August 23, 2004
Olin Sims, 4th Generation Rancher, McFadden, Wyoming
and President, Wyoming Association of Conservation Districts
Senate Environment and Public Works Committee
Subcommittee on Fish, Wildlife, and Water.
The Endangered Species Act
Mr. Chairman, Senator Thomas and members of the Committee, I am Olin Sims, a 4th generation rancher from McFadden, Wyoming. Our family owns and operates a cow/calf operation in the southeastern part of Wyoming. I am also the President of the Wyoming Association of Conservation Districts. The Association represents Wyoming’s 34 Districts comprised of 170 elected officials; the Districts are local units of government, charged by state statute with the conservation of natural resources.
Today, I am representing Wyoming’s agriculture producers and would like to share some of agriculture’s perspectives on the Endangered Species Act and its impact on our industry, as well as changes necessary for the Act to benefit both wildlife and people, something the current law has failed to do.
First, I want to emphasis that Wyoming’s agriculture producers are committed to a healthy environment, which includes species of all types. My family is just one example of a family ranching operation that has invested a considerable amount of effort in improving our natural resource base not only for economic productivity, but also developing habitat for a diversity of wildlife species.
I would like to share with you a few impacts the Endangered Species Act has had on agriculture producers in the state of Wyoming.
In November of 1994 the United States Fish and Wildlife Service (USFWS) issued its final rule for the reintroduction of the gray wolf into Yellowstone National Park as a non-essential experimental population. One of the stated purposes of the introduction under this designation was to provide the USFWS with the management abilities and techniques to assure that historical uses of public and private lands would not be disrupted by the wolf recovery activities. Management Zones were identified in the Wolf Recovery Plan to minimize wolf-human and wolf-livestock conflicts. Wolves were to be released and managed in Zone I with adequate habitat components for wolf recovery and less than 20% subjectivity to livestock interaction. Zone II was designated as a buffer between wolves and human and livestock interaction and Zone III was defined as undesirable for wolf presence due to daily presence of human and livestock activity.
Unfortunately, data collected in 2003 determined that Wyoming has an estimated 76 to 88 Gray wolves in 8 packs living in Wyoming, outside of Yellowstone Park, clearly outside of the Zone I recovery area. This does not include the wolf packs living within the Yellowstone National Park. With an average propagation rate of 22 percent per year, the unmanaged wolves are one of the most glaring examples of the Endangered Species Acts devastating economic impacts to the livestock industry. Despite reassurances during the reintroduction process that wolves depredating on livestock would be controlled; the federal government has neglected to fulfill its commitment. Wolf sightings and wolf depredation to livestock have been confirmed by USFWS officials nearly half way across the State of Wyoming, clearly outside of the Zone I recovery area and definitely into the Zone III area defined as undesirable for wolf presence.
Wolves have killed a very large number of livestock in many areas of the state. This is not only an economic loss from the direct loss of livestock, but also an economic harm to the communities where these operations conduct their business. Although there are claims that livestock losses are being compensated, this compensation only comes with a Fish & Wildlife “confirmed” wolf kill. Meeting the agency’s “confirmed” kill can be next to impossible even if carcasses are available, many more carcasses cannot even be located. Subsequently, the losses reported from 1999 through 2002, of 295 sheep confirmed, 112 cattle, 34 herding dogs and two horses, are a gross underestimation of the actual loss.
In addition to actual livestock losses, ranchers are reporting that the presence of wolves appear to be slowing the breeding cycle for cows and are interfering with their ability to manage their rangelands. Wherever, there are wolves the cattle know and quickly vacate allotments and pastures. In addition, with the increase of predator populations is a corresponding increase in cost of manpower. Recently, the US Fish & Wildlife described the following in relation to a depredating wolf pack in neighboring Idaho “The herders are also bedding the sheep at camp so they can keep a close eye on things. The producer and staff are working overtime to keep wolves out of their bands. We appreciate everything they are doing to try to keep wolves away from the sheep and mitigate loses.” While it is nice that the Service is appreciative of these efforts, this level of intense management to keep your livestock from being preyed upon adds expenses to the bottom line when the original intent of the Wolf Recovery Plan was to minimize wolf-human and wolf-livestock conflicts.
The same ranching community that is attempting to cope with the rapidly increasing wolf populations, are simultaneously dealing with losses from Grizzly Bears. Grizzlies are listed as threatened under the Endangered Species Act. The Grizzly occupies over 16,000 square miles in Wyoming, mainly in Yellowstone National Park and the Caribou-Targhee, Bridger-Teton, and Shoshone National Forests. In the past several years, grizzly bears have expanded their distribution into habitats on the periphery of the recovery zone that has not been used by them for several decades. Clearly the grizzly bear has recovered but attempts to de-list are met with litigation threats.
Given that my family does not, YET, deal directly with the protected predatory animals, I contacted a fellow producer and he shared with me that in addition to the 8% loss in calf crop this year alone due to grizzly bears and the number of hours spent searching for carcasses and trying to get a confirmed kill, he and his family have also experienced huge changes in their lifestyle, changes that are difficult to place an economic value to. He explained he no longer irrigates his hay meadows early in the morning or late in the day due to the presence of grizzly bears. Also, attention to the work he is doing now is split between getting the job done and keeping out an eye for bears. In fact, he explained that while at his ranch headquarters on the South Fork of the Shoshone River, he now must arm himself with a firearm for self protection when conducting nightly checks on pregnant heifers in the nearby corrals just 150 yards from his home due to the reoccurrence of either wolves or grizzly bears. Consequently calving operations must be conducted in close quarters to the ranch buildings and no longer in the open ranch lands leading to additional labor and animal health costs associated with concentrating cattle in this manner.
LOSS OF PRIVATE PROPERTY RIGHTS AND LAND VALUES – Although some claim that the listing of a species causes minimal impact on private landowners and is an impact only for the federal agencies and federal actions, the “federal nexus” provisions do indeed cause the impact to private landowners, especially in a state such as Wyoming. Therefore, the reiterated assurances, that the listing and subsequent critical habitat designations, only affect “federal lands” provides little assurances to Wyoming producers. Approximately 70 percent of Wyoming’s livestock producers depend on federal lands to operate. Further, many have water that is licensed and permitted through the Bureau of Reclamation. The “federal nexus” provisions also impact producers who may participate in any Farm Bill programs, serving as a disincentive to participate in conservation programs.
With the endangered listing of the Whooping Crane in 1967 and the subsequent listings of the Interior Least Tern, the Piping Plover and the Pallid Sturgeon from 1985 to 1990 respectively along the North Platte River, the states of Colorado, Nebraska and Wyoming have been forced to develop a recovery plan to ensure the continuing existence of these species. Currently the US Department of Interior has released the draft environmental impact statement for the Platte River Recovery Implementation Program to address the needs of these species for the next 13 years. All alternatives up for consideration will demand additional water from the North Platte River to provide adequate habitat for recovery, this in its self will demand additional water flows from the state of Wyoming on a river system that just meets the historic demands on a good hydrologic year now. The proposed alternatives will seek water from direct flow irrigators and irrigation storage facilities located in the upper basin area of the North Platte River in Wyoming. Ag producers with water right priority dates that pre-date the listing of these species will be severely impacted by the demand for additional water to satisfy the needs of theses listed species. This will clearly devalue the irrigated lands and overall ranch unit values impacted by this additional demand on the North Platte River.
COST OF DEFENDING INDUSTRY AGAINST LAWSUITS – As a result of the constant barrage of petitions to list from special interest groups, the agriculture sector has found itself increasingly focused on defending against erroneous science. Just one example of this, was the recent listing of the Prebles Meadow Jumping Mouse in southeastern Wyoming. The Prebles Meadow Jumping Mouse was listed in 1998 based on a 1954 study. The USFWS designated over 31,000 acres of critical habitat along the front range area of northern Colorado and southeastern Wyoming limiting the abilities of private landowners as to the uses and management capabilities of these lands. According to Dr. Jay Lehr, of the Heartland Institute, this has cost landowners, developers and local governments an estimated $100 million only to have a new more scientifically in-depth study done in 2003 using DNA analysis by the Denver Museum of Natural History to conclude that the “Prebles Meadow Jumping Mouse is genetically identical to a cousin considered common enough not to need federal protection” writes Dr. Lehr. As a result, energies are focused on generating funds to participate in the collection of more comprehensive science, and unfortunately litigation and the credibility of the information used to list species has become suspect at best.
The USFWS denied approval of Wyoming’s Wolf Management Plan due to concern of “litigation risk management” not on scientific validity. As a matter of fact 10 of the 11 scientists the USFWS had peer-review Wyoming’s Wolf Plan approved of the plan based on science. However, the USFWS denied the plan on the basis of litigation risk management, and nowhere in the Act do we find “litigation risk management” mentioned as a criteria for de-listing.
This is a sad situation when a producer’s time and energies could be more effectively focused on land management activities to maintain and improve habitats. More and more producers have become weary of these battles and the economic and human investment they require. With little hope that the situation will change, many look to selling their lands. This results, often times in the subdivision of lands for the highest return. Obviously, an unintended consequence of the Act and one that is extremely detrimental to the goal of maintaining wildlife habitat for all species. A report recently published by the University of Wyoming found that the private lands are extremely important to the big game animals of Wyoming.
It is very obvious that the Endangered Species Act is being used for purposes other than species protection. The ESA has been used to advance special interest agendas to limit historic multiple uses of public lands. Livestock grazing of public lands in the West seems to be a specific target by special interest groups using the Endangered Species Act and the Clean Water Act as a vehicle to achieve their goal without taking into consideration the ramifications this would have to the natural resources and the local economies.
NEEDED CHANGES TO THE ESA - On to the changes needed to the Endangered Species Act. There are a good number of issues that need to be addressed in the current Act to create a law that can reestablish trust and truly address species conservation in a less combative, litigation and regulatory driven approach.
In the time I have today, I would like to stress the need to ensure that decisions under the Endangered Species Act be based on sound and defensible science. Under the current law, the use of “best scientific and commercial data available”, which often is little science lacking in peer review, results in poor decisions and a subsequent lack of confidence in the decision. Logic tells you that if the first step in the process of protecting species is flawed and lacking in scientific defensibility then all other subsequent decisions will be questionable. It seems today that science is for sale to defend any decision to warrant a listing, but at the same time science is available to refute the listing, we’ve got to find a better way.
I would like to thank Wyoming’s Senator Thomas for recognizing this fact and introducing S.369 to amend the Endangered Species Act to improve the processes for listing, recovery planning, and delisting. This bill would move the Act in a direction that would increase the level of confidence that the government is using an increased level of science in the process.
I do believe that it is in the best interest of all to address local issues at the local level, even thought the ESA is a federal Act, its application can have dramatic affects on local communities. It’s apparent that the use of the federal court system has been abused in the past when courts are sought out to gain the right ruling from the right court in ones opinion. I believe that if judicial review is needed on the merits of a listing of a species for protection, that decision needs to be heard by a federal court as close to the area affected by the listing as possible.
In addition to the issue of increased science, I have attached to my written testimony an outline of seventeen changes needed in the Act and implementing regulations, which were adopted by the Wyoming Association of Conservation Districts, the Wyoming Wool Growers Association, the Wyoming Stock Growers Association, the Western Coalition of Conservation Districts comprised of 17 members states across the West and also the National Association of Conservation Districts representing 3000 conservation districts nation wide.
Mr. Chairman, Senator Thomas, members of the Committee I would like to thank you for your attention to this very important issue and inviting me today to participate in this discussion.
Olin D. Sims
HC 64 Box 106
McFadden, WY 82083
Wyoming Association of Conservation Districts
2304 E. 13th Street
Cheyenne, WY 82001
A position paper by the Western Coalition
of Conservation Districts
- Scientific and ecosystem based endangered species protection decisions.
- Reauthorize the ESA to create accountability and review and limit the use of the Act as a vehicle to carry out special agendas rather than focus on species protection.
- Provide for locally driven and led species protection efforts that are adequately financed.
- The Act should include a financial commitment to address the affects on people and communities and their economic stability.
- Good faith efforts should, by default, provide safe harbor from regulatory enforcement actions.
- Increased recognition of human and species interdependence.
Conservation Districts’ Beliefs:
Human and species needs and existence should be recognized and balanced. Endangered species protection should be science-based, economically feasible and acceptable to the affected landowners and communities. Successful species protection should emphasize local involvement.
Congressional oversight and review of ESA effectiveness should be conducted to ensure an accountable and effective program.
The Endangered Species Act is counter productive to the goal of protecting species in many cases due to the following:
· Fails to recognize that species and humans needs to coexists
· Provisions of the act are often used by special interests to further political agendas rather than address true species concern.
· There is a lack of scientifically valid, concise, peer reviewed data to list species
· The ESA is single species focused and fails to recognize the importance of managing the ecosystem to maintain balance.
· ESA program creates hurdles and disincentives for practicing conservation.
· ESA fails to recognize and respect state and private property rights.
· The ESA tends to create divisiveness rather than cohesiveness in the management of species and their habitat.
· The regulatory and enforcement provisions of the ESA generate fear in landowners and managers.
· The ESA is being used to supersede other local, state and federal natural resource management programs without congressional review and reauthorization.
- Western Coalition and NACD will pursue and obtain resources to provide incentives for landowners/managers to voluntarily provide protection of species and habitat.
- Increased local involvement, through conservation districts, in ESA listing, delisting, planning and recovery efforts by:
- Develop local capacity (i.e. financial and other resources) of Conservation Districts to increase technical capacities to gather data, prepare resource management/land use plans, create Habitat Conservation Plans, Candidate Conservation Agreements, etc.
- US Fish & Wildlife will acknowledge local Districts as political sub-divisions, pursuant to Section 4 of the ESA, which have specific statutory responsibilities to address species and habitat protection.
· Amend ESA to require clear and convincing peer reviewed scientifically valid data to list species, and provide for compensation of resource economic and social impacts to provide for stable communities affected by species listings, and provide explicit safe harbor for good faith efforts.
WESTERN COALITION OF CONSERVATION DISTRICTS
WORKING PAPER ON SUGGESTED CHANGES TO THE FEDERAL ENDANGERED SPECIES ACT OF 1973 AND ALL REVISIONS.
SUBMITTED TO THE SENATE ENVIRONMENT AND PUBLIC WORKS COMMITTEE
SUBCOMMITTEE ON FISH, WILDLIFE AND WATER
AUGUST 23, 2004
The Endangered Species Act should be changed to:
- Provide full compensation to individuals for current and long-term “takings”. Take into consideration cost-benefit analysis and mitigate for adverse economic, social, and cultural needs of the human element (change Section 4(b)(2) of ESA)
- Consider and evaluate cumulative effects in accordance with the National Environmental Policy Act (NEPA). Single species management does not consider ecosystem needs and may be detrimental to the well being of other organisms. (add to Section 4)
- Focus on species recovery by improving ecosystem health, instead of single species listing. Listing should be incentive based rather than regulatory (add to subsection (c) of Section 4 and a new statement to Section 4)
- Seek scientific consensus and require mandatory non-governmental, non-bias peer review prior to the listing of any species.
- Petitioners requesting endangered or threatened species designation should be responsible for costs incurred if a listing is determined to be unwarranted.
- Require appropriate bonding by any petitioner for a proposed listing of a species. Bond to be forfeited if a species is determined not warranted to be listed. (add to Section 4(b))
- Ensure agency regulations conform to ESA law. (ex. Adhere to critical habitat provision)
- Allow states to design, control, and implement functionally equivalent, state-specific programs for endangered species recovery planning and critical habitat designation with federal funding.
- Codify applicant status to make clear that permit applicants (consists of any individual seeking a federal permit or license) are provided the opportunity of direct involvement in the Section 7 process. (amend Section 6 and 7(a) and (d))
- Allow implementation action of any project or activity already underway prior to completion and formal approval of a Recovery Plan (amend Section 7(a))
- Direct the Secretaries of Agriculture, Commerce and Interior to streamline the ESA Section 7 consultation process through a tiered programmatic consultation at the national, state and local level.
- Eliminate the proposed listing of any sub-species. (Amend Section 3(16))
- Not allow taxpayer funds to be utilized by non-government entities to sue the Government or others (add to Section 1 (c)(4) as new policy and amend Section 11 (9)(g))
- Enhance the incidental take rules to reduce the need for civil violations penalties.
- Expedite the delisting process. (add new subsection under Section 4)
- Revise the “taking” definition to protect private and states property rights in conformance with the United States Constitution. (Section 3(19))
- Provide for “safe-harbor” provisions to make the act more flexible and to encourage landowners to manage lands in a more “endangered species friendly” manner.
PROPOSED AMENDMENTS TO THE ENDANGERED SPECIES ACT
Submitted by: Olin Sims, President
Wyoming Association of Conservation Districts
Prepared by: New Mexico Association of Conservation Districts
Lead State on ESA to the Western Coalition of Conservation Districts
Authored by: Howard Hutchinson
Executive Director of Arizona and New Mexico Coalition of Counties
August 16, 2004
I. LISTING PROCESS
1. Sound Science.
Amend Section 4(b)(1)(A) of the Endangered Species Act (16 U.S.C. 1533(b)(1)(A)) by striking "the best scientific and" and inserting "sound science and the best".
Amend Section 4(b)(2) by striking "the best scientific data available" and inserting "sound science."
Amend section 3 by adding a new subsection (22) to read:
the term "sound science" means competent, credible verifiable and peer reviewed scientific evidence necessary and sufficient to support a determination of listing or critical habitat under this Act."
REASON FOR CHANGE: The ESA requires the Secretary to make determinations that species are endangered or threatened, or for critical habitat, as those terms are defined in the Act. That means that there must be adequate justification to support a determination that is made. There must be a minimum amount of scientific evidence that would form the basis of the decision. The burden should be on the Secretary to prove a species is endangered or threatened.
The current standard does not do this. The Secretary is allowed to list species on the flimsiest of evidence so long as it is the "best scientific and commercial data available." That standard provides no standard. Instead of the burden being on the Secretary to justify the decision, the burden is on the public to disprove the determination.
This non-standard has resulted in the waste of much taxpayer money. The celebrated snail darter, whose cause went to the Supreme Court, was ultimately discovered to exist in many more places than original data indicated, and was subsequently down listed. More species have been removed from the list due to scientific error than have been recovered.
Another example concerns the listing of 5 mollusks in Idaho. They were listed despite warnings that less than one percent of possible habitat has ever been surveyed, and despite the fact that private studies found more locations of the species than were thought possible. Even more recent evidence, from private surveys, has found many more locations of these species, and in completely different habitat than the Fish & Wildlife Service said they needed.
The current standard places no incentive on the federal agencies to seek verification of the information they use for listing determinations, such as conducting searches for possible additional populations. Rarely are additional searches conducted once a species is listed, and almost never by the federal government. The amendment would ensure that there is sufficient information to determine whether a species is in danger of extinction or endangerment to warrant listing, and would spur additional studies to determine numbers and locations.
Amend section 4(a) of the Act by adding a new subsection (3) as follows:
"(3) DELISTING-A species shall be removed from a list published under subsection c upon a determination based on sound science that
the goals of the recovery plan for a species in accordance with section 4(f) have been achieved,
the current listing is no longer appropriate because of a change in the factors identified in subsection (a)(1),
new data or review of prior data indicates that the listing is no longer appropriate, or
the species is extinct.
Upon evidence that a species should be removed from a list, whether obtained from a petition for removal received from an interested party or upon the Secretary's own review, the Secretary shall initiate the procedures for removal of a species specified in subsection (b).
REASON FOR AMENDMENT: The goal of the ESA is to recover species to the point where they can be removed from the endangered or threatened species list. Too little attention is given in the Act to the process of de-listing s species. The Act has made the recovery plan the blueprint for recovery. When the recovery plan targets have been met, the de-listing process is to begin. But this has not always been the case. Species have met recovery goals, and de-listing proceedings have not been initiated. In addition, many species have been listed in error due to faulty or incomplete data, and have had to be removed from the list. In other cases, species have been listed due to threats of disease, predation, or loss of habitat-conditions which may no longer be present. The Secretary would now have the duty to begin the de-listing process if evidence indicates the species has recovered, the listing is no longer necessary, was in error, or because the species is extinct. .
II. PEER REVIEW
Amend section 4 of the Act by adding at the end the following:
"(j) INDEPENDENT SCIENTIFIC REVIEW
Before any action is proposed or made final under this Act, the Secretary shall randomly appoint three qualified persons from a list maintained by the National Academy of Sciences to review and report on the adequacy and sufficiency of the scientific information and analysis upon which the proposed action is based.
For purposes of this section the term "action" means
a proposed determination that a species is endangered or threatened under this Act,
a proposed determination that a species should be removed from any list under this Act,
a proposed determination that an activity is likely to jeopardize the continued existence of any species and/or the proposal of reasonable and prudent alternatives under section 7 of the Act,
A proposed determination that critical habitat should be designated or should not be designated,
A proposed biological recovery goal in a proposed species recovery plan.
For purposes of this section a "qualified person" means an individual who
has demonstrated scientific expertise on the species subject to the proposed action or a similar species,
does not have, or represent any person with, a conflict of interest with respect to the proposed determination, and
has no direct financial interest in the determination.
Independent reviewers shall provide the Secretary their opinion with regard to the adequacy and sufficiency of the scientific basis for any proposal within 60 days of referral.
The Secretary shall consider and evaluate the report of the independent reviewers, and include in any final determination a summary of the results of the review. If the recommendation of a majority of the reviewers is not followed, the Secretary shall also include an explanation why the recommendation was not followed.
The report of the independent reviewers shall be made part of the official record of the proposed action, and shall be available for public comment prior to the close of the comment period on the proposed action.
The selection and activities of any independent reviewers pursuant to this section shall not be subject to the Federal Advisory Committee Act [5 U.S.C. App.]. Meetings of the independent reviewers shall be open to the pubic, and any records, reports, transcripts or minutes resulting from such meetings shall be available for public inspection.
REASON FOR AMENDMENT: This amendment requires peer review of critical actions taken under the Endangered Species Act. These actions include listing, delisting, critical habitat, and jeopardy determinations under the Act, as well as proposed biological goals for species recovery under a proposed recovery plan. . Many of these determinations have such wide impact that it is important that they be made on the basis of sound science that has been reviewed by other qualified people.
III. INCENTIVE PROVISIONS
Seventy-eight percent of all species listed under the ESA occur on privately owned lands.
Thirty-four percent of all listed species occur exclusively on privately owned lands
Privately owned lands provide valuable and necessary habitat for species listed under the ESA
The current regulatory system of the ESA that prohibits use of private property in areas inhabited by listed species has not accomplished the goals of the ESA
The current regulatory scheme creates conflicts between ESA implementation and the needs, interests and rights of people
If the goals of the ESA to recover species are to be accomplished, a completely new statutory system must be implemented that provides incentives to private landowners to conserve and protect listed species on their property, instead of the current system of
negatively enforced regulatory sanctions
Enactment of a voluntary Critical Habitat Reserve Program will result in more effective management of species and habitat while at the same time accommodating the needs, interests and rights of the private property owners on whose lands such species are found
Safe Harbor Agreements
Add at the end of section 10 a new subsection (k) as follows:
SAFE HARBOR AGREEMENTS-
The Secretary may enter into agreements with non-federal persons on a voluntary basis to benefit listed species by creating, improving, restoring or maintaining habitat for such species. The agreement shall permit the Secretary to authorize the incidental take of any species covered under the agreement on lands or waters covered under the agreement if the taking is incidental to the carrying out of an otherwise lawful activity, but not below a baseline requirement that is agreed upon by the applicant and the Secretary, and that at a minimum maintains current species conditions on areas covered by the agreement.
The Secretary shall promulgate regulations for the development and approval of safe harbor agreements.
Candidate Conservation Agreements
Add at the end of section 10 a new subsection (l) as follows:
CANDIDATE CONSERVATION AGREEMENTS WITH ASSURANCES -
The Secretary may enter into a candidate conservation agreement with any non-federal person on a voluntary basis for any species proposed for listing, is a candidate species, or is likely to become a candidate species.
An applicant shall develop and submit a proposed plan to the Secretary, who shall approve it if the agreement would obviate the need for listing if undertaken by others, and if there is sufficient monitoring and reporting requirements and funding to implement the agreement. The Secretary shall issue a permit under subsection (1)(a)(C) that will become effective at the time a covered species is listed under this Act. Any action taken pursuant to and in accordance with an approved agreement shall not constitute a "taking" as defined in section 9 of the Act.
A person who has entered into and is in compliance with an agreement under this section, shall not be required to pay any additional money or adopt any additional restrictions on the use, development or management of any areas covered by the agreement without their consent. Any extraordinary circumstances and any modifications or additional measures that might be required in such circumstances shall be set forth in the agreement.
No Surprises Policy
Add at the end of section 10 a new subsection (m) as follows:
NO SURPRISES-For any agreement entered pursuant to this section and any permit issued pursuant to this section, any non-federal person in compliance with the agreement or permit shall not be required to pay any additional money or adopt any additional restrictions on the use, development or management of any areas covered by the agreement or permit without their consent. Any extraordinary circumstances and any modifications or additional measures that might be required in such circumstances shall be set forth in the agreement or permit.
REASONS FOR AMENDMENTS Safe Harbor Agreements and Candidate Conservation agreements with Assurances are authorized through regulations, but are not expressly authorized by the Endangered Species Act. This creates the possibility that such agreements could be invalidated by the courts. These amendments codify these two policies.
The No Surprises section is an integral part of any voluntary incentive-based program. People entering into these agreements want certainty that the actions they agree to take are not preempted by the prohibitions of the ESA. This amendment applies the No Surprises policy to all voluntary incentives programs or permits.
State Conservation Plans
Amend section 10 of the Act by adding a section at the end as follows:
STATE CONSERVATION PLANS
States are encouraged to develop plans for the conservation or enhancement of candidate species or other species identified as being at risk of becoming endangered or threatened but which are not yet listed under this Act. Where a species inhabits more than one state, all states are encouraged to work together to develop a conservation plan for the species.
State plans shall be developed in cooperation with and consultation with all interested parties, including tribal governments, local governments, academic institutions, commercial businesses, affected trade organizations and conservation organizations. The Secretary shall provide technical assistance and advice in the development of the plan upon the request of the Governor.
For each state plan developed pursuant to this section, the Governor shall publish in the newspapers of general circulation within the State a notice of the availability of the draft conservation plan, a summary of the plan, and a request for public comment on the draft plan.
A state plan developed pursuant to this section may be submitted to the Secretary for approval. The Secretary shall approve a state plan upon a determination that it will provide for the conservation of the species.
A species for which an approved state plan is in effect shall not be listed pursuant to section 4 of this Act.
REASON FOR AMENDMENT: Several states have attempted to develop state conservation plans in order to preclude ESA listing only to have the species listed anyway. The Barton Springs Salamander in Texas, the Atlantic Salmon in Maine and salmon in Oregon have all been the subject of state conservation plans, but have been listed anyway, primarily from citizen suits.
In many instances, the species can benefit more from active state conservation efforts than from mere listing under the ESA. Affected parties will also benefit from being able to develop a plan that will allow them to continue to operate while also protecting the species. States retain control of the flora and fauna in the state.
But this only works if the state plan will preclude federal listing of the species. State plans should have minimum requirements, however. They should be developed by all interested and affected parties, and they should have minimum public notice and comment requirements.
5. Critical Habitat Reserve Program
a) CRITICAL HABITAT RESERVE PROGRAM -- There is hereby established within the Department of Interior a Critical Habitat Reserve Program (CHRP) to be administered by the Secretary of Interior. The Secretary shall enter into partnership agreements with owners and operators of lands suitable for enrollment on a voluntary basis, under which the owners and operators manage the land for the protection and enhancement of protected species in exchange for incentive payments from the Secretary. Where the operator of such land is not the owner, both the owner and the operator must enter into the agreement.
b) ELIGIBLE LANDS -- Lands eligible for enrollment in the CHRP shall be privately owned lands that have been included within a designation of critical habitat for one or more species listed pursuant to the Endangered Species Act or which are necessary to preserve the existence of a listed species, whose owners and operators have voluntarily entered into partnership agreements with the Secretary, and which have been accepted for enrollment in accordance with this section.
c) LANDS SUITABLE FOR ENROLLMENT -- The Secretary shall determine the nature and type of lands suitable for enrollment in the CHRP. In making such determinations, the Secretary shall consider the following factors: the extent to which the affected species is threatened with becoming extinct, the extent to which affected species are dependent on privately owned lands for their survival, including a consideration of those species that are found exclusively on privately owned lands, the extent to which there would otherwise be a conflict with use of the land by the owner or operator, and the extent to which management of the habitat or species would result in species recovery.
d) LIMITATIONS ON LANDS ELIGIBLE FOR ENROLLMENT --
(1) The Secretary shall not place under contract more than 25 percent of the land or water in any one county at any one time, except to the extent that the Secretary determines that doing so would not adversely affect the local economy of the county.
(2) No contract shall be entered into under this subtitle concerning land with respect to which ownership has changed in the three year period preceding the first year of the contract unless--
(I) the new ownership was acquired by will or succession as a result of the death of the previous owner,
(ii) The new ownership was acquired before January 1, 1996, or
(iii) The Secretary determines that the land was acquired under circumstances that give adequate assurances that such land was not acquired for the purpose of placing it in the program established under this title.
Nothing in this section shall prohibit a new owner of land from continuing an agreement entered into by the previous owner.
B. CONTRACT REQUIREMENTS
(a) DUTIES OF LANDOWNERS AND OPERATORS--
(1) Each contract entered into under this section shall obligate the owner and operator of the land
(I) to implement a plan approved by the Secretary for the management of the land;
(ii) To include the land in the Critical Habitat Reserve Program for a period of five years;
(iii) Not to use the land in a manner that is inconsistent with the purpose and terms of the contract.
(b) DUTIES OF THE SECRETARY-- Each contract entered into under this section shall obligate the Secretary
(1) to pay the costs of carrying out the management measures and practices set forth in the approved management plan;
(2) for a period of years not in excess of the term of the contract, pay an annual sum to the landowner in an amount agreed upon in the contract by the parties; and
(3) provide technical assistance to assist the landowner or operator to implement the management plan.
c ) MANAGEMENT PLANS --
(1) The plan referred to in section (a)(1) above shall set forth the management practices to be carried out by the owner and/or operator of the critical habitat for the protection and enhancement of the habitat and the species, including any permitted uses of the land. The management plan shall be developed by both the Secretary and the landowner, and shall be a part of the CHRP contract.
(2) No person shall be deemed to be violation of any provision of the Endangered Species Act for actions taken pursuant to and in accordance with an approved management plan.
(d) DURATION OF CONTRACT -- Contracts entered into hereunder shall be for a duration of five years, until land ownership is transferred, or until the land ceases to be included within designated critical habitat of the species, whichever is shorter. The contract may be renewed at the end of the term for another five years, upon the agreement of both the Secretary and the landowner.
(e) EFFECT OF TRANSFER OF OWNERSHIP-- upon the sale or other transfer of ownership or occupancy of the land during the term of the contract, the new owner may
(1) continue the contract on the same terms and conditions as the previous owner;
(2) enter a new contract in accordance with this section; or
(3) elect not to participate in the program established in this section.
(f) MODIFICATION-- The Secretary may modify the terms and conditions of a contract entered into under this section if the landowner and operator agree to the modification.
(g) TERMINATION -- The Secretary may terminate a contract made in accordance with this section if
(1) the landowner and operator agree to terminate the contract;
(2) the landowner and operator have violated the terms and conditions of the contract, and the Secretary determines that it is in the public interest to terminate the contract; or
(3) the land is no longer designated as critical habitat.
Either the Secretary or the landowner/ operator may elect to terminate the contract at the end of the contract term.
(h) CONTRACT VIOLATIONS -- Landowners/operators found to be in violation of the contract shall
(1) forfeit all rights to receive payments and management fees under the contract, if the Secretary determines that the violation warrants the termination of the contract; or
(2) refund to the Secretary, or accept adjustments to, the payments and management fees provided to the landowner as the Secretary considers appropriate, if the Secretary determines that the violation does not warrant termination of the contract.
(a) ANNUAL PAYMENTS -- The Secretary shall establish an equitable method for determining the annual payments under this section, including through the submission of bids in such manner as the Secretary may prescribe.
(b) MANAGEMENT COSTS -- The Secretary shall pay the cost of establishing management measures and practices required pursuant to the approved management plan.
c) EFFECT ON OTHER PAYMENTS OR PROGRAMS-- Any payments received by an owner or operator under this section shall be in addition to, and shall not affect, the total amount of payments that the owner or operator is otherwise eligible to receive under this section, or any other program administered by the Secretary or any other federal department or agency.
The Secretary shall consult with the Secretary of Agriculture to ensure that participation by the landowner or operator in the CHRP is not in conflict with any programs administered by the Department of Agriculture.
IV. SECTION 7 CONSULTATION PROCESS
Amend section 7(a)(2) by deleting "the best scientific and" and inserting "sound science and the best" before "commercial data available."
REASON FOR AMENDMENT: The reason is explained more fully in the amendments to the Listing Process.
Participation in Consultation Process
Amend section 7(b)(1) by adding a new subsection 7(a)(1)(C) as follows:
''(C) In conducting a consultation under subsection (a)(2), the Secretary shall provide any person who has sought authorization or funding from a Federal agency for an action that is the subject of the consultation, the opportunity to-
''(I) before the development of a draft biological opinion, submit and discuss with the Secretary and the federal agency information relevant to the effect of the proposed action on the species and the availability of reasonable and prudent alternatives (if a jeopardy opinion is to be issued) that the Federal agency and the person can take to avoid violation of subsection (a)(2);
''(II) receive information, on request, subject to the exemptions specified in section 552(b) of title 5, United States Code, on the status of the species, threats to the species, and conservation measures, used by the Secretary to develop the draft biological opinion and the final biological opinion, including the associated incidental taking statements; and
''(III) receive a copy of the draft biological opinion from the Federal agency and, before issuance of the final biological opinion, submit comments on the draft biological opinion
and discuss with the Secretary and the Federal agency the basis for any finding in the draft biological opinion.
''(ii) If reasonable and prudent alternatives are proposed by a person and the Secretary does not include the alternatives in the final biological opinion, the Secretary shall explain to the person why those alternatives were not included in the opinion.
''(iii) Comments and other information submitted to, or received from, any person who seeks authorization or funding for an action shall be maintained in a file for that action by the Secretary and shall be made available to the public (subject to the exemptions specified in section 552(b) of title 5, United States Code).''.
(iv) The Secretary shall allow any interested party the opportunity to submit written comments or provide additional scientific information on a draft biological opinion before it becomes final."
REASON FOR AMENDMENT: Because current law only provides for consultation between federal agencies, non-federal permit or license of funding applicants (who are the parties affected by the consultation) are not allowed to participate in the process. This amendment allows those who the biggest stake in the outcome of the consultation to participate in it.
Effect of Voluntary Agreements and Permits on Section 7 Consultation
Amend section 7(a) by the addition of a new subsection (5) as follows:
Any actions that are in conformance with any permit or voluntary agreement pursuant to section 10 of this Act shall not require consultation otherwise provided under this section.
REASON FOR AMENDMENT: Section 10 (as amended herein) provides for incidental take pursuant to Habitat Conservation Plans, Safe Harbor Agreements and Candidate Conservation Agreements. These agreements and permits have been reviewed and approved by the Fish & Wildlife Service. Consultation under section 7 is a duplication of this previous approval.
Amend section 7 by adding a new subsection 6 as follows:
Actions in response to natural disasters or other emergency situations posing an imminent threat to human health or safety or imminent threat of significant property or environmental damage may be taken without undergoing consultation under this section.
REASON FOR AMENDMENT: Federal agencies are often called upon to respond to emergency situations where lives are at stake. Whether it be wildfires, leaking natural gas pipelines, earthquakes or other natural disasters or emergencies, agencies often do not have time to initiate consultation and still be responsive. This section would expressly exempt agencies from undergoing consultation in these circumstances.
Peer Review of Biological Opinions
Peer review of biological opinions is provided in the Peer Review amendment to the listing process. It is one of the "actions" triggering peer review.
V. CITIZEN SUITS
Suits against Private Parties
Amend Section 11(g)(1)(A) by deleting "any person, including."
REASON FOR CHANGE: The amendment would not allow citizen suits against private parties for activities that have no governmental nexus. The citizen suit provision should not be used to harass private parties.
Private Party Participation in Citizen Suits.
Amend section 11(g)(3) by adding a new subsection C as follows:
In any suit under this subsection affecting the right, permit or license of any non-federal person in which the person is not a party, the defendant agency shall notify the person of the suit, and the non-federal person may intervene as a matter of right.
REASON FOR AMENDMENT: Citizen suits are often brought only against federal agencies, while the real "parties in interest" are private party permittees, licensees, or others having rights that may be affected by the suit. In the past, judgment has been rendered and lawsuits settled without input from these real parties in interest. This amendment would ensure that these people have an opportunity to participate in any lawsuit in order to protect their interests.
PROPOSED REGULATORY CHANGES
The following actions are ones that can be achieved through regulation, through administrative action, or by Memorandum of Agreement between agencies. Jurisdiction under the ESA resides in both the Fish & Wildlife Service and the National Marine Fisheries Service, so regulatory changes should be pursued with both agencies.
The changes we propose through regulation or other administrative action are designed to achieve more balanced implementation of the ESA, rather than changing the fundamental structure of the Act. Some changes can only occur through legislation, some are better handled through regulation, and some changes could come through either legislation or regulation. There are several cases where the changes we might seek could occur by either method. Both methods should be tried. We may find a more receptive administrative response than we have in the past to proposed regulations.
Following is an outline of regulatory changes that we propose to pursue with the administration. There may be other changes that we might be able to pursue through this process, and we invite your comments.
Consistent Agency Actions
Through a Memorandum of Understanding or other appropriate mechanism, develop a consistent framework between the Fish & Wildlife Service and the National Marine Fisheries Service for application of the Endangered Species Act, especially in areas where their actions overlap.
Landowner Participation on Recovery Teams
Develop a regulation that requires at least two affected landowners be part of a species recovery team. The regulation will also specify that there shall be one recovery team, and not separate Technical Team and Stakeholder Team.
Require Peer Review for Most Proposed ESA Actions
Promulgate a regulation that requires a blind scientific peer review for the following proposed agency determinations under the ESA: listing proposals, de-listing proposals, critical habitat determinations, jeopardy determinations in draft biological opinions, and determination of reasonable and prudent alternatives in s a draft biological opinion.
Landowner Participation in Section 7 Consultations
Promulgate a regulation that requires that permit or license applicants be given the opportunity to participate in consultations under section 7 of the ESA.
Public Comment on Draft Biological Opinions and Draft Recovery Plans
Promulgate a regulation that provides for public notice in the FEDERAL REGISTER and an opportunity to provide public comment on all draft recovery plans and all draft biological opinions.
Notification of Citizen Suit
Promulgate a regulation that requires notification to persons holding federal permits or licenses who are affected by a citizen suit under the Endangered Species Act. The notice shall indicate the name of the plaintiff, the court in which it is brought, and briefly describe the basis of the suit and the relief requested.
Economic Analysis of Critical Habitat Determinations
In the wake of New Mexico Cattle Growers v. Babbitt where the 10th Circuit Court of Appeals held that the method of analyzing the economic impacts of critical habitat determinations was invalid, develop through regulation a workable procedure for preparing the economic analysis required by the Act. The procedure should allow input from affected parties during the initial drafting of the analysis.