Mr. Chairman and members of the Subcommittee, my name is Dru Bower and I am the Vice President of the Petroleum Association of Wyoming (PAW), specializing in public land issues. I am here today representing not only PAW, but also Public Lands Advocacy. We would like to thank the Fisheries, Wildlife and Water Subcommittee of the Committee on Environment and Public Works for the opportunity to testify at this field hearing on the Endangered Species Act and to offer ideas for improving the current law.
PAW is Wyoming’s oldest and largest trade organization, the members of which account for over ninety percent of the natural gas and over eighty percent of the crude oil produced in the State. PAW is recognized as Wyoming’s leading authority on petroleum industry issues and is dedicated to the betterment of the state’s oil and gas industry and public welfare.
Public Lands Advocacy (PLA) is a non-profit organization whose members include major and independent petroleum companies as well as non-profit trade and professional organizations that have joined together to foster the interests of the oil and gas industry relating to responsible and environmentally sound exploration and development of oil and gas on federal lands.
DEFINING THE ENDANGERED SPECIES ACT PROBLEM
PAW and PLA support the original purpose of the Endangered Species Act (ESA), which was to provide protection for species that have been proven through peer-reviewed science to be threatened with extinction. However, the Endangered Species Act, as currently implemented by the U.S. Fish and Wildlife Service (FWS) is not achieving this purpose. Congress needs to act to reform and improve the listing and de-listing components of the law and prevent its abuse by special interest groups.
In order to operate on federal lands, both the lessee and the applicable federal agency must comply with a myriad of laws designed to protect the environment. The members of PAW and PLA work closely with federal agencies to comply with requirements of the Federal Land Policy and Management Act (FLPMA), the National Environmental Policy Act (NEPA), and ESA, among others, before beginning any operations on federal lands. Under Section 7 of ESA, federal agencies are required to consult with the FWS if candidate, proposed, threatened, or endangered species and their habitat have been identified in the area within which a project is proposed. The environmental analysis for a proposed project (and required impact mitigation) can become complex and costly given the number of issues that BLM is required to address. Add in the analysis of the project area for the occurrence of species of concern or its habitat [currently 257 candidate, 37 proposed, 276 threatened, and 986 endangered species (figures as of March 2003 from the U.S. Fish and Wildlife Service website)], and the project costs escalate as do the mitigation requirements. Species do not need to occur in the project area to be covered by the analysis if suitable habitat exists; therefore, additional conservation measures may be required by the agency.
The consultation process, which can include the development of a biological assessment, determines whether such a project may affect a candidate, proposed, threatened, or endangered species and includes recommendations for the protection of the identified species and its habitat. Regrettably, this integral step has become a bottleneck preventing the timely processing of permits. Because of the vast number of lawsuits filed against FWS, the very funds FWS needs to carry out these critical duties are being diverted to defend these often unfounded claims. Without a biological assessment from FWS, the Bureau of Land Management (BLM) and other federal agencies are prevented from acting in a timely fashion on a proposed project, leading to unnecessary delays. We urge Congress to enact reforms to prevent such frivolous lawsuits; thereby, freeing FWS to carry out those duties that will truly serve the purposes of the ESA.
ENDANGERED SPECIES ACT EFFECTS TO OTHER LANDOWNERS
The Endangered Species Act, unlike some other federal laws, applies generally to both private and federal lands. However, ESA does not provide federal agencies with the authority to inventory private lands for the potential existence of threatened or endangered plant or animal species. Despite this lack of authority, federal agencies have been able, in the case of split estate situations (federal mineral/private surface), to require a federal lessee to inventory the private surface and provide such information to the federal agency. In the absence of such information, the agency assumes a “worst case scenario” and devises additional protection measures and stipulations to be placed on the project based on this assumption. This places unfair burdens on both the private surface owner and the federal lessee. Moreover, it creates unnecessary conflict between the federal mineral lessee and the private surface owner. The ESA should be revised to clearly state that no federal agency could require an inventory of private surface merely because a proposed project is covering the underlying federal minerals. In the absence of such a reform, a federal mineral lessee is placed in the untenable position of having to obtain information, most often against the wishes of the applicable private surface owner, for a federal agency that it has no right itself to obtain.
If the law were revised to prevent a federal agency from requiring an inventory of private surface before being able to act on an application to develop the underlying federal minerals, this would also serve to alleviate the concerns of the private surface owners regarding misuse of this information by other private parties and organizations. Even if Congress does not prevent the collections of such information, it should protect such information from misuse. Private parties should not be able to submit a Freedom Of Information Act (FOIA) request to a federal agency to obtain ESA survey information gathered on private lands as that documentation should be held in confidence unless the landowner agrees to release the information. Congress has already established this precedent in other laws, and it should enact a similar provision here to protect private property rights.
Congress could provide further relief to both a federal mineral lessee and an affected private surface owner by providing incentives to the private surface owner to allow access to its property. A reform of this nature would have a two-fold benefit. First, it would encourage the recovery of potentially threatened and endangered species by providing the information necessary to truly assess the status of a species. Second, it would remove one of the conflicts between private surface owners and federal mineral lessees.
INCENTIVES FOR VOLUNTARY PROGRAMS
Any reform of ESA should also include incentives for landowners and other public resource users to implement conservation measures on public lands. Notwithstanding the fact that the proposal to list the Mountain Plover was withdrawn in September 2003, PAW, PLA and other organizations chose to be proactive with respect to protection of the species and its habitat. This group of organizations approached FWS and began to negotiate a Memorandum of Understanding (MOU) to cooperate in “good faith” and in a timely manner to develop a Candidate Conservation Agreement with Assurances (CCAA) for the Mountain Plover and the White-tailed Prairie Dog in Wyoming and Colorado. The CCAA would have provided assurances that if the Mountain Plover or White-tailed Prairie Dog were eventually listed as threatened or endangered, FWS would not impose conservation measures on the agreement participants that were more stringent than those already agreed to by the parties. Because of the nature of landownership in the area to be covered by the CCAA, it would have been applicable to both federal and private lands since sixty-six percent (66%) of the mineral and forty-nine percent (49%) of the surface estate is managed by federal agencies in Wyoming.
As PAW was finalizing this MOU earlier this spring, FWS published in the Federal Register a final rule (Safe Harbor Agreements and Candidate Conservation Agreements with Assurances; Revision to the Regulations; 50 CFR Parts 13 and 17; Federal Register May 3, 2004, Volume 69, Number 85) that virtually eliminated the ability we had to be proactive, and removed any incentive to protect a candidate species through the development of a CCAA. The final rule stated that Candidate Conservation Agreements with Assurances could only be developed on private lands.
Congress must provide leadership in promoting voluntary efforts to conserve species and its habitat regardless of landownership. When 49% of the surface and 66% of the mineral estate in Wyoming are managed by federal agencies who then lease these resources to others for development, the law must provide conservation opportunities to those who have leases to use either the surface or the mineral estate. If voluntary efforts to conserve a species are limited to solely privately owned lands, a valuable conservation tool will be needlessly removed. Given the lack of recovery success under ESA, Congress should take all possible steps to provide avenues of conservation. Assurances and incentives to private entities implementing voluntary conservation measures must be a part of ESA as this provides a useful tool to prevent the potential loss of a species and its habitat through a collaborative effort of private and public entities.
PETITIONS TO LIST A SPECIES
The Endangered Species Act, during its 30-year history, has produced a less than a 1% success ratio for recovery of a species once designated as threatened or endangered. Yet, FWS is inundated with Petitions to list species. Citizen nominations for proposed additions to the list of species protected under ESA pose substantial problems not only for FWS, which must respond to the Petitions, but also for other federal agencies, states, lessees and private landowners. To be clear, the problem is not protection of truly threatened or endangered species, rather, it is the fact that anyone can submit a Petition to list a species, and the law currently contains no requirement that such a Petition be supported by use of the best scientific and commercial data. Regardless of the science, or lack thereof, supporting a Petition, the FWS has 90-days to respond. In the absence of specific information, agencies typically give equal consideration to proposed and candidate species even though ESA’s specific requirements regarding species status, distribution and habitat information are incomplete. The protective measures of ESA do not apply to the proposed species and its habitat. The protections of ESA are limited to those species actually listed as either threatened or endangered. However, in practice, the federal land management agencies actually impose ESA for protections to candidate and proposed species in addition to those truly threatened or endangered.
The FWS should not be required to spend precious staff time on a Petition that lacks scientific merit. We urge Congress to amend ESA to provide a threshold requirement regarding the information that will support a Petition to list. Unless and until that threshold is met, FWS would not be required to act on a Petition. This approach would have a two-fold benefit. First, it would ensure that the information required to begin the listing process would be at least as stringent as the information required to de-list a species. Second, it would potentially free FWS from some of the frivolous lawsuits with which it is currently bombarded; thereby, allowing funds that would have otherwise been expended to defend the lawsuits to be used to carry out those activities that would truly serve the purposes of ESA.
Recent Petitions to list the Greater Sage Grouse and the White-tailed Prairie Dog are prime examples of Petitions filed without adequate supporting scientific information. PAW has filed official challenges to both Petitions. In both instances, PAW, after a careful review of the Petitions by qualified experts, found that the Petitions contained numerous flaws, errors, inaccuracies, contradictions, misstatements, misrepresentations, unsubstantiated positions and biased opinions. Petitions of this nature do not rise to the level of scientific sufficiency to warrant any action by FWS, much less a positive 90-day finding. The standards for filing a Petition and granting a positive 90-day finding must be raised to require adequate, peer-reviewed science.
To date FWS has exhibited a practice of issuing positive findings, regardless of the quality of data included in a Petition to list. PAW and PLA assert this is because a positive finding satisfies the petitioner and averts litigation. Making a positive finding also triggers the need for additional funding to the primary FWS office charged with the responsibility for preparing a 12-month status review. Clearly, a positive finding, even if unwarranted, is a “safe” political decision by the agency without litigious consequences. “Safe” is not necessarily scientifically valid.
However, a “positive finding” negatively impacts other states, landowners and resource users because a species is elevated to a new level of protection even though it has not been formally designated as candidate, proposed, threatened, or endangered, and despite the fact that the Petition may not be supported by sound, scientific evidence demonstrating the need to list. Once a Petition has been filed, state and federal agencies have internal policies that elevate the animal or plant to a “Sensitive or Special Status Species” worthy of additional protection. This standard is then applied during the NEPA process with the potential result that mitigation measures to protect the species may be imposed. While this action results in a heightened level of protection to prevent listing under ESA, such protection and its attendant costs may not be warranted if the 90-day finding is not supported by sound, scientific evidence.
Furthermore, special interest groups are not only filing Petitions with FWS to list a particular species with meager, if any, supporting scientific data, such groups are also seeking to have federal agencies manage species habitat (whether the species is proposed for listing or not) as an Area of Critical Environmental Concern (ACEC). An ACEC designation usually carries additional restrictions on mineral development.
The standards for filing a Petition to list and for issuing a 90-day finding must be more stringent, and FWS must be forced to undertake an analysis of the actual scientific data provided versus taking the easy way out because there are no political or legal repercussions. Before a Petition to list is granted a positive finding decision, it must be based upon the most current, viable, reliable, and accurate scientific data available. We urge Congress to amend ESA to provide a threshold level for information required to support a Petition to list thereby the decision to list a species to be based on the same stringent standards as a decision to remove a species from the list.
RECOVERY OF SPECIES
Congress must make FWS accountable for the timely implementation of a recovery plan once a species is listed. One way to achieve this is to mandate that a recovery plan be developed concurrently with FWS’ decision to list a species. Presently, the agency decides to list a species, and then it determines the recovery levels for the species. FWS can often take years after the listing before issuing a recovery plan. It is far more logical to require the recovery plan to be formulated at the same time the species is listed. The recovery plan should also be required to identify population goals for a species’ recovery and protection of its critical habitat. Currently, species are being listed for which there is little or no information about their populations or required habitats.
For example, FWS decided to list the Preble’s Meadow Jumping Mouse over six years ago. Yet, even after all that time, the fieldwork upon which to base a recovery plan is still lacking. Thus, no recovery plan has been finalized. In addition, as you have heard from others, scientific evidence now indicates that the Preble’s Meadow Jumping Mouse is not a unique sub-species at all and should never have been listed. If FWS does not have the information upon which to base a recovery plan how can it validly determine that a species is threatened. Therefore, we urge Congress to revise ESA to require the formulation of a recovery plan concurrently with a decision to list and to require that once the population objective in the recovery plan has been met, “hard release” language would provide that the species be automatically de-listed.
The ESA should also be reformed to allow consideration of isolated, but thriving species’ populations. While we agree FWS should be required to analyze a species throughout its entire range, it may not be necessary to list and protect a species as threatened or endangered range-wide. Not all populations may warrant the same level of protection in all areas, and ESA must provide flexibility in the management level for the species in different geographic locations.
FRIVOLOUS ENVIRONMENTAL LITIGATION
Another important ESA reform issue to consider is litigation by “special interest groups” whose sole purpose is to delay or prevent development of natural resources. In Wyoming, virtually all lease sales, and many project level EA’s or EIS’s, including geophysical projects, have been protested, appealed, or challenged at the agency level and in federal court based on asserted violations of ESA and habitat destruction issues. The same is true for the other Rocky Mountain States.
Clearly, ESA has become the “tool” of choice to prevent oil and gas development on federal lands without regard for the increased costs and delays in decision-making by land management agencies and the resultant impacts on the United States taxpayers and others who use the public lands. The cost of “ESA abuse” is high and litigation is abundant. If Congress enacts some of those reforms we have advocated here today, in particular requiring a threshold level for filing a Petition to list and a 90-day finding, we believe such reforms will be a step in the right direction to preventing such abuses of ESA.
In conclusion, PAW and PLA appreciate Congress’s recognition of the important role the Endangered Species Act plays in allowing oil and gas exploration and development of federal lands to meet the growing energy needs of this nation. PAW and PLA recommend that Congress:
* Provide adequate funding to FWS in order to prevent bottlenecks on consultations and to promote the timely processing of permits to provide the country with energy to meet increasing demands.
* Reform ESA to provide incentives for private property owners to allow access to their property for the limited purpose of evaluating the potential impacts of a proposed federal action.
* Reform ESA to promote voluntary efforts to conserve species and its habitat on federal lands by entities / lessees with contractual natural resource management responsibilities.
* Strengthen scientific justification criteria for listing Petitions to be as stringent as the scientific justification criteria required for the recovery and de-listing processes.
* Require recovery plans to be developed at the time the species is listed and include population goals in the listing proposal for species recovery and its critical habitat.
* Institute “hard release” language, which must be required by law, that would provide the species be automatically de-listed once population goals have been met.
* Appropriate adequate funds for implementation of recovery programs to avoid placing unnecessary monetary burdens on private entities.
* Reform ESA to provide flexibility in managing isolated populations in certain geographic areas to eliminate the “one-size-fits-all” requirements.
Mr. Chairman and members of the Subcommittee, thank you again for the opportunity to share with you our perspective regarding oversight on the Endangered Species Act and to examine ways to improve the current law.