TESTIMONY OF CRAIG MANSON, ASSISTANT SECRETARY FOR FISH AND WILDLIFE AND PARKS, DEPARTMENT OF THE INTERIOR, BEFORE THE SUBCOMMITTEE ON FISHERIES, WILDLIFE AND WATER OF THE SENATE COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS, REGARDING THE DESIGNATION OF CRITICAL HABITAT UNDER THE ENDANGERED SPECIES ACT

 

April 10, 2003

 

Mr. Chairman, I appreciate this opportunity to testify today on the state of the U.S. Fish and Wildlife Service’s Endangered Species program as it relates to critical habitat designations.

 

Let me begin by saying that the Department of the Interior (Department) and the U.S. Fish and Wildlife Service (Service) are committed to achieving the primary purpose of the Act – the recovery of threatened and endangered species, and improving the efficiency and effectiveness of the Endangered Species Act (ESA).  We also believe that conservation of habitat is vitally important to successful recovery and delisting of species.

 

Designation of critical habitat has been a source of controversy and challenge for many years.  As I will point out in this testimony, simply seeking additional funding for this program is not the solution.  The Department and the Congress must work together to determine how to get the most value for species conservation out of the federal resources devoted to the endangered species listing program.

 

Background

 

For well over a decade, encompassing four separate Administrations, the Service has been embroiled in a relentless cycle of litigation over its implementation of Section 4 of the ESA.  The underlying premise of those cases has been a dispute between the Service and numerous private litigants over the proper allocation of the limited funds appropriated by Congress to carry out the numerous petition findings, listing rules, and critical habitat designations mandated under the rigorous deadlines in Section 4.  The Service now faces a Section 4 program in chaos – not due to agency inertia or neglect, but due to limited resources and a lack of scientific discretion to focus on those species in greatest need of conservation.

 

For many years the Service has been unable to comply with all of the non-discretionary deadlines imposed by Section 4 of the ESA for completing mandatory listing and critical habitat (listing program) actions within available appropriations.  The majority of private litigants have therefore repeatedly sued the Service because it has failed to meet these non-discretionary deadlines.  These lawsuits have subjected the Service to an ever-increasing series of court orders and court-approved settlement agreements, compliance with which now consumes nearly the entire listing program budget.  This leaves the Service with little ability to prioritize its activities to direct scarce listing resources to the listing program actions most urgently needed to conserve species.

 

Moreover, the accelerated schedules that often result have left the Service with almost no ability to confirm the scientific data in its administrative record before making decisions on listing and critical habitat proposals, without risking noncompliance with judicially-imposed deadlines.  Finally, it has fostered a second round of litigation in which those who fear adverse impacts from critical habitat designations challenge those designations.  This cycle of litigation appears endless, is very expensive, and in the final analysis provides relatively little additional protection to listed species.

 

Extensive litigation has shown that the courts cannot be expected to provide either relief or an answer, because they are equally constrained by the strict language of the ESA.  The Department of Justice has defended these lawsuits and sought to secure relief from the courts to allow the Service to regain the ability to prioritize the listing program according to biological need.  Almost universally, the courts have declined to grant that relief.  In 1999, the U.S. Court of Appeals for the Tenth Circuit held that the Administrative Procedure Act, 5 U.S.C. § 706, does not afford district courts with the discretion to refrain from ordering the Service to complete listing and critical habitat actions immediately when an absolute statutory deadline is being violated.  Following that decision, no district court has deferred to the Service’s system of prioritization and refrained from issuing an order where a deadline is at issue.  We have twice appealed decisions to the U.S. Court of Appeals for the Ninth Circuit in an attempt to obtain a ruling that the courts have discretion to decline to issue an injunction when the Service has failed, due to resource constraints, to comply with a listing program deadline.  Both attempts have been unsuccessful thus far.

 

Nevertheless, a number of courts are now recognizing the obvious – that there is a conflict between the ESA and the listing program appropriation, and that Congress has the ability to resolve this conflict.  For example, last year Judge Paul Kelly ordered the Service to make an overdue petition finding within 30 days.  Judge Kelly stated in his opinion in Center for Biological Diversity v. Norton, No. CIV 01-0258 PK/RLP (ACE), however, that:

 

The court recognizes that the Secretary is caught in a quandary.  Without sufficient funding or a change in the tasks required by Congress, the Service cannot fulfill the myriad of mandatory listing duties....  Lawsuits follow, requiring the Service to spend a greater portion of its already insufficient budget on litigation support....  More lawsuits will inevitably follow unless Congress recognizes the problem it has created and acts to solve the problem, either by appropriating additional funds, amending the time limits or by giving the Secretary the discretion to prioritize her workload.  Until Congress does, tax dollars will be spent not on or protecting species, but on fighting losing battle after losing battle in court.  The solution to this problem lies not with the courts, but with Congress.

 

Other courts have agreed with Judge Kelly.  Simply put, the listing and critical habitat program is now operated in a “first to the courthouse” mode, with each new court order or settlement taking its place at the end of an ever-lengthening line.  We are no longer operating under a rational system that allows us to prioritize resources to address the most significant biological needs.  I should note that it is a direct result of this litigation that we have had to request a critical habitat listing subcap in our appropriations request the last several fiscal years in order to protect the funding for other ESA programs.

 

The tension between the requirements of the listing program and resources is not new.  It is already clear that the next Administration will be affected, because even at this point, critical habitat budgets into Fiscal Year 2008 are being dedicated to compliance with existing court orders and court-approved settlement agreements.

 

In short, litigation over critical habitat has hijacked our priorities.  The Service’s listing program’s limited resources and staff time are being spent responding to an avalanche of lawsuits, and court orders focused on critical habitat designations.  We believe that this time could be better spent focusing on those actions that benefit species through improving the consultation process, the development and implementation of recovery plans, and voluntary partnerships with States and private landowners.

 

In the past, this Committee has proposed legislation, which the previous Administration supported, to move critical habitat designations to the recovery phase of the ESA.  We recognize that this is one of a number of potential solutions by which Congress could address this difficult problem.  We welcome the opportunity to work with the Committee to craft a solution that meets wide approval.

 

As I previously noted, this is not a new problem.  In previous testimony before this Committee, then-Director Jamie Clark noted that in 25 years of implementing the ESA, the Service had found that the designation of statutory critical habitat provided little additional protection to most listed species, while consuming significant amounts of scarce conservation resources.  It was based on these beliefs that the Service found in most cases designation of critical habitat “not prudent” under the ESA.

 

Like Clark, we believe that listing also invokes the Section 4 recovery planning process, the Section 9 protective prohibitions of unauthorized take, Section 6 funding to the States, and Section 7 Federal agency responsibilities.  The Service believes that it is these measures that may make the difference between extinction and survival for many species.

 

Most important, our efforts to respond to listing petitions, to propose listing of critically imperiled species, and to make final listing determinations on existing proposals are being significantly delayed.  There are species not yet listed in Regions or geographic locations where litigation support has and will continue to consume much of our funding resources.  For example in Hawaii, a single court order remanded 245 “not prudent” critical habitat determinations. 

Congress added the strict deadlines to the ESA to ensure that listing actions are completed in a timely manner.  However, absent some measure to allow for a rational prioritization of the workload based on a consideration of the resources available, those strict deadlines have instead led to our current untenable situation where high priority listing actions may be indefinitely delayed.  It cannot be overstated that managing the endangered species program through litigation is ineffective in accomplishing the purposes of the ESA.

 

The Listing/Critical Habitat Backlog

 

The Service has, in addition to the critical habitat designations already required by court order, 158 backlogged critical habitat actions.  There are also 257 candidate species on which the Service has enough information to propose listing, but listing is precluded by other, largely court-ordered, higher priority actions.  We also have about 40 yet-to-be-dealt-with petitions.  The listing backlog is too large to eliminate completely over a 1- or 2-year period.  The Department has asked for a substantial increase, of $3.3 million, for Fiscal Year 2004, but this increase would solely address expected court-driven obligations.  It would not help to address the backlog.  As of March 31, 2003, the Service litigation workload was as follows – 31 active lawsuits with respect to 32 species and 26 notices of intent to sue involving 27 species.

 

Economic Analysis

 

In contrast to the listing provision, Section 4(b)(2) of the ESA requires that the Secretary should take into consideration the economic impact of the critical habitat designation and any other relevant impacts before specifying any particular area as critical habitat.  Hence, an economic analysis is part of the process of designating critical habitat.  Section 4(b)(2) also provides a balancing mechanism – the Secretary is given broad discretion to consider the economic impacts of any proposed critical habitat designation and exclude areas where she finds that the benefits of exclusion outweigh the benefits of designation.  This requirement for balancing enables the Service to exclude an area (i.e., a critical habitat unit, or part of a unit) from a designation when the benefits of exclusion outweigh the benefits of inclusion, if the exclusion would not result in the extinction of the species.

 

In a case brought by the New Mexico Cattlegrowers Association, the Tenth Circuit Court of Appeals held that the Service must examine “all the costs of critical habitat whether or not they are coextensive with listing.”  The Service now requires that all economic analyses conducted for critical habitat designation apply this standard.

 

Habitat Protection and Critical Habitat Designation

 

It has been our view that areas not in need of special management considerations or protections are outside the definition of critical habitat.  For that reason, we exclude from critical habitat areas covered by plans that adequately manage for the species concerned.  In recent rules, exclusions have included lands covered by Department of Defense Integrated Natural Resource Management Plans, areas with active Habitat Conservation Plans approved by the Service or by the National Marine Fisheries Service, and those with other management plans, including those of private landowners.

 

We believe this policy is consistent with Secretary Norton’s cooperative approach to conservation.  With regard to critical habitat, as well as in other areas, we are continually working to find new and better ways to encourage voluntary conservation initiatives.  Cooperative conservation of fish and wildlife resources is critical to maintaining our Nation’s biodiversity.  A proactive, preventative approach based on incentives could harness the voluntary spirit of the public to help stem the tide of species extinction.

 

The Service currently has many conservation tools available which provide for close cooperation with private landowners, state and local governments, and other non-federal partners and that are particularly important in our implementation of the ESA.  For example, through the Candidate Conservation program, the Service can work with the states, landowners, and others to voluntarily conserve candidate and other declining species.  It is with these species that we have the greatest flexibility in supporting our mutual partners on proactive conservation actions.  Thus, a collaborative approach to conservation might result in removing the threats that necessitate listing.  Similar to preventative medicine that hopes to save patients from the need for expensive procedures, hospitalization, or even a trip to the emergency room, species can be protected by interested partners working with the Service before they need the protections of the ESA.

 

Conservation efforts on non-Federal property are also essential to the survival and recovery of many listed endangered and threatened species.  The majority of the Nation's current and potential threatened and endangered species habitat is on property owned by non-Federal entities. The Service strongly believes that collaborative stewardship involving the proactive management of listed species is the best way to achieve the ultimate goal of the ESA – that is, recovery of threatened and endangered species.  The recovery of certain species can benefit from short-term and mid-term enhancement, restoration, and/or maintenance of terrestrial and aquatic habitats on non-Federal property.

 

Safe Harbor Agreements (SHA) provide a means to garner non-Federal property owners’ support for species conservation on their lands.  They allow for flexible management by providing assurances to private landowners who implement conservation measures for listed species that their actions will not lead to additional ESA restrictions.  SHAs have contributed significantly to the conservation of the red-cockaded woodpecker in the southeast as well as other species inhabiting private lands.

 

Through other programs such as the Landowner Incentive Program, the Service provides financial assistance to partners interested in implementing conservation actions that benefit listed and other imperiled species on non-Federal lands.  These programs reflect our belief, mentioned above, that the conservation of listed species and their habitat depends on the cooperative participation of non-federal partners.  These programs, which require non-federal cost-sharing participation, reflect our strong commitment to conservation through cooperation, communication, and consultation with our private, state, and other non-federal partners.

 

The Habitat Conservation Planning Program provides a flexible process for permitting the incidental take of threatened and endangered species during the course of implementing otherwise-lawful activities.  The program encourages applicants to explore different methods to achieve compliance with the ESA and to choose the approach that best meets their needs.  Perhaps the Program’s greatest strength is that it encourages locally developed solutions to listed species conservation while providing certainty to permit holders.  Through this process of consultation and cooperation with our partners, the Program helps provide for the conservation of listed species on non-federal land throughout the country.

 

These tools are important in our implementation of the ESA.  As noted above, we view lands where these programs provide for species conservation and management as not in need of critical habitat designations.

 

However, a recent court case in the District of Arizona has cast doubts on our policy to exclude these lands from critical habitat based on these types of agreements and plans.  In a case relating to Forest Service lands, the U.S. District Court in Arizona ruled that this interpretation is incorrect, and found that the fact that lands require special management necessitates their inclusion in, not exclusion from, critical habitat.

 

Although the decision is limited to the jurisdiction of that court, it may negatively impact our future ability to use this policy elsewhere.  The Service uses other methods besides this policy.  For example, Section 4(b)(2) of the ESA allows the Department to exclude areas if the benefit of exclusion outweighs that of inclusion as long as it does not result in the extinction of the species.  However, our possible inability to exclude lands with approved conservation agreements from critical habitat could serve as a powerful disincentive for landowners to enter into such agreements.

 

I would also note that this policy has been applied to military lands with an approved Sikes Act Integrated Natural Resources Management Plan which addresses the needs of the species in question.  As discussed in testimony before the Committee last week, the Administration has proposed codifying the policy on excluding military lands from critical habitat based on these plans to reduce future litigation and challenges and provide more flexibility to the Department of Defense.

 

Summary

 

The present system for designating critical habitat is broken.  A process that provides little real conservation benefit consumes enormous agency resources and imposes huge social and economic costs. Rational public policy demands serious attention to this issue in order to allow our focus to return to true conservation efforts.  We are prepared to work with Congress to identify ways of providing necessary legislative relief.    

  

Mr. Chairman, this concludes my prepared testimony.  I would be pleased to respond to any questions you and other members of the Subcommittee might have.