U.S. Senate Committee on Environment & Public Works
U.S. Senate Committee on Environment & Public Works
Hearing Statements
Date:   08/23/2004
 
Statement of Mark Winland
President
Wyoming Wildlife Federation
Field Oversight Hearing on Endangered Species Act

Good morning, Senator Thomas and other members of the subcommittee. My name is Mark Winland, and I am President of the Wyoming Wildlife Federation. The Wyoming Wildlife Federation consists of approximately 5,000 hunters, anglers, hikers, and outdoor enthusiasts who share a deep commitment to protecting wildlife habitat, quality ethical hunting and fishing, and public lands in Wyoming.

First, let me say that we share many of the concerns that have been expressed today. We have one of the best Game and Fish Departments in the world, and we support State management of our wildlife species. We have shared the frustration of many over the long process of grizzly bear delisting, the confusion over the Preble’s jumping mouse, the firestorm over delisting of the gray wolf, and the huge costs borne by Wyoming’s hunters and anglers for management of listed and candidate species in our State. We remain, however, supporters of both the content and the intent of the Endangered Species Act. We believe that many of the problems that Wyoming has experienced stem not from problems with the Act itself, but from inadequate implementation of the Act due to the lack of sufficient funding and staffing of the USFWS, and from the burdens placed upon the agency by the increasingly litigious nature of the listing and delisting process.

I would like to focus my testimony today on two topics: why it is important to the people of Wyoming to maintain an effective Endangered Species Act, and why we believe that S. 369, the Endangered Species Listing and Delisting Process Reform Act of 2003, if enacted as currently written, would be a setback for wildlife conservation.

I. THE IMPORTANCE OF THE ENDANGERED SPECIES ACT

The Endangered Species Act is our safety net to prevent animal and plant species from being lost forever to extinction. According to the National Research Council’s 1995 report Science and the Endangered Species Act, the Endangered Species Act has helped to prevent hundreds of species from going extinct. Here in Wyoming, it has been responsible for the recovery of several species, including the bald eagle, grizzly bear, and black-footed ferret. It is also important to note that data gained and efforts made resulting from the petitioning and listing process have prevented several species, including the swift fox, and the Bonneville and Colorado River Cutthroat trout from being listed.

Steep declines of any species are indicative of larger problems, and the disappearance of any species could have unforeseen negative consequences, including opening the door to invasive and undesirable species. Those species most sensitive to human-induced changes are a bellwether, and actions taken to conserve them benefit a host of other native species as well. If we want to maintain Wyoming’s status as a premier wildlife state, and maintain the important economies in our State that rely on quality habitat and wildlife resources, we must pay attention to all species, especially those that are in trouble. The Endangered Species Act provides for the mechanisms to accomplish this.

II. WYOMING WILDLIFE FEDERATION’S CONCERNS WITH S. 369

The Wyoming Wildlife Federation is concerned that S. 369 appears to add several new, unnecessary, and unfunded requirements to an already slow and laborious process, opening up the USFWS to yet more litigation and delay in implementing the ESA.

It is important to note at the outset that, although S. 369’s title is focused on listing and delisting, it in fact would impose new bureaucratic requirements on a much larger set of actions under the Endangered Species Act. Section 2(a)(1) of the bill (entitled “General Provisions”) assigns to wildlife agencies major new responsibilities “[i]n any case in which this Act requires the Secretary to use the best scientific and commercial data available.” The Act currently requires the Secretary to use such data not only for listings, changes in status, and delistings under Section 4, but also for critical habitat designations under Section 4, consultations under Section 7, and preparation of biological opinions under Section 7. Thus, this bill would add new requirements for many basic ESA implementation steps, not just listings and delistings as suggested in the title.

Section 2(a)(1) also suggests that agencies cannot act until they “obtain” empirical, field-tested or peer-reviewed data. How much of such data must be obtained, and where the agencies must go to obtain it, is unclear. However, one possible implication -- that the agencies cannot rely upon existing data and must go into the field and obtain more before protecting species -- is problematic. The current approach of the Act – which calls for the agencies to act based upon the best data they have available at the time when the decision is due – is a sound one and should not be changed.

In fact, this proposal for additional layers of peer review has itself been peer-reviewed, and deemed unnecessary. Over four hundred leading scientists, including Professor Craig W. Benkman, the Robert B. Berry Chair of Ecology at the University of Wyoming, recently wrote to the U.S. House of Representatives to express strong reservations when this approach was taken in H.R. 1662. They stated:

H.R. 1662 and S. 2009 would add new layers of peer review onto the endangered species protection process. Yet currently there are ample opportunities for scientific review of, and public comment on, all major endangered species decisions…Current regulations require all “listing and recovery activities” to be independently peer reviewed, and existing law mandates that “all listing rules and draft recovery plans” be published for public comment. Given these existing provisions, it is difficult to see what would be gained from additional review, much less how mandatory additional review from non-governmental scientists would be accomplished…Extra layers of review are bound to increase cost and delay, both of which may result in decreased endangered species protections.”

Additionally, by apparently limiting wildlife agencies to using only empirical, field-tested or peer-reviewed data, the bill implies that scientific modeling is forbidden. This, too, is contrary to principles of sound wildlife management. The recent letter from scientists also states:

This undermines the full use of science, because an important aspect of scientific analysis involves modeling. To understand how the world works requires both data and models. Models are used daily by government to carry out its responsibilities. For example, the federal government relies on models to make economic projections, guide construction of interstate highways, predict crop yields, and make tomorrow's weather forecasts. Without models we would either be incapable of acting or reduced to guessing.


I have attached a copy of the scientists’ letter to the House of Representatives to my testimony. Before moving forward with any legislation to revise the Endangered Species Act’s scientific standards, it would be useful for Congress to consult with scientists, such as these, who work with threatened and endangered species every day.

Additional new requirements imposed by the bill regarding species listing include Section 2(b), which prohibits listing until the Secretary concludes that sufficient information is available to support recovery planning for the species, and Section 3 which requires that listing be delayed until the recovery plan is issued in its final form. Sections 2(c) through 2(f) also set forth a host of other new requirements that must be met before a species can be listed.

While we agree that the best decisions are made with the most information, these additional requirements, especially without a significant increase in USFWS funding, will simply serve to further bog down the listing process, potentially leading to extinctions that would otherwise be avoidable. We question whether the new requirements would actually lead to better decisions, but can certainly predict that it would lead to slower decisions.

The bill also imposes new obligations on the wildlife agencies with respect to downlisting and delisting. According to Section 4 of the bill, if a recovery plan’s criteria for the change in status of a species have been met, the wildlife agencies must “promptly publish in the Federal Register a notice of the change in status of the species.” Similarly if the criteria for delisting have been met, the agencies must “promptly publish a notice of an intent to remove the species from the list.”

Requiring agencies to automatically initiate downlisting and delisting rulemaking processes could prove to be problematic. Automatic initiation of these processes will likely lead to even more litigation, further crippling the agency’s ability to accomplish its tasks in a timely manner. In addition, we question whether, with the bill’s additional requirements for data gathering, these actions could be taken “promptly”.

Finally, we feel that S. 369 fails to address one of the biggest obstacles to wildlife conservation facing Wyoming – lack of funding for federal and state wildlife agencies. In fact, it worsens an already bleak funding situation by imposing a series of new and costly requirements on the federal agencies. The dollars that Congress would need to allocate for the bill’s requirements could otherwise potentially be available for ESA Section 6 grants to states, State Wildlife Grants, and a host of other programs that achieve real on-the-ground benefits with proactive conservation measures (such as the recent “Safe Harbor” agreement reached with private landowners for the recovery of the Wyoming toad). Programs that call for proactive wildlife conservation enjoy broad public support in the state of Wyoming. The Wyoming Wildlife Federation would welcome the opportunity to partner with anyone who is interested in getting these programs funded and making them work for the benefit of the state’s people and wildlife.

In summary, we believe that the ESA in and of itself is not the problem – implementation of the Act is. We believe the solution, in large part, is funding. With adequate funding, the USFWS would have both the manpower and resources to collect and evaluate the data necessary to make sound decisions in a timely manner. With adequate funding, USFWS could engage in more cooperative, proactive approaches to species conservation, negating both the need for listing and the potential for more crippling litigation. In addition, State wildlife agencies need adequate funding for research, management, recovery, and monitoring of listed and “listable” species. Hunters and anglers in Wyoming are currently footing a huge bill for management of these species (over 90% of Wyoming Game and Fish Department funding comes from hunter and angler dollars), and many are resenting this burden. The Endangered Species Act represents a valuable, historic public commitment to species conservation made on a national level, and that public commitment remains today. According to a February 2004 poll by Decision Research, 86% of voters nationwide support the ESA. We feel strongly that this historic commitment and current level of support should translate into adequate funding by Congress for species conservation at both the Federal and State levels.

Thank you for the opportunity to share our concerns, and for your consideration of these comments. I would be happy to answer any questions.