Testimony of Steven N. Moyer
Vice President of Conservation Programs of Trout Unlimited
On Listing and De-listing Processes of The Endangered Species Act
before the Subcommittee of Fisheries, Wildlife, and Water of the Senate Environment and Public Works Committee
May 9, 2001
Mr. Chairman, members of the Subcommittee, I appreciate the chance to appear today to give you the views of Trout Unlimited (TU) on the listing and de-listing processes of the Endangered Species Act (ESA).
TU is a national fisheries conservation group dedicated to the protection and restoration of our nation’s trout and salmon resources, and the watersheds that sustain those resources. TU has over 130,000 members in 500 chapters in 38 states. Our members generally are trout and salmon anglers who voluntarily contribute substantial amounts of their personal time and resources to aquatic habitat protection and restoration efforts. Because of the declining populations of native trout and salmon in many areas, our members increasingly rely on provisions of the ESA to protect trout and salmon and their habitats. TU supports the ESA and considers the ESA to be one of the nation’s most important laws for protecting and restoring trout and salmon populations.
The Subcommittee has asked our views on the listing and de-listing processes of the ESA. To summarize, TU believes that the listing and de-listing processes, as written in the law, are fundamentally sound. Implementation of the processes by the U.S. Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS) is slowed unacceptably because of huge listing backlogs and insufficient funding. Implementation of the listing process clearly needs to be improved, but in our view, the solution to the problem is not to weaken the process legislatively or administratively, but rather it is for the Bush Administration to propose, and Congress to appropriate, additional funding for listing. In our experience, applying sound science to listing and de-listing decisions is not a substantial problem. If anything, the Services bend over backwards to check the science and give interested parties a thorough chance to comment on it.
We understand that there is considerable concern about the amount of litigation over species listing and designation of critical habitat. However, we don't support the current Bush Administration proposed solution to, among other things, restrict citizen lawsuit enforcement of listing deadlines. Simply restricting – or slowing down – the listing process could jeopardize a number of species that should be listed, such as the California golden trout, which is faced with extinction. Finally, we must take the opportunity to urge the Subcommittee to get at the root problem of insufficient funding and support conservation initiatives which would actually reduce the need to list species, for example pass the Conservation and Reinvestment Act and Fishable Waters Act, and provide more funding for conservation programs under the Farm Bill.
The ESA list is getting long, and ESA is getting more controversial, in large part due to declining fish and other aquatic populations around the nation.
If the Subcommittee is looking for root causes of listing problems, consider these facts. Fish and other aquatic species are in bad shape in many places in the U.S. A recent American Fisheries Society study found that over one third of all aquatic species are endangered or imperiled. The Forest Service’s Forest Ecosystem Management Assessment Team (FEMAT) Report explicitly highlighted the fact that more than 100 stocks of Pacific salmon have become extinct since European settlement of the West, and emphasized that 314 stocks just within the range of the spotted owl were at risk of extinction.
Populations of species that are vital to sport and commercial fisheries are reaching threatened and endangered status. Thirty three salmonid species have already been listed (see attached list), including Atlantic salmon from the rivers of Maine, the bull trout of the intermountain west, and numerous stocks of Pacific salmon. Increasingly, the success of the ESA will be linked to the fate of these once-abundant sportfish species, especially the salmonids of the western U.S.
The ESA listing and de-listing processes are fundamentally sound as written in law and do not need major revision.
In the ESA, Congress wisely stated that the decisions to list or to de-list species are to be based solely on the best available science. In reality, there can be no other standard. The decision to list is, and should be, a question of biology, not politics or economics. Once a species is listed, there is flexibility in other parts of the Act, for example, in Section 10, which allows the taking of endangered species by private landowners pursuant to habitat conservation plans. Where conflicts between species and economic activity rise to regional or national significance, there is an exemption provision.
In our experience, the Services generally have used this authority appropriately. We have had disagreements with the agencies over their interpretations of science pertaining to listing, but in the main they have done a respectable job. If anything, the thoroughness with which the Services have conducted their scientific reviews has sometimes made the listing process frustratingly slow. For example, it took the Services five years to complete the listing of Atlantic salmon in part because of the rigorous scrutiny they applied to salmon genetic data and studies. During this time salmon numbers have plummeted to an estimated 200 to 300 wild fish.
Similarly, ESA’s mandate to protect distinct population segments is a wise, essential conservation tool, especially for species such as trout and salmon, which consist of an array of populations, like fibers in a tapestry, that give resilience and strength to species. These populations provide the genetic fitness that species need to survive the vagaries of weather, environmental changes, and human-contrived obstacles that threaten them. The individual trout and salmon populations, which are the evolutionary legacy of species adaptation to site-specific habitat conditions, each contain the ingredients necessary for overall species survival. From a biodiversity and long-term species persistence standpoint, native salmon, steelhead, and resident trout at the population and sub-population level are irreplaceable.
Therefore, it is entirely appropriate to review the current endangered species list and to find 9 chinook Evolutionarily Significant Units (ESUs) and 10 steelhead ESUs. The ESU is NMFS’ attempt to manage the ESA distinct population segment mandate in a practical way that is biologically defensible. Conservationists would generally like to see NMFS segment-out distinct populations within each ESU even more so than they have done. Conservationists were critical of NMFS’ lumping of Snake River winter and spring runs into one ESU when that determination was made in 1992, for example. But while we don’t always agree and we will continue to debate the biological and legal merits of these issues, we respect that the agencies have a difficult job in making these decisions and they are trying hard to do them well.
Implementation of the listing process needs improvement, but the answer is more funding and more aggressive tackling of the backlog, not restricting citizen enforcement of deadlines.
In our view, the most relevant listing issue is not inadequate or flawed scientific basis for listing decisions, but rather inadequate funding to get species listed that need the help that only the ESA can provide. In its FY 2002 budget justification proposal, the FWS provides helpful detail about the bind it is in regarding court ordered steps in the listing process, its failure to address the listing needs of some species not in the court-ordered pipeline, and the limited funding it has to address its needs. Unfortunately the solution offered by the agency and the Bush Administration is a mere $2 million funding increase to a wholly inadequate $8 million base budget for listing, and a plan that would among other things limit the ability of conservationists to go to court and enforce mandated ESA deadlines to save species.
The answer is not to limit access to courts but rather to fund the listing program. We recommend at least a doubling of the agency’s listing budget to not only address the court ordered backlog, but also to allow the FWS the flexibility it rightfully seeks to start the listing process for species that need ESA protection now.
Regarding listed trout and salmon, the de-listing process is not a problem.
Unfortunately, there are no listed trout and salmon that have been restored sufficiently to trigger the ESA de-listing process. This is not to say that the ESA has failed these species. In fact, listing has generally helped greatly, as I have detailed below. Greenback cutthroats and Apache trout are the closest to achieving their recovery targets, but in no way should their recovery be shortchanged. We want conservation programs in place that will last, not short-term fixes that may yield ephemeral results and a quick trip back on the list.
Listing of trout and salmon has benefited all listed species, some much more than others, but nonetheless all have received attention and funding that they might not otherwise receive.
The ESA has been effective for protecting and at least partially restoring species where it has been faithfully implemented and where political decisions have not undercut implementation, such as Apache trout and greenback cutthroat trout. These two species have been brought back from the brink of extinction to the point where restrictive, well-managed sport fisheries are occurring, providing valuable income to local and tribal economies in Colorado and Arizona. These species are not recovered yet, but they are no longer at critically low levels.
The state of Maine had failed to take steep declines in Atlantic salmon populations seriously enough until a petition started the listing process in 1994. Only after the Services proposed Atlantic salmon for listing did the state forge a conservation plan that, while it had some merits, did not provide what was needed for real salmon recovery. Following the listing of salmon in 2000, the state and the Services are working harder and better than ever before to keep wild salmon from going extinct, and hopefully some day, returning the fish to its rightful place as a the most sought after sportfish species in New England.
Snake River salmon have continued to decline since their listings in 1992, but their path to oblivion is no longer taken in relative silence. Saving Snake salmon is now a national imperative, the stuff of Presidential campaigns and an integral part of Pacific Northwest’s resource debates.
Even for species for which petitions have been filed but are as yet unlisted – e.g., golden trout – the threat of listing helped get action. TU’s petition to list the golden trout has prompted California’s Department of Fish and Game to address the fact that their fish stocking program was causing hybridization of native golden trout. It has also encouraged the Forest Service to address the grazing program on allotments that were harming golden trout habitat.
Finally, the 1999 emergency listing of Jarbidge River bull trout distinct population segment was an especially positive example of a listing that TU was directly involved in. In the Jarbidge case, federal agencies responded aggressively to a very specific resource problem facing the southernmost remaining bull trout population in the continental United States. The emergency listing process, rarely used in the history of the ESA, was completed for this listing within a year. This shows how quickly decisions can be made when the FWS aggressively presses the listing process.
The ESA’s burgeoning list of species tells us that other government laws and policies are failing. Don’t shoot the messenger! Fix the other programs!
ESA listing and protection is necessary to protect and restore many salmonid species because other federal, state, and local conservation laws and policies have failed. Our assessment of the causes of the declines that justified the listing of 34 salmonid species showed that other federal laws had failed to conserve the species, including the National Forest Management Act, the Northwest Power Planning Act, implementation of the U.S./Canada Salmon Treaty, and the Clean Water Act. State conservation laws and policies have also contributed to declines, including stocking of nonindigenous species that has adversely affected greenback cutthroat as well as golden, Lahontan cutthroat, Gila, and Apache trout. If the impacts of declining fish stocks and ESA are a problem for the nation -- and clearly they are -- then let us fix what needs to be fixed. The ESA is merely the messenger telling us that other policies are not working. Therefore, efforts to place blame upon the ESA are misplaced.
Good proposals are before Congress now that could help conserve species and keep them off the list.
TU does not believe that conservation begins and ends with the ESA. Our members are deeply involved in conservation efforts with communities, states and federal agencies. There are at least three bills before the Senate that could help to greatly improve partnerships and funding for conserving species, namely the Conservation and Reinvestment Act (HR 701), the Fishable Waters Act (S. 678), and the Farm Bill Conservation programs which are set to be reauthorized by 2002. I urge the Subcommittee to look carefully at these measures and to support them. The swelling endangered species list tells us that much more needs to be done proactively to protect and restore species and their habitats. Passing legislation such as these items helps to get at the heart of the problem.
Remember Aldo Leopold’s admonition to save all the pieces.
Aldo Leopold, the father of wildlife conservation, spoke eloquently in his landmark book, A Sand County Almanac, of the importance of species diversity and need to keep all the parts of an ecosystem to keep it healthy. TU has embraced Leopold’s philosophy and has made conservation of native trout and salmon a high priority for our organization. Listing species under the ESA goes to the heart of saving all the parts and ensuring species diversity. We urge the Subcommittee to support measures that strengthen the listing process, such as increased funding for it, and oppose measures that would legislatively or administratively weaken it.
Atlantic salmon- Endangered- Gulf of Maine
Apache trout- Threatened- entire range
Bull trout- Threatened- lower 48 states
Chinook salmon- Endangered- Sacramento River; winter run
- Threatened- Snake River, mainstem and subbasins; fall run, natural pop.
- Threatened- Snake River, mainstem and subbasins; spring/summer run,
- Threatened- WA, all naturally spawned populations in river and streams flowing into Puget Sound
- Threatened- Columbia River and its tributaries to Willamette Falls, OR, natural pop.
- Threatened- Clackamas River and Willamette River above Willamette Falls, natural pop.
- Threatened- various tributaries of Columbia River, natural pop.; also some hatchery populations and their progeny
- Threatened- Sacramento San Joaquin River, mainstem and tributaries, spring run, natural pop.
- Threatened- CA, Redwood Creek south to Russian River, mainstem and tributaries, natural pop.
Chum salmon- Threatened- Columbia River, mainstem and tributaries, natural pop.
- Threatened- Hood Canal and tributaries, Olympic Peninsula rivers
between Hood Canal and Dungeness Bay; summer run, natural pop.
Coho salmon- Threatened- streams between Punta Gorda, CA and San Lorenzo River,
CA, natural pop.
- river basins between Cape Blanco, OR and Punta Gorda CA, natural pop.
Gila trout- Endangered- entire range
Greenback cutthroat trout- Threatened, entire range
Lahontan cutthroat trout- Threatened, entire range
Little Kern golden trout- Threatened, entire range
Paiute cutthroat trout- Threatened, entire range
Sockeye salmon- Endangered- Snake River
- Threatened- Ozette Lake, WA and tributary streams, natural pop.
Steelhead- Endangered- from Santa Maria River, CA to Malibu Creek, CA
- Endangered- Upper Columbia Basin, Yakima River to US/Canada border
- Threatened- Sacramento and San Joaquin Rivers and tributaries
- Threatened- Snake River Basin
- Threatened- Russian River to Aptos Creek, CA, drainages of San
Francisco and San Pablo Bays
- Threatened- streams and tributaries to Columbia River
- Threatened- Pajaro River to Santa Maria River, CA
- Threatened- Willamette River, winter run
- Threatened- above Wind River, WA, and above Hood River, OR to
Yakima River, excluding the Snake River
- Threatened- Redwood Creek to Gualala River, CA