What is at stake here today is not just this nation's bountiful natural heritage. If the United States, the wealthiest nation on the planet, fails now to reaffirm its commitment to endangered species conservation because it perceives that the costs are too great, we can hardly expect the rest of the family of nations to make the tough choices needed to conserve the biological diversity that is rapidly disappearing around the world.
NWF's passionate commitment to endangered species conservation should not be confused with zealotry. We recognize the importance of bipartisan support for ESA reauthorization and understand that such support can only be achieved through compromise. We applaud the Senators and their staffs for rolling up their sleeves and trying to develop a compromise reauthorization package that could win broad support in Congress and across the country.
Senators Chafee, Baucus, Kempthorne and Reid have devoted a great deal of personal time and energy to this effort. Now that we have a bill before us, it is time for those of us with constituents who work with the Endangered Species Act in their daily lives to size up the results. The test is a straightforward one: will the nation's imperiled plant and animal species be better off, or worse off, if S. 1180 were to become law?
Based on NWF's expert analysis and on-the-ground experiences, I am pleased to note that the bill contains several needed improvements to the ESA. These changes are neither "strengthening" or "weakening" amendments. They would simply make the Act work better -- a goal we should all share.
Despite these improvements, however, we have come to the conclusion that the overall effect of the bill, in its current form, would be to seriously weaken the ESA's essential protections. It is my sincere hope that we can work together in the coming weeks and months to make the changes that are needed to mold S. 1180 into a bill that we can support. You have before you a base to work with. Our challenge is to convert it into a bill that addresses the legitimate concerns of some landowners and regulated industries and, at the same time, improves the situation for the nation's imperiled plant and animal species. Attached to my testimony is a detailed, section-by-section analysis of the bill which notes the areas of the bill we applaud and also explains the problems we see. I would like to use the balance of my time to highlight a few of the biggest problems and to recommend some solutions.
Four Priorities for ESA Improvement
In the past few years, as we looked around the country to examine how the ESA was being implemented, NWF identified four areas where improvements to the ESA are most needed:
(1) Habitat Conservation Plans, or HCPs, need to be better designed to work for both landowners and wildlife;
(2) The Act needs to promote fairness and citizen participation;
(3) The Act needs to increase the accountability and ability of federal agencies to achieve species recovery; and
(4) The ESA needs to provide greater incentives for landowners and others to conserve wildlife.
Measuring S. 1180 against each of these needs, we find it to be deficient and in need of improvement.
1. Design HCPs that Work for Both Landowners and Wildlife
NWF believes that HCPs, particularly large-scale, multi-species HCPs, have the potential to address many of our most vexing conservation challenges on nonfederal lands. NWF has always supported "place-based" conservation policies -- policies that set a workable conservation standard and then empower everyday people to play an important role in deciding how wildlife resources will be managed to meet that standard. A placed-based approach taps into the wisdom and talent of local people and ensures the local buy-in needed for successful implementation. By authorizing multispecies HCPs and Candidate Conservation Agreements and by setting workable approval standards for unlisted species, S. 1180 takes a small but important step in this direction.
Unfortunately, the major thrust of the bill's HCP provisions would undermine the ability of people in local communities to develop broadly-supported multi-species conservation plans. NWF has been carefully studying HCPs -- we've held two major conferences and have been involved with several individual plans -- and we have found that two existing policies are crying out for change. Not only does S. 1180 fail to address either of these problems; in fact, it worsens the situation by weakening HCPs in critical areas.
First, S. 1180 codifies the Fish and Wildlife Service's practice of approving HCPs for listed species even if the HCPs would undermine species recovery. When Congress enacted the HCP provisions in 1982, its model was the San Bruno HCP, which allowed landowners to destroy roughly 10 percent of the remaining habitat of two endangered butterflies and called for significant active management as mitigation for that loss. In contrast with that model, the Service is currently approving HCPs in the southeastern United States for red-cockaded woodpeckers that allow landowners to destroy all of the habitat on their property in exchange for simply building artificial cavities on public lands. The sacrifice of private-land woodpecker habitat and the failure to include a serious mitigation strategy has been roundly criticized by the scientific community as being inconsistent with the recovery needs of the woodpecker. To address this problem, we urge the Committee to amend S. 1180 to clarify that HCPs cannot be approved if they would undermine recovery.
Second, S. 1180 codifies the Administration's "no surprises" policy, which assures landowners that once they agree to an HCP, their ESA obligations will not be revisited at their expense for the duration of the HCP, which often is 50 or more years. Leading scientists have harshly criticized this hands-off approach, noting that many HCPs are based on controversial scientific assumptions that need to be revisited and revised to account for new information and changed circumstances.
We recognize that landowners need certainty and that some form of regulatory assurances policy is needed to encourage landowners to invest time and money in large-scale conservation planning. But to justify giving assurances, the underlying HCPs must be improved. Among other things, HCPs must include provisions for monitoring biological performance and for funding management changes necessary to prevent HCPs from jeopardizing the existence of species. These safeguards can be provided while still giving landowners regulatory assurances. H.R. 2351, the ESA reauthorization bill introduced by Representative Miller (D-CA) this summer, includes the safeguards needed for both species and landowners -- we urge you to consider the approach taken in that bill.
2. Promote Fairness and Citizen Participation
Providing meaningful opportunities for citizen participation in key ESA decisions is essential to ensure well-grounded decisions and to help build community buy-in to those decisions. Although the current Administration has made some strides in this direction, a fundamental problem with HCPs and other large-scale management plans is that they are developed behind closed doors with regulated interests and then announced to citizens after meaningful opportunities to contribute have long since passed. Members of the Committee should not be surprised to hear that environmental and scientific support for HCPs developed under these conditions has been lacking. S. 1180 simply codifies the current, ineffective approach of letting the regulated interests decide whether to invite citizens into the HCP negotiations. At the same time, it worsens the situation for Section 7 consultations by creating new rights of "special access" to regulated interests.
3. Increase the Agencies' Accountability and Ability to Achieve Recovery
If imperiled species are going to be recovered under the ESA, the Act needs to be amended to make all federal agencies legally accountable for achieving recovery and to give them the tools to do the job. Unfortunately, S. 1180 contains amendments that would undermine the ESA's recovery goal. It weakens agency accountability by creating a series of new loopholes in the areas of recovery planning, recovery implementation agreements, and Section 7 consultations. For example, the bill's provisions governing recovery implementation agreements would insulate those agreements from judical review -- an approach we thought Congress would abandon after the "logging without laws" debacle. The bill also creates a nightmare of new bureaucratic requirements in listings, 4(d) rules, and recovery planning -- the combined effect of which would be to divert scarce agency resources away from actual conservation. All of the new, ambitious procedural hoops and hurdles are a recipe for failure. The agencies will not be able to recover species under this bill and, as a result, the ESA is being set up for future complaints and attacks on the basis that it has failed to achieve its recovery goal.
4. Provide Incentives for Landowners and Others to Conserve Wildlife
As a participant in the landmark 1995 Keystone dialogue on private landowner incentives, NWF is aware of the importance of providing financial and other encouragement to landowners to take actions benefitting species. Many imperiled species simply cannot thrive in our highly-altered landscapes without active management of their habitats, and active management on nonfederal lands can only be secured with incentives. We therefore strongly support the grant programs, education and technical assistance programs, and revolving loan fund authorized in S. 1180. However, we caution anyone who concludes that these authorizations will lead to improved species conservation on the ground. In the absence of a secure source of funding, the appropriations committees ultimately will determine the success or failure of these programs. Although we will continue our work in advocating before these committees for better funding of endangered species conservation, we are not naive about the enormous obstacles that lie before us.
Leaving the success or failure of this bill in the hands of the appropriations committees is a recipe for disaster. We look forward to continued discussions with the Committee about how we can develop a funding mechanism for endangered species conservation that is not subject to the vagaries of the appropriations process. It is essential that such a fund be created and enacted as part of any ESA reauthorization bill, such as this one, that relies so heavily on more money to get the job done. As with Superfund and the Transportation bills, the program changes and the money to pay for those changes must go together.
Looking again at the four priority areas for ESA improvements, I am sorry to report that S. 1180 does not significantly improve the situation in any of the four areas. The improvements that are in the bill are overwhelmed by the numerous provisions that undermine essential protections for imperiled species. This readily apparent in the priority areas of HCPs, citizen participation and federal agency recovery efforts. Unless S. 1180 is amended to address each of these problems, NWF cannot in good faith support this bill. To paraphrase biologist E.O. Wilson, if our generation stands by silently while the earth's treasure of biological diversity is destroyed, it will be a sin for which our descendants will never forgive us.
We would welcome an opportunity to meet with the Committee and its staff to work through our concerns in greater detail.
Thank you again for this opportunity to testify.
by John Kostyack, Counsel, Office of Federal and International Affairs
September 22, 1997
The National Wildlife Federation, the nation's largest conservation education and advocacy organization, believes that bipartisan agreement on improving and reauthorizing the Endangered Species Act (ESA) is essential. Unfortunately, although S. 1180 contains some improvements to the ESA, its overall effect would be to seriously weaken this nation's most important law protecting endangered wildlife and wildlife habitat.
Considering that 84 percent of Americans want the ESA to be either strengthened or retained, Congress will need to make significant changes to this bill to bring it in synch with the views of mainstream America. Set forth below are the key changes that are needed and a section-by- section analysis of the bill.
I. KEY CHANGES NEEDED
The National Wildlife Federation has identified four areas where improvements to the ESA are most needed:
A. Design Habitat Conservation Plans that Work for Both Landowners and Wildlife.
B. Promote Fairness and Citizen Participation in Wildlife Conservation.
C. Increase the Accountability and Ability of Federal Agencies to Achieve Recovery.
D. Provide Incentives for Landowners and Others to Conserve Wildlife.
Unfortunately, rather than improving the ESA in these key areas, S. 1180 would significantly weaken the Act's vital protections.
The following is a summary of NWF's comments on and recommended changes to the most significant features of the bill, both positive and negative. The numbers in parentheses are references to the bill; they also may be used in locating specific NWF's comments in the section- by-section analysis.
A. Design Habitat Conservation Plans that Work for Both Landowners and Wildlife.
Establishes Workable Standard for Unlisted Species Covered by HCPs (Page 54, Line 5).
Codifies Administration's Workable New Standards for Candidate Conservation Agreements (Page 60, Line 3).
Fails to Address Services' Approval of HCPs that Undermine Recovery. (Page 53, Line 18).
Weakens Standards for Reviewing Activities That May or May Not be "Low Effect"(Page 57, Line 2).
Locks in HCPs and CCAs, Some of Which Will Prove to be Harmful to Species and Will Need to be Adjusted. (Page 59, Line 6 and Page 60, Line 3).
Authorizes Safe Harbor Agreements Without Requiring Conservation Benefit. (Page 65, Line 1).
Creates New Obstacle to Enforcement and Habitat Conservation Planning. (Page 74, Line 20).
Authorizes "No Take" Agreements That Could Contain Broad ESA Exemptions (Page 83, Line 8).
B. Promote Fairness and Citizen Participation in Wildlife Conservation.
Creates Broadly-Representative Recovery Teams (Page 20, Line 11).
Deters Participation on Recovery Teams by Creating Unmanageable Tasks (Page 20, Line 11).
Provides Special Access to Section 7 Consultations to Regulated Industries (Page 51, Line 11).
Fails to Adequately Address Behind-the-Scenes Approach to Developing HCPs and CCAs. (Page 64, Line 14 and Page 60, Line 3).
C. Increase the Accountability and Ability of Federal Agencies to Achieve Recovery.
Emphasizes that Recovery Goals are to be Based Solely on Science (Page 23, Line 20.)
Calls for Inventory of Species on Federal Lands (Page 43, Line 18).
Clarifies Duty to Mitigate Harmful Effects of Federal Activities (Page 53, Line 6).
Creates a Procedural Morass at the Expense of On-the-Ground Conservation:
* Places Unwarranted Bureaucratic Obstacles in Front of Listings (page 10, Line 14).
* Creates Unnecessary Bureaucratic Steps in Managing Threatened Species (Page 16, Line 16.)
* Creates a Burdensome Recovery Planning Process That Would Undermine ESA Implementation (Page 24, Line 21.)
*Adds Unwarranted Recovery Planning Obstacles by Delegating to States (Pages 33, Line 20).
Creates a New Loophole for Avoiding Recovery Planning (Page 18, Line 22).
Fails to Address Services' Approval of Federal Activities that Undermine Recovery. (Page 53, Line 6).
Creates Unreviewable "Recovery Implementation" Agreements With Federal Agencies That Could Seriously Harm Species (Page 31, Line 9).
Provides Harmful "No Surprises" Assurances to Industries Engaged in Federal Activities (Page 30, Line 13).
Removes FWS and NMFS from Key Decisions and Allows the "Fox to Guard the Henhouse" (Page 44, Line 22).
Authorizes Potentially Destructive Activities During ESA Review of Federal Land Management Plans. (Page 48, Line 20).
D. Provide Incentives for Landowners and Others to Conserve Wildlife.
Authorizes Grants to Private Landowners, States and Others to Implement Recovery Plans(Page 30, Line 13).
Authorizes Education and Technical Assistance Programs (Page 56, Line 9 and Page 76, Line 2.)
Authorizes Habitat Reserve Program. (Page 67, Line 17).
Authorizes Habitat Conservation Planning Fund. (Page 69, Line 11).
Increases the Amounts Authorized for Incentives and Other Programs (Page 78, Line 4).
Identifies No Secure Source of Funding. (Page 78, Line 4).
II. SECTION-BY-SECTION ANALYSIS
SEC. 2. LISTING AND DELISTING SPECIES
Creates Inflexibility Regarding Contents of Listing Petitions (Page 5, Line 2.)
Although it makes sense to set standards regarding the contents of listing petitions, these standards should not be designed in a manner that enables the Services to reject petitions arbitrarily. Because even the most thorough listing petitioner will not likely be able to describe all of the available data pertaining to the species, this requirement should be qualified with the phrase "to the maximum extent practicable."
Limits Tracking of Unlisted Species (Page 9, Line 15.)
In addition to being required to monitor "warranted but precluded" species, the Services should be required to maintain a list of species for which it has been found that listing may be warranted but further research is necessary. When such a list was maintained under the name of "C-2 candidate species," it proved extremely useful to federal land managers and others seeking to manage natural resources proactively and avoid future ESA listings.
Places Unwarranted Bureaucratic Obstacles in Front of Listings (page 10, Line 14).
The bill places three new and costly hurdles in front of species listings: a requirement of up to 5 hearings per listing, an added comment period for states, and mandatory peer review regardless of whether there is a scientific dispute regarding the need to list. The overall effect of these changes, and the new 4(d) and recovery planning deadlines discussed below, will be that fewer imperiled species will be listed and species will wait longer to receive ESA protections.
Creates Unjustified Bureaucratic Steps in Managing Threatened Species (Page 16, Line 16.) The bill adds new and potentially costly bureaucratic steps for the Services to follow in managing threatened species. Under current law, threatened species automatically receive the protections of the full take prohibition unless the Services issue a species-specific management plan called a 4(d) rule. Under S. 1180, the Services are required to issue a 4(d) rule for each threatened species by the time the recovery plan for that species is finalized. (The bill requires that recovery plans be finalized within 30 months of listing.) Although species-specific 4(d) rules are justified for some threatened species, the arbitrary requirement that they be developed for all threatened species regardless of whether they are needed will divert limited resources away from actual conservation. Moreover, this requirement sends a dangerous message that removing the full take prohibition is appropriate for threatened species generally, at a time when many threatened species are seriously imperiled and rely heavily upon the full take prohibition for their survival.
Fails to Require Meaningful Citizen Participation in Development of 4(d) Rules (Page 16, Line 16). The bill also fails to identify the process that will be used in developing the numerous 4(d) rules that will now be required. Large-scale management plans such as 4(d) rules should be developed with the input of a wide array of stakeholders, so that all relevant information and ideas are assembled. Unfortunately, without legislative guidance on this issue, the Services will likely develop 4(d) rules behind-the-scenes, with a short comment period thereafter, in an effort to meet the statutory deadline.
SEC. 3. ENHANCED RECOVERY PLANNING
Creates a New Loophole for Avoiding Recovery Planning (Page 18, Line 22). The bill allows the Services to avoid their obligation to prepare a recovery plan for species if "an existing plan or strategy to conserve the species already serves as the functional equivalent to a recovery plan." This open-ended language would allow the Services to sidestep preparation of recovery plans in favor of existing internal planning documents developed with little or no scientific guidance or public participation. Although it makes sense to avoid unnecessary duplication, this goal can be achieved by incorporating previous work into the recovery planning process, rather than simply eliminating all of the procedural and substantive requirements of recovery planning.
Sets the Wrong Recovery Planning Priorities (Page 19, Line 1). We acknowledge that the Services must choose priorities in allocating resources among various recovery plans. But these provisions do nothing more than confuse the priority-setting processby suggesting that the Services must give priority to plans with four attributes that are unlikely to ever be found in a single plan. For example, few if any plans will contain both the first attribute (addresses "significant and immediate threats" to the species) and the third (reduces conflicts with construction or other development projects).
These priority provisions are also problematic because they place the objective of reducing conflict with short-term development schemes on equal footing with the ESA's fundamental objective of recovering species. To further the ESA's recovery goal, Congress should direct the Services to give priority to recovery plans that address significant and immediate threats, have the greatest likelihood of achieving recovery, and address multiple species. Once these priority plans are chosen and scientific criteria for recovery are identified, then recovery teams should attempt to design implementation strategies that minimize social and economic disruptions while achieving timely recovery.
Creates Broadly-Representative Recovery Teams, But Deters Participation by Creating Unmanageable Tasks (Page 20, Line 11). We wholeheartedly endorse the concept of creating "broadly representative" recovery teams. But in describing potential members of the recovery team, the bill includes "commercial enterprises" but fails to mention conservation organizations. This leaves open the possibility that conservation interests will be included, if at all, as mere token participants. (A recent habitat conservation planning process in Texas included just one conservation member, in contrast with six timber industry representatives.) The bill needs to be revised to clarify that recovery teams must have a rough balance of participation from both those seeking to promote economic activity that adversely affects species and those seeking to conserve species. This approach -- currently utilized in the Marine Mammal Protection Act provisions governing take reduction teams and the Federal Land Policy and Management Act regulations governing range advisory councils -- would help ensure that a full range of viewpoints are represented on recovery teams.
Of course, the concept of stakeholder-type recovery teams makes sense only if the assigned tasks are managable. As discussed below, S. 1180 would need to be revised substantially to make the recovery planning process accessible to stakeholders.
Helps Recovery Team Members Cover Costs (Page 22, Line 16.) We applaud the bill's recognition that participation on a recovery team will be costly and that the federal government should help defray the costs. This makes perfect sense, considering that the recovery team will essentially be providing advisory services to the Services. To limit the budgetary impact of this proposal, Congress should condition the reimbursement of expenses upon a demonstration of financial need.
Emphasizes that Recovery Goals are to be Based Solely on Science (Page 23, Line 20.) The bill appropriately calls for scientific members of the recovery team to recommend a recovery goal "based solely on the best scientific and commercial data available" and "expressed as objective and measurable biological criteria." This, along with the requirement of peer review of the recommended recovery goal, will help ensure that political considerations do not intrude into the process of resolving the scientific issue of the species' recovery needs. To ensure that economic self-interest does not intrude into this determination, language should be added to clarify that the term "independent scientific review" means that peer reviewers may not have economic conflicts of interest.
Creates a Recovery Planning Process That Would Undermine ESA Implementation (Page 24, Line 21.) The bill adds numerous bureaucratic requirements to the recovery planning process that would essentially negate the recovery planning improvements noted in the above three paragraphs. These requirements would make development of the recovery plan more expensive, difficult, and time-consuming and would create numerous litigation opportunities from those seeking to frustrate ESA implementation. The new requirements would also delay finalization of recovery plans, increasing the likelihood that HCPs and other management plans will provide inadequate species protections. Finally, the burdensome processes would drain limited agency resources away from the on-the-ground conservation activities that determine the success or failure of the ESA.
The following is a summary of the numerous tasks that have been added to the existing recovery planning process. Although a small handful of these steps are useful, the cumulative effect of these requirements would be to undermine ESA implementation.
1. The bill first requires the Services to assemble a recovery team. Although (as noted above) NWF supports making recovery teams broadly-representative, the bill also mandates that they be developed "in cooperation with the affected states," which would create a procedural morass. (The bill defines such cooperation as incorporating the states' recommendations "to the maximum extent practicable.") In light of the inherent difficulties of soliciting and incorporating state recommendations, the bill's 60-day deadline for appointing recovery team members would likely be impossible to meet, especially for recovery plans governing species found in multiple states.
2. The scientific members of the recovery team must then convene to recommend a biological recovery goal.
3. The recovery goal must then be subjected to peer review and the comments of the peer reviewers must be considered and, where appropriate, incorporated.
4. Recovery team members must then decide upon the "recovery measures" for the draft recovery plan, balancing three conflicting factors: effectiveness in meeting the recovery goal, the period of time in which the goal is likely to be achieved, and the social and economic impacts and their distribution across regions and industries.
5. Recovery team members must then prepare a description of alternative recovery measures considered and set forth the reasons for their selection or rejection. Presumably, the discussion of reasons for selecting and rejecting recovery measures must include an analysis of how each of the three factors described above was applied to each of the selected and rejected recovery measures.
6. To add to this already difficult task, the bill then states that for recovery measures that impose significant costs, the team must somehow prepare a description of "overall economic effects" of the recovery plan, including effects on employment, public revenues, and property values. This assessment would be even more speculative than the assessments of regulatory impacts called for in the various "takings" bills that Congress has considered and rejected. Rather than analyzing the effect of a single regulation, the recovery team will need to analyze the potential economic effects of a long list of broadly-defined recovery measures that may or may not be implemented, depending on when funding becomes available, over the course of decades. This task will produce nothing more than wild speculation about potential economic effects, speculation that will become available to ESA opponents seeking to block implementation.
7. In addition, the recovery team must identify objective benchmarks to determine whether progress is being made toward the recovery goal.
8. The team must also make recommendations regarding designation of critical habitat, including recommendations for special management considerations.
9. The work is far from over once the recovery team's numerous recommendations and extensive analyses are completed. At that juncture, the Services must review this extensive set of materials and, if they find any deficiencies, they must send the package back to the recovery team with an explanation.
10. At that point, the team must convene again to address the perceived deficiencies. (Page 28).
11. Once the Services have received the revised recommendations of the recovery team, the Services must publish a draft plan in the Federal Register and hold up to 5 public hearings on the draft plan, if requested. If this draft plan has not been completed within 18 months of listing, the Services must also defend against potential lawsuits for failure to meet the new statutory deadline.
12. The Services must then develop a final plan, and included with the plan their responses to any significant comments received from the public. If the Services ultimately reject any measures recommended by the recovery team, they must publish an explanation along with the final plan. If this draft plan has not been completed within 30 months of listing, the Services must also defend against potential lawsuits for failure to meet the new statutory deadline.
13. The bill also requires the Services, upon request, to delegate to one or more states the authority to develop recovery plans on their own (with the exception of final approval of the recovery plan, which remains with the Services). As discussed below, this would greatly increase the likelihood of inadequate recovery plans and would substantially increase the associated costs, complexities and delays.
14. Because satisfaction of these new procedural requirements and preparation of these numerous analyses will be extremely difficult and will involve many judgment calls by the Services and the recovery team, litigation over recovery planning procedures and recovery plan contents will likely expand dramatically.
As this summary makes clear, the overall effect of the bill's recovery planning provisions is not to "enhance" recovery planning, but to make achieving the ESA's recovery goal more difficult and to set up those seeking to implement the ESA for failure.
Authorizes Grants to Private Landowners, States and Others to Implement Recovery Plans (Page 30, Line 13). NWF strongly supports the bill's authorization for the Services to develop and provide funds for recovery "implementation agreements" in which states, tribes, local governments and private landowners commit to taking actions that promote species recovery. By encouraging landowners and others to take actions specified in the recovery plan as beneficial to species recovery, this provision will potentially help ensure that recovery plans serve a meaningful purpose and help imperiled species move closer to the recovery goal. The success of this provision, of course, will ultimately be determined by the extent to which funds are appropriated by Congress.
Creates Unreviewable "Recovery Implementation" Agreements That Could Seriously Harm Species(Page 31, Line 9). We also agree with the concept of requiring that federal agencies with activities significantly affecting recovery enter into recovery implementation agreements. However, two key features of S. 1180's recovery implementation agreements with federal agencies appear to be designed to undermine recovery. The first feature is the language that precludes any judicial review of recovery implementation agreements, the very kind of "sufficiency" language that led to the "logging without laws" debacle of the 104th Congress. According to the bill, the terms of recovery implementation agreements are "within the sole discretion of the Secretary and the head of the Federal agency entering the agreement." This would make the agencies' judgments regarding what promotes or undermines recovery unreviewable, thus opening the door for deals that could never stand up to legal or scientific scrutiny and that could contribute directly to the extinction of imperiled species.
Provides Harmful "No Surprises" Assurances to Industries Engaged in Federal Activities (Page 30, Line 13). The second harmful feature of S. 1180's recovery implementation agreements with federal agencies is the Section 7 waiver. By waiving Section 7(a)(2) for actions set forth in the implementation agreement, the bill removes an essential ESA tool for updating management strategies and modifying them as necessary to prevent serious harm to imperiled species.
At first blush, the bill appears to contain some limited safeguards: it states that the waiver applies only to actions "specified in a recovery plan implementation agreement . . . to promote recovery and for which the agreement provides sufficient information on the nature, scope and duration of the action to determine the effect" on the species or its critical habitat. It also calls for the Services to approve the agreement only if they find that the agreement will be "reviewed and revised as necessary on a regular basis . . . to ensure that it meets the requirements of this section." However, these safeguards can easily be ignored because, as noted above, the bill precludes any challenges to the terms of recovery plan implementation agreements.
Even without the sufficiency language, recovery implementation agreements still could be used to authorize activities that prove to be harmful to species. The bill's "duration" language is sufficiently flexible to potentially allow agreements of one or two decades or more. (The Services have utilized the similar flexibility of the ESA's Section 10 to approve HCPs of up to 100 years.) And the bill's "regular" review requirement is sufficiently flexible to allow for agreements that are reevaluated at intervals of 5 years or more. Thus there is a substantial risk that by the time management practices approved in the recovery implementation agreement are carried out, they will be inconsistent with the current scientific understanding of the species' needs. Even if the recovery implementation agreement is contributing directly to a species' decline, the Section 7 waiver would preclude the Services from reinitiating consultation and revising the agreement to conform with the latest science.
For example, if the Fish and Wildlife Service enters a 10-year recovery implementation agreement with the Agriculture Department's Animal Damage Control (ADC) agency stating that depredation of the gray wolf to protect livestock on federal grazing allotments is necessary to promote wolf recovery (the current FWS view), S. 1180 would waive Section 7's applicability to all future wolf depredation authorized by the agreement. After three years, if new data reveals that wolf depredation authorized by the agreement is contributing to the species' rapid decline, the bill would preclude FWS from reinitiating consultation with ADC and making appropriate changes to save the species.
In effect, the Section 7 waiver would provide harmful "no surprises" assurances to federal agencies and the industries that rely upon the agencies' authorizations. This policy is harmful enough as applied to nonfederal activities -- it would be far more harmful if extended to federal activities.
Creates Unwarranted Recovery Planning Obstacles by Delegating to States (Pages 33, Line 20).
For at least three reasons, NWF opposes such wholesale delegation of recovery plan development to the states. First, most listed species are imperiled due to management practices carried out by a wide variety of landowners and resource users on lands and waters within the jurisdiction of federal, state, tribal and local government landowners. Under our constitutional framework, only the federal government has the ability to confront these threats. Although the bill suggests that the Services and the states can develop "standards and guidelines" for interstate cooperation, history tells us that such cooperation is quite difficult to achieve, especially in cases where neighboring states have conflicting economic development and resource conservation strategies.
Second, state governments are suffering widespread and severe funding shortfalls due (among other things) to the devolution of numerous federal programs. Before delegating another costly and complex federal program, Congress should investigate whether the state wildlife agencies have the resources, expertise and demonstrated commitment to endangered species conservation to undertake the lead role on recovery plan development. In an era when (according to a National Audubon Society survey) only six state wildlife agencies have staff ornithologists, Congress should be particularly hesitant about inviting states to take the lead in drafting complex recovery plans for migratory birds and other "multi-jurisdictional" species.
Finally, delegation to the states would increase the overall costs of recovery planning. States would need to develop separate ESA recovery planning bureaucracies and devote substantial resources simply toward coordinating amongst themselves and with the Services. The Services would retain the responsibility to participate on recovery teams, monitor state compliance with the maze of new procedures and withdraw state authority when appropriate, review draft plans, and make final approval decisions. Even if resources to pay for this additional staffing were available, it would be much better utilized doing on-the-ground conservation. The benefits, if any, of giving the states the lead role in developing recovery plans would be far outweighed by the added costs and complexities.
There are plenty of ways of increasing state involvement in ESA recovery efforts without creating undue risks for species. Because states already have the ability to participate on recovery teams led by the Services, Congress could expand that involvement by increasing Section 6 funding. As recognized elsewhere in this bill, states can also be encouraged to take the lead in implementing recovery plans.
Reopens Critical Habitat Loophole (Page 37, Line 21). The bill requires final designation of critical habitat only "to the maximum extent prudent and determinable" -- a return to the approach that was taken prior to 1982, when Congress recognized this as a loophole that was enabling the Services to claim arbitrarily that habitat is not determinable and to evade their responsibilities to designate critical habitat. This provision should be removed and the 1982 amendment requiring final designation "to the maximum extent prudent" should be reinstated.
Imposes Recovery Plan Deadlines (Page 20, Line 3 and Page 42, Line 16). NWF supports imposing deadlines for completion of recovery plans. However, deadlines should be imposed only after making a realistic estimation of the time needed for each of the assigned recovery planning tasks given anticipated levels of appropriations. The fact that the bill is replete with inordinately complex and burdensome tasks that could never be achieved under any near-term deadline suggests that this process has not been undertaken. By setting near-term deadlines for numerous difficult-to- achieve tasks without any realistic hope that appropriators will provide the necessary funding, the bill appears to be setting up the Services for failure.
Calls for Inventory of Species on Federal Lands (Page 43, Line 18). The bill calls upon federal land management agencies to undertake a long overdue inventory of listed species, species proposed for listing, and candidate species on federal lands. One of the major obstacles to effective management of both federal and nonfederal lands is the paucity of biological data. The success of this program, of course, will ultimately be determined by the extent to which funds are appropriated by Congress. Considering that most federal land management agencies are already very understaffed, Congress will need to appropriate substantial funds to make this program a success.
Removes FWS and NMFS from Key Decisions and Allows the Fox to Guard the Henhouse (Page 44, Line 22). S. 1180 would remove the Services from their longstanding roles as the expert biologists charged with ESA consultations, i.e., reviewing and potentially modifying federal projects to reduce their harmful impacts on imperiled species. The bill instead merely gives the Services the option to perform the consultative role: if the "action" agency contends that its project would not be likely to adversely affect imperiled species, the Services may object within 60 days and force a consultation to take place. If they fail to object within 60 days, the project moves forward without their expert review.
The risk that the Services will fail to respond to "not likely to adversely affect" (NLAA) findings by action agencies is substantial, especially given the severe staffing shortages currently faced by the Services, the many new bureaucratic requirements imposed by this bill, and the lack of any evidence that appropriators are committed to substantial funding increases. (The new bill gives new incentives to regulated industries to oppose such funding increases, since ESA review of their projects will be less likely so long as the Services remain understaffed.) The risk of inaction by the Services is further heightened by the fact that most of the bureaucratic tasks required by this bill are mandatory, whereas responding to the agencies' NLAA findings is discretionary. As the Services' experience with the listing program teaches us, when the understaffed Services are forced to choose between legally-mandated and discretionary actions, they choose the legally-mandated actions.
The bill's requirement that the action agency rely upon a "qualified biologist" does not provide a sufficient safeguard for imperiled species. Agencies such as the U.S. Forest Service (FS) and Bureau of Land Management (BLM) routinely rely upon biologists to advocate for projects that are deleterious to species. Because the missions of these agencies are not oriented toward protecting wildlife, allowing them to make key ESA decisions unilaterally would be disastrous -- no different than the proverbial "fox guarding the henhouse."
The Clinton Administration itself has acknowledged that FS and BLM cannot be entrusted with making far-reaching decisions concerning endangered species. In its October 1996 indictment of the timber salvage program, it concluded that "some FS and BLM personnel do not have an understanding of, or a commitment to the goals and requirements of the ESA." In contrast, FWS and NMFS in recent years have successfully maintained their expert roles while consolidating and streamlining consultations. There simply is no justification for shifting responsibility for implementing the ESA's consultation provisions away from these expert agencies.
Calls for an Unbalanced ESA Study (Page 48, Line 10). The bill calls for the GAO to issue a report on the cost to federal agencies, corporations and others of complying with Section 7, without seeking any information on the conservation benefits of this provision. The result will be ammunition to those seeking to undermine the Act, not a balanced appraisal of the results of ESA implementation.
Authorizes Potentially Destructive Activities During ESA Review of Federal Land Management Plans. (Page 48, Line 20). An essential feature of the existing ESA is that potentially destructive federal activities do not go forward if the Services cannot rule out the possibility that they might jeopardize the existence of an imperiled species. S. 1180 would undermine this
principle by allowing action agencies to go forward with their activities while the cumulative harmful effects of those activities on newly listed species are being evaluated.
For example, under the current ESA, if a newly listed salmon species is threatened with extinction by timber harvesting, the Services must review the FS's land management plan authorizing timber harvesting and recommend changes needed to protect the species. At the outset of the review process, if the Services find that certain harvesting activities authorized by the old plan could threaten the very existence of the species, Section 7(d) of the ESA calls for delaying those activities pending completion of the review. The bill would undermine Section 7(d) protections by allowing those activities to go forward before the plan review is completed -- even if the resulting habitat destruction would irrevocably undermine efforts to save the species.
Although S. 1180 calls for the plan review to be completed within 15 months of listing, this offers little protection to imperiled species. Projects that go forward before the end of 15 months will still potentially cause significant harm. Moreover, if the plan review is not completed within 15 months, additional harmful projects could potentially go forward because the bill fails to provide any remedy for failure to meet the statutory deadline.
The bill should be amended to authorize action agencies to initiate a review of their land management plans during the one-year period in which a species has been proposed for listing. This approach, which the Administration is in the process of adopting a MOU between key agencies, would ensure that the plan review is completed prior to the time when the listing goes into effect and that imperiled species receive the protections called for in the amended plan immediately upon listing.
Provides Special Access to Section 7 Consultations to Regulated Industries (Page 51, Line 11). The National Wildlife Federation supports the notion of giving access to stakeholders, including regulated industries, to the Section 7 consultation process. However, the language proposed here would create a "special right" of access to regulated industries while shutting out other citizens who have an equally legitimate interest in decisions concerning federal lands and other public wildlife resources. This language should be revised to give equal access to all citizens to the Section 7 process.
Clarifies Duty to Mitigate, But Fails to Address Activities that Undermine Recovery. (Page 53, Line 6). It is helpful that the bill clarifies that the Services, when designing "reasonable and prudent measures" to reduce take in the Section 7 consultation process, must identify mitigation efforts as well as minimization. (In practice, the Services were already doing this.) However, this language fails to address a critical flaw with the implementation of the minimization and mitigation requirements in both Sections 7 and 10: the failure by the Services to ensure that the harmful effects of projects are minimized and mitigated to point where they do not undermine recovery.
The Services' current approach to Section 7 is to review federal activities for their impacts on the short-term survival of an imperiled species, but not to consider their impacts on the species' recovery needs. As a result, many federal activities are approved even though they undermine the ESA's recovery goal. S. 1180 fails to grapple with this well-known problem, thus perpetuating the problem of species being added to the ESA list but virtually never being removed.
Limits Mitigation Options (Page 53, Line 8).
By requiring reasonable and prudent measures for minimizing/mitigating take to be "related both in nature and extent" to the effects of the proposed activity, the bill would potentially limit significantly the Services' ability to ensure that the destructive effects of federal activities are fully mitigated. Often, the only viable mitigation strategy that arises in a Section 7 consultation is the requirement of off-site habitat restoration. By imposing this new restriction, S. 1180 would frustrate the Services' ability to ensure that federal activities do not undermine recovery.
SEC. 5. CONSERVATION PLANS
Fails to Address the Services' Approval of HCPs that Undermine Recovery. (Page 53, Line 18). Habitat Conservation Plans (HCPs) represent a potentially powerful mechanism to reconcile the desires on nonfederal landowners to undertake economic activities in endangered species habitats with the recovery needs of endangered species. Unfortunately, in approving HCPs to date, the Services have failed to consider the long-term recovery needs and instead have chosen to focus on the species' short-term survival needs. By failing to address this problem, S. 1180 leaves open the possibility that the Services will approve HCPs that undermine the ESA's recovery goal.
Establishes Workable Standard for Unlisted Species Covered by HCPs, But Creates New Obstacle to Multispecies Planning (Page 54, Line 5). The bill establishes two positive new approval standards (based largely on the Administration's candidate conservation agreement policy) for unlisted species that landowners seek to have included in their multispecies HCPs. These standards will be helpful in ensuring that any inclusion of unlisted species in an HCP is based on sound science. However, the addition of these standards without similar improvements to the approval standard for listed species could create an unintended new obstacle to multispecies planning. Because the bill's new standard for candidate species, in essence, requires a contribution to the recovery of the species, it is more protective than the standard for listed species, which merely requires the HCP to avoid jeopardizing the species. A potential result is that landowners will develop HCPs for listed species only, and later amend their HCPs once any candidates have been listed, thereby benefitting from the lower standard for listed species. To ensure early development of ecosystem-oriented plans that address multiple listed and unlisted species, the bill should be revised to require that the recovery needs of both candidate and listed species be addressed in the HCP.
Authorizes Education and Technical Assistance Programs (Page 56, Line 9 and Page 76, Line 2.)
The availability of education and technical assistance will be essential to make the ESA work for both species and landowners. However, agency personnel already have the authority to provide technical assistance, so it is unclear what effect, if any, this additional authorizing language would have. The main hindrance to technical assistance has been lack of available funding, and whether the funding situation would improve as a result of this bill remains an open question.
Imposes Arbitrary Deadlines for Plan Approval (Page 56, Line 19). The time frames set forth in the bill for approving or disapproving HCPs are likely to be impossible to achieve, especially in cases where the potentially significant environmental effects of a plan justify full-scale NEPA review. Because of the rapidly-evolving nature of HCPs and other management plans, deadlines for processing proposed plans should continue to be set administratively.
Weakens Standards for Reviewing Activities That May or May Not be "Low Effect" (Page 57, Line 2). NWF supports offering expedited permitting procedures to small landowners with low effect activities. However, the procedures set forth in the bill for determining whether an activity is truly "low effect" are far weaker than the Administration's current approach, which itself has been criticized for not allowing adequate scientific scrutiny or citizen input. For example, the bill states that low-effect permits will automatically be issued if no significant adverse comment has been received within 30 days. This kind of "auto-pilot" provision would create unacceptable risks to imperiled species. Given the brief period of review and limited resources of conservationists and independent scientists, it is inappropriate to infer from the absence of citizen or scientific input that a permit application is sound.
The bill also removes Section 10's key protection for species, the requirement that harm be minimized and mitigated to the maximum extent practicable. This essential safeguard ensures that strategies for avoiding unnecessary harm, which are sometimes virtually cost-free, have been fully considered.
To ensure adequate citizen and scientific input into potentially "low effect" activities, Congress should require that the Services propose individual species, along with specific economic activities, as eligible for the "low effect" permit procedures and invite broad public input into the proposals. This would ensure adequate scientific scrutiny and citizen input while giving landowners guidance about which permitting procedures would be appropriate for their particular project proposals.
Locks in HCPs, Some of Which Will Prove to be Harmful to Species and Will Need to be Adjusted. (Page 59, Line 6). S. 1180 would codify the Clinton Administration's "no surprises" policy, a policy that has been roundly criticized by conservationists and scientists. Under the "no surprises" policy, the Services offer landowners assurances that no ESA obligations will be imposed on them beyond those stated in the HCP, even if the HCP ultimately proves to be contributing toward species decline and possible extinction. As critics from the scientific and conservation communities have pointed out, many HCPs are long-term plans with numerous questionable assumptions about the adequacy of species protections, and thus some HCPs will inevitably fail to perform as anticipated. Although giving landowners regulatory certainty makes sense, this certainty should only be offered in return for HCPs that contain basic safeguards for species.
In addition to the HCP safeguards recommended elsewhere in these comments, S. 1180 needs to be amended to include a credible adaptive management strategy. (An adaptive management strategy is a program for periodic reevaluations of and adjustments to a management plan; reevaluations include measuring biological performance and checking assumptions in light of new information and changed circumstances.) To ensure that HCPs are adjusted as needed to ensure species recovery, the following adaptive management provisions need to be built into any HCP assurances policy:
(a) Monitoring and Biological Goals. The bill should be amended to require that the performance of the HCP be carefully monitored. With biological indicators established at the outset of the plan, key assumptions of the plan can routinely be tested. The landowners should be required to generate monitoring data, and the Services should in turn be required to evaluate the data and issue regular progress reports for public inspection.
(b) Requirements to Take Corrective Action. The bill should be amended to require that the HCP identify all foreseeable changes in conditions that would have an adverse effect on species recovery, and include the landowner's agreement to undertake specific mitigation strategies to address those changes. (The Services acknowledge the need for such a strategy, but fail to require it. See 62 Fed. Reg. 29093 ("HCP planners should identify potential problems in advance and identify specific strategies or protocols in the HCP for dealing with them")). The bill should also require the Services to take corrective action to address unforeseeable changed conditions that would adversely affect recovery.
(c) Limits on Duration. To ensure that adaptive management strategies are credible, the bill should limit the duration of HCPs to a time period in which the landowner can reasonably foresee -- and design mitigation strategies to address -- the changed conditions that would adversely affect species recovery.
(d) Reliable Funding. To ensure adequate funding for corrective action, the bill should be amended to ensure that responsibility is properly divided between private and public sources. As noted earlier, the landowner should be required to respond to reasonably foreseeable risks in the HCP's adaptive management provisions. A performance bond or other evidence of the landowner's ability to carry out this responsibility should be required as a condition of plan approval. For risks that cannot reasonably be foreseen, Congress should establish a trust fund to cover the costs of corrective action.
By requiring that the "no surprises" assurances be provided without these conservation safeguards, S. 1180 locks in controversial HCP management strategies and removes the tools needed to respond if the HCP is found to be contributing to species decline and possible extinction.
Codifies Administration's Workable New Standards for Candidate Conservation Agreements, But Leaves Other Basic Flaws with CCAs Unaddressed. (Page 60, Line 3). The bill would set a useful standard for approving candidate conservation agreements -- virtually the same one recently proposed by the Administration. This will help ensure that the agreements are based on sound science -- a significant improvement over agreements approved in the past, which have been harshly criticized as political deals to avoid listings that fail to address the needs of species. However, it would greatly reduce (if not eliminate) the potential benefits to be achieved by such agreements by requiring that agreements be covered by the flawed "no surprises" policy (discussed above) and allowing them to continue to be developed with a behind-the-scenes process that denies citizens meaningful opportunities to participate (discussed immediately below).
Fails to Adequately Address Behind-the-Scenes Approach to Developing HCPs. (Page 64, Line 14). Under the current ESA, many large-scale HCPs are developed in closed-door negotiations between the Services and regulated interests. Although citizens are given a brief period to comment on the final draft of the HCP, this comment period does not allow for meaningful input. As a result, many HCPs appear to be biased toward the viewpoints of the regulated interests. Because HCPs are essentially long-term management plans affecting numerous valuable public resources ranging from wildlife to drinking water to flood protection, citizens are entitled to a seat at the table as the plans are developed.
S. 1180 fails to address this need for expanded public participation. Although it states that citizens may participate in plan development with the approval of the permit applicant, it offers nothing to citizens in situations where the permit applicant believes that it will get a better deal in a closed-door negotiation. This voluntary approach is essentially a codification of the approach taken by the Administration in its HCP Handbook, which has not succeeded in stimulating greater opportunities for citizen participation. The bill should be amended to set forth clear standards for balanced participation in the development of large-scale HCPs.
Authorizes Safe Harbor Agreements Without Requiring Conservation Benefit. (Page 65, Line 1). Safe harbor agreements are a laudable attempt to get conservation benefits from private lands that otherwise might not be managed for the benefit of species. These new agreements, however, are still in the experimental stage and should be approached with caution. The following safeguards should be added to S. 1180 to ensure that safe harbor agreements result in improved conditions for species:
(a) Establish a Net Conservation Benefit Standard. As the Administration has stated in its proposed rulemaking on safe harbor agreements, such agreements are not necessarily appropriate for all species and all habitats. For example, scientists have raised concerns that endangered species will move from protected habitat to newly-created or restored habitat covered by safe harbor agreements. As a result, the abandoned habitat would lose its ESA protection and both the abandoned and "safe harbor" habitat would be subject to development -- a net loss of habitat for the endangered species. The bill should require that safe harbor agreements be entered into only if (as the Administration has proposed in its recent rulemaking) the Services rule out such negative effects and find that the agreement will lead to a net conservation benefit.
(b) Establish a Scientifically Credible Baseline. The fundamental premise of safe harbor agreements is that landowners may improve habitat on their land and later destroy those improvements, as long as the habitat is left no worse off than it was at the time the agreement was initiated. Thus, an accurate baseline measure of existing habitat quality and quantity must be identified at the start, to ensure that later activities do not result in a net loss of habitat. The bill requires use of a baseline, but contains only vague suggestions about how the baseline should be defined in the safe harbor agreement. Congress should require that the parties use scientifically defensible and measurable data, including the number of species present on the land and indicators of habitat quality, to define the baseline that must be protected under the safe harbor agreement.
(C) Prevent Safe Harbor Agreements From Being Undermined By Incidental Take Permits. Some landowners have asserted that they are entitled to receive an incidental take permit authorizing habitat destruction and, at the same time, to receive a safe harbor agreement for restoring habitat just destroyed under the permit. By leaving open this possibility, the bill would allow the safe harbor agreement to be used as a tool to remove ESA protections from habitat. The bill should make clear that habitat sacrificed under a take permit is not appropriate for a safe harbor agreement -- it must be restored and given the same ESA protection that it had in the first place.
(d) Don't Subsidize Agreements Lacking Net Conservation Benefit Standard. The bill authorizes the Services to provide grants of up to $10,000 to private landowners to assist in carrying out a safe harbor agreement. Unless the bill is amended to require that safe harbor agreements provide a net conservation benefit to species, this funding would be much better targeted toward other landowner incentives programs authorized in the bill.
(e) Provide Opportunities for Citizen Involvement. Under S. 1180, safe harbor agreements may be developed without any notice to the public or opportunity to comment. Public participation opportunities must be expanded significantly to ensure that the Service is held accountable for setting a credible baseline obligation and providing a conservation benefit to the species.
Authorizes Habitat Reserve Program. (Page 67, Line 17). This provision authorizes the Services to pay private landowners for managing habitat pursuant to a contract or easement -- an important financial incentive that would help promote recovery of imperiled species on private lands. To ensure that the maximum conservation benefit will be realized for the taxpayer's incentives dollars, the bill should give priority to habitat management that is identified in an approved recovery plan. (Like the other incentives programs authorized by this bill, the success of this program depends completely on whether necessary funds are appropriated.)
Authorizes Habitat Conservation Planning Fund. (Page 69, Line 11). This revolving loan fund, which will provide financial incentives to states and localities to develop HCPs, would provide an important stimulus for comprehensive, region-wide planning. Again, the success of this program will depend entirely upon whether sufficient funds are appropriated.
Creates New Obstacle to Enforcement and Habitat Conservation Planning. (Page 74, Line 20). The effectiveness of HCPs and other conservation planning tools depends on a credible enforcement threat. For example, the Clinton Administration has used a combination of the threat of ESA enforcement and positive incentives to convince landowners to "come to the table" and develop HCPs that balance their desire to undertake economic activities with the needs of imperiled species. According to NWF's sources, the negotiators of S. 1180 have agreed to include report language that would require proof that the landowners' activities are the "proximate cause" of harm to imperiled species. This would reduce the Administration's ability to convince landowners to engage in conservation planning and increase the difficulty of protecting the numerous imperiled species that are threatened by the indirect effects of urbanization, intensive agriculture and resource extraction.
Increases the Amounts Authorized for Incentives and Other Programs, But Identifies No Secure Source of Funding. (Page 78, Line 4). The bill laudably provides for substantial (and long overdue) increases in the authorizations for appropriations to the agencies charged with implementing the ESA and includes new authorizations for important incentives programs. Unfortunately, the actual dollar amounts that will fund these programs will be decided in the appropriations committees, and those committees historically have starved ESA programs of funding. Spending targets under the recent budget agreement call for a steady decline in most discretionary spending. Thus, without a new, guaranteed source of funding, this bill will likely be underfunded and the bill's provisions benefitting imperiled species will not be implemented. A bipartisan effort to create a trust fund for endangered species conservation, not subject to the vagaries of the appropriations process, is badly needed.
Authorizes "No Take" Agreements That Could Contain Broad ESA Exemptions (Page 83, Line 8). NWF strongly supports the use of "no take" agreements and other written understandings between the Services and landowners regarding how habitat can be managed to avoid take of imperiled species. Presumably, the bill's drafters merely intended to codify the Administration's policy and practice of entering such agreements. However, the bill language is so vaguely worded that virtually any land management practice could be authorized under a "no take" agreement, regardless of its impact on species and regardless of whether it would ordinarily violate the ESA. Rather than simply authorizing the Services to declare activities identified in the agreement as not in violation of the ESA, the bill should identify what biological and other standards must be met to justify a finding of "no take." To ensure agency accountability, notice of such agreements should be placed in the Federal Register.