Testimony of Terry D. Garcia
Acting Assistant Secretary for Oceans and Atmosphere
National Oceanic and Atmospheric Administration
U.S. Department of Commerce
Before the Senate Committee on Environment and Public Works
September 23, 1997

Mr. Chairman and members of the Committee, I am pleased to be here today on behalf of the National Oceanic and Atmospheric Administration (NOAA) of the Department of Commerce. NOAA is a partner with the Department of Interior in administering the Endangered Species Act (ESA) and working with other Federal agencies on aspects of its implementation. We are responsible for the protection of many endangered plants and animals that live in the ocean and coastal waters of our nation. Some of the more familiar species we protect are the Pacific and Atlantic salmon, steelhead trout, sea turtles, whales and stellar sea lions.

I welcome the opportunity to discuss with you today the Endangered Species Recovery Act of 1997 (S. 1180) as introduced by Senators Chafee, Baucus, Kempthorne and Reid. First, I would like to congratulate the Senators on reaching a bipartisan consensus on the very difficult issues involved in conserving threatened and endangered species and conserving the ecosystems upon which they depend.

I am very pleased that there is such a strong emphasis in this legislation on the recovery of species that are in trouble. Recovery of listed species, including the conservation of the ecosystems upon which they depend, simply must be the goal of our efforts in this area. Current law requires it, common sense calls for it, and our own experience about what makes for a strong economy and healthy ecosystems dictates it.

Let me be very clear. Extinction of our nation's living resources is not an option. Similarly, merely maintaining species on the brink of extinction is not acceptable. The return of ecosystems and habitats to their full function so that they can sustain species must be the outcome of this legislation. This should be the goal of all our efforts - from low effect permits, to large scale long term habitat conservation plans, to inter-agency consultations under Section 7, to recovery plans for entire species and groups of species. I agree completely with Senator Chafee when he said last week Ait is time to make recovery, rather than mere survival, the standard by which we measure our actions.

Indeed, the principal unfinished business of the current ESA program relates to our ability to enlist non- Federal activities and landowners in the important job of recovery. Look at the map of the Pacific coastline and the job of saving salmon across a geography stretching from the Canadian border to Los Angeles. Then you will understand the essential role of non-Federal parties in getting the job done. One crucial opportunity for filling the gaps in the law is in the area of incentives to landowners, counties and other entities to enter into long-term conservation agreements - an area where the Administration has made great strides that are addressed in the bill.

Of the species under NOAA's jurisdiction, salmon species have been one of the most frequent lightening rods for criticism of the ESA. Their highly migratory nature places them in many states, involving large numbers of stakeholders, many of whom are private citizens and corporations that hold large tracts of land valued as both commercial property and prime salmon habitat.

Long-term management of habitat rather than short-term piecemeal efforts has proven to be the most effective means of recovering species. Landowners are concerned, however, that conservation measures on their land will create future restrictions and that they could be penalized for their efforts. To address these concerns, the Administration reached out to landowners with the "No Surprises" policy. Under, No Surprises in return for entering into agreements to conserve the species, landowners are given assurances that the government will not impose additional requirements in the future. Such certainty allows landowners to plan for the future with the knowledge that a "deal is a deal," and promises that the Services will not require financial or regulatory commitments beyond those in the agreements.

NOAA has been involved in negotiating a number of these agreements, both with states and private landowners. The Departments of Interior and Commerce recently signed a 1.14 million acre multi-species habitat conservation plan with the Washington Department of Natural Resources to protect spotted owl and salmon for 70 to 100 years. The Fish and Wildlife Service and the National Marine Fisheries Service (the Services) have also worked with the Plum Creek Timber Company to conclude a 170,000 acre multi-species habitat conservation plan with strong riparian habitat protections. The plan will provide protection for 50 years, with an option to extend another 50 years. Both Plum Creek and the State of Washington said they came to the table to gain certainty and predictability with respect to ESA action on their lands.

The Administration developed two additional incentives policies to encourage landowners to protect prime habitat - "Safe Harbor Agreements" and "Candidate Conservation Agreements." Safe Harbor Agreements allow landowners to engage in conservation measures without concern that attracting new listed species to their land could restrict future use. Candidate Conservation Agreements encourage landowners to take voluntary proactive measures on their land for species that are not yet listed, but show signs of decline.

These agreements attempt to get species out of the "emergency room," and provide preventative treatment before the conservation and recovery of the species becomes a crisis. We are pleased to see that the bill codifies provisions similar to the Administration's policies, and even goes further towards species protection in certain instances. The Safe Harbor provision ensures that the agreement will, at a minimum, maintain existing condition for the species. In addition, non-listed species receive a higher standard of protection in multi-species conservation plans.

Another important area is in the role of state conservation planning, whereby the full panoply of state authorities and capabilities can be enlisted in the task of recovery B thereby filling those gaps in federal capabilities that I referenced above. Earlier this year, NOAA and the State of Oregon literally broke the mold in the adoption of the Oregon Plan in lieu of listing coho salmon in northern and central Oregon.

The Oregon Plan is not perfect, and more work must be done to improve it; but it is a fully funded suite of aggressive programs directed to improvements in all aspects of the salmon life cycle. The bi-partisan effort at the state level has our full support. We are working day-by-day and side-by-side on its implementation, and we remain optimistic that it will help save salmon and chart a new course for the next generation of ESA efforts in this country.

The Oregon Plan is also a good example of NOAA's efforts to involve stakeholders in ESA decision-making. Involvement of stakeholders creates "ownership" of the process; our efforts in the Pacific Northwest to involve diverse groups have been amply rewarded. In developing the Oregon Plan, NOAA coordinated with the general public, tribal governments, the Watershed Councils, the timber industry, other Federal agencies, and the state agencies, including the Governor's office.

This dynamic process brought all the interested parties to the table with the goal of preserving the area's natural resources and economic stability, and provide greater certainty that the parties would accept and support the end result. Such cooperation ensures that our collective energies will not be squandered on litigation and delay, but will go towards real species protection.

Allow me to give you another example to demonstrate our commitment to public involvement. Prior to the recent steelhead trout listing decision (which involved the states of California, Oregon, Washington, and Idaho), NOAA held 16 public hearings, heard 188 witnesses, and analyzed 939 comments. The public participation provisions of the new bill mirror NOAA's already extensive efforts to fully involve the affected interests.

The Clinton Administration has another goal that goes hand-in-hand with preventing the extinction of species. We believe that we must create strong economies in conjunction with our efforts to protect the environment. The conviction that healthy environments and sustainable economies are inextricably linked is the bedrock upon which our efforts to implement the Endangered Species Act are founded.

Finally, we at NOAA firmly believe that in order to succeed in identifying and recovering threatened and endangered species and the ecosystems upon which they depend, our efforts must be grounded in good science. In our experience, there are no short cuts to or end runs around good science.

As a science-based agency, NOAA welcomes the bill's emphasis on using good science. Basing actions on good science eliminates unnecessary delay over biological issues, enhances species protection, and reduces unnecessary litigation. NOAA is pleased to see the bill codify NOAA's existing policy basing its listing, de-listing, recovery, consultation, and permitting decisions on the best scientific and commercial data available. NOAA also acknowledges the value of peer review, as the agency has followed a peer review policy since 1994. Although NOAA biologists are among the best scientists in the world, peer review helps the agency maintain an unbiased biological perspective.

Good science is the compass that will help us chart our course in the complex and controversial arena of species protection. NOAA especially applauds S.1180's requirement recovery plans contain a biological recovery goal. The heart of a recovery plan must be biological or the stakeholder process cannot function.

NOAA supports S.1180's requirement that recovery plans be periodically reviewed to determine if new information warrants a revision of the plan. In some cases, new information may dictate that a plan needs new goals or conservation measures to achieve recovery, or instead, indicate that certain measures are overly broad or no longer appropriate. The plans will evolve along with the science, and stakeholders can be confident that the plans are based on the most up-to-date information available. Such fine- tuning will maintain faith in the process, and ensure that the recovery plan is the best "road-map" possible to recover the species.

We are concerned, however, about certain provisions of the bill. For example, the new consultation provisions may have the unintended effect of putting species at risk. Under current law, the burden is on the Services to object within 60 days or the proposed action can go forward. This language reverses the current Act's precautionary approach that requires action agencies to obtain concurrence from the Services before an action can proceed.

We recognize this language only applies to informal consultation, and formal consultation is required if the Services object to the finding of "Not Likely to Adversely Affect." However, this provision may be misinterpreted to mean that the highly successful, streamlined consultation process currently underway in the Northwest is not working. The provision also creates another unrealistic and arbitrary deadline.

Moreover, the listing and recovery planning processes required in the bill are highly complex and are driven by very specific deadlines. As I mentioned earlier, most of NOAA's species are highly migratory, and every action, from listing to recovery to de-listing, could require data from vast areas, and involve stakeholders from several states.

It will be difficult to meet many of the interim deadlines given the active role stakeholders and peer reviewers will play in each process. We worry that there may not be sufficient time and flexibility built in to these processes so that NOAA can obtain the good science necessary to make informed decisions. Rather than avoiding litigation, this bill may actually increase it by creating new, unworkable obligations for the involved agencies, including the federal land management agencies.

Finally, if this Act is to live up to its purpose and conserve species, adequate resources must be provided. Without sufficient funding, the cycle of litigation, conflict and crisis will haunt this Act into the next century, delaying recovery of our invaluable living resources.

The land management agencies also will need additional funding in order to carry out their new responsibilities under this bill. The funding issue involves more than mere authorization levels. It will require firm commitments from Congressional leaders that appropriations increase above current baseline levels for all the agencies that implement the Act and live by it will be provided.

This bill has made tremendous progress since the discussion draft circulated last January. Many particularly troublesome provisions contained in that draft bill, such as a provision on water rights, have been removed all together. Other provisions have been constructively modified, such as the consideration of social and economic impacts in recovery plans.

However, in the Administration's view, some additional changes are required. For example, with respect to consultation, legislative language to stress the importance of early coordination and cooperation among Federal agencies and the ability of agencies to still request and receive concurrence letters is necessary. In addition, there must be a significant reduction in the complexity of the process if Congress does not provide adequate funding to carry out the many prescriptive requirements in this bill. The Administration will provide to the Committee later this week a detailed list of technical and clarifying amendments to S. 1180, as well as suggested report language to accompany key provisions of the bill.

If all our concerns are addressed, then this bill will have the Administration's support. Even as it stands now, this legislation is a tremendous achievement, and deserves serious consideration by all the members of the Committee, the Senate and the House of Representatives.

As you know, members of my staff have provided you extensive technical assistance in preparing this legislation. If, however, our remaining concerns are not addressed, or this bill is saddled with amendments on takings or water rights, NOAA will be forced to oppose the bill. I am certain that with the leadership of these four sponsors, that result is extremely unlikely. We look forward to working with the Committee to discuss the Administration's remaining concerns. Thank you again for the opportunity to share with you my views, and the views of my agency, on this important legislation.