Statement of the Honorable James A. McClure, Chairman
National Endangered Species Act Reform Coalition
Hearing Regarding S. 1180, the Endangered Species Recovery act of 1997
before the Senate Committee on Environment and Public Works
September 23, 1997

Mr. Chairman, Senator Kempthorne, Senator Baucus, Senator Reud and other members of the Committee, I appreciate this opportunity to appear before you today as you consider legislation to reauthorize the Endangered Species Act. I come before you to share the perspective I gained as an active participant in the Senate debates regarding enactment of the original Endangered Species Act of 1973, as well as subsequent debates on reauthorization and amendments. I also appear here today, more specifically, as a representative of those who are directly affected by the Endangered Species Act.

I especially want to extend my congratulations to the chairmen and ranking members of the full Committee and the Subcommittee on Drinking Water, Fisheries and Wildlife for their efforts in drafting S. 1180, the bill we are here to discuss today. Their diligence, patience, good faith and hard work are to be commended. As one who served 24 years in the Senate and the House of Representatives, including a number of years on this Committee, I know that your efforts toward bipartisanship and consensus represent a very appropriate method, and perhaps the only successful method, for dealing with the difficult issues that surround reauthorization of the Endangered Species Act. We must recognize that consensus legislation, by its very nature, will not provide all things to all people, but often times does provide an opportunity for real change, and in this case improvements, to current law.

There is a temptation in long struggles like efforts to reauthorize the ESA to say "enough is enough, we have fought long enough." While I understand this sentiment, it should not be allowed to override the need to find solutions to the problems that gave rise to the struggle in the first place. Long after action is taken on the legislation before us today, the Endangered Species Act will continue to affect thousands of species and millions of Americans, so we must not shy away from making the difficult choices associated with this issue. It is our hope and belief that the ESA can work to protect species better without causing unfair or unjustified disruption in the lives of individuals and communities directly affected by the requirements of this law.

That is the challenge that faces each of us appearing before you today. We must cast aside the emotions of the legislative struggle and make good judgments that will recast the Endangered Species Act in ways which will allow the ESA to withstand the test of time and the strain of more species listings. We are certain that more communities will be brought into the world of ESA decision making. The challenge facing you in this reauthorization is to ensure that they are brought into a process that is more positive, more certain and more constructive in the preservation of species and economic necessity than the decision making process our communities face today. When the process is more fair, private individuals and state and local governments will become more active and dedicated partners in the effort to conserve species and their habitat. The ultimate beneficiaries of this partnership will be the endangered and threatened species themselves.

Mr. Chairman, I currently serve as Chairman of the National Endangered Species Act Reform Coalition (NESARC). The membership of the Coalition consists of more than 200 organizations representing diverse sectors of the economy including agriculture, water districts, manufacturers, electric utilities, builders, municipal government, small businesses and individual land owners. Some of our members are themselves coalitions or organizations representing large numbers of individuals, such as the American Farm Bureau Federation, the National Rural Electric Cooperative Association, and the National Association of Home Builders. The Coalition represents, directly or indirectly, millions of individuals whose livelihoods and property are affected by the implementation of the Endangered Species Act. It is important to note that no one has a greater interest in providing for the recovery of threatened and endangered species than the members of this coalition, for when a species is recovered, it can be removed from the list and regulatory restrictions can be lifted.

The primary purpose of my testimony today is to present the initial views of the Coalition on S. 1180, the Endangered Species Recovery Act of 1997. By necessity, our views will be preliminary. Our coalition members are reviewing S. 1180 which was introduced just one week ago and a more detailed review of the bill is underway. Before addressing the bill, however, I would like to call the attention of the Committee to testimony I delivered just over three years ago to the subcommittee now chaired by my friend and fellow Idahoan, Senator Dirk Kempthorne. My testimony in 1994 outlined my views, as one who voted in favor of the Endangered Species Act of 1973 and subsequent amendments to the Act, regarding the intent of Congress when it established this very important program to conserve our biological resources nearly a quarter century ago. I recently reviewed this statement, and I find it to be as relevant today as it was three years ago. Mr. Chairman, I would be pleased to provide a copy of this statement, and I request that you include it in the record of this hearing.

NESARC Position on S. 1180

I will state the position of NESARC regarding S. 1180 in two parts. First, NESARC supports S. 1180; and second, we also urge certain improvements to the bill. We believe the consensus-based approach the authors of this bill have undertaken is the only way to move ESA reauthorization legislation in the Senate at the present time. We support this approach and the legislation it produced. At the same time, this Coalition, since its inception almost six years ago, has taken clear, consistent and strong positions on a number of key issues. While S. 1180, as a compromise measure, does not fully address all of our priorities in the manner we prefer, it does recognize that the ESA is in need of significant improvements and seeks to address the need for better scientific processes, greater citizen participation in ESA decision making and more incentives for cooperative conservation efforts. S. 1180 is a positive change in the law, and we urge the committee to act favorably upon it. Additionally, we urge the Administration, which has sought to make this law work better, to support the legislation.

Along these lines, I wish to commend to this Committee another bill that Senator Kempthorne has introduced, S. 1181, the Endangered Species Habitat Protection Act. This legislation provides land owners with a number of important incentives which give them a real reason to want to join in the effort to conserve the habitat of endangered and threatened species. This bill would codify several notable tax incentives and, perhaps more significantly, provide compensation to those who suffer partial regulatory takings. Mr. Chairman, it is simply not fair to take people's property that is, to destroy the value of their property, in whole or in part without compensation. NESARC strongly believes that there must be a reliable mechanism to compensate property owners who suffer full or partial regulatory takings. I urge the members of this Committee to consider with a fair and open mind how greatly this kind of compensation program would assist in the important task of protecting this country's biological diversity. I urge the members of this Committee to support S. 1181.

I will now turn to NESARC's specific concerns with respect to the Endangered Species Act and the steps S. 1180 takes to address our concerns.

Citizen Participation

We believe that private citizens, and especially those most directly affected by conservation measures in a social or economic manner, should have a greater stake and more prominent role during ESA decision making. S. 1180 includes a number of very positive reforms in this area which NESARC supports strongly. I might add that, in my view, this is one area in which we share considerable common ground with environmental advocacy groups.

In particular, NESARC supports the following reforms, which are contained in S. 1180:

-- More opportunities for public hearings on listing decisions and recovery plans.

For some time, the members of NESARC have called for public hearings on recovery plans which should be the heart of recovery efforts. Public notice and hearings will assist in investing communities in our nation's efforts to conserve species. Under S. 1180, recovery planning and critical habitat designations occur concurrently. We suggest that the Committee consider adding new language to call for hearings on critical habitat designations. Alternatively, the legislation, which appears to provide for critical habitat designation "after consultation and in cooperation with the recovery team," could further provide that the required hearings on recovery plans also must address critical habitat designations.

-- Making information on which conservation decisions are based publicly available.

S. 1180 includes a clarification regarding the circumstances under which the Secretary may withhold information to prevent acts of vandalism. On this point, NESARC believes the legislation should include stronger language clearly stating that the public should have a right to this information unless the Secretary presents evidence that the information must be withheld.

-- Inclusion of a broader range of interests in the recovery planning and implementation process, and inclusion of the applicant during a section 7 consultation.

-- A greater role for states and local governments during major ESA processes, particularly listing and recovery planning and implementation. In particular, we find the increased role of states to be a positive improvement in the law.

We recognize that the recovery team, which includes a representative of an affected state agency, recommends the designation of critical habitat. Nevertheless, we would support a stronger statement of the Secretary's duty to cooperate with states or consider state information at time of critical habitat designation, as well as provide recommendations during the peer review process.

Finally, I want to make a broader statement regarding the public's right to know. Under current law, the Secretary must publish a notice of certain actions in the Federal Register and a newspaper of general circulation. While this may be sufficient notification for some, most common folk don't read the Federal Register or the legal notice section of the newspaper. For this reason, too often actual notice to affected parties does not occur.

We believe it is possible to develop, on a consensus basis, a mechanism to provide the public better notice of ESA actions. We recommend a system of mailed or electronic notification for those who request to be placed on a notice list, similar to an existing mechanism that the Army Corps of Engineers administers with respect to the wetlands program.

Good Science

To ensure fair, sensible and biologically effective ESA actions, scientific information must be as accurate and as thorough as possible. S. 1180 includes a number of very good reforms to ensure the use of high quality scientific information and we strongly support these reforms:

-- Greater weight for data that is empirical, field-tested or peer-reviewed.

The bill qualifies this preference by applying it only "when evaluating comparable data." While this may be a matter of semantics, we see no need to qualify the preference for better scientific information.

-- Minimum documentation standards for petitions to change the listing status of the species.

-- Automatic peer review of listing decisions and the recovery goal.

NESARC recommends two additional peer review reforms. First, states should have the option of appointing the recovery team. Second, NESARC supports peer review of critical habitat designations.

Incentives to Conserve Habitat

Most of the habitat of endangered and threatened species occurs on non-federal lands. The owners of these lands must participate fully in conservation efforts to ensure the survival and recovery of threatened and endangered species.

Unfortunately, some still believe that the best way to provide for the participation of our private citizens and land owners is to establish even more restrictive land use and management programs at the federal level and to threaten land owners with punishment, including severe criminal penalties, if they do not manage their own land exactly as the federal government dictates. The members of NESARC take a different view.

We believe that conservation is enhanced when the nation's endangered species program not only calls for strict, legalistic compliance with federal standards, but also wins the hearts and minds of those who make the day-to-day decisions regarding the land that serves as habitat. Private land owners are the first line of defense for threatened and endangered species. Imperiled species are best protected when land owners are full partners in the programs and decisions that affect the value and use of their property. This only can be achieved through more positive, not negative, incentives.

S. 1180 provides these kinds of positive incentives in a number of ways, including:

-- A "no surprises" policy, assuring land owners that if they enter into an agreement with the federal government to conserve habitat, the government cannot break that deal at a later time without the land owner's consent. If land owners cannot receive this simple assurance that the agreements they make with the government are binding, they will be less likely to enter into voluntary agreements to conserve habitat.

-- A "safe harbor" policy to provide incentives for private land owners to proactively restore habitat, actually expanding areas available for threatened and endangered species.

-- Low effect habitat conservation plans, encouraging small land owners and others who may take actions having a negligible effect on the species to work with the Fish and Wildlife Service or National Marine Fisheries Service as they do so.

-- Multiple species conservation plans and candidate conservation agreements, providing an opportunity and incentive for private land owners to work more proactively to conserve species before they reach threatened or endangered status.

-- A habitat reserve program, similar to the existing conservation reserve program, to provide a direct monetary incentive to conserve habitat, particularly for farmers, without requiring loss of title to property or involuntary conversion of property uses.

Mr. Chairman, many of the reforms I have just described have been developed administratively over the past few years. This coalition does not support every action of the Clinton Administration with respect to the Endangered Species Act, however, we want to acknowledge that the Administration has worked hard to make this Act work in a more positive and cooperative fashion in the area of habitat conservation plans.

Cost Effective Recovery Plans

Recovery plans can be very expensive to develop and implement. In the past, the Services have occasionally attempted to document their own costs associated with a recovery plan, but they did not systematically consider the costs to other parties such as the individuals and organizations NESARC represents.

When choosing between a number of alternative recovery plans that achieve recovery within a reasonable amount of time, we believe the Secretary should be required to approve and implement the least costly or most cost efficient recovery plan. Frankly, I cannot see any principled basis upon which to oppose this common sense notion.

S. 1180 includes a number of methods to improve the recovery planning and implementation process. NESARC notes the following significant improvements to current law:

-- Representation of those who are socially or economically impacted on the recovery team.

-- The requirement that both the recovery team and the Secretary achieve an "appropriate balance" among the effectiveness in achieving recovery, the time to achieve recovery, and social and economic impacts.

On this point, we believe that S. 1180 could provide stronger encouragement for the Secretary to approve only least costly or most cost efficient recovery measures among reasonable alternatives.

-- The requirement of a detailed description of the economic effects of a recovery measure.

Mr. Chairman, S. 1180 requires the Secretary to give priority to recovery plans that have certain characteristics. For example, the Secretary would be required to give priority to recovery plans that "reduce conflicts with construction, development projects, jobs or other activities," as well as to plans that "have the greatest likelihood of achieving recovery of the endangered species or the threatened species," among other things. On its face, we view this language as positive. Based on my years of experience as a legislator, however, I want to recommend that the authors of this legislation clarify their intent.

We believe this language is intended to ensure that the Secretary determine whether a recovery plan meets each one of the criteria specified. Too often in the past, when Congress has required the Secretary to consider economic factors, the agency has ignored Congressional intent by arguing that the conservation values expressed elsewhere in the Act are more important. We believe that you, the authors of this bill, did not intend that result in this case, and we would recommend minor changes in the legislative language to reflect that intent.

Shared Burdens

Just from reading the "findings and policy" section of the ESA, one might conclude that the ESA calls for "encouraging" states and private parties, through a system of incentives, to implement a program to conserve fish, wildlife and plants "for the benefit of all citizens." In practice, those who live in certain areas, particularly rural areas and the West, and those who work in natural resource intensive businesses, bear the brunt of the costs to implement the ESA.

It is the residents of these areas that, by engaging in perfectly legal activities that are necessary to meet our nation's needs for power, water, food, and other goods and services, are most affected by the Endangered Species Act. I refer to those men and women who engage in such activities as the farming and ranching from which we get our food; harvesting the timber which is necessary for, among other things, construction of new houses; building the homes in which we live, the markets where we shop and the businesses where we work and earn our pay check; and generating and transmitting the electricity without which artificial lights -- not to mention our voice mails, facsimiles and computers -- would not exist.

Protecting endangered species is an endeavor in which we engage for the benefit of all people. If additional costs associated with conservation efforts are imposed on specific activities, we believe the costs of species protection should be shared more even handedly. In this respect, S. 1180 includes a number of programs through which grants may be made available for those seeking to implement conservation measures. We urge the Committee to continue to support these programs, and we also urge the members of the Committee to work to ensure full funding of these programs in the appropriations process.

Water Rights

The water law of the various states is a complex matter that often establishes property rights to water. There are significant problems and concerns associated with this area of the law as it relates to the Endangered Species Act. Maybe some of the controversy and conflicting decisions can be addressed through the improvements made by S. 1180. NESARC urges the Congress to take action to ensure that the Endangered Species Act is in harmony with, and recognizes the primacy of, state water law.

Consultation

NESARC supports provisions in S. 1180 that require reasonable and prudent alternatives to be consistent with the action that is the subject of consultations; within the scope of the federal agency's legal authority and jurisdiction; and economically and technologically feasible. NESARC also supports the requirement that reasonable and prudent measures be related both in nature and extent to the proposed activity that is the subject of the consultation. I strongly believe that these provisions represent the original intent of Congress when it codified and amended section 7. Obviously, they represent the intent of the four original cosponsors of this bill.

NESARC appreciates the provisions of S. 1180 that allow the action agency to determine, in certain limited situations, that a proposed action is not likely to adversely affect listed species. We believe S. 1180 contains more than adequate safeguards to ensure the biological integrity of this process. Frankly, we would support broader reforms than this, but this amendment will help eliminate unnecessary paperwork and administrative costs for certain low impact activities.

Finally, NESARC supports provisions to:

-- encourage consolidated consultations where more than one agency is involved;

-- encourage consolidated consultations where a single agency proposes more than one action; and

-- provide, in the event of a newly listed species, only as much disruption of previously approved plans and activities as is strictly necessary to allow consultation regarding that species.

Definition of "Take"

It consistently has been the position of NESARC that Congress intended the Endangered Species Act to prohibit direct "takes" of endangered species, as the word "take" traditionally has been understood in the common law dealing with game and wildlife. In other words, we believe the ESA originally was intended to prohibit activities directed toward an identifiable member of certain species, not perfectly legal land use actions that may happen to have some indirect impact on species. Accordingly, we have supported amending the definition of "take" to clarify that habitat modification is not a "take," so long as there is no direct action against an identifiable member of the species.

We understand that the original cosponsors of S. 1180 could not come to an agreement that would address the legality of habitat modification. We simply note for the record that our views on this subject have not changed.

We do support provisions in S. 1180 that require the Secretary and others to establish, using scientifically valid principles, that an action actually would cause a "take." Unfortunately, in certain instances, we believe that some persons -- especially small land owners who cannot easily afford a lawyer -- have been pressured into paying unreasonable mitigation costs as a condition for an incidental take permit for an otherwise lawful activity, without an adequate demonstration of the risk of an actual "take." It appears that S. 1180 would require verification of a "take" before demanding mitigation or bringing an enforcement action, and we support this provision.

Citizen Suits

In the past, NESARC has taken the position that our members should not be excluded from court based on our point of view. Specifically, NESARC opposed decisions of some courts, particularly those in the ninth federal circuit, that held that parties alleging economic injuries had no legal standing to bring a citizen suit under the Endangered Species Act. This issue is no longer part of our legislative agenda because of the Supreme Court's unanimous decision in Bennett v. Spear. The Supreme Court's decision in that case completely vindicated our point of view, and we support the decision of the authors of S. 1180 not to offer new legislative language to address this issue.

Conclusion

Mr. Chairman and members of the Committee, thank you again for this opportunity to testify on behalf of NESARC. We commend the efforts of Senators Kempthorne, Chafee, Baucus and Reid, and their staff, to draft S. 1180. In our view, S. 1180 would bring needed balance to ESA decision making. Enactment of the legislation would improve significantly ESA scientific and public involvement processes and provide incentives for cooperative agreements. S. 1180 represents a significant improvement in the law. We support the bill, and we urge favorable action on the legislation by this Committee and the full Senate.