September 23, 1997

For the past six years, Congress has been deadlocked over the future of the Endangered Species Act. Two camps have put two quite starkly different views of the Act before you. The environmental camp my camp -- has argued that the existing law must be strengthened, that it is not accomplishing its vitally important goal of conserving rare species as effectively as it must if it is to stave off a flood of extinctions. The other camp has argued that the existing law is unduly onerous for those whose activities it regulates, and must be made less so. Unable to choose between these two divergent views, Congress has done nothing, an outcome that furthers the goals of neither camp and serves the interests of our nation's wildlife not at all.

The solution to breaking this impasse is to recognize that what is needed is not to choose between these two views, but to find the solutions that accomplish both goals. By making the Act more effective at conserving species and less onerous for those it regulates, real progress can be accomplished. That, however, is much easier said than done. Improvement in the conservation of rare species doesn't flow automatically from loosening the regulatory screws, as some in the regulated community have argued, but neither does tightening those screws guarantee better conservation results. The task before all of us is much more difficult than that. It is to build a much larger endangered species conservation toolbox than that which now exists, one that has enough different tools in it to address effectively the many varied challenges that declining species and landowners face.

There are significant differences of opinion about the extent to which you succeeded in accomplishing what I have just outlined, but I want to be very clear that I recognize and appreciate that you -- Senators Chafee, Kempthorne, Baucus, and Reid, as well as Secretary Babbitt have genuinely tried to do so. For that, you are deserving of much credit.

Let me turn now to the substance of your effort. I don't think I can offer a better summary than that of my colleague John McCarthy of the Idaho Conservation League. As he noted, "There are some definite improvements, and there are some definite danger zones. A lot depends on whether there is funding for the good things." Among the most important of the improvements are three new programs to offer financial incentives to private landowners who agree to implement beneficial management practices on their land. There are three inescapable facts that underscore how urgently such incentive programs are needed. First is the fact that most endangered species have most of their habitat on non-federal land, especially private land. Second, in general species that depend heavily on private land are faring poorly. And third, some of the most significant threats to these species can only be addressed through active management measures, in particular control of invasive exotic species, and replication of natural disturbance regimes that no longer function, especially fire disturbance regimes. Without cost sharing assistance, many landowners can't implement the needed management measures. Without such active management, the continued decline of many of these species is inevitable.

For these reasons, the provisions of this bill that authorize financial assistance to landowners implementing the active management measures called for by safe harbor agreements, recovery plan implementation agreements, and agreements to enroll land in the new endangered species habitat reserve program are vitally important. But let me add one major caveat. The promise of these new programs will never be realized unless they are funded. Your bill authorizes appropriations for each of these programs, but the experience of seeing other promising conservation programs, including some under the Farm Bill, go underfunded, or even unfunded, is too recent and too clear to permit me to regard these new programs as anything more than a mirage at this time. If you are serious about these new incentive programs, you must find a means of assuring funding for these programs. One idea among many that ought to be seriously considered would be to dedicate a portion of the expected receipts from the sale next year of the Elk Hills Naval Petroleum Reserve to a special trust fund that would be available, without further appropriation, for expenditure in support of these new landowner incentive programs. The Elk Hills Reserve supports a number of endangered species, all of which will receive substantially less protection as a result of its transfer to private ownership; thus, it is appropriate to reserve at least some of the more than two billion dollars expected from its sale for the purpose of encouraging endangered species conservation on private land. Other possibilities ought to be seriously explored as well.

On a related topic, your bill contains new standards for the approval of multi-species habitat conservation plans, standards that are significant improvements over those now in the law. The bill would also shift certain burdens to the federal government, however, that we are concerned will not be met because of lack of funding. Specifically, the bill would codify the "no surprises" policy that the Administration promulgated three years ago. That policy guarantees landowners certainty that the agreements they make will not be subject to unilateral changes in mitigation requirements. In light of this, it is very important to ensure that the government has the resources to respond to the risks that this policy places upon it. We urge you to create an "insurance fund" to cover the costs of additional mitigation measures for which the government itself may be responsible under this policy. The creation of such a fund would go a long way toward resolving much of the recent controversy over the no surprises policy.

There is another risk entailed in this bill that concerns me deeply. It is the risk that the new procedural requirements imposed by the bill with respect to the development of recovery plans and, to a lesser extent, the listing of species, will overwhelm the Fish and Wildlife Service and the National Marine Fisheries Service. The new procedural requirements imposed on the recovery planning process are complex, costly, and, in my judgment, unduly burdensome. The result, I believe, will be the opposite of what is apparently intended. Instead of getting recovery plans that play a vital and central role in the implementation of the Act, you will get a major diversion into unproductive bureaucratic procedures of scare resources that could have gone into on-the-ground conservation, a paucity of recovery plans, and a proliferation of litigation over non- compliance with deadlines and content requirements.

These, I realize, are strong words, but they are carefully chosen, and I think they are justified. I base them on the following: The bill requires that recovery teams be constituted as they have never been constituted before, including as team members people who have no prior recovery planning experience; it requires these new teams to develop plans substantially more complex than those that have been done heretofore; it requires the plans they develop to be subjected to new public hearing requirements not found in present law; it requires that plans be produced at a pace the government has been unable to achieve thus far; and it simultaneously requires that a substantial existing backlog of unfinished recovery plans be eliminated by preparing plans in accordance with these procedures for all listed species that currently lack them. Ignore all of the other changes and just focus for a moment on this last requirement. At present, there are 389 listed species that do not yet have recovery plans, plus an additional 99 species proposed for listing. Over the last five and half years, the government has produced, on average, 27 final recovery plans per year, encompassing an average of 62 species. Even assuming no changes in the recovery planning process, at these rates the existing backlog of recovery plans for already listed or proposed species would require nearly eight years to eliminate. To eliminate this backlog in five years would necessitate a 40 percent increase in resources currently devoted to recovery planning, assuming no other species were added to the list in the meantime. In reality, the resource demands will be even greater, since the new procedures applicable to recovery planning are substantially more complex and demanding than existing procedures.

Absent a very substantial increase in funding for recovery planning, this is a prescription for paralysis. One partial solution to ameliorate some of this impact would be to allow recovery plans to be developed in accordance with existing procedures for those species that are already listed as of the date of the law if a recovery team for such species has already been appointed and begun work. In other words, limit the applicability of the new procedures to newly listed species and to those already listed species for which recovery planning is not yet under way.

Even this partial solution, however, does not address the larger question of whether the new planning procedures in this bill are worthwhile. I understand that the expectation underlying these new requirements is that they will lead to recovery plans that have a substantial degree of "buy-in" from affected interests and plans that are taken more seriously than present plans often are. These are worthy goals, but they won't be achieved by loading up recovery planning processes with a host of new procedural requirements. That "easy solution" reminds me of H. L. Mencken's comment that "There is always an easy solution to every human problem neat, plausible, and wrong." I urge you to rethink them carefully, with a critical eye on the resource demands they entail.

For similar reasons, I think it a mistake for Congress to require independent scientific review of every listing decisions and to prescribe how that review is to be accomplished. Many listing decisions generate no real controversy, and to require independent review of them is a make-work exercise. When independent review is needed., the National Research Council may or may not be the best source of qualified reviewers, and it may or may not be able to respond promptly to the needs of the government for such reviewers. It is much better, in my view, to direct the Secretary to institute a mechanism that assures independent scientific review and is free from the appearance of conflict of interest, but leave it to him to determine how that should best be accomplished.

Finally, the bill makes a number of changes to the provision of the Act that governs how federal agencies are to carry out their obligations toward endangered species. That provision, section 7, has been in many ways the cornerstone of the Act. Its procedures are well known, having changed little in the last two decades. Its results have been generally quite positive, as measured both by the infrequency of irreconcilable conflicts, and by the fact that species found on federal lands are generally faring much better than those not found there. In general, I favor the philosophy that "if it ain't broke, don't fix it." In my view, section 7 ain't broke.

I hope that you will address these and other concerns seriously. As I have noted at the outset, I think it is legitimate and appropriate to try to reduce the burdens this Act imposes on those it most directly affects, but it is essential to do so in a way that actually improves the prospects for survival of the species at risk of extinction. I urge you to keep in mind what William Beebe, a scientist, explorer, and friend of Theodore Roosevelt, wrote more than 90 years ago: "The beauty and genius of a work of art may be reconceived, though its first material expression be destroyed; a vanished harmony may yet again inspire the composer; but when the last individual of a race of living things breathes no more, another heaven and another earth must pass before such a one can be again." In his lifetime, Beebe saw the once most abundant bird on earth, the passenger pigeon, disappear into extinction. He saw the heath hen of the Northeast pass forever from this earth, and the Carolina parakeet of the Southeast vanish not long thereafter. None of us will ever see these creatures or hear their voices. As you consider this bill, I hope you will seek to ensure that those who come after us will be able to see and hear the species that we still have the power to save.