TESTIMONY OF JAMIE RAPPAPORT CLARK
DIRECTOR OF THE U.S. FISH AND WILDLIFE SERVICE
BEFORE THE SENATE COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS
ON S.1180, THE ENDANGERED SPECIES RECOVERY ACT OF 1997
September 23, 1997

Mr. Chairman and members of the Committee, thank you for the opportunity to speak with you today about this very important legislation to reauthorize the ESA. It is fitting that I would be appearing before you today at my first legislative hearing after my confirmation to give our views on the Endangered Species Recovery Act of 1997. Having served as the lead program manager for the Endangered Species Program, I have, along with many of you, been deeply involved with the five-year quest for a reauthorized and strengthened Endangered Species Act. I would like to pay tribute to you Mr. Chairman and Senators Kempthorne, Baucus, and Reid and your staffs for the dedication and hard work that made the introduction of this bill possible.

I am very encouraged that bipartisan legislation has been introduced to reauthorize one of the nation's premier conservation laws. For too long, we heard only complaints from parties on all sides of this issue and there were precious few who offered constructive solutions. Instead of more of the same, the leadership of the Environment Committee rolled up their sleeves in a serious effort to address concerns associated with current implementation of the Act. We appreciated your inviting staff from the Departments of the Interior, Commerce and Justice to provide technical assistance and support to the process. We also welcomed the opportunities the Committee provided to Secretary Babbitt, myself and other officials to work with you during this process. We are also pleased that another bipartisan bill, H.R. 2351 has been introduced in the House by Congressman Miller and that the leadership of the House Resources Committee has begun tentative, bipartisan discussions in an effort to seek common ground on reauthorization. All of these events are positive developments and suggest that at long last, legislative gridlock on ESA reauthorization is coming to an end.

The result of your efforts in the Senate is legislation that has been carefully crafted to maintain the essential strengths of the current law while taking steps to make it work better for species conservation, the States, and affected landowners. The Administration is very pleased that the bill maintains as the foundation of the listing process the requirement that decisions be grounded solely on biological considerations and sound science; that the essential protections under Sections 7 and 9 remain intact; that the opportunity for participation by the States, affected landowners, and the general public is increased; and foremost, that species recovery receives enhanced recognition as the centerpiece of the Act.

On balance, we believe that S. 1180 will strengthen our ability to conserve endangered, threatened and declining species. The Administration supports enactment of the bill subject to the reconciliation of several issues set forth in this testimony. Prior to the Committee markup of S. 1180, the Administration will provide the Committee with a list of other technical and clarifying amendments, as well as suggested report language to accompany key provisions of the bill. We will also provide additional technical amendments as the other federal agencies complete their review.

Reform of the implementation of the Endangered Species Act has been a major focus of this Administration and we were pleased to see that your bill contains many of the reforms and policies that the Administration has proposed and carried out over the past few years to improve the Act's effectiveness in species conservation and fairness for landowners. When the Departments of the Interior and Commerce announced our 10 point plan to improve implementation of the Endangered Species Act in March of 1995, we recognized that the Act needed to be more effective in conserving species and that we needed to engage landowners as partners in conservation, not as adversaries. We acknowledge that we must provide landowners with greater certainty and work with them in a more open, flexible manner with new incentives to increase their involvement in conservation actions. After five years of developing a "new ESA" through Administrative reforms, we would welcome the codification of many of the reforms we have now established.

We believe S. 1180 will strengthen our ability to conserve threatened and endangered species by including provisions that:

Enhance Recovery - Twenty-three years of experience has taught us that conserving multiple species in a comprehensive programmatic fashion is not only more efficient, it is better for the species. This bill authorizes and encourages conservation plans that address multiple species associated with the same habitat such as the Natural Communities Conservation Planning (NCCP) program currently being implemented in southern California. Since 1991 this innovative ecosystem based management program has been successfully balancing the need to preserve the unique species of the coastal sage scrub ecosystem with the desired economic development of the area. The bill also: provides for increased federal, state and public involvement in the recovery planning and implementation process; clarifies the role of federal agencies in species recovery efforts; specifies deadlines for the completion of both draft and final plans; and provides for biological benchmarks to measure progress on the road to recovery.

Ensure the Use of Sound Science - The use of sound science has been highlighted by our reforms through the addition of peer review to listing decisions, new petition management guidelines, and increased information sharing with states. The bill's incorporation of peer review and enhanced state involvement recognizes the importance of these measures in decision making. Although we support the peer review requirement in the bill for listing decisions, we remain concerned that requiring that the National Academy of Sciences produce a list from which qualified experts are chosen is unnecessary and potentially costly and burdensome. We would suggest requiring that three, independent and qualified experts be chosen by the Secretary, in keeping with our current procedure.

Provide incentives and certainty for landowners - Many private interests are willing to help conserve species, but landowners and businesses need regulatory certainty upon which they can base long-term economic decisions. Such certainty is vital to encouraging private landowners to participate in conservation planning. The bill addresses one of the major concerns regarding conservation plans and the "No Surprises" policy by requiring monitoring of conservation plans to better assess their impacts on species conservation. S. 1180 also adopts a number of important Administration reforms, including our "No Surprises" policy, candidate conservation agreement policy and "no-take" agreement program, thereby providing incentives for public support and involvement in species conservation.

The Act has been criticized for inadvertently encouraging landowners to destroy wildlife habitat because they fear possible restrictions on the future use of their property if additional endangered species are attracted to improved habitat. S. 1180 incorporates the Administration's "Safe Harbor" policy, which removes the regulatory disincentive associated with enhancing habitat for endangered species and thus encourages pro-active conservation efforts. We interpret the language in the bill as being consistent with our Safe Harbor policy. This policy has already generated considerable success in the southeast where 20,000 acres have been improved as endangered red-cockaded woodpecker habitat under these agreements. Similar agreements are in place in Texas and are helping to restore the Aplomado falcon to Texas for the first time in 50 years. The bill also authorizes a number of incentive programs to encourage landowners to participate in species conservation, including conservation and recovery planning, that if adequately funded could greatly aid species conservation efforts.

Improve Governmental and Public Involvement - Involvement of other Federal agencies, states, the tribes, affected public landowners and environmental and scientific communities is key to endangered species conservation and has been a cornerstone of our 10 point plan. S. 1180 furthers this goal by enhancing public participation processes and by emphasizing State-Federal partnerships for endangered species conservation especially in the areas of recovery and conservation planning, as well as many others.

Eliminate threats to species - Species are conserved most efficiently and least expensively when we can remove threats facing them through conservation measures undertaken before they have declined to very low numbers. We can act before species require listing and before recovery options are limited, and sometimes expensive. This bill endorses our candidate conservation agreement initiative which encourages federal agencies and our partners to reach agreement on measures to conserve candidate and proposed species that remove threats to species and that can preclude the need to list these species in the future. The Department has a number of these agreements including an agreement in Utah which removed the threats facing the Virgin River spinedace and avoided the need to list this fish due to the efforts of local governments working closely with the Service. In the Midwest, a successful conservation agreement is bringing together the States of Kentucky, Illinois, and Indiana with the Farm Bureau and the coal industry to protect the copper belly watersnake.

A key factor leading to our support of this legislation has been the willingness of the sponsors to make a number of improvements since the January draft. The Committee leadership is to be commended for allowing technical comment and discussion upon the January draft and responding to many concerns that were raised through that process. For example, the bill no longer includes a water rights provision, which avoids changing the status quo on the interrelationship of the Act and state water laws, thereby minimizing conflicts between the Act and water projects in the West. The recovery section has been greatly improved by requiring that recovery goals be based solely on sound science. Then, within this biological context, social and economic factors will be considered as we work together to find ways to expeditiously achieve the species' recovery goal. Retaining the current emergency listing standard is appropriate since this is an extremely important tool in the very few crisis situations where we may need it. After thorough examination of the Section 9 take standard by your Committee, we are pleased to see that the bill has reaffirmed the current law. Your bill does not waive other environmental statutes and we commend you for this decision. Finally, the bill contains no compensation provision or other problematic property rights language; we would strongly object to such provisions.

These are all very positive parts of a bill that maintains and actually improves the essential protections and integrity of the Act while also seeking to make the Act work better for the affected public and landowners. I would now like to discuss the Administration's recommendations on the bill, which we believe are important to our ability to implement a comprehensive ESA.

Securing adequate funding to support this legislation will be the greatest challenge facing all of us. This legislation calls for an authorization level that is more than double the current resource agencies' ESA budgets. Even if this level of increase is realized in appropriations, we remain concerned that the cost and complexity of some of the changes, particularly process changes, may actually exceed the authorized levels. Without adequate appropriations, we will face significant litigation backlogs, and some species' recovery may be stalled. In addition, response and technical assistance to landowners, applicants, and federal action agencies will be delayed. Also, a number of agencies will require additional funds to adequately implement this bill because of increased responsibilities for land management agencies such as the Forest Service, the Bureau of Land Management and the Fish and Wildlife Service. In short, absent adequate funding or a reduction in the complexity of some of the processes, we can not support this bill.

The greatest strength of this bill is its increased emphasis on recovery, but this comes with additional requirements that will be expensive to implement and new deadlines that may be difficult to meet even with adequate funding. The bill should be amended directing the Secretary to develop and implement a biologically based recovery planning priority system using the biological priorities as set forth in S. 1180 as a template for this system. Also, the Administration would like to see the recovery process streamlined as explained below.

One method for streamlining the bill's process requirements is to consolidate the designation of critical habitat with the development of recovery plans. Although the bill allows for the regulatory designation of critical habitat at the time of recovery rather than listing, a significant improvement, we remain concerned that the cost and administrative burden of designating critical habitat by regulation in this bill is not warranted. Habitat is "the key" for all species and as such needs to be thoroughly addressed in all recovery plans. Continuing to carry out a regulatory critical habitat designation process simultaneously with the new recovery plan development process is duplicative and escalates costs for little resource or stakeholder benefit. Both processes include consideration of economic costs and provide for public participation. The two should be integrated into one process. We will be glad to suggest the necessary technical changes that would better incorporate this process into recovery planning and save time and money, while ensuring protection of species and habitat.

The bill provides that a Federal agency can go forward with an action if the agency makes a determination that the action is not likely to adversely affect the species and the resource agencies do not object. The bill provides an increased role for Federal agencies in species conservation by requiring inventories of species present on federally managed lands, recovery implementation agreements, and increased responsibility for their decisions under Section 7. We believe we can work with other agencies to make the new trigger and the plan consultations work well for the involved agencies, applicants and the resource. However, an endorsement of our recent practice of working together with other federal agencies early in the consultation process in a pro-active manner that is both more efficient and better for species conservation needs should be codified. Even where early coordination occurs, the bill could be read to require that action agencies wait an additional 60 days for resource agencies to object to their findings. Language that stresses the importance of early proactive coordination and cooperation among federal agencies and the ability of agencies to still request and receive expedite concurrence letters would alleviate these concerns.

Finally, I would like to urge that the spirit of cooperative discussion that produced this bill extend to the development of the Committee report, so that our mutual understandings of these complex issues are strengthened, not eroded, as the bill proceeds through the legislative process.

I am very encouraged that the Senate is moving forward to reauthorize the ESA. We in the Administration stand ready to continue to assist in any way possible in seeing the process through to completion. We are optimistic that we can reach closure on these issues before final consideration of this bill in the Senate so that the Administration can support its enactment. Together, we can make the Act work even better for species and people and get on with conserving our resources for future generations.