U.S. Senate Committee on Environment & Public Works
U.S. Senate Committee on Environment & Public Works
Hearing Statements
Date:   08/20/2004
Statement of Sleeter Dover
Wyoming Department of Transportation
Field Oversight Hearing on Endangered Species Act

I am Sleeter Dover, Director and Chief Executive Officer of the Wyoming Department of Transportation (WYDOT). I appreciate the opportunity to appear before you today to present WYDOT’s perspectives on the Endangered Species Act of 1973 (ESA).

Let me say at the outset, Senator Thomas, that we are supportive of your legislation, S. 369, the proposed “Endangered Species Listing and Delisting Process Reform Act.” Like you, we at WYDOT believe that the ESA can be made less burdensome to the public while still achieving the goals of protecting plant and animal species in danger of becoming extinct and allowing them to recover.

In my brief statement today I hope to help the Committee appreciate the impact of the ESA on WYDOT’s programs. Following that, I will offer a few suggestions that, hopefully, will assist the Committee in fashioning solutions that will serve the public interest.

The ESA and WYDOT’s Activities

Very simply, the requirements of the ESA increase highway project costs in a variety of ways. There are construction delays caused by added planning and analysis, mitigation activity costs, seasonal timing restrictions on construction activities, continued monitoring after projects are completed, and costly design changes, such as building bigger and more complex structures to maximize wildlife passage and/or reduce environmental impacts. These structures require more money for both construction and maintenance.

WYDOT is absolutely committed to compliance with the law, and we have and will continue to spend money and take appropriate actions to protect listed species in accordance with the law. And, like all of us in Wyoming, we at WYDOT are proud of the natural wonders in our State, and do not wish to jeopardize them. We have on staff at WYDOT wildlife and environmental specialists and other scientific professionals to ensure that we comply with Federal and State laws and develop projects that make sense for our beautiful State. So, our motivation to protect endangered species goes beyond a desire simply to comply with the law.

Nonetheless, WYDOT feels that some of the money we have spent, and the effort we have had to undertake to comply with the ESA as currently administered, was not time or effort or money well spent. Let me give some examples.

In July 1999, the USFWS proposed delisting the bald eagle because of its increasing numbers and range. Five years later, the bald eagle has not been removed from the list of threatened species, even though its breeding population, in the lower 48 states, has been doubling every six to seven years. Despite the dramatic increase in bald eagle numbers, the USFWS imposed seasonal timing restrictions on highway construction activities in the Snake River Canyon southwest of Jackson to minimize disturbance to nesting bald eagles. These restrictions added approximately $5 million in cost and one year in time to the Cabin Creek section contract to reconstruct a portion of U.S. 26/89 within existing right of way (we were not building a road into any new right of way). The construction season in that part of Wyoming is typically limited to May through October. However, the USFWS did not allow any construction activities to occur from February 15 through August 15. WYDOT was left with an approximately 2½ month construction season. The delays and restrictions resulted in a cost increase of about 33%.

Again, we proudly and properly complied with the law but wonder whether this species should be listed at this time and wonder whether the listing and delisting process needs improvement.

Moreover, our experience in this case raises another question about the ESA – are we reasonably administering it with respect to listed species? We are not persuaded that there was scientific basis for the no-work buffer zones around raptor nests imposed with respect to the Cabin Creek work. Many people believe that the bald eagles in the Snake River Canyon, having nested successfully for years in the presence of highway and river activity, are highly adapted to human activity. It is possible that the eagles would have benefited more from habitat acquisition and/or enhancement than from the seasonal timing restriction on our reconstruction of that road.

The USFWS listed Preble’s meadow jumping mouse as threatened in May 1998 even though many experts felt it was not a distinct subspecies of meadow jumping mouse. In 2003, genetic zoologists at the Denver Museum of Nature and Science determined, through mitochondrial DNA research, that Preble’s meadow jumping mouse is not a genetically distinct subspecies. In fact, it is genetically indistinguishable from a common variety of meadow jumping mouse that is abundant throughout Wyoming, Montana, North and South Dakota, and Canada. However, delisting Preble’s meadow jumping mouse is proving to be a much more difficult task than it was for the USFWS to list it. WYDOT thus spends a substantial amount of time and money taking Preble’s meadow jumping mouse into consideration on highway projects. These planning and assessment activities cause delay in the advancement of affected projects, almost inevitably increasing their cost.

During the Phalow Lane and Harmony Lane Project near Laramie, WYDOT spent approximately $10,000 on barriers and culvert modifications for the Wyoming toad. That in itself is not a major concern. However, WYDOT experienced a long delay on this project, of over a year, while we engaged in lengthy discussions with USFWS over the mitigation and other adjustments because the project was in the range of the Wyoming toad. On highway projects with Federal actions or Federal funding, the ESA empowers the USFWS with authority to request biological surveys regardless of the potential for listed species or their habitats. We have been disappointed with the administration of this feature of the ESA, as we have been asked to undertake biological surveys for species even though a given project will occur outside known species’ ranges. For example, WYDOT has to conduct field surveys for Ute ladies’-tresses orchids in every county in Wyoming even though populations are known to exist in only five counties. Furthermore, Ute ladies’-tresses have very specific habitat requirements in terms of elevation and soil alkalinity. So, we believe we are experiencing some excess assessment costs, as well as indirect costs of delay due to these excess assessment requests.

Suggestions for Improving the ESA

Based on our experience we turn now to some suggestions for improving the ESA. In offering these comments we are not suggesting specific legislative language, but general directions.

First, we agree with you, Senator Thomas, that the listing and delisting process should be improved. In particular, our experience is that it is far more difficult to delist a species than to list one – and we do not see why this should be so. We also agree with you that the listing and delisting decisions need to be based on science. We are not looking to avoid protecting species that deserve protection. However, neither are we looking to burden the public with increased costs of protecting species whose designation as endangered species are not scientifically justified.

Related to the issue of listings is the issue of treatment of species that are candidates for listing. Candidate species seem to receive as much protection as listed species under today’s practice. This is an issue that we think also warrants attention as the listing and delisting process is reviewed for reform. We don’t think that there should be a long period of regulatory ambiguity where a species is a candidate for listing and receives protection as if it is an endangered species. The decision on whether to list or not should not be drawn out.

Our concerns, however, are not limited to the listing and delisting process. Clearly, if a species is properly not listed, or properly delisted, WYDOT’s regulatory compliance costs are reduced – properly. But there are issues regarding the impact on the public even when a species is properly listed.

We suspect that there are ways to improve the decisionmaking process for determining what steps will be taken to achieve protection of a properly listed species. We don’t have a specific suggestion as to how this could be worded, but we do believe that improvements are possible. We noted, above, for example, the USFWS decision curtailing the construction season, a decision that added one year and $5 million to the cost of reconstructing an existing highway southwest of Jackson. We also noted the seemingly overbroad request for assessments of an orchid species, a request that required us to deploy personnel in areas that we felt were well outside the species’ range. We suspect that there must be some way to increase sensitivity to cost and burden in the decision matrix as to how a species will be protected. Maybe it’s a consultation requirement, maybe its something more specific. In any event, listing and delisting reform should be accompanied by an effort to ensure that steps taken to protect properly listed species do not overreach.

I also wish to mention some timing and process issues. Streamlining the consultation process under section 7 of the ESA could benefit WYDOT considerably. The manner in which Section 7 consultations are currently handled by the USFWS creates significant delays for WYDOT. Our experience is that USFWS almost always takes the maximum time allowable to undertake required consultations and issue biological opinions and often uses its time extension authority. This pattern often causes project delays that we consider unnecessary.

Further, we note that the ESA has an indirect impact on the NEPA process. Simply, delays in resolving ESA issues inevitably delay the completion of NEPA decision documents, complicating our efforts to sequence the delivery of projects and hold down their cost.

We hope these comments will help you, Senator, and the Committee as it seeks to fashion improvements to the ESA.

Thanks on Another Important Topic – Highway Funding for Wyoming

Before closing I also want to thank you, Senator Thomas, as well as Chairman Inhofe and the leadership of the Environment and Public Works Committee, for the fine work in fashioning the highway bill that passed the Senate earlier this year. That legislation very properly includes funding provisions that are absolutely essential to the State of Wyoming. More specifically, Senator, as you know, the Senate bill includes provisions specifically addressing the problems facing States like Wyoming, with large land areas and low population, that require an influx of Federal funds in order to meet the nation’s interest in having highways that enable transportation in and across our State.

In short, Senator, I did not want to miss this opportunity to thank you for your vitally important work in support of the low population density States provision of the Senate highway bill, as well as for your work regarding the Endangered Species Act. We look forward to your continued efforts for the State on the highway bill.

Thanks again for the opportunity to testify today.