U.S. Senate Committee on Environment & Public Works
U.S. Senate Committee on Environment & Public Works
Hearing Statements
Date:   06/25/2003
Sen. Michael D. Crapo, of Idaho
Consulting process required by Section 7 of the Endangered Species Act.

Good morning and welcome. Today, the Subcommittee on Fisheries, Wildlife and Water will examine the process of Section 7 consultation under the Endangered Species Act. Senator Domenici has been kind enough to join us this morning to discuss some rather serious problems with regard to Section 7 and the Endangered Species Act in New Mexico. Senator Domenici must chair a hearing at 10 a.m. so I’d like to quickly move through our opening statements so that Senator Domenici can get to his hearing on time.

Section 7(a)(2) of the Endangered Species Act requires federal agencies to consult with either the U.S. Fish and Wildlife Service or the National Marine Fisheries Service to “insure that any action authorized, funded or carried out by such agency is not likely to jeopardize the continued existence of any endangered species or threatened species…”

Since 1986 when the Fish and Wildlife Service and National Marine Fisheries Service published their joint consultation regulations (50 C.F.R. Part 402), the consultation process has mushroomed into a lengthy and expensive procedure that is increasingly burdening all the agencies required to participate in it. To begin with, the size of the program has grown beyond what anyone ever imagined since 1986. More than 900 species have been added to the list since then.

There is another very significant reason that consultation has become such a burdensome and costly proposition. Much of this boils down to two words: “may affect.” If a federal action “may affect” a listed species, then the consultation process is triggered. The ONLY way a consultation can be avoided is if the project will have NO effect on the listed species. “May affect” is defined as a beneficial, benign or adverse action.

Once it has been determined that an action “may affect” a listed species, consultations are divided up into those that are “not likely to adversely affect” and “likely to adversely affect” -- the former result in informal consultation and the latter in formal consultation. In order for the Services to make a “not likely to adversely affect” determination the effects of the action must be “discountable, or insignificant, or completely beneficial.”

Obviously, these regulations were intended to protect the listed species that we are attempting to recover. Despite this, the Services are “consulting” on tens of thousands of actions each year with effects that are, in fact, “discountable, insignificant or completely beneficial.” In 2001, Region 1, [Idaho, Washington, Oregon, California, Nevada and the Pacific Islands] of the Fish and Wildlife Service completed 14,004 Section 7 consultations. Of those, 863 were formal consultations, which means that the other 13,141 were expected to have effects that were “discountable, insignificant or completely beneficial.” Precisely three of those consultations resulted in jeopardy opinions. As I said earlier, the focus and purpose at Section 7 is to insure that federal actions do not jeopardize the continued existence of a listed species. In Region 1, only three federal projects of 14,004 were determined to potentially jeopardize the continued existence of the species.

On one hand, this is good news. The agencies are doing a good job at avoiding adverse effects. The problem is that the Services are expending colossal resources on a process that produces a lot of paperwork for agency staff without a lot of recovery. No other agency in the federal government engages in such massive red tape to insure compliance.

Because Congress has been concerned at these costs and delays, they have continued to increase funding levels for consultation staff. In a report published last year on salmon funding expenditures, the General Accounting Office reported that in the 5 years preceding 2002, the National Marine Fisheries Service’s Northwest Region consultation staff had grown from 6 to 120. Yet, I continue to hear of problems, delays and costs. I do not have a perception that additional funding is going to address these issues.

Let me close by reading from a memo sent to Forest Service Chief Dale Bosworth by Regional Forester Jack Blackwell on April 30, 2001:

“I cannot adequately convey the high levels of frustration, anxiety, and feelings of helplessness that are occurring both internally and externally as we attempt to manage the National Forests and deal with ESA Section 7 processes. We all care deeply about and want to conserve species. Like the majority of the American public, we strongly support the ESA and recognize it is probably not going to be amended anytime soon. But something significant must change in order to bring more effectiveness, efficiency and common sense to the Section 7 consultation process. The time is right to initiate serious multi-agency reforms that do not require congressional action. The amount of effort required to get projects through consultation is increasing and appears to be the same investment in people regardless of the project’s potential impact or risk to the listed species or its habitat. ...Once a project is more than a “no effect” determination, the amount of documentation and analysis seems nearly identical. We are spending a disproportionate amount of time and effort on projects viewed by Forest Service biologists as low risk.”

I am gravely concerned that we continue to expend scarce resources on a process that does not appear to provide significant conservation or recovery benefits. I hope this will be the first of several discussions with respect to how we might create a process that is less costly and laborious and delivers meaningful conservation benefits to species on the ground.