided by an expert who lived
in Australia according to the Fish and Wildlife Service. We
were required to wait nine months for this information to come
in and ultimately the gentleman never did send it, it never
came but still the delay was there, the cost and expense to our
group was there.
When you look at how a multi-family development is treated
by the Fish and Wildlife Service versus the single family
developments, you'll find that single family developers used
230 percent more habitat in developing the same facility to be
occupied by individuals versus the development of condominiums.
So, our consideration here today is not only economic but
it's also that we do the best that we can with the resources
that we have that the government agencies that we fund as tax
payers actually respond in a timely fashion to the needs of not
only the environment but those that are forced to work within
these rules. I'm quite fond of telling our opponents when we
have those face-to-face meetings that we do from time to time,
that what we need is to agree upon a set of rules and then
everybody proceed by those rules.
What has happened to us is that we entered into this
process, we made an investment, we've acted in good faith,
we've put in place mitigation measures, we've done everything
that we know how to do and then at every juncture the rules are
changed. They want us to do more, address a different set of
issues and that simply does not foster economic development and
we don't feel like we've been treated equitably under the Act
as it is now called, as it is now written.
I thank you for the opportunity to appear before you here
today and will be glad to answer any questions you may have for
me.
[The prepared statement of Mr. Head follows:]
Statement of David Head, Sr., Chief Executive Officer,
Head Companies
Introduction.
Mr. Chairman, Members of the Committee, good morning and thank you
for coming to Jackson to visit with us today. My name is David Head,
Sr., I am the CEO of Head Companies. Our development activity along the
Northern Gulf Coast includes numerous condominium projects completed,
under construction or being permitted. I am an attorney and have been a
member of the Alabama Bar since 1962. I have over forty years
experience in permitting and developing properties some nine years of
which involve the Alabama beach mouse.
My company is the managing partner responsible for development of
the Beach Club and Beach Club West Projects, located on the Fort Morgan
Peninsula of Alabama. In that capacity I have, since 1996, been
involved with the Alabama beach mouse, which is listed as an endangered
species under the Endangered Species Act. I sit as a member of the
Alabama Beach Mouse Recovery Team, to which I was appointed in 2004.
My remarks this morning will be brief. I would like to address the
following topics: First, the Endangered Species Act, though not so
intended by Congress, is too often in practice a local land use tool.
Second, the Act has serious economic and other impacts upon private
landowners whose property provides habitat for threatened and
endangered species. Third, as currently drafted, the Act forces the
U.S. Fish & Wildlife Service to make decisions and take positions on
poor data and information. And fourth, the Act's provisions regarding
critical habitat designation are neither necessary nor effective as a
conservation measure, but impose significant costs to the agency and
the public as a result of relatively meaningless rulemaking procedures
and consequent permitting obligations.
1. Like it or not, the Endangered Species Act is a Local Land Use Tool
One of the central premises of our federal system is that local
land use regulation is left to state and local government. True to this
ideal, it is the Department of the Interior's policy that the
Endangered Species Act is neither intended nor to be applied as a local
land use planning tool. However, in matters where a conflict arises
between local land use activities and endangered species conservation,
the Act is all too easily invoked as the ultimate zoning tool. And that
is what is happening on the Fort Morgan Peninsula.
Our projects are intended to provide recreational opportunities
allowing our owners and their guests to visit and vacation by the
seaside on Alabama's Gulf Coast. Both Beach Club and Beach Club West
are designed utilizing multi-family condominium towers to minimize our
project footprint, avoid rural sprawl, and minimize habitat and other
disturbance to the Alabama beach mouse. That design is sound business,
sound conservation, and allows us to dedicate most of the land we own
to wildlife conservation, including a substantial habitat preserve area
and other measures, including conservation funding, for the benefit of
the Alabama beach mouse. It is, however, controversial with some living
on our part of the Peninsula who would rather see more single-family
residences than our higher-density, more compact developments. So much
so that interests on and off the Peninsula have chosen to use the ESA
(and the National Environmental Policy Act) as litigation tools to
delay or prevent us from making lawful use of our property. I will
describe those events to you in a moment. But first let me say, that
for whatever reason, the FWS in its ESA implementation has played into
the hands of our local opponents.
Our Beach Club West Project and affirmation of the Section 10
incidental take permit has been indefinitely delayed due to litigation
and subsequent review under the National Environmental Policy Act
(NEPA) over endangered beach mouse concerns, the Service has
inexplicably--and quite unfairly--moved forward to issue scores of
incidental take permits for single family residences throughout the
Peninsula, including in the very area adjacent to our projects. While
our multi-family development is being held hostage in the name of
considering the potential impacts to this small rodent, the agency is
allowing virtually unfettered construction of single family residences
that in aggregate will have at least as significant if not greater
impacts to the species and without the concomitant conservation
benefits offered by our Beach Club West project. And our opponents
including the Sierra Club and others, who ostensibly seek to protect
the mouse, are sitting by while some 108+ single-family residences are
permitted or being permitted without objection, and mouse habitat is
lost. This is not only a subversion of the ESA to use it as a land use
tool favoring habitat destroying single-family residents over habitat
conserving multi-family projects, it is fundamentally unfair and poor
conservation planning to boot.
[GRAPHIC] [TIFF OMITTED] T0971.001
3. History and Costs of Alabama Beach Mouse Litigation
Both the Beach Club and Beach Club West required the issuance of
Incidental Take Permits because of potential take of the Alabama beach
mouse. Our experience in obtaining and defending those permits is
illustrative of the costs the ESA imposes on land owners. We have
obtained two take permits from the Fish & Wildlife Service, as
described above. Both permits have been litigated. And litigation
continues. Our Beach Club permit was challenged by the Sierra Club in
1997. That lawsuit was finally resolved in 1999 after 2 1/2 years at
the cost of over $1.8 million. Our Beach Club West permit was likewise
challenged by the Sierra Club and other plaintiffs and to date has cost
us $6,649,309 or a total of $8,449,309 when the Beach Club cost delays
are included. That litigation resulted in an injunction against project
construction while more detailed environmental reviews were performed
under NEPA. The NEPA process is still ongoing; nearly three years after
the injunction issued, the FWS still has not issued a draft
environmental impact statement. The horizon for that project, at this
point, appears very far away.
In addition to litigating our permits, our opponents have sought to
prevent our use of our property by first filing a petition with FWS to
expand the historic designation of critical habitat for the Alabama
beach mouse, and then by filing yet another lawsuit in federal district
court when the agency failed to act as promptly as the plaintiffs
wanted. Their proposal for re-designation would, not surprisingly,
require much of our property to be designated and regulated as critical
habitat. FWS for its part has been delayed in responding to the
petition by limited funds and other resources. In the critical habitat
litigation, the plaintiffs have sought an injunction prohibiting FWS
from acting upon incidental take permits such as ours until re-
designation occurs--a process that could take several years. They do
not object to single-family development which is more destructive. The
irony of this, if one is a supporter of endangered species
conservation, is that critical habitat designation and regulation is
not an effective conservation measure. Designation of critical habitat
carries with it no promise of conservation measures for the species. In
fact, the Service itself repeatedly has recognized that the habitat
conservation plans (HCPs) which are at the heart of Incidental Take
Permits provide far greater conservation benefits to threatened and
endangered species than does critical habitat designation. (See the
attached 25 Mitigation Measures).
The habitat conservation plan for Beach Club West and an adjacent
contiguous development known as Gulf Highlands are being permitted
under a joint HCP which will result in approximately 110.7 acres being
conserved from development and available to the beach mouse in
perpetuity. The conserved lands include 909 feet of prime gulf frontage
that is currently selling for over $100,000 a front foot for
condominium development. In other words over $90 million of beach front
land value (before valuing contiguous interior lands) has been set
aside forever for the beach mouse.
Under Fish & Wildlife estimates, a single family residence creates
approximately 1/10 of an acre of impervious lands with no mitigation
while Beach Club West and Gulf Highlands development plans call for a
clustered development in which the impervious lands are only a fraction
of that for a single family home. In an attached exhibit it can be seen
that our condominium cluster development is exceeded 230% by a single
family home development on a per unit basis while our mitigation
measures insure additional acreage that is three times our developed
lands will never be developed. None of this would happen as a result of
critical habitat re-designation. And it is a fact that critical habitat
designation takes at the least years and many tens if not hundreds of
thousands of agency dollars, while (by FWS' own recognition) yielding
no greater conservation benefits to the species than already result
from the fact the species was listed. Those are dollars, and years,
that FWS does not have. And the fact is that the habitat and habitat
values which are the subject of critical habitat designation actions is
already protected for the benefit of the listed species through
application of the ESA's admonition that federal agencies not
jeopardize the species. Since beginning our permitting activities over
nine years ago, we have calculated that we have incurred legal and
consulting fees along with other expenses directly tied to ESA
permitting and related litigation in the amount of $8,449,309.
4. The ESA Requires the FWS to Act in the Face of Too Little
Information
I want to illustrate this last point through our own experience.
When the Alabama beach mouse was listed in 1985, FWS believed there
existed only 350 acres of habitat suitable for use by the mouse on the
Fort Morgan Peninsula. Over the past five years, as people have studied
the mouse, often as the result of Incidental Take Permit requirements,
our knowledge of the mouse and its habitat has expanded exponentially.
At this time, the Service has confirmed that the Peninsula has some
2,700 acres of habitat suitable to meet the needs of the Alabama beach
mouse, a far different picture than was believed at the time of
listing. Yet the Act requires that listing be performed based on ``the
best available information,'' regardless of how little information may
exist, or whether it is credible, reliable information or not. That is
a poor basis upon which to perform a regulatory action that can result,
as demonstrated above, in the imposition of millions of dollars in
regulatory compliance costs before a landowner can make use of his or
her property.
Thank you. I would be glad to respond to any questions you may have
for me.
______
25 Mitigation Measures
Clustering development in the southeastern portion of the
property to maintain large tracts of ABM habitat in the western and
northern portions of the property;
Preserving approximately 105.5 acres as a conservation
area for the ABM;
Preserving 909 linear feet of open beach areas, primary
and secondary dunes, and associated swales, and escarpment;
Foregoing development of the 102-unit, 17-acre French
Caribbean tract, for which an ITP was previously issued in 2000, and
which will become part of the conservation area protected by
restrictive covenants;
Locating the two development towers 724 feet and 600 feet
north of the Gulf, providing a significant buffer between the towers
and ABM designated critical habitat;
Selectively clearing the canopy and understory of 10.5
acres of the property that are not currently believed to be occupied by
ABM to enhance potential beach mouse habitat;
Constructing a sloped land surface, rather than a
traditional concrete retaining wall, along the south side of the
project to provide refugia for ABM during high water events;
Posting signage in the construction area to clearly mark
the boundary of the development footprint;
Designating a prime contractor to be responsible for
refuse disposal in tightly closed, rodent-proof waste disposal
containers during construction;
Limiting storage of building materials to the development
footprint;
Requiring disposal of residential waste capable of
attracting rodents in rodent-proof containers;
Stopping construction work and immediately notifying
Service personnel upon encountering ABM;
Removing any injured ABM to a secure spot and immediately
notifying Service personnel;
Building dune walkover for pedestrian traffic to the wet
beach;
Posting signs in the dune area to alert visitors of ABM
presence;
Prohibiting off-road vehicles on the dunes or wet beach
area;
Providing educational brochures about the ABM to
construction workers and development residents;
Prohibiting outdoor lights illuminating the dunes;
Requiring perimeter fencing to contain large enough
spaces for ABM movement;
Prohibiting domestic house cats in the residential
development;
Implementing a seasonal trapping program and a
monitoring, reporting and predator-control program for the ABM, house
mice, and domestic cat populations;
Prohibiting the use of rodenticide on the property,
except in totally enclosed structures;
Implementing a dune restoration and enhancement program
to be designed and overseen by a qualified expert approved by the
Service;
Assessing a $100 fee per residential unit per year,
adjusted for inflation, to be used for ABM conservation, including 1)
acquisition of ABM habitat, 2) enhancement of offsite ABM habitat on
non-public lands, and 3) management of ABM on non-public lands; and
Restoring 35 acres of off-site ABM habitat in the project
vicinity, including creation of a minimum 2000-foot corridor connecting
existing ABM habitat to the restored habitat.
______
NOTE: Additional attachments to Mr. Head's statement have been
retained in the Committee's official files.
Response to questions submitted for the record by David Head, Sr.,
Chief Executive Officer, Head Companies
All of the panelists spoke of contributing time and money to
species conservation-some more willingly that others. If we could
guarantee that your investment gave you a seat at the table to take
part in hiring scientists, planning recovery, and taking action on the
ground-would you be better off?
Yes.
______
The Chairman. Thank you. Mr. Vaughan.
STATEMENT OF RAY VAUGHAN,
EXECUTIVE DIRECTOR, WILDLAW
Mr. Vaughan. Congressman, Senator, thank you very much for
having me here today. Especially considering that I and
WildLaw, the organization that I founded and represented while
and before the Endangered Species Act faulted in the southeast
more than anyone else. But I thank God for reminding everyone
that it's not only environmentalists who filed a lawsuit as
well.
But let me just say the Endangered Species Act is not so
much broken as it is incomplete. In 1973 Congress took its best
shot at addressing the problem and I agree Congress needs to
take another shot at this, but it doesn't need to be scattered,
it needs to be very well thought through. And I appreciate you
starting to hold these hearings. To be honest with you, a
number of nationally prominent environmentalists have called
and e-mailed me asking me not to be here today. But I want to
be here today.
I just want to say as often as our system of government has
let me down, I still believe in it and I'm always willing to
give it another shot. And I believe there a lot of things that
can be done, a lot of things have been talked about today are
basically some of the legislation that's pending are
limitations on what we already have. And that's not the
solution. That's a band-aid approach that may, in fact,
increase the problems that have been cited in litigation. Which
is really not so much a problem as a symptom of the problems.
Underfunded agencies. If an agency doesn't have all the
guidance that it should--but it quite frankly is doing a very
good job with what little it has--it has problems. There have
been mistakes in compliance, there have been difficulties in
service situations. But it's amazing to me that, in my
experience, tries very hard with what little they have and if
they had the funding they needed, a lot of the litigation would
go away on its own because a lot of the problems are because
they're not being able to meet their deadlines.
Imagine a health care system where all we had in America
were emergency rooms. Well, that's what we have for our
wildlife basically. Is an over all system that gets you back as
an emergency rooms. What we need is a comprehensive system and
a lot of the other ideas that have been put forth here today
and other things, I think are very good to explore. And I have
a number of things that I put in my written testimony about
cooperative efforts that have worked and other things that
could work.
Things I'd like to highlight would be, first, looking at
habitat overall. As the Senator mentioned, this is essential
for a wildlife protection system. The National Forest in
Alabama, I used to sue them three, four times a year. Why,
because they were breaking the law. Then they decided to come
up with ecosystem, habitat-wide management focused on longleaf
pine restoration. The reason they focused on longleaf pine
restoration was because that's what's supposed to be there and
because the red-cockaded woodpecker was an endangered species.
Also, they had to do it. Once they did it, it's been using
great science. The scientists love it, everyone loves it, and
they haven't been sued or appealed in five years.
That has spread to Louisiana Kisatchie National Forest. The
former head of the Louisiana Forestry Association actually
thinks our lawsuit that shut them down too early did great
things because now they're doing great longleaf restoration all
over Kisatchie and no one is appealing or challenging what
they're doing. The key to that was getting all the interests
together.
Lawsuits sometimes force that to happen. Hopefully that can
happen through this process as well, in a better way, in that
if all the interests come together and have a frank discussion
on, all right, let's find out what we can agree on. Because
there are things we can all agree need to be done. Changes that
may be needed to the current system, improvements, additions,
things that can be focused on.
Quite frankly, in a lot of areas an incentive-based
approach can actually be a good thing. It can encourage the
polluters to think oh, they have to pollute and I get paid not
to pollute. I don't think that's the situation with the
Endangered Species Act private landowners. The landowners
aren't doing bad things necessarily, they're still making valid
choices with the rights they have. The incentive-based approach
increasing cooperative conservation, I think makes sense in the
Endangered Species long life situation. And that's something we
ought to explore.
But even within the current Act, we spend more time in
working with the business interests than we do working against
them to find solutions and I've outlined a number of examples
of that in my written testimony of where the Endangered Species
problems they initially had became an opportunity to actually
make things better for them and better for the species as well.
We need to get a lot of folks together, address this process.
The Forest Service when they were looking at the new
National Forest management rates pulled together a great
meeting of over a hundred people, very balanced with the
numbers and interests. And if they give us enough time to talk
good recommendations that were agreed on, we would come up
great recommendations. Instead, they didn't and they didn't
listen to what we did say including folks from the industry.
I think you have the opportunity at these hearings to move
on, come up with really competent solutions and I appreciate
it. Thank you very much.
[The prepared statement of Mr. Vaughan follows:]
Statement of Ray Vaughan, Executive Director, WildLaw
As the nation's premier wildlife protection law, the Endangered
Species Act (ESA) has received a great deal of attention. Designed to
prevent the extinction and to assist in the recovery of the rarest
creatures on Earth and particularly those in the United States, the ESA
was the first major federal statute to attempt to save species for
their own sakes, regardless of any measurable value to humanity.
Although it is arguably the strongest of America's environmental laws,
in reality, the ESA has done very little to prevent the mass extinction
that is currently occurring throughout the world. Neither the economic
apocalypse that some opponents claim, nor the wonder law that some
environmentalists claim, the ESA needs to be viewed in a proper
perspective that reveals its true strengths and weaknesses and its
impacts.
There are indeed a limited number of full success stories under the
ESA. The recoveries of the American Alligator, the brown pelican, the
peregrine falcon, the bald eagle and a handful of other species can be
credited to the protections provided by the ESA and the work of the
Departments of Interior and Commerce under the Act. For each species
that has recovered due to efforts under the ESA, however, there are
hundreds of other listed species that have made very little or no
progress at all; at best, the majority of species listed under the ESA
are just barely surviving and have been given only a short reprieve
from extinction. Further, for all those hundreds of species listed
under the Act and protected somewhat by it, there are thousands more
that await listing and protection. Indeed, a number of species have
gone extinct while waiting to be listed and protected under the
mechanisms of the ESA. Chronically under-funded, a situation encouraged
by Democratic and Republican Administrations alike, the recovery
efforts of the Fish and Wildlife Service under the Act often amount to
nothing more than ``too little too late'' for most species listed under
the Act. Nonetheless, the ESA stands as the United States' best effort
to date at preserving the biological diversity of the country.
On the other hand, critics of the Act claim that it has
unnecessarily adverse impacts upon the nation's economy. However, these
critics can cite no studies to substantiate this claim. From 1987
through early 1992, almost 74,000 development projects came into
potential conflict with endangered species under the Act, yet only 18
of those projects had to be stopped. As Professor Oliver Houck pointed
out, ``The number of projects actually arrested by the ESA is nearly
nonexistent.... Alternatives to avoid jeopardy included a mix of
measures neither surprising nor in many cases very demanding....
Rather, they reflect the bare minimum of alternatives necessary to keep
those species that are listed hanging on, unrecovered, for an
indeterminate time.'' Oliver A. Houck, ``The Endangered Species Act and
Its Implementation by the U.S. Departments of Interior and Commerce,''
64 U. Colo. L. Rev. 277, 317-23 (1993). During the later years of the
Clinton Administration and throughout the Bush Administration, I am
aware of absolutely no projects have been stopped due to the ESA.
Although the ESA will sometimes have an adverse impact on a
particular project, the vast majority of economic projects experience
no difficulty under the ESA; indeed, at least 99.9% of developments
never have an ESA problem at all. In highly publicized instances such
as the controversy over the Northern Spotted Owl in the Pacific
Northwest, the real cause of any economic problems was gross
mismanagement of natural resources, such as logging at unsustainable
rates. Rather than causing job losses and economic impacts, the listing
of the owl under the ESA was a consequence of resource abuse, just as
the economic impacts were. Often, the ESA and the creatures it attempts
to protect are used as a convenient scapegoat to hide the fact of
years, even decades, of irresponsible wasting of natural resources.
When the facts, rather than the rhetoric, are examined, there is no
evidence that the ESA or environmental statutes and regulations in
general have any detectible adverse impact on the nation's economy.
Political scientist Stephen M. Meyer of the Massachusetts Institute of
Technology found that environmental regulations have no perceptible
adverse economic impact at the state and national levels. The states
with the strongest environmental regulations had the strongest
economies, and the states with the weakest regulations had the weakest
economies. Meyer, Environmentalism and Economic Prosperity: Testing the
Environmental Impact Hypothesis (M.I.T. 1992). This study also found
that growth in gross state product during the 1980s was more than twice
as high in states with strong environmental regulations than in states
with weak ones. Construction jobs grew by 53 percent in strong states
and fell 1.4 percent in weak states. The same correlation holds true
for the 1970s. Further updates by Professor Meyer in more recent years
find the same results. See his articles at http://web.mit.edu/polisci/
faculty/S.Meyer.html.
This brief examination of the claims of both the supporters of the
ESA and its opponents gives a better and more accurate perspective of
the Act. The ESA is not some powerful, miracle law, and it is also not
some kind of economic catastrophe, or even a hindrance. Instead, it is
a singular statute that attempts to accomplish something humanity has
not tried before through statutory means: the saving of other species
for their own good, regardless of whether those creatures have any
significance to humanity or not. As such a unique statute, the ESA
attempts noble things; however, although the Act sometimes succeeds, it
routinely fails in its mission to bring species back from the brink of
extinction. In its mission as an emergency room, as a last ditch
attempt to prevent extinction, though, the ESA is arguably somewhat
successful, because although it has not recovered many species, it has
temporarily prevented most of the listed species from continuing to
slip into the abyss of extinction. For the person who has to deal with
a situation involving an endangered species, it is important to keep
the ESA in correct perspective and understand how it really works in
order to avoid the exaggerations and self-interested propaganda that
can beset an ESA case. Working examples of protecting wildlife under
the ESA, and other federal laws, exist in the Southeast.
Basically, the ESA operates blind; there is little effort to see
the interaction of various species and to plan for their needs
together. As a last resort, the ESA has had, and can have, only limited
success. The current state of the law in protecting rare species does
too little too slowly, even if the Act and the agencies under it were
fully funded. Yet the ESA is still the most important of the few laws
we have that emphasize the value of something on this Earth in terms
other than its benefit to humans. Further, the ESA is unpredictable and
erratic in giving businesses an idea of how to operate. These reasons
emphasize the need to make the ESA more efficient. The Act could use
strong devices for protecting ecosystems and habitats instead of just
protecting species one at a time. If our law provided, for example,
that a certain number of Pacific Northwest old-growth forest ecosystems
be preserved in their entirety, there would be no need to go through
the motions of individually listing and protecting species such as the
Northern Spotted Owl and the Marbled Murrelet. Protecting the whole
protects all of its parts, and such an approach would be more effective
at preserving species and more efficient in handling land management
problems and in alerting business as to where and how development
projects could be undertaken.
The dismay that the survival of one species among all the countless
millions of species in the world could stop a major project is fairly
common, but it oversimplifies and minimizes the real idea behind the
ESA. The point is not to save one species but to save all species, to
protect the entire biodiversity of the Earth upon which all life,
including humanity, depends. To developers it seems a small thing to
sacrifice one species to their project and their economic interests,
but the value of any species is beyond humanity's ability to measure,
and what is in danger is not just one species, but the entire ecosystem
of which that species is a part. Because of the emphasis placed on
saving one species at a time, the operation of the ESA has fueled this
erroneous viewpoint to some degree. Again, a change to an ecosystem/
habitat approach would put the goals of the Act in a better perspective
and allow for the protection of all components of an ecosystem at one
time. Furthermore, economic survival depends upon the survival of
healthy ecosystems. Since our entire economy is built upon the
environment of the Earth, the loss of biodiversity cannot continue for
long before a degrading environment leads to degradation of our economy
and our own health as a species.
If this were about health care, it is true that the ESA emergency
rooms do not work nearly as well as they should, but that is no reason
to get rid of those emergency rooms or to make them even less
effective. The current crisis points out the need to design, build,
fund and operate effectively an ENTIRE health care system so that the
need for emergency rooms is reduced and ill health is reduced.
Instead of continuing the interminable traffic jam of litigation
over the ESA, people who work with the ESA need to focus on more
proactive solutions to conflicts under the Act. We can remain
entrenched in a warfare of wills between environmentalists who demand
full implementation of the ESA, faults and shortcomings included, and
business interests and an Administration committed to doing whatever it
takes to maximize profits. Or we can try something else.
An excellent example of how the current ESA can work to assist
development instead of hinder it comes from central Alabama. Developers
want to build up the Exit 38 area on Interstate 85 in east-central
Alabama, but they do not want to make it a typical exit development;
they want a forward-thinking model of quality development that enhances
(and is a gateway to) the unique historic heritage of the area
(Tuskegee). In the very middle of the planned development is a stream
that is designated critical habitat for three listed endangered
species. In a normal situation, that could kill, or at least cripple,
the plans for development. Instead, WildLaw showed them how this was a
great and unique opportunity for a development that would HELP
endangered species. The species, all mussels, are currently being
hammered by illegal use of off-road vehicles (ORV) riding in the
stream. Developing the area will close off access to the stream by ORV
users. If the development is also well done in how it handles basic
environmental issues (such as sediment, chemical runoff, etc.), as they
already plan to do, enclosing the critical habitat in a greenway at the
center of the development would IMPROVE the lot of these species, thus
making the development a national model and a prime candidate for
federal funding from politicians who want to see positive ESA solutions
instead of the usual train wrecks, such as Alabama Senator Richard
Shelby. Everyone involved in the development LOVED this message and now
highlights the ESA issue as part of what they are doing instead of
fighting it.
WildLaw could have chosen to litigate over the species and critical
habitat at Exit 38. Instead, we chose to try to work with the
developers involved. Because the developers were also open to working
with us, a solution was found that not only makes things better for the
species but also better for the developers' bottom line.
Now, development work throughout that area does not get past the
initial planning without environmentalists being brought in and
listened to. The paradigm of conflict and distrust is giving way to an
era of trust and cooperation. Development and sprawl WILL happen; no
willful and unrealistic wishing will stop it, and no stretching of
existing law can stop it. The best we can do is guide sprawl and
development away from the best remnants of habitat and toward better
ways of impacting the environment. Any claims to the contrary are
fantasy.
Swift and favorable resolution of potential ESA conflicts begins
with early recognition of their possibility. Development projects and
other economic activities often give early consideration to possible
problems with zoning, geology, labor, architectural requirements,
materials availability and costs, transportation availability, real
estate costs, water, sewer and electrical infrastructure, and many
other possible factors and events that may impact a project. With
increasing environmental problems and public awareness of those
problems, many business activities now regularly screen for potential
hazardous waste problems, toxic contamination difficulties, ground
water impacts, surface water pollution concerns, public perception
issues, and a host of other possible environmental impacts. With the
increasing sprawl development of wildlife habitat and the rapidly
increasing rate of species extinction, both in the United States and
worldwide, consideration of potential ESA conflicts early in the stages
of a planned project is not only prudent business policy but also good
public relations material. Redesigning the ESA to encourage more such
wise and early planning of development with the impacts to wildlife and
biodiversity in mind would be helpful.
But it is absolutely amazing how many development interests NEVER
give consideration to these matters. If business interests would be
willing to see environmentalists not as natural enemies, they could
learn from and profit from the expertise and knowledge of those who
work to protect rare species. If environmentalists would be willing to
see themselves as something more than just litigators and ``warriors''
for a dying cause, they might be useful.
Many ESA problems occur long after a project has begun and
progressed some way towards completion. Architectural, building
supplies, and construction labor contracts are worked on and considered
long prior to work starting on the ground, but often, possible wildlife
issues are never considered. One would never begin building a 20-story
condominium if the architect had only completed a rough sketch for the
first floor; one needs to know all the possible architectural issues
and engineering challenges before one begins pouring concrete. With the
ever increasing depletion of wildlife species and their habitats and
the increasing demand for development space, wildlife and ESA conflicts
will grow, and the smart business will prepare for them as they would
any other reasonably foreseeable event.
Mainly, one's chances of having an ESA problem are still very slim.
The overwhelmingly vast majority of projects simply never have a
potential ESA problem, and the vast majority that have a potential
problem are shown not to harm the species in question and are not
hindered. The rarity of actual ESA conflicts with developments show
that the Act does not cause any major problems to the economy; however,
the prudent business person can take a few simple steps to virtually
insure that a conflict will not arise and derail a specific project. As
these conflicts increase in the future, such prudence will reward those
who know the workings of the ESA and are prepared for such problems.
Making the ESA more proactive would also help head off and solve more
of these problems as they grow in the future.
One major weakness of the ESA that both proponents and critics
agree on is that the Act's focus on individual species causes it to be
less effective and to give business interests less warning of possible
conflicts. Focusing on individual species is an emergency room approach
that tries to save a species only after it is already on the brink of
extinction. An emphasis on habitat and an ecosystem-wide approach to
preserving biodiversity could lead to a more efficient ESA. America
would be stupid to base our entire human health care system on
emergency rooms alone, but we do that for our wildlife health care
system. Identifying ecosystems that need preservation will enable
preservation of all the species in those environments before they each
reach the edge of extinction. Further, a habitat approach will give
more consistent warning to business of where development projects can,
and cannot occur. Knowing the habitats that are protected will give
development interests more continuity, simplicity and predictability.
Still, the ESA in its current form can work much better that it
often does; the problem is not in the law but in the attitudes and
actions of people. Several general points on handling an ESA problem
under the current law are: (1) full cooperation in the consultation
process will normally speed up and facilitate a favorable result. (2)
The hiring of ``experts'' to say what one wants them to say rather than
speaking the truth and dealing with it does not help. Hire only the
best and have them work with the Service rather than taking an
adversarial approach. (3) Taking an adversarial stance with the Service
increases negative media exposure of the project and increases the
chances that environmental organizations will become involved.
Environmental groups tend to look favorably upon the Fish and Wildlife
Service, particularly the Service's field personnel who do the real
work of wildlife conservation, and are naturally suspicious of any
development that will have an impact on a rare species. The lack of
full disclosure and cooperation makes the environmentalists believe
that the project is harmful, even if it is not. If a project is not
harmful to a species, cooperation, not confrontation, will prove that
point and allow things to proceed. If the project turns out to be
harmful in some unexpected way, then cooperation again allows for a
speedier and better result by showing the developer's sincerity and
willingness to adapt to the needs of the listed species.
Consider the habitat conservation plan (HCP) submitted by
International Paper (IP) on the Red Hills Salamander. The Red Hills
Salamander lives only in a specific hillside habitat of the Red Hills
of southern Alabama; it is such a unique species that it is the only
member of its genus. Most of the salamander's habitat is owned by a
number of large timber companies. The first company to request a ' 10
permit and to submit a HCP on the salamander was IP. Instead of hiring
a biologist who would just say what the company wanted him to say, the
company opted for hiring a member of the Alabama Natural Heritage
Program who was widely respected both by Fish and Wildlife Service
personnel and by environmental groups. Instead of hiring the best
``biostitute'' they could find, IP hired the undisputedly best field
biologist in all of Alabama. Wanting to know the truth rather than
wanting just to hear what seemed least expensive for the company, IP
allowed this biologist full access to its property and its records on
the salamander and its timber practices. The result was a report that
no one questioned as to its accuracy and completeness. Basing its HCP
on that report and adopting most of the biologist's suggestions, IP
came up with a good plan. The Fish and Wildlife Service was pleased
with the HCP, and the world's top expert on the salamander, while not
as pleased, found it acceptable. Environmental groups who were watching
the salamander and IP's actions found the plan acceptable, and IP got
its permit without a contest. IP's open and cooperative attitude along
with full opportunity for the environmental community to participate
produced a swift and favorable result for the company and an improved
situation for the salamander. Because no one was actively surveying and
managing their timber lands for the salamander, IP's HCP would set a
standard for the other companies when they requested their ' 10
permits. Thus, before IP's HCP, the salamander's condition and future
were uncertain; after IP's HCP, the state of the species was better
known, its habitat was better protected, and IP was shielded from
potential ' 9 liability, all without any difficult media or court
confrontation.
In an opinion piece in The Wall Street Journal, Mark Suwyn, the
executive vice president of IP's forestry and specialty products
division, stated that IP took great satisfaction in developing the Red
Hills Salamander HCP. Suwyn, ``We Saved the Salamander--But It Wasn't
Easy,'' The Wall Street Journal (November 29, 1993). However, he noted
that the success of IP's HCP was due to the company's great financial
assets, and he surmised that small land owners might not be able
financially to go through the HCP process, thus leaving themselves
exposed to possible Sec. 9 liability if they proceed or economic loss
if they do not. The Service has found successful ways to ``group''
small landowners into one HCP process, such as the red-cockaded
woodpecker HCPs for entire states such as Georgia, which then
eliminates the vast bulk of expense and difficulty for smaller
landowners. While such groupings will not work for every species, they
do work for wide-ranging species that have well-known habitat needs.
Information on the success of that approach for the RCW can be found at
``Georgia's red-cockaded woodpecker Safe Harbor and Habitat
Conservation Plan,'' http://www.ncedr.org/casestudies/hcp/georgia.htm.
In all honesty, it must be stated that for every successful HCP I
have seen, I have seen at least twice as many that failed utterly to do
anything to protect or enhance the welfare of wildlife. The HCP process
CAN be used successfully, but it has also more often been abused.
Although there are a few small fringe groups that do take
contrarian positions as a rule, no matter what, the vast majority of
major national and state environmental groups are not opposed to
development. Any claims to the contrary are issued by those without any
knowledge of how environmental organizations work or by outright liars.
Most active environmentalists do not oppose development that is well-
planned and that provides economic growth. Further, most environmental
groups take reasonable stands on development issues, and if they can be
shown that a project will not have significant adverse environmental
impacts, most will not oppose it. Knowing this, the developer who
confronts a potential ESA conflict should engage in active cooperation
with the environmental community rather than in reactive confrontation.
Indeed, environmentalists have real and unique knowledge that can not
only avoid a conflict but also might make the business more money in
the long run.
Where does the ESA go from here
The Endangered Species Act has been due for a reauthorization since
1992, but the numerous controversies surrounding it have preventing any
changes from being made to the Act. The ESA needs a strong
reauthorization which focuses on recovery, not just the survival of
listed species, and that will shift the focus more toward ecosystems
and entire habitats instead of just a species-by-species piecemeal
approach. Currently political realities make real improvements to the
ESA very difficult, at best.
Litigation under the ESA as it exists now seems destined to
continue. WildLaw has filed a share of the cases under the ESA,
especially in the southeast, but we have always tried to be careful and
very strategic in deciding what cases to file and when. We have sought
to protect either critically imperiled species or umbrella species such
that protecting them would protect many other species and much habitat.
A key example was our nine-year fight (consisting of three lawsuits) to
get protection for the Alabama sturgeon. Protecting the Alabama
sturgeon protects the entire Alabama River from unnecessary water
withdrawals. What water withdrawals are we talking about? Atlanta's
plan to withdraw up to 90% of the water in the two main tributaries of
the Alabama, the Coosa and Tallapoosa Rivers; the usage of water from
the rivers by Alabama and its industries does not harm the fish. The
Coosa River has already experienced the largest mass extinction
documented in American history, the loss of more than 60 aquatic snails
and mussel species due to the construction of the string of dams on it
by Alabama Power in the early 1900s. Far from being a burden on
economic development in Alabama, the Alabama sturgeon is literally the
state's last hope for legally limiting the endless sprawl of Atlanta
that, if fully realized, would mean the destruction of Alabama's
economy. Try running and growing a state's economy on 10% of the water
that the state used to have.
Other litigation, however, does seem more of an exercise in ability
than in reality. The ESA does have set timelines for making decisions,
and a case over a failure to meet those guidelines is generally an easy
case to win for an environmental group. Many lawsuits under the ESA do
appear to be nothing more than grabs at ``low hanging fruit,'' without
much, if any, consideration of the strategic and even biological values
to be won. Has too much litigation been filed under the ESA?
Absolutely, BUT that litigation is NOT the problem; it is a symptom of
the problem.
The problem is that we, as a society, have not decided yet whether
we care enough about God's other creatures, and even about our own
species' long-term environmental and economic health, to address fully
what has to be done to protect biodiversity in the United States and
the world.
But what can be done right now with the ESA? Due to too much
litigation and the constant refusal of the Administration and Congress
to give the Fish and Wildlife Service the funding it really needs to do
its ESA adequately, the Fish and Wildlife Service is caught in a vice
grip. This impasse can be broken one of several ways: (1) Congress can
adequately fund the work under the ESA (that will most likely never
happen, especially since the agency never asks for anything within two
orders of magnitude of full funding), (2) environmentalists and
business interests can find ways to try real solutions to species
problems so as to avoid ESA showdowns (some of this does occur, as seen
above, but not nearly enough), (3) Congress can fundamentally change
the ESA so as to eliminate these legal problems (but that would
increase the ecological problems for rare species), or (4) Congress can
bring ALL the stakeholders together to find ways to truly improve the
ESA to make it better at protecting biodiversity while not harming
economic interests.
Option 3 seems popular on Capitol Hill right now, but ``reforms''
that are really just quickie political tricks to thwart legal problems
will not make the real problems go away. Option 4 is the only one with
a chance of actually doing something positive, both for imperiled
species and for the long-term health of the human economy. Here are
some of my random ideas for starting option 4:
In February 2003, the U.S. Forest Service brought together
approximately 100 interested people to discuss options for protecting
biological diversity on the National Forests under the new National
Forest Management Act regulations. I was one of the participants in
that workshop and the only environmentalist/conservationist who gave a
presentation at it. While the agency ultimately ignored everything this
group suggested, the people and the balance of types of people (agency,
industry, scientists, enviros, etc.) at that workshop was excellent. No
party of interest could claim not to be adequately represented there.
Given a few more days and a real mandate to find common ground
solutions to problems on the National Forests, I guarantee that that
group would have found at least a handful of common sense solutions 98%
of everyone would have agreed with. The agency could have then moved
forward on those consensus items and left more contentious issues aside
for the time being, thus accomplishing much needed work in the public
forests and reducing litigation significantly. The Forest Service chose
to go another route and now remains mired in litigation, most of which
it loses.
Before Congress goes about changing the ESA in ways that people
``think'' will improve it, why not pull together the best minds and all
the interested parties and task them with finding solutions, with
finding changes that make sense for us to agree to try? Changing the
law just to change it in response to litigation will result in one
thing, more litigation to find new ways to use the law in litigation.
As long as the Endangered Species Act exists, a conservative judge
somewhere (and I mean a real conservative) will require the agencies to
do something. Once they have to do something, people will litigate over
that something endlessly, so long as the underlying conflicts exist.
You cannot give agencies unbridled discretion in an attempt to make
them untouchable in court. Unbridled discretion is totally anathema to
the conservative ideal of limited government. Thus, a true conservative
judge, not a ``liberal'' one, will be the one who will resurrect the
litigation wars over the ESA if all you do is amend the Act in an
attempt to limit litigation. I have practiced in front of more than 100
judges, and the ones who do the most to enforce the ESA the strongest
are ALL Reagan and Bush I appointees.
If and when such a brain trust on the ESA is convened, my humble
suggestions for ideas to consider follow: It seems to me that the two
driving forces need to be: (1) what will work better to improve the
survival chances for rare species (the current system has hit a wall
trying to be an emergency room and nothing else), and (2) how can (1)
be accomplished in ways that give incentives to private landowners and
interests to assist in species conservation and that do not penalize
people for using their land in otherwise legal ways.
As a private forest landowner myself, I feel that, on the private
lands side of the ESA, all punitive measures need to be removed, except
for direct, willful killing of a listed species (such as shooting a
bald eagle). Indirect takings of listed species need to be made
noncriminal and non-illegal civilly, but tied to some tracking/study
mechanism so we can learn just how much damage those things (like
development, timber harvest, etc.) really do or do not adversely impact
species. We could set up a system whereby if landowners, developers,
etc., agree to report all the impacts from indirect take (such as the
bald eagle leaves its nest due to the construction of condos next to
the next tree), their activities are permitted and they have full
immunity from all such takes and harm. The agencies' budgets and
abilities for doing such monitoring would have to be enhanced.
Underfunding these agencies is a key reason for the problems
(especially the litigation) we face now.
Thus, permitting would not be the convoluted mess it is now trying
to modify development plans to minimize impacts, but a swifter process
that notifies the federal agencies and then sets up monitoring by those
agencies for scientific purposes; once monitoring plans met
requirements set in the Act or by regulations, the permit would be
automatic. All this would be tied to an incentives program (such as tax
credits, assistance programs, conservation easements and their tax
breaks, etc.) that would reward private landowners and developers for
doing more than the minimal monitoring program, such as setting aside
areas for the species, changing plans to minimize impacts, etc. Direct
takings, such as shooting or trafficking in listed species, would be
much more aggressively funded, pursued and prosecuted.
To make up for lessening species protections on private lands,
protections of species on public lands would need to be increased by
beginning ecosystem monitoring and restoration/conservation programs
that would look to harmonize management with doing minimal harm to
species and preventing more species from needing listing. Basically, we
need to move away from the emergency room only approach of the current
law and build a health care system for critters (although the emergency
room would still have to be there to some lesser extent). This would be
tied to a larger and more targeted land acquisition/conservation
easement program to gain key lands and ecosystems into public
protection from willing sellers.
Efforts to restore degraded public lands would fit in well with
increased ESA protections for species there. A national model of
success on protecting wildlife on public lands can be found in the
National Forests of Alabama. In 1992, the National Forests in Alabama
were the WORST of the forests in the whole Forest Service system; they
violated every federal law as often as they could in order to ``get the
cut out.'' Yes, it did take a series of lawsuits, appeals and other
legal actions to finally shut down all illegal logging in the National
Forests in Alabama in 1999. Since then, however, the leadership of the
Forests and much of the staff changed. Instead of continuing the fights
over bad management, they decided to meet with us and see if we could
find agreement on solutions for good management.
Now, all the National Forests in Alabama are implementing
scientifically-valid restoration programs, all of which were prepared
under (and in full compliance with) the 1982 NFMA regulations and the
ESA. These restoration programs are immensely successful. Being the
first to do this new type of restoration work, the Conecuh National
Forest prepared a full Environmental Impact Statement (EIS) on what
restoration is needed for that forest's unique Longleaf Pine/Wiregrass
ecosystem (the rarest forest type in North America) and on what work
could be done in five years to correct past mismanagement and restore
the natural and healthy forest native there. That restoration plan was
not challenged legally in any way and succeeded, and it has won
national awards. National Forests in Louisiana, Florida and parts of
Mississippi are also doing great work at Longleaf Pine restoration, all
in compliance with NFMA and the ESA. Survey data on threatened,
endangered and sensitive species is being collected and analyzed.
Public participation is open and good. NEPA analysis for most of these
projects is exemplary and does not slow down the agency at all. Indeed,
these forests have found that doing NEPA analysis right, instead of
trying to shortcut NEPA, makes their final decisions better and more
successful. The same could work for the ESA.
I personally do not oppose revising the scientific standards
portion of the ESA, SO LONG AS the scientific standards that are
adopted are indeed SCIENTIFIC, and not political in design. Why not
convene a blue-ribbon panel of scientists from many perspectives and
with credentials that no one from any side could attack and have them
develop standards for listing, delisting, critical habitat, recovery
plan designs, etc.? As for critical habitat, I would make its
protections stronger on public lands and, for private lands, make it
advisory, so that it guides conservation efforts (like land
acquisitions, conservation easements, local planning, incentive
programs) but has no actual limiting impact on private landowners.
Indeed, if the incentives package is designed well enough, having land
designated critical habitat would actually be an economic boost to a
landowner, if and only if, they decided to make advantage of it. If
they wanted to pave the critical habitat over anyway despite the
incentives to do something better, they could do so freely.
And further, because every species is a unique and special creation
of the God who made us all, perhaps we should not be so cavalier about
those that have passed into extinction at our hands. We should not
forget so easily. We should do something to remind ourselves and
recommit ourselves to doing a better job of stewardship with what the
Lord has given us in trust for future generations. As we have memorials
to every war, so the brave dead and the lessons of that war are not
forgotten, just as we have the Civil Rights Memorial in my home town of
Montgomery, so that those who gave their lives for equality are not
forgotten, perhaps we should erect a fitting monument to the species
that have gone extinct during our watch. As my friend Professor Dan
Rohlf said:
``Society remembers things for many reasons, not all of which
are pleasant. Wars, calamities, and episodes of genocide are
seared in society's collective memory in museums, memorials,
books, and other cultural expressions, in part to remember
victims, and in part to remind society of the tragedy and
horror of these occurrences in an effort to prevent similar
ones in the future. However, there are few, if any, reminders
of extinct species. Therefore, as Cokinos points out, people
quickly and unfortunately become accustomed to a biotic
landscape that no longer has clouds of passenger pigeons
(Ectopistes migratorius) numbered in the millions or billions,
or huge ivory-billed woodpeckers, called by some the `Lord God
Bird,' drumming on huge trees deep in Southern swamps. Other
monuments have demonstrated the power of a simple list of names
of the fallen as a spare, yet potent, means of keeping memories
and knowledge alive. A list of extinct species could perhaps do
likewise. It may be an uncomfortable reminder of human and
agency failures. Yet it would almost undoubtedly serve as a
source for interest in species that no longer exist, and in the
causes of their demise. And with this interest, increased
resolve to protect and restore the biosphere's biological
heritage, and thus hope for the future of all species on the
threatened and endangered lists, may follow.''
Daniel J. Rohlf, ``Section 4 of the Endangered Species Act: Top Ten
Issues for the Next Thirty Years,'' 34 Envtl. L. 483, 552-53 (2004).
The ultimate issue comes down to: what is it we want to accomplish
here? Do we want to find solutions to improve the environment and the
survival of God's special creatures, and thus improve the long-term
chances of the survival and advancement of our own society and economy?
Or are we just going to keep playing expedient, short-term political
games with extinction, something all sides and people involved
(including me) are guilty of?
I deeply appreciate this opportunity to address the Committee and
present this testimony before it. I remain committed to working with
the Committee's members and staff to find real solutions for making the
ESA a better and more effective law. Representative Joe Barton has
publicly invited environmental groups ``to come out of the trenches''
and meet y'all halfway. If that invitation is truly sincere, as I
believe it is, I am here to do that.
Thank you,
______
Response to questions submitted for the record by Ray Vaughan,
Executive Director, WildLaw, 8116 Old Federal Road, Suite C,
Montgomery, AL 36117; 334-396-4729; 334-396-9076 (fax); www.wildlaw.org
Question submitted by Chairman Pombo
1. You expressed a willingness to explore ways to improve the science
used in ESA determinations. One of the issues with regard to
the adequacy of scientific data is that the science, used
whether it pertains to a not likely to adversely affect
determination or a determination to list a species, although
perhaps the ``best'' available science, may be extremely
limited. Can you suggest terms that define some minimum
threshold of data that could be required for making
determinations that would reduce the incidences of future data
revealing that determinations, as a result of incomplete data,
were incorrect, diverting scarce conservation dollars and
increasing conflict?
RESPONSE:
It seems that you are considering only a part of the interaction of
science, law, and policy as these disciplines come together in
implementing the ESA. Accordingly, when one looks at only part of a
problem, the sorts of solutions that one might design to deal with it
may not work very well, and could even backfire. I am the last person
to suggest that the ESA does a very good job of properly integrating
law, policy, and science, but it does better than most other
environmental laws. However--and this is an important however--I think
that trying to set legal standards for science in a vacuum, i.e.,
without systematically considering the respective roles of science and
policy in constructing a biodiversity protection regime, simply does
not and cannot work. That's the main problem I have with last year's
bills that sought to set scientific standards for listing and other
determinations under the Act. Given the way the Act currently works,
those bills are simply ways to make it harder to list species or
protect them under section 7, with a ``good science'' label but without
any real basis in science and without any real decision on what we want
the public policy of the ESA to be.
Courts have interpreted the ESA's ``best science'' mandate to
simply require that the agencies consider all available scientific
information that is relevant to the determination at hand. Courts have
generally not required the agencies to give certain types of info more
weight than others as a matter of law, but instead have allowed the
agencies to use their expertise in deciding how much credence to give
all the various bits of info. Unless Congress wishes to pursue policies
that are different from those currently expressed under the ESA--or
unless Congress is willing to undertake a much more comprehensive
effort to better integrate science, law, and policy under the current
version of the law--I think the existing science standard is still the
best one possible.
The question implies that it is somehow bad to make decisions in
the face of incomplete data, when in fact, given our limited knowledge
about other species, we are virtually ALWAYS going to be making
decisions under the ESA with incomplete information. Indeed, we do that
in every area of life; if one had to have complete, peer-reviewed data
upon which to base stock market decisions, the economy would collapse
instantly; no one would ever buy any stocks. Since scientific
uncertainty is going to be a given, the question is what to do at that
point. The ESA's current answer--i.e., use all available information to
make the best decision given what we know--seems to me to be a sound
approach. The alternatives lead to policy choices that are arguably
less than optimal. If we say that we should act cautiously whenever
there is uncertainty, one could make an argument that we'd have to
protect most species most of the time, thus incurring social costs that
many people will likely be unwilling to bear. On the other hand, when
one starts imposing requirements for information greater than the
current ``best science available'' standard, the burden of uncertainty
works against species conservation.
For example, one could require that any restrictions on human
actions be justified by peer-reviewed studies in order to cut down on
instances of unduly restricting human actions. However, this sort of
policy could justify allowing people to cut down all the trees near the
area in which the ivory-billed woodpecker was spotted since there are
NO modern peer-reviewed articles discussing the habitat requirements of
these birds. In other words, I think that imposing a higher data
standard on listing and similar decisions (at least standing alone) is
essentially just a policy choice to make it more difficult to protect
species.
There is an obvious solution to the ``problem'' that more data in
the future means that we may realize that some decisions we made in the
past were wrong: change the past decisions based on the new
information. Perhaps delisting due to new information showing that the
original listing was not needed could be put on a faster track than
delisting due to recovery. Yes, that might mean that in some instances
we will protect species that did not need that degree of protection or
did not need protection at all. But one must also realize that it works
the other way as well; there are many instances (in fact, I think there
are actually more instances) when we use the best info available to
decide NOT to protect certain species, or give listed species certain
limited protections, and we later learn that we should have provided
more protections. Our recent case over the Florida Scrub Jay proved
this; it was listed as threatened and only certain actions were taken
to protect it, and then the population collapsed and fell by half. It
should have initially been listed as endangered and given more work on
its protection and recovery.
In other words, the ESA at present incorporates a sort of adaptive
management approach--do the best we can with the info we now have, and
change if we get better info that suggests a different course. That
seems sensible to me.
Nonetheless, I think that things can be done to make the
utilization of the ``best science available'' standard work better and
lead to less conflict. Keep the standard just as it is, but add a layer
of administrative appeals to ESA work (like we have with the Bureau of
Land Management, Forest Service, EPA, etc., but designed better to fit
the ESA context and needs) and provide for the administrative appeals
process to include a peer-review panel (only if quality of science is
an issue on the appeal) to review whether the agency did use the best
available science. The job of the panel would not be to reinterpret the
data but merely to see if the agency had it and considered it
reasonably and not arbitrarily, deferring to the agency on
interpretation.
The panel would determine only IF the agency had and looked at the
best available science; it would not second-guess the conclusions from
that agency review. The only power of the panel would be to say whether
or not the agency missed anything, thus solving, at least for that
moment in time, the issue of whether the data was incomplete. All the
legal conflicts I have seen over listing have not been about ``the
agency used all the available data but the data turned out to be
wrong'' (that has been used later as an reason for delisting), but the
actual conflicts over listing, AT THE TIME OF LISTING, are almost
always over the agency ignoring or refusing to look at some data or
research. It is usually either environmentalists or industry folks
claiming the agency ignored something favorable to them. The panel
review during appeal would say whether or not the info at issue was
available science that was ignored or not. If yes, the decision would
be reversed and the agency tries again. If not, then the agency's
decision based on the info is deferred to. And having such a panel
would make a judge's job later easier, as he would not have to
determine if something proffered by one side was or was not science the
agency should have reviewed, as he could defer to the panel saying that
the best available data was reviewed.
Thus, the issue would be the same thing judges decide now but it
would be in the quicker, cheaper, less confrontational administrative
appeal/mediation process first. Also, instead of a judge deciding the
``best available science'' was used, when few, if any judges, have a
science background, you would have actual scientists making that review
decision. That decision would then be due even greater deference by any
courts that later might review the issue than the deference the agency
gets now.
I think a well-designed appeals process (not a full trial de novo
like some agencies have but also not a nearly meaningless perfunctory
review, like the Forest Service has) would go a long way toward
resolving many of the issues over the ESA right now.
Also, another thing I think worth suggesting is, just like I think
we should have a big committee of all interests to work on solutions
and changes before a bill is drafted, perhaps we should also have a
balanced committee of scientists to ponder this question and find some
possible improvements.
Questions submitted by Senator Crapo
2. You state that in February 2003, the U.S. Forest Service brought
together approximately 100 interested people to discuss options
for protecting biological diversity on the National Forests
under the new National Forest Management Act regulations. Did
you find in that experience (and in other experiences) that
federal agencies are able to promote collaborative solutions
through such large group exercises?
RESPONSE:
The February 2003 viability conference COULD have been a major step
forward in resolving issues over the management of the National
Forests. Yes, the agency did a great job of bringing the group
together, but then the agency hamstrung the mission of the group by
artificially limiting the work to two options no one (in industry or
environmentalists) really supported. Then, when the group spontaneously
broke out of the mold the agency had put it in and starting working on
finding common ground solutions, the Forest Service cut off that
process and ignored any work done.
I have been in other, smaller (but longer) collaborative processes
run by agencies that worked very well, such as the multi-year
development of valid restoration programs in all the National Forests
in Alabama. That worked due to the commitment of the agency people
involved to ensure full public participation and open discussion of
ideas. No top agency people led on that, but the local staff were given
free rein to lead and they did.
On a forest-specific scale, the Conecuh National Forest has run a
collaborative monitoring process of its Longleaf Pine restoration work
for about five years now, bringing together environmentalists like me
with industry people and state wildlife personnel. That has worked
well.
So, I think agencies ARE capable of promoting and managing
collaborative processes that can lead to collaborative solutions
through large group exercises. The issue is really whether they WILL do
so. Thus, leadership must come from somewhere. I don't think many top
agency people in any agency will exercise such leadership. If Congress
explicitly provided that leadership, I think we can do something
positive with the agencies. I think the agencies can manage and
maintain a fire, but they will not provide the spark to start that
fire; Congress needs to do that.
3. What roles for state wildlife agencies do you see as helpful in a
comprehensive wildlife conservation policy?
RESPONSE:
State wildlife agencies are vital to any successful wildlife
conservation policy, but so many of their staff are trained in game
species with few experienced in dealing with the issues involving rare
species. Still, even state wildlife people who know little about rare
species understand the basic premise and need for protecting habitat
and how protecting the whole usually protects the parts, and they
should be able to integrate habitat and rare species protection
information and work into their existing programs with little problem,
provided they are given the resources to do that. Given additional
resources to broaden their abilities to deal with rare species
management, state agencies would be vital and key focal points for
implementing incentive programs for protection of rare species and
habitat on private lands.
Currently, the U.S. Fish and Wildlife Service does not have much
``local'' presence with private landowners while the state agencies do
but that presence is mostly limited to game species management. Finding
ways to better combine the expertise of federal staff with the contacts
and local knowledge of state agency staff would be critical to making
incentive programs work on private lands.
4. All of the panelists spoke of contributing time and money to species
conservation--some more willingly than others. If we could
guarantee that your investment gave you a seat at the table to
take part in hiring scientists, planning recovery, and taking
action on the ground--would you be better off?
RESPONSE:
It is always tricky when talking about ``investment'' giving one
person or entity greater access and say on an issue of public concern
paid for with public dollars. Still, many problems (and then
litigation) have arisen from situations where one side or the other did
not feel that the process the agency used was fair and open to all who
were interested. When industry people have direct access to the
Secretary of Interior (getting to meet with the Secretary several
times) during a listing process and environmentalists like me do not
get even the chance to talk to the Secretary even on the phone (as
happened with the Alabama sturgeon listing process), obviously
something is wrong. When the agency listens to certain scientists but
ignores others, something else is wrong.
Certainly, everyone would be better off with a CLEAR and SET
procedure for how the agencies handle listing decisions and how public
participation works in that process. This would not really require a
change in the Act, but clear agency regulations on how this works would
help. If the agency won't do that, then the only change required in the
ESA itself would be for Congress to mandate the adoption of such
regulations and what they must include. The FWS does not have such
detailed rules while some other agencies do. When the Forest Service
proposes a timber sale, I know exactly what the process is they will go
through and when and how I can become involved as a member of the
public. And Congress had to direct the Forest Service to adopt such
rules.
At the most basic level, only those people interested and affected
by an ESA issue get involved in the processes under the Act; thus, they
have already demonstrated ``investment'' of time and often money. A
better and clearly defined process for how listing petitions are
handled and how decisions are made would make everyone better off.
Again, a well-designed administrative appeals process for listing
decisions would also provide a needed check on any abuses in this area,
thus heading off much of the current litigation.
As for allowing those people or entities interested in species
conservation to actually take part in more agency-specific actions,
such as hiring scientists, planning recovery and taking other on-the-
ground actions, diverse and cooperative participation in such work is
usually helpful, in my experience. The agencies can make cooperative
agreements now with states and other partners, but this has not been
used much, in my experience. While able to do such things now, the
agencies have no directive from Congress to mandate, or at least
encourage, such partnerships. I have seen recovery plans developed with
multi-party participation, including on developing science needed for
the plan. A mandate from Congress that the agencies adopt and try such
a cooperative and open public process in the development of recovery
plans and actions might make sense. Then those who are interested would
invest time, and if they could, money, and get to participate. If
someone did not choose to participate, then they would waive their
ability to participate or complain about the results. If one
participated but still did not like the results, their options to
appeal the plan or challenge actions under it would still be available
to them, but such an open process should improve recovery plans such
that litigation over actions under them would have less viability than
it does now. If no one showed up, then the agency could go ahead and do
the plan themselves.
Thank you for the opportunity to answer your questions further, and
I remain ready and available to you and your staffs to work on the ESA.
Feel free to call on me or write me any time.
Thank you,
______
The Chairman. Thank you. Mr. Davidson.
STATEMENT OF PAUL DAVIDSON, EXECUTIVE DIRECTOR,
BLACK BEAR CONSERVATION COMMITTEE
Mr. Davidson. Thank you for the opportunity to be here
today, Congressman, Senator. I had planned on giving an
eloquent presentation but couldn't get the technical aspects of
it ironed out. I figured out about 15 years ago people would
rather look at pretty pictures than me. But we're going to have
to endure, deal with me today, I'm afraid.
I am Paul Davidson. I'm Executive Director of the Black
Bear Conservation Committee which is a diverse coalition of
interests. We've been working together for the last 15 years to
recover the threatened Louisiana black bear. The membership of
the Black Bear Conservation Committee represents as diverse
constituents as I guess you possibly imagine from Sierra Club,
Audubon Wildlife Federation to the Cotton Growers Association,
The Farm Bureau, the Louisiana Forestry Association, all the
major timber companies in the region. And it has worked very
well and I really appreciate Mr. Vaughan's comments about
cooperative efforts because I think that the Black Bear
Conservation Committee is probably one of the, certainly one of
the best examples of what can happen and progress can be made
when people work together.
The proposal to list the Louisiana black bear was made in
July of 1990 which many of you know was the height of the
conflicting controversy with the spotted owl and there weren't
any interest in our region that felt that, you know, try to
bring that sort of train wreck as it's been called, into this
region was in anybody's best interest.
And in that way of thinking the Louisiana Forestry
Association Wildlife and Recreation Committee hosted a
committee meeting to address the potential implications of a
listing and talked about bears. They brought down Dr. Michael
Pelton from the University of Tennessee who made a statement,
that in order to preserve bears in the southeast would require
a very coordinated and cooperative approach from the interest
to who controlled the land. The public and private entities
that controlled the land. That concept was embraced and the
Black Bear Conservation Committee was formed.
We had some basic rules that we chose to go by and again
put the resource first, leave your organizational vibes at the
door, no confrontations regarding people--attack ideas, not
individuals--and try to have a good time during this process.
We felt we could keep these on the table, we made it fun, so we
always had socials. We always took food and several cases of
beer. So that did help create friendship among interests that
historically are at odds and on the opposite side of the table.
Since that time we have made tremendous progress. Our
primary mission is to restore the Louisiana black bear in
Louisiana, Mississippi, Southern Arkansas and a good portion of
East Texas, using education, research and habitat management.
The primary reason that the bear got in trouble was original
bottomland hardwood forest in the Mississippi River Valley,
which was 24 million acres, has been largely converted to
agricultural lands and was less than five million acres in
1990.
We initiated an educational program, created brochures,
newsletters, we wrote a management handbook for landowners
which essentially was EMP'd from the Mississippi Forestry
Commission that we published and distributed to landowners. The
initial printing that was 10,000, the next one was 6,000 and we
have 5,000 in print right now. It was a big demand for that,
had a lot of education about bears but it talks about the fact
that management for bears is very compatible with most of the
land and certainly with the public sustainable management. On
the research front, if we're going to be educated about bears,
we've got to know what's going on about bears. And because
we've had all the people at the table we're able to keep up
with the research as it is done on a day-to-day basis. We all
get weekly updates from our researches. Primary research going
on today, population assessments using DNA. We're repatriating
projects. The delisting criteria for the Louisiana black bear
mandates that we have connective habitats between populations
from Arkansas to the Gulf of Mexico, that we have this evidence
of genetic flow between re-existing populations and then some
protective status of those habitats.
So, working with the official Wildlife Service, Natural
Resources Conservation Service, the University, State agencies,
we've delineated a habitat priority area of black bear priority
area from Arkansas, and now incorporate a ranking where
landowners in that region get up to 150 extra points on their
numerical ranking with WRP projects. Such as there is actually
incentive now for landowners having bear around is an asset,
wanting a bear around is an asset. We have property owners
asking to put bears around now. So we're working that aspect
from the habitat perspective.
We're also moving bears back in population between the
different populations which is embraced by the landowners.
Because of these incentives associated with WRP, we've got,
since 1990, I guess, 365,000 acres have been reforested with
CRP and WRP. And throughout the region, if you look at CRP, WRP
with Parks, Fish and Wildlife and the thousands, tens of
thousands acres that have been reforested for carbon
infestation by utility companies, we're looking at a million
acres in the last few years these regions have been planted
back with trees. All from marginal and non-productive farm
lands and high productive farm lands.
So, I guess my major point is people when they work
together can accomplish a lot and there's been much said about
cooperation which I think is absolutely essential. Things said
about incentives what with being habitat restorations in our
region relative to these Federal programs. I think we need to
look seriously at endangered species conservation incentive
programs.
How that would work, I think should be a combination of tax
breaks, everything, every tool we have in the box should be
investigated. I was really glad to see Dr. Greg Schildwachter
here from Senator Crapo's staff. If I were to recommend someone
who is competent to write and partner on the Endangered Species
Act to help people in this country, Dr. Schildwachter would be
one of them. I can assure you he has worked on a number of
things over the years and I'm pleased to see that you are wise
to have him on your staff.
Again, incentives, incentives, incentives, I cannot
overstate that. I would like to say how with this cooperative
program and project that we have in the 14 or 15 years since
the listing of the Louisiana black bear, there have been no
permits denied, no jobs lost, no landowner has not been able to
do anything having to do with the land, that's talking about
oil wells, we're talking about seismic, surveys, crops, timber
harvest. Probably the biggest thing that got us going was the
flexibility that the United States Fish and Wildlife put in the
Act at the listing or put in the listing which was the 4(d)
Rule that excepted normal agricultural activities from the
takings provisions of the Act and that was criticized by some
but it actually opened the door and the good faith effort by
the Service and the timber industry and faced that as such and
the timber industry has been a very, very willing and
enthusiastic partner since day one.
So, again, people working together can accomplish just
about anything, people working against each other can undermine
just about anything.
I appreciate the opportunity to be here today. Any other
information in the future you'd like to get from me on black
bear conservation, please feel free contact us, thank you.
[The prepared statement of Mr. Davidson follows:]
Statement of Paul L. Davidson, Executive Director,
Black Bear Conservation Committee
I would like to thank Representative Pombo and the House Committee
on Resources for the opportunity to speak to you this morning. My name
is Paul Davidson. I am the Executive Director of the Black Bear
Conservation Committee (BBCC), an independent and diverse coalition of
landowners, state and federal agencies, private conservation groups,
forest and utility industry, agricultural interests, the academic
community and other interested citizens working cooperatively to
address management and restoration of the Louisiana black bear. I am
also a landowner, the owner of EquiTerra Farm, LLC, a working farm
growing a variety of fruits and vegetables, and raising Belgian draft
horses, Katahdin sheep, meat goats, pastured broilers, and laying hens.
As is usually the case when a species is proposed for listing under
the provisions of the Endangered Species Act (ESA), quite a controversy
was created over the proposed listing of the Louisiana black bear
(Ursus americanus luteolus). Some thought that the listing was the
bear's salvation. Others feared that the listing was going to place a
heavy burden on private landowners, and still others felt listing was
detrimental to the animal's well-being in that it could deny private
landowners and wildlife managers the latitude, flexibility, and
incentive necessary to manage for the bear.
In October of 1990, the Wildlife and Recreation Committee of the
Louisiana Forestry Association hosted a meeting to discuss black bear
ecology, management, and the implications of the U.S. Fish and Wildlife
Service (USFWS) listing proposal. At that meeting, Dr. Michael Pelton
of the University of Tennessee planted the seeds for a cooperative
approach to managing for bears in the Southeast Coastal Plain by
stating that a viable future for bears in the region would require a
concerted and coordinated effort by the private and public agencies
that control the land in occupied and potential habitat. The group
adopted this cooperative attitude and the Black Bear Conservation
Committee (BBCC) was formed.
Virtually all major groups in the region with an interest in bear
management, conservation, research, or with land use in current or
potential bear habitat, are active participants in the BBCC. The broad
objectives of the BBCC are to stabilize and manage existing bear
populations and to restore black bear to suitable habitat within
Louisiana, Mississippi, east Texas, and southern Arkansas. Participants
recognize that the best way to avoid any regulatory burden, whether
perceived or real, is to actually restore bear populations to a point
where the species is no longer threatened.
Extensive habitat loss and human exploitation are blamed for the
decline in Louisiana black bear populations throughout their historic
range. Black bears once occupied forested habitat throughout the
region, but probably reached greatest densities in the expansive
bottomland hardwood (BLH) forests of the Lower Mississippi Alluvial
Valley (LMAV). Federally subsidized agriculture programs encouraged
large-scale conversion of flood plain forests to agriculture.
Unfortunately, these vast tracts are often marginal or totally non-
productive as cropland. Unlike other parts of the country where there
are considerable public land holdings, in the historic range of the
Louisiana bear, 90% of the forested habitat is privately owned.
Therefore, any action perceived to restrict activities on private
properties has the potential to create adversarial positions relative
to bear restoration efforts.
Recognizing that restoration of bears would require restoration of
habitat, almost entirely on private land, it was clear from the
beginning that private landowners would have to be involved in the
program from planning through implementation if the restoration goal
was to be achieved. To restore a federally listed species on private
lands would require creating a situation where the species was not
considered a liability to the private landowner. The BBCC had to create
a scenario where it was in the landowners best interest, both financial
and otherwise, to manage for bears and bear habitat.
To help achieve this goal the BBCC began by establishing five
subcommittees: 1) Information and Education, 2) Habitat and Management,
3) Research, 4) Conflict Management, and 5) Funding.
As with most wildlife populations, the objectives and attitudes of
landowners, land managers, and the general public will determine if a
healthy bear population is considered positive or negative. The
Information and Education Subcommittee works to promote the philosophy
that a healthy bear population is an asset to the community and that
with protection and responsible management, the black bear can co-exist
with other land use objectives.
Numerous PowerPoint presentations have been developed and are shown
at forums throughout the region. A newsletter is published, three
editions of a management handbook for landowners have been printed and
distributed, along with a comprehensive restoration plan, a poster to
help educate hunters about the protected status and associated
penalties, and brochures to help educate the public about bears. Two
tabletop displays are available for use in libraries, nature centers,
weekend sportsman's shows and other events that educate the community.
When the audience is appropriate, an effort is made to promote
conservation incentive programs like the Wetland Reserve Program,
Conservation Reserve Program, and Partners for Fish and Wildlife
Program. All BBCC publications are available in the BBCC website at:
www.bbcc.org
The goal of this BBCC effort is to:
1) Prevent further habitat fragmentation or loss,
2) Establish forested corridors between existing forested habitat,
3) Coordinate management among tracts to effectively use
resources, and
4) Focus efforts of a diverse user group toward common management
objectives that benefit the bear as well as the local communities.
For the past two years, the BBCC has received funding from the
USFWS Private Stewardship Grants Program to plant trees and enhance
habitat on private lands in Louisiana. In 2003, a grant for $85,200 was
received to plant trees on 860 acres. In 2004, $65,800 was received to
plant trees and control exotic plant species on Louisiana salt domes
and other lands in coastal Louisiana.
Management recommendations are based on science and the best way to
obtain this information is through research. The Research Subcommittee
identifies research objectives and works to coordinate them to avoid
duplication of efforts and to keep scientists working together. The
primary areas of interest have been: habitat assessment; ecological
data; population data; systematics; and repatriation to suitable
habitat.
Groups involved in research projects are the USFWS, Louisiana
Department of Wildlife and Fisheries, Mississippi Department of
Wildlife and Fisheries, Arkansas Game and Fish Commission, Texas Parks
and Wildlife Department, Louisiana State University, Mississippi State
University, the University of Tennessee, and Virginia Tech. Various
private and corporate landowners have been essential cooperators in all
research projects and very little of the work would be possible without
their support.
In the radio-telemetry work done in Louisiana, over 300 different
bears have been captured and tagged. The major research project
currently being funding is the repatriation of bears to unoccupied
habitat in east-central Louisiana. Adult female bears with newborn cubs
are moved from their winter dens in the Tensas Basin to prepared dens
in lower Concordia and eastern Avoyelles Parishes. The intent of this
work is to establish a viable bear population between two existing
populations to speed up the recovery process. From 2001 to 2005, 23
adult females with 55 cubs have been moved to the repatriation area.
Other research efforts focus on DNA hair snare work in the coastal
population to determine the bear population and an effort to document
the effectiveness of hazing nuisance bears with aggressive dogs.
Coordination of the activities of various state and federal
agencies relevant to the bear is also an area that has required
attention. The Conflict Management Team has been a key element in this
effort. The USFWS, with input from the BBCC membership, drafted a
``Contingency Plan for Dealing with Human/Bear Conflicts in
Louisiana.'' The plan clearly delineates those parties responsible for
resolving problems that may arise when bears come into conflict with
human activities. The BBCC, working with the Louisiana Department of
Wildlife and Fisheries, established a ``Protocol for Dealing with
Nuisance Bears.'' Since the BBCC is housed within the Louisiana agency,
communication is efficient and effective. A very active and dedicated
Conflict Management Team is committed to prevention and resolution of
problem situations. Participants are the LA Department of Wildlife and
Fisheries, USDA Wildlife Services, Louisiana State University, the
BBCC, and USFWS.
The USFWS has provided funding to USDA Wildlife Services for
electric fencing materials to exclude bears from apiaries as well as
travel and labor expenses associated with nuisance bear problems. The
Conflict Management Team has been very successful at working with local
communities where bears are present. Most people, once educated about
bears, will readily accept their presence and help to protect them.
Since most conflicts with bears are associated with something to eat,
this usually involves something as simple as proper management of
garbage or feeding pets in areas not accessible to bears.
To take the management of problem bears to a higher level, the BBCC
Executive Director and his wife, the LDWF Bear Biologist, purchased and
trained two Blackmouth cur puppies in the spring of 2001. These dogs
were trained to haze nuisance bears from around homes and workplaces.
Since the development of a protocol addressing nuisance bears that
involves the aversive conditioning with these dogs, 90% of the nuisance
animals are not found in a nuisance situation again. The program has
been so effective that other states and agencies are looking at
replicating it in their states. The New Jersey Division of Wildlife has
purchased three dogs and three others have been donated to biologists
working for USDA Wildlife Services. A Louisiana State University
graduate student is currently documenting the effectiveness of the dogs
for a Masters thesis.
Funding for the BBCC has come from member organizations in support
of their representatives for travel and meeting expenses. The timber
and utility industries have provided funding necessary for printing of
newsletters, brochures, and handbooks, as well as research support. A
grant from the USFWS partially funds the activities of the Executive
Director. An additional grant from the National Fish and Wildlife
Foundation provided the initial funding to establish the BBCC Landowner
Assistance Program. That program is supported by other grants from
foundations as well as corporate support.
Since July 1, 1997, the Louisiana Department of Wildlife and
Fisheries has provided an office for the BBCC as well as covering
telephone and postage expenses. This in-kind contribution saves the
BBCC a considerable sum in operating expenses. Various timber companies
allow the use of their properties for BBCC Board meetings at no cost as
well as hosting social gatherings associated with BBCC activities. The
overall in-kind contributions to the BBCC add up to many thousands of
dollars each year.
Since its founding, the BBCC has had the primary objective of
reversal of those factors that brought about the steady decline of the
Louisiana black bear. The membership of the BBCC believes that it is
possible to secure a place for the continued existence of the bear
within its historic range.
The BBCC continues to actively solicit input from all parties that
may be affected by a larger bear population and work with them to
resolve potential conflicts. Without the support of the general public,
and the landowner in particular, the goals of the BBCC can never be
achieved and the Louisiana black bear will likely remain listed under
the ESA.
This continued pro-active, inclusive, and cooperative effort will
increase the probability of successful restoration of the Louisiana
black bear and help establish a foundation for many other conservation
projects. Developing working relationships with other conservation
programs like the Migratory Bird Initiative in the Lower Mississippi
Valley serve to build additional support for the BBCC effort.
The BBCC serves as a model, a means of resolving a resource
management issue by encouraging input from all interested stakeholders,
from the entire community. Priorities have been to put the resource
first, to find common ground, to build coalitions while avoiding
conflicts, to replace emotion with credible science throughout the
management process, and to have a strong commitment to the achievement
of the restoration objective.
By working together, the BBCC has had a positive impact on
everybody involved and will, in the end, help restore a truly unique
and magnificent component of our wildlife heritage.
None of this could be done without the full support of the USFWS,
state agencies, timber companies and their biologists, private
landowners, and many concerned individuals who sincerely believe that
we need to look at things a little differently in a constantly changing
social and political climate.
The BBCC has operated using what we call the Southern Rules of
Engagement. These rules are:
1) Come to the table.
2) Leave your organizational 2 X 4 at the door.
3) Polarized opinion generates more heat than light and has no
place at the resource management table.
4) Pick solutions, not fights.
5) Search for the most expansive common ground that is not
intrusive.
6) Attack ideas, not individuals.
7) Differences of opinion can lead to enlightened decision making.
8) No personal attacks. One strike and you are out.
9) Have fun!
______
Response to questions submitted for the record by Paul L. Davidson,
Executive Director, Black Bear Conservation Committee
Follow-up questions submitted by Chairman Pombo
1. How important was the 4(d) rule in your efforts to conserve the
Louisiana black bear?
a) How would your efforts have been hampered if there were no
4(d) rule?
b) Would the threat of more restrictive regulation reduced
participation of private landowners?
RESPONSE:
Without question, the 4(d) rule was extremely important in putting
forth a ``good faith effort'' on the part of the U.S. Fish and Wildlife
Service. The timber industry was very concerned that a listing for the
bear would mean that they would have to secure permits for all timber
harvesting activities, which could be costly. The rule allowed for
``normal silvicultural activities'' to be exempt from the ``takings''
provisions of the Act. Flexibility is inherent in the ESA, but too
often not utilized. The listing of the Louisiana black bear was the
first time that section 4(d) was used for an exemption since 1973 when
the law was passed.
Without doubt, our efforts would have been hampered without the
rule. Forest landowners have been essential partners in all work being
done in Louisiana and are eager to see bears restored and delisted.
It was actually the threat of regulation that brought all the
diverse stakeholders to the table. Initially, many of the participants
believed that we could show that we could get the job of restoring
bears done without the listing. But once everybody started working
together, it was obvious that we could actually get the job done, and
done quite painlessly, effectively and efficiently.
We have been successful largely because of the incentives offered
by the Farm Bill programs that pay to plant trees on marginal and
nonproductive farmed wetlands. The beauty of it all is that what we do
in the name of bears has tremendous implications on other species,
water quality, groundwater recharge, floodwater retention, and
atmospheric carbon.
People working together can accomplish remarkable results. People
working against one another can bring all progress to a halt.
Follow up questions submitted by Senator Mike Crapo
2. All of the panelists spoke of contributing time and money to
species conservation-some more willingly that others. If we could
guarantee that your investment gave you a seat at the table to take
part in hiring scientists, planning recovery, and taking action on the
ground-would you be better off?
RESPONSE:
I think that species in peril would benefit to a large degree if
the stakeholders were active participants. Without that participation,
decisions that potentially impact local communities are made by someone
hundreds of miles away in some office cubicle. That person may have no
first hand knowledge of the impacts of their decisions. I hate to get
too philosophical, but when our forefathers designed this democracy,
their vision was to have citizens involved in the decision making
process. Unfortunately, too many Americans have gotten lazy and found
comfort in sitting back and allowing others to make decisions for them.
In my opinion, that is why things don't work. This is not rocket
science, but it can be complicated, often more from the social
perspective than the science. We would all be better off with more
stakeholder participation in the process of addressing imperiled
species.
3. Please elaborate on the point-reference system used as an
incentive for black bear conservation under the Farm Bill.
RESPONSE:
When the Wetland Reserve Program was first implemented, it took a
``shotgun'' approach to wetland restoration, planting trees in hundred
acre tracts tens of miles from other project enrollments. Biologists
looked at what was happening and felt that forest fragmentation was
being promoted. So representatives from the state and federal agencies,
universities, and NGO's all sat down and agreed that we needed a plan
to focus the restoration efforts where they would do the most good. We
had no idea at the time that WRP would be so popular and funded so
generously.
Initially we looked at existing forested tracts and agreed that
when the opportunity presented itself, we would try to expand on those
tracts. To enable bears to travel from tract to tract would require
wooded corridors. So we identified riparian corridors and expanded on
them, but also identified corridors to link fragments that were not
associated with a river or bayou.
We then prioritized the corridors, giving a narrow corridor the
maximum number of additional points in the ranking process and moved
out with areas with fewer points. We then ``fine tuned'' the maps by
making sure that boundaries were clearly defined along roads or
waterways to make them readily identified in the field.
The incentives were actually designed for the restoration of
converted wetlands, but because of all the partnerships developed by
the BBCC, all the players were able to sit down and make it work for
bears. Because bears require large areas of habitat, most participants
recognized that a whole host of other creatures would benefit from the
collaborative project. Nonpoint source pollution from agricultural
fields would be significantly reduced, as well as the cost of
maintaining the drainage infrastructure. So not only did this process
bring additional millions of dollars into depressed local communities,
but millions more were saved by not having to maintain the drainage
systems.
______
The Chairman. Thank you. Mr. Robohm.
STATEMENT OF DON ROBOHM, PRESIDENT,
SEACHICK, INC.
Mr. Robohm. Chairman Pombo, Senator Crapo, Congressman
Pickering, thank you for the opportunity to appear before you
today to speak about the Endangered Species Act. I'm the
founder and investor of SeaChick (Miss.), Inc., a private
Mississippi Corporation that holds Mississippi's Aquaculture
Permit number 1.
I appreciate the opportunity to participate today in making
what I hope would be a positive contribution to strengthening
the Endangered Species Act. Although SeaChick started with
Hybrid Stripped Bass as its principle species, in January 1988,
we switched to growing Tilapia, which continues today as our
focus. SeaChick uses water and a single pass flow through
technology involving sequential poly culture and reuse of well
water. SeaChick can pump up to eight million gallons of well
water per day and discharges a like quantity. ``U''-tube
technology is used to effectively inject liquid oxygen to
oxygenate the 48 above ground circular concrete tanks in our
production.
SeaChick was the first commercial fish farm in the world to
use computers to feed fish. SeaChick had experienced some bird
predation from such species as egrets, herons, osprey and
cormorants during the years in which we focused on hybrid
striped bass. We placed shade clothes over the 48 production
tanks in a tent like manner centered over the water, leaving
access to the fish along the edges of the tank wall. We placed
lightweight meshed bird netting over the small fingerling pond
and stretched mono-filament fishing line in a grid pattern over
the two larger settling ponds.
We referred to this as passive exclusions. When passive
exclusion by itself wasn't getting the job done the Atlanta
office of the U.S. Fish and Wildlife Service urged SeaChick to
apply for a species specific take permit to shoot. I've never
owned a gun or held a hunting license.
With genuine reluctance, I allowed SeaChick to acquire a
U.S. Fish and Wildlife Service take permit for each of the
species then giving us problems. We created a ``no-fly'' zone
over our production tanks using the lightest load shotgun
shells, shooting warning shots in the vicinity of the birds to
scare them away. Then shooting closer behind the flight path of
the returning leaders. When the leaders continued to return, we
shot at them from a considerable distance to reach-out and
touch them but did not harm them. Only as a very last resort,
did we shoot to kill these few remaining troublesome birds.
This protocol has maximized the number of, excuse me,
minimized the number of birds taken and maximized the desired
behavior modification. For five consecutive years SeaChick has
been permitted to take five osprey per year and we have
actually taken none over the last five years despite osprey
visiting SeaChick almost daily. The brown pelican was listed
throughout this range under an Endangered Species Act in the
early 1970's. In 1985 brown pelicans in Florida and Alabama
were delisted and the Alabama, Mississippi border was selected
as the boundary for this action. At the time U.S. Fish and
Wildlife stated that this was ``This was done to ensure
continued protected for Pelicans from Louisiana if they feed on
opened nearby Mississippi waters''.
So while Mississippi's brown pelican had recovered by 1985,
the Fish and Wildlife Service located in Albuquerque, New
Mexico continued the listing of Mississippi brown pelican.
SeaChick is located approximately ten miles west of the Alabama
border where we could get a take permit for brown pelicans. Due
to no brown pelican recovery problem in Mississippi, 20 years
ago the entire State of Mississippi remained penalized without
take permits possible for the brown pelican. The Endangered
Species Act allows the regional office of Atlanta to issue our
take permits but allows the Albuquerque office to impose brown
pelican listing upon Mississippi, but does not allow the
regional office in Atlanta to start the delisting process of
the brown pelican for states within its region. I'm told by
U.S. Fish and Wildlife personnel that continued control of the
delisting of species resides with the originating regional
office--in the case of the brown pelican in Albuquerque, New
Mexico.
I have three recommendations for you to consider as new
ideas for the Endangered Species Act. The first one--when
sustained observations and data support that a species is
recovered in a specific area, that species should be promptly
delisted. To recruit partners in the recovery process, it is
critical that the U.S. Fish and Wildlife Service carefully
monitor that process and when there is a success story,
promptly act on that success. And the acknowledgment of
successes as they happen will provide the Act, private
landowners and those involved with enforcing the Act with
credibility and continued delisting support.
One of the greatest problems with working with listed
species is the inability of the Fish and Wildlife Service to
approve actions quickly. They spend too much time doing paper
work and not enough time working on recovery or delisting
issues. This lengthy amount of time damages relations with
landowners and others and hampers the recovery of other listed
species. Finally, we suggest that some type of financial
assistance be considered for landowners and businesses that
have significant financial losses due to threatened and
endangered species. Some form of crop insurance which is
available for almost any other kind of crop wall should be
considered as one component of reauthorization of the Act.
Furthermore, providing a tax credit for damage control
equipment and labor should be included.
Mr. Chairman, this concludes my remarks. I'll gladly
respond to any questions.
[The prepared statement of Mr. Robohm follows:]
Statement of Donald Robohm, President, SeaChick (Miss.), Inc.
I am the founder and an investor in SeaChick (Miss.), Inc., a
private Mississippi corporation that holds Mississippi's Aquaculture
Permit No. 1. Started in August of 1987, SeaChick was involved with
drafting the Aquaculture Act of 1988, with permitting done by the
Mississippi Department of Natural Resources. Four years later, SeaChick
started the legislative initiative which shifted permitting under the
Aquaculture Act from the Mississippi Department of Wildlife, Fisheries
and Parks to the Mississippi Department of Agriculture and Commerce,
where it remains today. I welcome the opportunity to participate today
in making what I hope will be a positive contribution to modifying the
Endangered Species Act.
Although SeaChick was started with hybrid stripped bass as its
principle species, in January 1998, we switched to growing tilapia,
which continues today as our focus. Our high-intensity warm-water
facility can be seen in the accompanying aerial photo: Exhibit A.
SeaChick uses geothermal 1/4-mile deep-well water and cooler shallow-
well water in a single-pass flow-through technology involving
sequential poly-culture and reuse of the well water. SeaChick can pump
up to 8 million gallons of well water per day and discharges a like
quantity per day. ``U''-tube technology is used to efficiently inject
liquid oxygen to oxygenate the 48 aboveground circular concrete
production tanks. SeaChick was the first commercial fish farm in the
world to use computers to feed fish. A close-up of the tanks and the
feeding system is shown in the photo labeled Exhibit B. Much of
SeaChick's high-intensity fish culture technology is protected by trade
secret and does not leave the facility. An example of SeaChick's
technology which does leave our facility can be found in U.S. Patent
6,557,492--``A System For Transporting And Storing Life Fish''.
Today SeaChick produces its tilapia following five principles: 1)
there are no antibiotics used anywhere in the facility, rather SeaChick
is a world-leader in competitive exclusion, that is, using good
bacteria to out-compete bad bacteria; 2) no sex-reversing or growth
hormones are used; 3) no genetically modified fish are used; 4) no fish
meal is used in our all plant protein (APP) production feeds; and 5)
clean, pollution-free well water as old as 20,000 since it last fell as
rain on the earth's surface, is used. We spin the water in our tanks so
that our fish are swimming in moving water at all times, build and
toning their muscles. By feeding them around the clock, under lights at
night, SeaChick produces a flesh marbled with fat, much like red meats,
but rich in the heart-friendly omega-3 lipids.
SeaChick started with three species of tilapia in 1988, that is,
aurea, nilotica, and the mossambica. Hand selecting and breeding has
been ongoing since then with the result called the SeaChick Gray, a
hearty, fast-growing, efficient feed converter, with the goal of
maximizing the percentage of boneless, skinless fillet weight to total
live weight. The broodstock are placed in earthen ponds which combine
first and third world technology in a manner which can produce 80-
85,000 fingerlings per month with an average size of 80 to 120 grams
for stocking into production tanks. 90-120 days after stocking we can
harvest 1 1/4 to 1 1/2 pound market-sized food fish. These ponds range
from 1/4 acre to 1 acre in size.
SeaChick had experienced some bird predation from such species as
egrets, herons, osprey, and cormorants during the years in which we
were focusing on hybrid striped bass. We placed shade clothes over the
48 production tanks in a tent-like manner centered over the water and
leaving access to the fish along the edges of the tank wall. We placed
lightweight meshed bird netting over the smaller fingerling ponds and
stretched mono-filament fishing line in a grid pattern over the two
larger ponds. We referred to this as passive exclusion. When passive
exclusion, by itself, wasn't getting the job done the Atlanta office of
the USF&WS urged SeaChick to get a species specific limited take permit
to shoot. I have never owned a gun or held a hunting license. I
volunteered to serve in South Viet Nam as a member of the Agriculture
Team of International Voluntary Services from 1967 to 1969, and never
carried or possessed a gun for the two years I lived and worked in the
war zone.
With genuine reluctance, I allowed SeaChick to acquire a USF&WS
take permit for each of the species then giving us problems. We created
a ``no-fly'' zone over our production tanks using the lightest load
shotgun shells, shooting ``warning shots'' in the vicinity of the birds
to scare them away. Then shooting closer behind the flight path of the
returning ``leaders''. When the ``leaders'' continued to return, we
shot at them from a considerable distance to ``reach-out and touch
them'' but not harm them. Only as a very last resort, did we shoot to
kill these few troublesome birds. This protocol has minimized the
number of birds ``taken'', and maximized the desired behavior
modification. For five consecutive years SeaChick has been permitted to
``take'' five osprey per year, and we have actual taken none over those
five years, despite osprey visiting SeaChick almost daily.
The Mississippi brown pelican was listed under Endangered Species
Act in 1985, while Florida and Alabama brown pelicans were not. The
reason, cited by the listing USF&WS regional office in New Mexico, was
that the State of Mississippi would be used as a ``buffer'' state for
the State of Louisiana, which did have a pelican problem. SeaChick is
located approximately 10 miles west of the border with Alabama, where
we could get a USF&WS take permit for brown pelicans. Due to no brown
pelican problem in Mississippi, but instead due to a Louisiana brown
pelican problem, the entire State of Mississippi was and remains
penalized, without take permits for brown pelicans.
The Endangered Species Act allowed the Albuquerque USF&WS (the
USF&WS Atlanta Regional Office issues SeaChick's take permits) to
impose the brown pelican listing upon Mississippi, but does NOT allow
the USF&WS Atlanta Regional Office to start the delisting process of
the brown pelican for states within its region. I am told that control
of delisting a species covered by the Endangered Species Act resides
with the originating regional office in Albuquerque. Meanwhile
Mississippi and SeaChick suffer crippling losses to brown pelicans. We
estimate direct losses to brown pelicans at $300,000 to 400,000 during
the 2003-2004 pelican season at SeaChick. This does not include the
indirect losses to parasites, diseases, and lost sales opportunities.
Electrical events between brown pelicans and power lines at SeaChick
did thousands of dollars of damage to motors, transformers, wiring,
electrical components, computers and various electronics throughout the
facility.
During the 2000-2001 and the 2001-2002 brown pelican seasons,
SeaChick managed to received a USF&WS brown pelican harassment permit
which included a capture/tag/relocation provision. We were able to
capture grossly engorged brown pelicans filled with our tilapia. With
experimentation and research done at SeaChick's expense and documented
with the USF&WS, we developed a relocation technique that was 80-90%
successful in relocating none-returning brown pelicans. Imagine our
dismay when the USF&WS refused to renew the harassment permit provision
for relocating brown pelicans because the Migratory Bird Act required
banding, and SeaChick personnel were NOT licensed to band migratory
birds. Twice in the 2004-2005 pelican season, SeaChick returned brown
pelican harassment permits. These well-intentioned harassment permits
were so restrictive and detailed as to make lawful compliance all but
impossible. We choose to have no harassment permits during those
periods. Eventually a temporary authority was granted to SeaChick to
resume relocating brown pelicans using the relocation technique we had
developed and documented in previous years. This ``conflict'', over
banding brown pelicans, between the Endangered Species Act and the
Migratory Bird Act must be resolved.
SeaChick has filed a 90-day letter with the USF&WS Atlanta Regional
Office of its intent to submit an invoice for the regulatory taking of
our tilapia crop during the 2004-2005 brown pelican season. We have
invested tens of thousands of dollars per year protecting our crop and
protecting the brown pelican. Over the years, Federal and state
agencies have placed their representatives at our facility for weeks at
a time and witnessed and recorded the unnatural behavior of brown
pelicans at our facility despite our best efforts. Given our highly
successful take permit results with other species, SeaChick seeks
relief by delisting the brown pelican in Mississippi.
______
The Chairman. Thank you. I thank the entire panel for your
testimony. I'm going to begin by recognizing Senator Crapo for
his questions.
Senator Crapo. Thank you very much, Mr. Chairman, and I
want to use my five minutes to basically talk about the issue
of collaboration and I'm really going to focus on Mr. Vaughan
and Mr. Davidson--but Mr. Vaughan, it interested me that you
indicated in your testimony that there were those who had
encouraged you not to come today. That doesn't surprise me
because I don't know how many people feel like this but back a
few months ago Chairman Pombo and I, along with Senator Chafee
and Congressman Walden from Oregon held a press conference
where we indicated that we wanted to try to bring people
together and get past the fighting that has been going on and
build a fast forward system where consensus based reforms were
being made to the Species Act.
And although that press announcement was received very
positively in most quarters, there was some from various
perspectives of the issue who immediately attacked and I think
primarily was the attacks were based on a lack of trust. It was
believed that we didn't really want to bring people together
and try to find good solid consensus based solutions. And that
was a disappointment to be honest with you. It was not one that
was unexpected. We had seen this kind of reaction and it's not
just from just one side or the other. This was the kind of
reaction that comes, I think, from decades of fighting over the
Act. And there needs to be a trust level brought and so first
of all, Mr. Vaughan, I appreciate you coming today and sharing
your concerns and your willingness to see if there can't be
some consensus based solutions.
Mr. Davidson, I was very interested in your testimony as
you talked about how it was done and you listed in your
testimony some southern rules of engagement which I hope you'll
allow me to take back to the west. The items listed in your
written testimony, I'll go over them very quickly. It is, come
to the table, leave your organizational 2 X 4 at the door,
polarized opinions generates more heat than light and has no
place at the resource management table, pick solutions, not
fights, search for the most expansive common ground that is not
intrusive, attack ideas, not individuals, differences of
opinion can lead to enlightened decisionmaking, no personal
attacks. One strike and you're out and have fun. I think
there's some real wisdom in that approach and we need to get
people across the country focused on the fact that we have an
opportunity now where we're trying to build a bipartisan,
bicameral solution to some of the serious problems that have
faced the species recovery and we're focusing on recovering
species. That's what we want to seek as our objective and I'd
just like to invite Mr. Vaughan and Mr. Davidson to comment if
you would on this general issue.
Mr. Vaughan. I appreciate your remarks very much. Let me
just say, coming from an environmental community, having done
work like this as an attorney for almost 20 years and before
that, just on my own for 10 years and it's no different for
development in industry business like this. We've seen Federal
agencies do horrible things to the environment. We've seen
agencies do horrible things to economic interests or things
that made no sense.
And a lot of times the only way we can address this type of
thing is through litigation. And years ago the National Forest
of Alabama they were breaking every law they could. There were
some bad apples brought into those forests. But they brought in
new people after the litigation changed some attitudes in the
agency and we've all seen cooperative efforts that didn't work
but I've seen some that did successfully, wonderfully
successfully, mostly on public lands but some on private lands.
Paul's work on Louisiana's black bear on private land is a
pretty amazing example in the southeast. So we have success
stories that maybe folks elsewhere haven't seen and there's a
lot, like Senator Barton said, it's strange warfare. So
somebody's got to come around the trenches and halfway across.
I'm willing to do that. I think some other folks are too, there
is a lot. We certainly hope there are people who are willing to
do that and want to create a safe haven for people who are
willing to come up out of the trenches and get engaged in this
process. Mr. Davidson.
Mr. Davidson. Please don't take this wrong but, you know, I
have been in Washington, D.C., way more times than I'd like to
admit, and it is probably the most polarized, partisan, turf-
protected environment I've ever been in my life.
Senator Crapo. You've got that right.
Mr. Davidson. And I don't like it. I don't like being there
and that was what we were trying to avoid, of course, with the
heat of the spotted owl breathing down our neck, we really
wanted to get everybody together and what's been alluded to
several times today, private landowners are key to anything you
do in the Southeast. But probably all over the country but
certainly in the Pacific Northwest where you have 80 percent of
the habitat is public land. It's a different world than it is
here when 90 percent is private so anything you're going to do
that has any consequence across the landscape has to engage
landowners and right now they are scared to death. You know
that this government is going to come in and take their land
largely because interests outside of this region are telling
them it's going to happen. I mean, we've seen instances where,
you know, we just had some big national organizations and this
comes from my experience, you know. I, in the past, served four
terms as the Chair of the Sierra Club in Louisiana and, you
know, I butted heads with the National Sierra Club all the
time. I was President of the Louisiana Wildlife Federation
twice. I had a better relationship with the National Wildlife
Federation and we still disagree on a lot of things.
That Washington turf protective spar, left or right,
whichever side you're on, you want to call it, does not
encourage genuine collaboration and communication. It's his
last stand and I'm not budging. And what we have learned is
that this concept that when you collaborate, when you work
together, that somebody's got to give up something. That's not
necessarily the case. If you go in with the objective, trying
to get everything you can get, I'm talking about every interest
in the room, shoot for the stars, you'll be surprised that most
of the time you can walk out of there with everybody getting
everything they need.
So, it can happen. I don't see how in the world you'd ever
legislate it but it certainly needs to be encouraged and I
think if you talked to the Lafayette, Louisiana, U.S. Fish and
Wildlife Service office, they'll tell you that our efforts have
certainly made their lives easier and certainly made recovery
of the Louisiana black bear move forward much more quickly than
it could ever be done just with that agency.
Senator Crapo. Thank you. Mr. Chairman, I know I'm over but
let me just take one 30 seconds here to say I agree with the
points that have been made by these witnesses. I know the other
witnesses have similar feelings and we've got to get the
confidence and the trust built up to allow us to do a, to start
here to get people to come to the table and find these
consensus based solutions. I am convinced that we can find
solutions that are better for the environment and better for
the economy than what we are driven to now under the current
system and it's that objective that we want to achieve. We want
people to be willing to come forward and participate in this
process knowing that we're not going to run rough shod over
anybody, we're going to try to bring people together and find
consensus based solutions that will benefit everybody and
especially the endangered species.
Thank you.
The Chairman. Thank you. We now recognize Congressman
Pickering.
Mr. Pickering. Senator Crapo, I just want to join with your
very thoughtful approach but also to say Mr. Vaughan that I
appreciate and I'm encouraged that you're here. Paul Davidson,
you give a model for the rest of the country on how to approach
these issues and what I'd like to do is to follow up and ask
some questions so that we can avoid the litigation and the
adversarial relationships and instead of having prolonged,
extended, adversarial and backed in litigation and this may
well not be, sometimes litigation leads to settlement. It is a
catalyst for settlement.
But our problem is that sometimes it takes three, four,
five years to get to that point. Would it not be better if we
could look at front end settlements and cooperative agreements
through our laws that we would give alternative dispute
mechanisms that once an issue comes up that we would give very
strict deadlines, time lines for either an agreement to be
reached by all parties to the agencies and private and
community interest. If those agreements are not reached within
a certain time line, they'd have mediation or arbitration with
the time lines and as Mr. Briggs talked about, part of the lack
of credibility of the Act is because the goal post seems to
have moved or that it could be extorted either by competing
economic interest or environmental interests.
So there's a sense that there's a fairness built into the
process but also a very quick conflict resolution process that
can follow the model of the black bear either by cooperative
efforts or by statutory requirements of conflict resolution.
Would that be helping, Mr. Vaughan and Mr. Davidson.
Mr. Vaughan. I'm actually trained in mediation and I'm a
big fan of that. I'm not a big fan of binding arbitration
because as an attorney and citizen, we should have a viable
avenue for the court that's created by the constitution. But I
think that might be a possibility. Some of the things for
instance in the Healthy Forest Restoration Act, while I don't
agree with everything how it was put together, when the process
of that sort of pre decision or talking with each other and
having meetings, having dispute raised before the decision, is
done with everyone being honest and open about it. I've seen it
work. But, it's a little too loose I think.
But I think you could come up with a system whereby the
public participation front end, is not so much formal but much
more inclusive and where you could have had a mediation like
objection process first.
The Forest Service appeals process, a lot of people
criticized it and some environmentalists just say, well, that's
just a hurdle, I have to jump it before I get to the court, but
we've actually settled a lot of the appeals, a lot more than we
filed lawsuits in because we did meet with them and we were
meeting with agency staff that were very open and honest about
it. We came to a resolution because we weren't just against the
project. We were against the public problems to the project
even though it was going to fix it. The project went forward
and there was no litigation. So I think that could be worked
on. The processes that exist now are incomplete. Wildlife
Services are quite inadequate so that would be something that
should be explored, I think.
Mr. Davidson. Again, I don't know how you'd legislate
cooperation. It's certainly a component I think that's missing
in what's going on now and so much of all the horror stories
that reoccurred over the years, you know, we never dealt with
that. For whatever reason I couldn't explain to you exactly why
things worked as they have but we have always had good working
relationships among the agency personnel and we just, you know,
we never got into the--this week we had a big conference call
with BCC, U.S. Fish and Wildlife Service, Louisiana Parks,
Wildlife and Fisheries, the Nature Conservancy and USDA,
Natural Resource Conservation Service prioritizing, you know,
WRP roles. I mean, that's in the counties and the parishes
where we have, where we're running out of land to enroll and
everybody didn't have a problem with our account of what we did
best and all that, you know.
The critical habitat stuff which was so controversial, you
know, with--years ago, over a beer, we decided that the way to
resolve it is just to change the name to Way Cool Habitat and
everybody would want it. But it's not going to be that easy.
There has to be some flexibility, like in the laws which
mandate designation of critical habitat, you now have different
openings for a lawsuits.
There is no question that some species that require certain
niches need a designation of critical habitat. Animals like a
bear are generous, there's no need for that. What has happened
over time as I have witnessed it, with the U.S. Fish and
Wildlife Service, rather than designate critical habitat they
incorporate the same things into the Section 7 consultations
such as, they are accomplishing the same thing that critical
habitat would accomplish through Section 7 without all the
formal designation critical habitat and the paper work and
again the agency resources that go into that. So there's a way
to do all this, gentlemen, and I won't pretend to have all the
answers but I know there are people out there who can put it
all together for us. Thank you.
Mr. Pickering. Thank you, Mr. Davidson. That, perhaps we
could shift, perhaps we could shift litigation resources to
your endangered species incentive program and that the funding
is there for that, maybe that would be one way to bring people
to an agreement more quickly than if it would end this
litigation. I want to thank Senate Crapo. We have one thing in
common, one of the many things in common, but one thing we have
in common, I think you have five children as well, so now that
your family's back home, we appreciate you leaving the comforts
of home and family and Mr. Pombo and I share another thing in
common. Our children play baseball and he's missing baseball
games too.
Senator Crapo. Right.
Mr. Pickering. We've all slapped hands, we had one injury,
in which the wheels came off and there are baseball games this
morning. But I noticed everyone is here because this is an
extremely important issue for our development of our
environment and health of our economy and talks about some
issues and Mr. Chairman, I greatly appreciate you being here
and I look forward to working with both of you as we go through
this process.
The Chairman. Thank you. You know I'm going to take that
last quote that you just said about there's a way to do this if
we want to do it and I'm going to blow it up on a big board
like that and hang it in view because that's what I've been
saying for the last 12 years. If you really want to do it, we
can do it. It frustrates me beyond belief because one of the
reasons I hold these field hearings is to come out here and
listen to people like you outside of Washington. Back in
Washington, if we were having the same hearings, there's nobody
that would say the things you have said. We know Senator
Crapo's right, you know. We got together and said we're going
to work across the Capitol, we're going to try to bring
everybody in on this, we're going to try to make this thing
work. We hadn't even gotten done talking, and the press
releases were already being distributed to the reporters that
were in the room trashing us for gutting the Endangered Species
Act. We hadn't even finished announcing that we were going to
work together and we were already accused of gutting it. That's
why I bring the Committee out.
That's why we do these things because you're not going to
get this done working with that group back there.
You know, if Mr. Vaughan, you talk about funding being a
major problem. I know the three of us agree with you. I've
introduced bills so many times increasing the amount of money
to go through Fish and Wildlife Service that, that I can't
count them all. But, it's not just a matter of more money going
into Fish and Wildlife Service, you got to change the dynamics
that's there. You got to start focusing on what the goal is
instead of a lot of the stuff that's going on right now and Mr.
Davidson talked about they didn't see the same problems here
that we saw when it started out.
Well, one the reasons is that, you know, Mr. Vaughan talked
about this and we did a lot of things wrong with that. I mean,
there were things that we did with development, there were
things that we did with Forest Management, there were things we
did in Agriculture that were wrong. And we caused a lot of
problems that we've got right now. But when we got in to
spotted owl management, it really had nothing to do with
spotted owls. It had to do with we didn't want any more cutting
of timber. One of the main litigants in that whole situation
was quoted as saying something to the effect of, thank God for
the spotted owl because if it hadn't been for that, if we
hadn't had the spotted owl we would have had to create one in
order to stop the timber harvesting going on.
And it's kind of that attitude that has gotten us to where
we are right now. Mr. Briggs, I want to ask you a question. You
know, we went through the testimony, Mr. Head's testimony, and
I thank you for pinch hitting here. I know that we got a call
earlier that he was grounded and wasn't going to be able to be
here today. And I appreciate you coming in. But in the
testimony it outlines how much land has been set aside for
mitigation and what the company was willing to do. Are you at
the point right now where you could proceed with development.
Mr. Briggs. No, sir, we cannot proceed with development and
there is no foreseeable resolution to our current project which
began its permitting process some five years ago and we're
currently held up, we feel like, by Fish and Wildlife not
necessarily by the litigation or the Act itself since it is
Fish and Wildlife people bringing up additional issues or
raising the bar changing the requirements. We will use about 35
acres of habitat in our project and we have already committed
110 acres to a conservationist. So three times what we've
utilized.
At the same time, this issue is not really about the
Alabama beach mouse, it's about people who don't want multi-
family projects built on the Fort Morgan Peninsula because at
the same time 108 single family units have been permitted or
currently are being permitted under the process in place now
with no mitigation. They used 230 percent more of real estate
per unit than we did. It's not an issue that deals with
protecting the mouse or increasing the mouse's chance of
survival.
The Chairman. Now, that's what I wanted to get at. That
right there. If I could sit down with Mr. Davidson and you and
put you in the room and say, OK, the goal here is to protect
this mouse and recover it, how do we allow him to use his land
in recovery of the mouse. Now, if that's the goal, if that's
what put on the table, I believe you can come to a solution.
Mr. Briggs. Certainly.
The Chairman. And I don't know if 110 acres are right or
$20 million into an account somewhere that goes toward
conservation or propagation or what have you, but----
Mr. Briggs. We do that as well.
The Chairman. I'm sure you do.
Mr. Briggs. We set aside--and annually the homes and the
multi-family owners set aside two, three hundred dollars that
goes into a beach mouse fund. Here again, none of these things
are required if you build a single family housing. It's not
usual.
The Chairman. I'm of the mind that if the goal is to
recover a species, we can get there. If the goal is to stop
this development from going forward we can't get there. And,
Mr. Vaughan, I'm not real familiar with the work that you've
done and things that have happened down here but I believe that
the goal is to preserve species. We can get there.
There can be mitigations done, there can be things that we
do that the Fish and Wildlife that allow people to use their
private property without taking away their right and at the
same time recovery of the species. I believe that we can get
there. But, you know, what we run into in Washington so often
is that recovery of species has very little to do with this
whole debate. It has to do with, a lot to do with partisan
politics, has a lot to do with political power and as a result
of that we have these conflicts with private property owners.
Were not doing a good job of recovering the species. We're not
getting anywhere and we just keep fighting every year.
Now, it was like 12 years ago, one of the things I said
when I was first elected, I wanted to reform the Endangered
Species Act. I had no clue 12 years later I'd still be trying.
You know, it made perfect sense to me that we had problems that
we needed to fix and I think most responsible people in the
environmental community will look at and say, yeah, there are
some problems. There's something we need to do differently than
what we're currently doing. And as we move forward with this I
know that Senator Crapo talked about this, as we move forward
with this we just got to sit down and my door is open to you
any time and to Mr. Davidson. You guys want to come in and talk
about what needs to be changed and how we make this thing work,
I'm willing to listen.
Mr. Davidson. Congressman, let me just say, I've already
had meetings with Doug Crandall, your Committee staff member,
that would be great, be fair with Doug and I appreciate the
invitation but Doug's been, same invitation been very open.
He's the key to having me here today, I appreciate him doing
that. To give you an example, I was involved early on in
litigation over Mr. Head's property, the very first one down
there because I believed it was about the beach mouse and there
was no doubt the ball has been dropped on the Alabama beach
mouse by the agency over all.
But very quickly I got out of that litigation and ceased
representing the parties involvement in the litigation that's
going on and on and on since then, which I have no involvement
with, because it isn't really about the beach mouse. There are
a lot of instances where everybody on all sides are doing as
they should. A lot of times it's unintentional, a lot of times
it's a reaction to the past.
Yet somehow we've got to get past the past and I'll be
happy to work with you, Mr. Crapo, and folks on your staff at
any time to find a real solution to the real problems.
The Chairman. Thank you. I really appreciate this entire
panel and the testimony that you've given here this morning. I
think it's been very helpful but I think it helped. I know with
Chip and I, in the House and Senator Crapo, it helps us to move
forward in trying to come up with something that will actually
work because I do believe we can get there and it's just a
matter of getting people in the room who actually want to come
to a solution on this and those who don't, stay out. Now, I
think we can get there and I appreciate that. I appreciate
Senator Crapo agreeing to be here at the hearing, you know, we
normally don't invite Senators because they talk too much.
Mike's been a friend for a long time so he always comes to my
hearings and I believe something's in the water over there, I
don't know what it is.
Senator Crapo. It's the rules.
The Chairman. And of course, you know, when we started
talking about where we would do the hearings across the country
and Chip has talked to me several times about the Endangered
Species Act, the impact that it's had down here, it has, but, I
think more importantly, he talked about what some of the
successes were and the total cooperation that they've had down
here and I felt that that was important to include as part of
building a record in the hearings that, you know, it's not all
failures. There are some times when things actually work, and
we need to make that part of whatever the ultimate solution is.
I appreciate Chip inviting us down here and allowing us to
come into his district and take a little time to be part of
this hearing here morning.
I want to again thank the Museum for inviting us and the
Governor for his cooperation. I can tell you that he originally
had hoped to be a part of the hearing. We ended up changing the
date that we were going to come down here and it conflicted
with his schedule. Unfortunately, he wasn't able to join us
here today, but I appreciate his invitation and cooperation.
Thanks to all the staff, everybody that helped make this
hearing possible. I'll tell this panel before I adjourn the
hearing that I know there'll be further questions and those
will be submitted to you in writing. Answers might be included
as part of the hearing process and I would appreciate it if you
would respond in a timely manner to that as well.
If there is no further business before the Committee, the
meeting's adjourned.
[Whereupon, the Committee was adjourned.]
Additional materials submitted for the record follow:]
[A statement submitted for the record by The Honorable
Haley Barbour, Governor, State of Mississippi, follows:]
Statement of The Honorable Haley Barbour,
Governor, State of Mississippi
Good morning. I am proud to welcome to Mississippi Congressman
Richard Pombo, Chairman of the House Committee on Resources, Senator
Mike Crapo of Idaho, and our own Third District Congressman, Chip
Pickering.
Mississippi is proud to host this first congressional field hearing
in an effort to update and modernize the Endangered Species Act. We
have learned a lot of lessons since the Act became law, and many of
those have been in the South.
The Endangered Species Act is over 30 years old, and no changes to
it have occurred since its expiration 14 years ago. It has been
effective preventing some species from becoming extinct; however, by
all accounts, it has not been successful increasing listed populations.
Recovering and achieving sustainable populations of listed species
should be the ultimate goal of this important law.
To date almost 1,300 species have been listed under the Act, but
only ten have recovered sufficiently to be removed from the lists.
Clearly, it is time to update the Act to employ the best fish and
wildlife management practices so can we do a better job recovering
these species. I believe without a stronger focus on restoring habitat,
the full recovery and de-listing of populations of many species will
not happen.
It is fitting that efforts to improve the Act begin here in the
South. After all, the region has one-quarter of the listed species in
the Nation, with approximately 300 endangered or threatened species.
For example, eight of the top ten states and territories with the most
listings include: Alabama, 89, Florida, 100, Georgia, 54, North
Carolina, 50, Tennessee, 82, Texas, 81, Virginia, 55 and Puerto Rico,
69. Mississippi has 29. Only California and Hawaii have more.
Landowners in the South, and particularly Mississippi, have done a
very good job conserving and creating habitat for all species, whether
listed under the Act or not. Any legislation should include a strong
recovery component and include incentives for private landowners to
voluntarily participate.
As you begin this process, I encourage you to spend some time in
the state and allow our people to showcase some of Mississippi's
efforts to protect, restore, and enhance habitat for species that are
listed, and in some cases, species we are trying to prevent being
listed. I think you will find the South, and particularly Mississippi,
will help you formulate solutions to modernize the Act so conservation
measures can be implemented to avoid listings, recover listed species,
and do it in a manner that works with landowners and industry, not
against them.
Thank you for your time in addressing such an important issue, and
I hope you enjoy your time in our great State.
______
[A statement submitted for the record by Rhett Johnson,
Director, Solon Dixon Forestry Education Center, School of
Forestry and Wildlife Sciences, Auburn University, and Co-
Director, The Longleaf Alliance, follows:]
Statement of Rhett Johnson, Director, Solon Dixon Forestry Education
Center, School of Forestry and Wildlife Sciences, Auburn University,
and Co-Director, The Longleaf Alliance
One of my particular personal and professional interests is the
longleaf pine ecosystem, one of the ecosystems that occurs here in the
Southeast. It is estimated that longleaf pine covered some 90 million
acres of the uplands of the southeastern United States prior to
European discovery and settlement. Some forest historians suggest that
that may have constituted the largest forest area on the continent
dominated by a single species. Today an estimated 3 million acres of
longleaf remain, much of it in badly degraded condition. There are a
number of species indigenous to longleaf ecosystems that are in similar
decline, several of them listed and protected by the Endangered Species
Act and familiar to Southeastern forest landowners. These include the
gopher tortoise, the Eastern indigo snake, and, perhaps the best
recognized, the red-cockaded woodpecker. Others, like the gopher frog,
the black pine snake, and Bachman's sparrow, face futures linked to the
health and availability of the longleaf pine ecosystem.
The Longleaf Alliance is an organization formed to slow the decline
of the longleaf ecosystem and, hopefully, reverse that trend. As we
contemplated our strategy, two related facts shaped our approach. More
than 90% of the forestland in the area previously occupied by longleaf
is owned by private interests and about 75% of that by non-industrial
owners. It seemed intuitive that any significant recovery of longleaf
pine would by necessity involve the participation of these landowners.
In addition, it was and is our contention that, although there is a
strong stewardship ethic shared by these landowners, economic return is
also a strong driving force in their management decisions. We made the
decision to build strong economic as well as ecological arguments for
longleaf, reasoning that museums protect things that once were but
won't be again. Further, that the way to save things was to give them
value and the way to give them value was to use them. This approach has
been very successful and longleaf recovery is well on its way.
The point of this discussion is to suggest that there is
considerable logic in proposing longleaf pine and longleaf ecosystems
as threatened or even endangered. After all, a 97% decline in acreage
over the last 300 years is pretty dramatic! Instead, we learned to
avoid either of those words assiduously. The alarm those terms excite
among the majority of landowners would make our task next to
impossible. In fact, the association of longleaf with species like the
red-cockaded woodpecker concerns many landowners contemplating planting
or even retaining longleaf. The perception that the Endangered Species
Act triggers onerous government intervention in private matters and
imposes strict and costly restrictions on landowners' decisions is
alive and well in the Southeast. The fact is, for most affected
landowners, the Endangered Species Act is punitive in nature, imposing
either direct or indirect costs on those unlucky enough to have a
listed species present on their land. I don't see much evidence of
illegal ``preventative actions'', although I know it did occur with
some frequency in the past. I think it is much more likely now for
landowners to passively manage so as to discourage the presence of a
threatened or endangered species on their land, e.g., to halt a
prescribed fire program and allow habitat to become unsuitable for red-
cockadeds or gopher tortoises.
The U.S. Fish and Wildlife Service has made great strides with
programs like Safe Harbor to lessen the blow for landowners who have
protected species on their properties, but the fact remains that
landowners who host listed species are not rewarded for doing so and,
in fact, are forced to support endangered species, at the request of
society at large as expressed by the Endangered Species Act, at their
own expense. The number of affected landowners is small, but the impact
on many of those who are affected can be profound. Some accommodate the
constraints imposed on them easily--even gladly--while others face both
direct and opportunity costs, decreased land values at time of sale,
etc.
Currently, the prospect of relief because of species recovery and
subsequent de-listing remains remote. In fact, one of the species whose
recovery probably merits delisting, the bald eagle, has begun to turn
the tables on us. Eagles have largely occupied the very best remaining
habitat and are now beginning to nest in otherwise marginal habitats.
They are now encroaching on our habitats. There are active eagle nests
in downtown Apalachicola, Florida as well on busy nearby St. Georges
Island. These birds are afforded the same protections under law as
their cousins in more remote locations. If the ESA were indeed
successful in recovering many listed species, the prospect of similar
conflicts would be truly significant.
On the other hand, there are demographically isolated populations
of listed species, particularly at the edges of their ranges, which
offer virtually no potential to contribute to the recovery of the
species, yet are accorded the same degree of protection as those who
do. The contribution of these fragments of populations can only be to
provide genetic diversity to populations with better prospects. Yet the
individuals in question are seldom candidates for re-location, denying
the affected landowners relief and the larger population better hope
for recovery. It is a fact that relocation is often unsuccessful and
that leaving these individuals in place at least preserves them for the
short term. Nevertheless, the museum analogy is still appropriate.
Locking valuables in the closet only buys time and, in the process,
landowners pay the price.
I am a proponent on an Endangered Species Act for many reasons.
Some species are keystone species whose loss would cause entire
communities to be placed in jeopardy. There are others who offer
answers to questions that plague us. If Eastern indigo snakes are
immune to the venom of all North American venomous snakes, and they
are, wouldn't it be wonderful to understand the mechanism that allows
that immunity and add it to our own pharmacy? If we lost the indigo, we
can never make another one, only God can. Other listed species are
listed because they have exacting habitat quality requirements. They
can act as ``canaries in the coal mine'' for us. Flattened musk turtles
require high water quality and silt-free streambeds for their continued
success. Their presence assures us that the water quality protection
strategies we have adopted are working, for us and for the turtles.
Finally, we, as a society, have elected to protect some species because
we just prefer not to live in a world without them. That generally
applies to fairly dramatic species like grizzly bears, California
condors, whooping cranes, bald eagles and Florida panthers and not to
American burying beetles and Tulatoma snails, even though those species
may actually be more important in strictly ecological terms. Still,
those former species have intrinsic appeal that most Americans
understand and embrace.
``Fixing'' the Endangered Species Act should protect both species
at risk and the private landowning public charged with providing their
habitat. Better science to determine which species are truly at risk
and which may have never been numerous is a start. Better science to
identify and focus on those most likely to be recovered might also gain
traction with the public. Delisting should be a real goal and not a
distant and unobtainable Grail. If recovery is not likely,
extraordinary efforts to preserve might be required and justified.
These efforts must include rewards to landowners hosting these
populations to relieve them of a burden imposed by the larger society.
Restrictions on landowners should be carefully examined to determine
efficacy and potential to contribute to the species recovery. If they
are found to be unnecessary or without clear benefit, they should be
re-examined and discarded if found to be lacking.
______
[A map showing Endangered and Threatened Species in the
Southern U.S. follows:]
[GRAPHIC] [TIFF OMITTED] T0971.002
Response to questions submitted for the record by Dr. David J. Tazik,
Chief, Ecosystem Evaluation and Engineering Division, Environmental
Laboratory, U.S. Army Engineer Research and Development Center
Follow up questions submitted by Chairman Pombo:
1. The Corps carries out and/or funds a significant amount of
scientific research pertaining to endangered and threatened species.
Some of this research is conducted in association with Corps projects.
Has the Corps funded endangered or threatened species research in
association with Corps projects that does not relate directly to the
impacts or affects of the project on a species but would more
accurately be described as scientific research regarding the species?
Answer: Most scientific research funded or carried out by the Corps
does relate directly to Corps project impacts (e.g., our extensive work
on freshwater mussels and pallid sturgeon). Nonetheless, there are
examples of scientific research funded by the Corps that does not
relate directly to the impacts or effects of Corps projects on listed
species, but may be required by the Services for projects to go
forward. However, this research often yields information on species
requirements that can in the end help determine project impacts.
If so, is any of this research ever conducted as a
condition of a determination made by the FWS or NMFS?
Answer: We are aware of at least one example where this research is
a condition of a determination made by FWS or NMFS. Reasonable and
Prudent Measures (RPM) subject to terms and conditions under the NMFS
Biological Opinion regarding ``Dredging of Gulf of Mexico Navigation
Channels and Sand Mining (`Borrow') Areas Using Hopper Dredges by COE
Galveston, New Orleans, Mobile, and Jacksonville Districts,'' require
the Corps to collect tissue samples from all live and dead turtles
captured by relocation trawling or dredging. The RPM further requires
the Corps to provide tissue samples and funds needed for analysis to a
specified NMFS lab.
Does any such research conducted by the Corps appear to
be more consistent with the missions of FWS and NMFS than the mission
of the Corps?
Answer: This appears to be the case in research conducted by the
Corps on the Interior Least Tern (ILT), which is intended to establish
scientifically sound population monitoring guidelines and to assess the
status of the species in specific drainages where status questions
remain--notably the Cimarron and upper reaches of the Canadian and Red
Rivers. The ILT is high priority species for the Corps due to its
impact on the Corps mission, having been the subject of RPMs in several
biological opinions issues by the U.S. Fish and Wildlife Service. The
Corps has a strong incentive to take a leadership role in this
activity. Since this species is directly tied in many cases to
navigable waters, it is in our interest to address species conservation
to maintain a balance between our navigation and environmental
stewardship missions. We have extensive capability to address such
issues, and prefer to cooperate proactively with the FWS. Our
hypothesis, to be tested as part of this research, is that the ILT is
healthy and warrants consideration for delisting. Our intent is to help
provide the data needed to make this determination. Other activities
funded by the Corps include genetic research on pallid sturgeon and
federal fish hatcheries for pallid sturgeon propagation. The Corps
funds this work to assist the Service with reintroduction and
population augmentation in case population numbers become low. Basic
genetics research is needed, although Corps research funding might be
more effectively applied to habitat restoration research and
monitoring. We advocate a habitat-based approach to endangered species
conservation.
2. In the Corps' opinion, are there any listed domestic sturgeons
that may be questionable in terms of their uniqueness or
distinctiveness from other listed or unlisted groups of sturgeons?
Answer: There are numerous questions on hybridization between
shovelnose and pallid sturgeons. There have been some genetic questions
regarding the taxonomic classification of the Alabama sturgeon, which
has not been seen for about 5 years, and only a few individuals had
been captured prior to that. According to our research staff, a
recently published journal article unequivocally establishes that the
Alabama sturgeon is a true species.
3. Are there any species that, in the Corps' opinion, may have
population trends, numbers or distribution and/or that face
overestimated threats indicating that the species may not merit its
current endangered or threatened species status under the ESA?
Answer: The FWS and the NMFS are the Federal agencies responsible
for listing and delisting species, and for accomplishing, compiling,
and evaluating information upon which such decisions are based. That
said, the Corps does have extensive expertise of its own in terms of
habitat and species management and based upon this experience it
appears that status reviews may be warranted for several species.
Based on the Corps' experience and knowledge are there
any specific species that the Corps would suggest for status review?
Answer: Species to consider include pallid sturgeon, two species of
mussels, and Interior Least Tern. In the case of the pallid sturgeon,
our data suggest that populations in the lower Mississippi River are
stable, and probably in the middle Mississippi River as well. Two
mussel species currently listed as endangered should be considered for
downlisting or delisting--the fat pocketbook mussel (Potamilus capax)
and the fat threeridge mussel (Amblema neislerii). Both have been found
to be common to abundant and exhibit good evidence of recruitment.
Depending upon the outcome of on-going surveys, the ILT might also be
considered. In any event, recovery plans for each should be updated.
4. Do you have any thoughts or comments you would like to offer
with regard to taking a regional or system-wide view of the endangered
species challenge or of increasing emphasis on conservation planning
via the ESA's Section 7a(1).
Answer: This is an important question affecting the Corps, notably
as it relates to its ecosystem restoration authorities and projects
being implemented across the country. A shift of emphasis from project-
specific approach to endangered species issues (mostly the present
practice) to a more regional or system-wide approach could alleviate
inconsistency and inefficiency, while promoting an more holistic
ecosystem approach to species and habitat conservation. Project level
analyses of endangered species should always be conducted in the
context of a larger scale program. Optimum use of limited resources to
protect and manage species is not possible via a piecemeal approach
that deals somewhat independently with each project. A good example is
the pallid sturgeon that ranges over 3,000 miles in the Mississippi
River basin. A more systemic approach would allow project planning,
maintenance, and operations to more effectively support species
protection and recovery. Another example is the $8 billion, 35 year
effort to restore the Florida Everglades and over 18,000 square miles
of marsh and associated habitats where there is a tension at times
efforts to recover species such as the Florida Panther and Snail Kite,
and holistic efforts to address the needs of all species and their
habitats.
Section 7a (1) of the ESA provides each agency with the authority
to develop what amounts to a conservation plan for listed species.
Proactive implementation of this section of the law once a species is
listed and before a crisis develops could go a long way towards
preventing trouble down the road. Application of sound scientific
principles and early coordination between regional offices of the Corps
and the Services will help to ensure environmentally acceptable
projects. Ideally, conservation plans should tier off of species
recovery plans. Unfortunately, many recovery plans are outdated and
need to be revised.
The Corps recognizes a need to develop guidance on implementation
of this provision. The Corps and the Services need to work in
partnership to develop a better approach especially for wide-ranging
species. Two good working models exist for the Corps. The first is the
region-wide biological assessment and guidelines for management of the
Red-cockaded Woodpecker that were developed by the Army in
collaboration with Region 4 of the FWS (circa 1996). The second is the
Corps' Sea Turtle Research Program and region-wide biological
assessment and biological opinions for the Gulf and South Atlantic U.S.
Corps navigation Projects (circa 1990).
5. You made several interesting comments with regard to the Corps'
reported ESA expenditures. Is there any additional information or
insights with regard to the expenditures the Corps makes to comply with
the ESA that you think might be helpful?
Answer: The Corps reported $33.5M in expenditures for threatened
and endangered species during 2003 (most recent year published). While
meeting the requirements for reporting, there are concerns that the
reported amounts underestimate the total expenditures. For example, we
found that Corps actual cost for sea turtles was $4.6M compared to the
$2.3M reported by the Districts. Costs reported to FWS may be
underestimated for several reasons, including: costs in contracts that
go unreported; equipment costs not accounted for; and variations in
District cost estimation procedures. We are developing a new reporting
process to be used by Corps staff for the 2005 report. As the
accounting of total costs improves, this cost information will be used
in decisions to approve, modify, or in some cases abandon projects due
to required commitment of ESA costs.
Follow up question submitted by Senator Crapo:
1. All of the panelists spoke of contributing time and money to
species conservation--some more willingly than others. If we could
guarantee that your investment gave you a seat at the table to take
part in hiring scientists, planning recovery, and taking action on the
ground--would you be better off?
Answer: As a federal agency, we enjoy the privileges suggested by
Senator Crapo. Nonetheless, we endorse this approach. The Corps makes a
considerable investment in hiring scientists and participating directly
or indirectly in recovery planning, and taking action on the ground,
often in partnership with others. We agree that stakeholders should
have a seat at the table and participate in the scientific process and
in recovery planning. Annually, the Corps participates in recovery
efforts for about 70 listed species. Certainly it would be helpful if
more funds were freed up for conservation and recovery planning--most
agree that many plans are in need of updates.
Clearly, there will often be a wide range and diversity of
interests in ecosystem management, including extreme positions on both
sides of the house. Certainly we would all be better off, as would
listed species, working through effectively managed partnerships
emphasizing cooperative conservation. We firmly believe that if all
were focused on the goal of species conservation we could find the ways
and means of accommodating long-term species health while allowing
reasonable human economic growth and development.
The Corps is willing to bring its considerable science and
engineering expertise to the table to help find the ``third way'' in
addressing the complex and often contentious issues surrounding
conservation of endangered species and the ecosystems upon which they
depend.