S. 1059 is Long Overdue
The Wilderness Society has supported "organic" legislation for the National Wildlife Refuge System similar to that under consideration today for close to three decades. Congress made a start towards such a statute when it passed the National Wildlife Refuge System Administration Act as section 4 of the 1966 Endangered Species Preservation Act. But that legislation is far less comprehensive than the laws governing the management of our National Parks, National Forests, and the public lands administered by the Bureau of Land Management.
The lack of a clear, comprehensive statute for the Refuge System has been at least partly to blame for a myriad of problems. The very purpose of the system has often been ambiguous. Political pressures have led to the establishment and continuation of activities that harm wildlife and habitat on the refuges. Planning for the refuges has been haphazard at best. Research and monitoring of fish and wildlife populations has been lacking. Perhaps worst of all, other federal agencies, both within and outside of the Interior Department have often "bullied" the Refuge System. In fact, even the Fish and Wildlife Service has occasionally contributed to the undermining of refuges as this testimony will later point out.
Our goals for a Refuge System organic act have been straightforward:
-- An unambiguous statement that the purpose of the National Wildlife Refuge System is to conserve the nation's diversity of fish and wildlife.
Although at least in theory, each national wildlife refuge is established with an individual purpose of set of purposes, there is no Congressionally approved overarching mission statement for the Refuge System.
-- A formal process for reviewing the compatibility of refuge activities that provides opportunities for public review and comment.
Over the years, many of the refuges have been subjected to activities that have undermined the purposes for which these areas have been established. (See Appendix I for a partial list of government reports on these problems). During these years, there have been at least three "major thrusts" by the Fish and Wildlife Service to address these problems, the most recent of which by the Clinton Administration. But the endless pattern of broken ... fixed ... broken ... fixed will never end unless a formal process is enacted to review and reevaluate the compatibility of refuge activities
-- Affirmative stewardship obligations for the Secretary of the Interior to protect and provide for the Refuge System.
The Refuge System has been a step-child within the federal government at least in part because there are few explicit legal mandates for the Secretary of the Interior to provide for its well-being.
-- A requirement that all national wildlife refuges be administered pursuant to a comprehensive conservation plan developed with full public involvement.
Long range planning is essential for the proper and consistent management the national wildlife refuges. Unfortunately, by our estimation fewer than a sixth of the refuges have prepared such plans and some of these are extremely old and out of date.
-- A marked improvement in the quality of science upon which refuge management decisions are based.
Earlier this decade, as part of its draft Programmatic Environmental Impact Statement on the Refuge System, the Fish and Wildlife Service indicated that fewer than a third of the refuges had even rudimentary inventories of their fish and wildlife populations. To ensure that sound decisions are made in the management of the refuges, the Fish and Wildlife Service must have an adequate understanding of the status and trends of their fish and wildlife populations and habitats.
S. 1059 is not the exact bill that we would have drafted. It is the obvious product of compromise. In our view, the bill places too much emphasis on recreation. But we are quite pleased that the bill contains each of these major elements that we have supported for so many years. S. 1059 contains: 1) a clear conservation-based mission statement for the Refuge System; 2) a formal compatibility process; 3) affirmative duties for the Secretary of the Interior; 4) a planning requirement; and 5) improved monitoring of fish, wildlife, and plants in the refuges. The latter provision was wisely added to the House-passed bill to help ensure that refuge management is based on a firm understanding of fish, wildlife, and plant populations.
In addition, S. 1059 would recognize wildlife observation, hunting, fishing, and environmental education as "priority public uses" of the System. This is an appropriate policy that was the centerpiece of President Clinton's Executive Order 12996 on the management of the Refuge System. This policy was also included in Representative George Miller's "Theodore Roosevelt Wildlife Legacy Act (H.R. 952) which we endorsed. The principle is simple. First and foremost, the Refuge System should be for the conservation of fish and wildlife and habitats. Second, where appropriate and compatible, and when adequate funding is available, those recreational and interpretive activities that are related to learning about or experiencing fish and wildlife should be fostered. Finally, those activities that are not related to fish and wildlife should receive the lowest priority on national wildlife refuges.
While we believe that the technical amendments described later in this testimony would improve the bill, we urge the Senate to move swiftly to pass S. 1059 and not to tinker unnecessarily with this bill. No special amendments for specific refuges or specific activities -- such as utility right-of-ways -- are appropriate. Any such amendments would cause us to reassess our support of the bill.
The National Wildlife Refuge System is a National Treasure
The National Wildlife Refuge System is the only network of national lands established specifically to conserve fish and wildlife. The System includes more than 92 million acres of the most biologically diverse lands in America. From wetlands to forests, tundra to deserts, prairies to tidal pools, the National Wildlife Refuge System encompasses lands and waters in all 50 states as well as Puerto Rico, the Virgin Islands, and far Pacific islands.
The first refuge was established by President Theodore Roosevelt in 1903 on Florida's Pelican Island to protect wildlife that was being decimated by market hunters. Herons, egrets and pelicans; gulls, terns and other shorebirds; and all manner of waterfowl found sanctuary on Roosevelt's refuges. Large mammals including bison, elk and antelope were also protected. In this sense, the Refuge System was Roosevelt's Endangered Species Act. To this day, refuge management forms the core of recovery efforts for scores of endangered and threatened species -- from Key deer to whooping cranes, masked bobwhite quail to Ash Meadows blazing stars, red wolves to Lange's metalmark butterflies. Many other species would be headed for the endangered species list if not for the protections afforded by the National Wildlife Refuge System.
A variety of unique ecosystems have been preserved within the Refuge System. Wetlands like the Great Dismal Swamp in Virginia, Okefenokee in Georgia, Klamath Basin marshes in northern California-southern Oregon, and Mississippi River floodplains are found in the System. Arctic tundra and prairie potholes, tropical Hawaiian forests and Maine woods, Sonoran deserts and high deserts are all found in the Refuge System. It would be difficult to invent a better apparatus to monitor the status and trends of America's fish and wildlife and their habitats than the more than 500 national wildlife refuges.
The vast majority of the Refuge System (about 95 percent) was withdrawn from the public domain. Two million acres (2.3 percent) of the System has been acquired with funds from the Land and Water Conservation Fund and 1.7 million acres (1.8 percent) has been acquired from sales of Duck Stamps to duck hunters and others who purchase the stamps as an entrance pass to refuges. Other areas have been acquired with funds from the Wetlands Loan Act (the "loan" was forgiven by Congress when it passed the 1986 Emergency Wetlands Resources Act) and from donations.
For the first half of its ninety-four year history, the Refuge System was managed almost entirely to provide complete sanctuary for wildlife. The 1929 Migratory Bird Conservation Act continued the standard set by Roosevelt, requiring refuges established under its authority to be "inviolate sanctuaries" for migratory birds. A handful of refuges allowed limited hunting. In 1949, an amendment to the Duck Stamp Act permitted migratory bird hunting on up to 25% of new refuges acquired for migratory bird conservation. In 1958, Congress increased this maximum allowable area to 40%.
Today, the Refuge System provides exceptional opportunities for wildlife-related recreation and environmental education. In 1996, over 27 million people visited national wildlife refuges to observe and photograph wildlife. Five million anglers and 1.5 million hunters went to the refuges, and nearly 500,000 students visited the refuges for environmental education programs. But we visit the refuges on the wildlife's terms. Nearly a third of the refuges contain such sensitive habitats or wildlife populations that public visitation is prohibited because in the Refuge System, wildlife must come first.
S. 1059: Years in the Making
Just a few years after passage of the 1966 Endangered Species Preservation Act and its component National Wildlife Refuge System Administration Act, an esteemed panel of wildlife experts issued a report to Interior Secretary Stewart Udall on the Refuge System. The Leopold Committee, as it came to be known after A. Starker Leopold who led the study, reported that "What is still lacking is a clear statement of policy or philosophy as to what the National Wildlife Refuge System should be and what are the logical tenets of its future development." The Committee recognized that without such an underlying philosophy, the Refuge System would be unable to resist "pressure for larger picnic grounds, camping facilities, improved swimming beaches, motorboat marinas, water skiing, bridle paths, target ranges, and other assorted forms of play which are only obliquely related to refuge purposes." This was the first of numerous such reports on the status of the Refuge System (Appendix I).
In the late 1960s and early 1970s, Mr. Harry Crandell, Wildlife Program Director for The Wilderness Society and a former branch chief in the Fish and Wildlife Service's Division of Refuges, developed a number of ideas for legislation to help address the challenges outlined by the Leopold Committee. Mr. Crandell left The Wilderness Society in 1973 to join the staff of the House Interior and Insular Affairs Committee where he worked closely with Congressman John Dingell. Many of Mr. Crandell's concepts were included in Congressman Dingell's "National Wildlife Refuge System Organic Act of 1974." While that Act did not pass, a number of its provisions became law as the 1976 "Game Range" amendments to the National Wildlife Refuge System Administration Act.
A decade later, after a career which spanned 24 years in the Fish and Wildlife Service and included the position of Chief of the agency's Division of Refuges, Mr. William Reffalt became the Society's Program Director for refuges and reinitiated efforts to update Refuge System law. After producing several reports on the widespread problems that the Refuge System was experiencing with incompatible commercial, recreational, and other activities, the Society helped persuade Congressmen Mike Synar and Gerry Studds to direct the General Accounting Office (GAO) to investigate these problems. In 1989, the GAO released its report: National Wildlife Refuges: Continuing Problems with Incompatible Uses Call for Bold Action. Between 1989 and 1994, The Wilderness Society and other conservation organizations vigorously supported Refuge System legislation introduced by Senator Bob Graham and Congressmen Studds, Synar, and Sam Gibbons in response to the GAO's report.
In 1994, we supported the compromise bill developed with the help of staff from Senator Graham, Senator Baucus, Senator Chafee, and Senator Kempthorne and approved by the Environment and Public Works Committee. Notably, that bill had the support not only of The Wilderness Society and other conservation groups, but also the International Association of Fish and Wildlife Agencies, the Wildlife Management Institute, National Rifle Association, Wildlife Legislative Fund of America, and other recreation interests.
During the 104th Congress and first months of the current Congressional session, The Wilderness Society and other conservation groups fought vigorously against the House bill whose title is now shared by S. 1059 -- all the while expressing frustration that the hard fought compromise of 1994 had been abandoned.
Today, once again we have an opportunity to pass a bill with broad support. Let's make sure we finish the job this time.
Wildlife-Dependent Recreation is Appropriate in the Refuge System
America's hunters have made a valuable contribution to the National Wildlife Refuge System. With the purchase of Duck Stamps, waterfowl hunters and others who purchase the stamps as an entrance pass to refuges have funded the acquisition of 1.7 million acres (1.8 percent) of refuge lands. Many hunters were strong supporters of the Refuge System even in the first forty-six years of the system's history when hunting was a rare exception on refuges.
Although existing law already recognizes hunting as an appropriate use in the Refuge System that may be permitted where determined to be compatible with refuge purposes and when funds are available to administer it, S. 1059 would further declare hunting to be one of several activities to be considered "priority public uses." The House passed its version of this bill by near unanimous vote. If there are any organizations devoted to eliminating hunting from the Refuge System they must be the least persuasive around.
If The Wilderness Society has any lingering disappointment regarding the bill before the Committee, it is that the debate surrounding it has been so dominated by this one issue. Hunting can be an appropriate use of areas within the Refuge System. Having established this with utter certainty, we hope that discussions about the future of the Refuge System will focus more on the conservation issues facing these lands and waters, including endangered species preservation and recovery, wilderness protection and restoration, and water quality and quantity.
Endangered Species Conservation on the Refuges: Are We Getting the Job Done?
Although we urge the Committee and the Senate to pass this bill as expeditiously as possible, once this bill is enacted, we urge you to review more closely the many important conservation issues facing the Refuge System. For starters, the Refuge System would benefit from a thorough review of the efficacy of its programs to protect and recover threatened and endangered species. This may be an appropriate topic for a hearing in conjunction with your efforts to reauthorize the Endangered Species Act.
Management of the National Wildlife Refuge System represents an important part of the federal government's share in the effort to protect and recover endangered and threatened species. More than 60 national wildlife refuges have been established specifically to conserve endangered and threatened species. In addition, a provision of the 1966 National Wildlife Refuge System Administration Act amended the purposes of all refuges established pursuant to the Migratory Bird Conservation Act so that such refuges are to be administered to "conserve and protect migratory birds in accordance with treaty obligations ... and [to conserve] other species of wildlife found thereon, including species that are listed pursuant to [the Endangered Species Act]." Refuge lands established under the Refuge Recreation Act are also to be administered for endangered or threatened species. All told, 482 refuges provide more than 250 listed species with vital habitats at some point in their life cycle.
One would hope that the Fish and Wildlife Service would place a high priority on the management of threatened and endangered species on refuges -- particularly on those refuges established specifically to conserve such species. For a rough assessment of how imperiled species were doing on the refuges and other national lands, we reviewed the Service's 1994 report on the status of recovery efforts and species inventories for each of the four major national lands agencies. As we would have expected (and hoped), according to the Service's 1994 report, species occurring on refuges were fairing better than average: 20% of the endangered and threatened species that occurred on refuges were improving and 37% were stable. This index of success (57% improving or stable) was nearly twice the rate for species that did not occur on refuges. On the 60 refuges established specifically to conserve endangered and threatened species, 25% were improving and 44% were considered to be stable.
For species occurring on U.S. Forest Service lands, 14% were improving and 31% were stable. Numbers for the Bureau of Land Management and National Park Service were most likely artificially high. Ten percent of the listed species on BLM lands were improving and 36% stable, but BLM reported only those species on which they had spent conservation funds in the last four fiscal years. We would expect species that occur on BLM lands but for which the agency has not expended resources to be doing more poorly and thus would bring down these percentages. Twenty percent of listed species occurring on national parks were increasing and 37% stable, but the most recent species lists the National Park Service had was from 1988 -- species listed more recently are generally in worse shape that those for which the Endangered Species Act has had a number of years to work and we would therefore expect more recently listed species to lower these percentages as well.
While these admittedly rough calculations suggest that, compared to other federal lands, the Refuge System is doing better than average at conserving endangered species, real problems do exist -- even on those areas established specifically to conserve listed species. Unfortunately, the Fish and Wildlife Service sometimes shares accountability for these problems.
The Cabeza Prieta National Wildlife Refuge (AZ) contains nearly all of the critically endangered Sonoran pronghorns in existence in the United States. Fewer than 150 of these animals exist today. Yet the Fish and Wildlife Service recently issued an incidental take permit for the Marine Corps to harass this endangered species while increasing by fivefold its low level training flights over the refuge. The Marines have several alternative training sites; the pronghorn has no where else to go.
The Bon Secour National Wildlife Refuge was established by an act of Congress in 1980 "to preserve fragile barrier island habitat along the Alabama Gulf Coast" for a variety of wildlife species including "nationally endangered and threatened species indigenous to this ecosystem." Yet recently one division of the Fish and Wildlife Service has issued incidental take permits for condominium developers to destroy habitat for the endangered Alabama beach mouse and kill individuals of this species within the acquisition boundary of this national wildlife refuge established for their protection.
Of course, the developments would also destroy habitat for a large number of migratory birds would arrive here from their wintering grounds in Central and South America and the many other species that depend on the rapidly disappearing barrier island ecosystem. In fact the development to be permitted by the Service is to occur within an area designated as "Priority I" lands for acquisition by another unit of the very same agency. If ever there was a case of the right hand not knowing what the left is doing, this is it.
Unfortunately, research that we have conducted over the past several months indicates that a number of the refuges that have been established specifically to conserve endangered species have also been harmed by simple neglect -- even as the Fish and Wildlife Service has found the means to increase recreational programs across the Refuge System. Of the 44 endangered species refuges that we have contacted to date, 12 had no staff or budgets and were administered nominally from other refuges sometimes hundreds of miles away; and 7 had very limited staff and no biologists. Ten of the refuges fully acknowledged to us that they have no monitoring programs in place for the species under their care and could not therefore hazard a guess as to whether the species are increasing or declining.
The Crocodile Lakes NWR (Florida) has no staff based within two hours of the refuge. As a result, poaching of this endangered species continues. The staff that are nominally assigned to this refuge has no idea of the population numbers or status of the crocodiles because there are no monitoring programs in place. The refuge is also home to two endangered rodent species and an endangered butterfly.
Ten of 19 endangered Mississippi sandhill cranes at the Mississippi Sandhill Crane NWR (Mississippi) were killed by predators which broke through a deteriorating holding pen prior to the birds release.
Piping plover breeding success has dipped at the E.B. Forsythe NWR (New Jersey) after sustained increases, perhaps because the refuge's seasonal position in charge of monitoring and protecting the birds from disturbance was eliminated.
Antioch Dunes NWR was created to protect two plant and one butterfly species that are found only on the refuge. Unfortunately, exotic plants and beetles have invaded the refuge and threaten these species. Little has been accomplished to address these threats because there are no staff dedicated to the refuge. The refuge shares one part-time biologist with four other refuges.
Watercress Darter, Fern Cave, Key Cave and Blowing Winds Cave refuges have been established in Alabama to conserve endangered and threatened species but none of these refuges have any dedicated staff. Staff from the Wheeler refuge visit these four refuges about 2 or 3 times a year.
Green Cay NWR is home to 98% of the entire population of the St. Croix Ground Lizard. However, non-indigenous rats are killing the trees and seedlings and that make up the forest canopy within which the lizard survives. Plans for a rat control and reforestation project have been developed by the refuge manager, but these have not been implemented because the refuge has no dedicated budget or staff.
Clearly many of these problems are related to funding or the implementation of the Endangered Species Act. It is unclear to what extent S. 1059 will address these concerns. We are hopeful, however that this bill will help raise the stature of the National Wildlife Refuge System and enable it to achieve its great potential to conserve America's fish and wildlife.
Refuge System Operations and Maintenance Funding Must be Increased
As indicated above, many of the problems facing the National Wildlife Refuge System are due to inadequate funding and staffing (see attached cover story from Memphis Commercial Appeal). We are pleased that the House-passed Interior Appropriations bill contains a significant increase for this purpose and that the Senate Appropriations Committee has provided most of the increase contained in the House bill. On this point we want to say a special thank you to Senators Kempthorne and Graham for spearheading a letter to the Appropriations Committee in support of the House level and to Senators Chafee, Reid, Lieberman, Moynihan, and the others who signed that letter. We hope the conference will approve the full House amount.
In conclusion, The Wilderness Society supports S. 1059 and urges its prompt passage by the U.S. Senate. We are hopeful that this bill will help combat political pressures that have often led to the establishment and continuation of activities that harm wildlife and habitat on the refuges. It will ensure that comprehensive plans are developed for each refuge. It will improve research and monitoring of fish and wildlife populations on the refuges. And perhaps most importantly, this bill should help raise the stature of the National Wildlife Refuge System and help it reach its great conservation potential.
While we believe that the technical amendments described in the attachment to this testimony would improve the bill and would not upset the delicate political balance upon which it is founded, we urge the Senate not to tinker unnecessarily with S. 1059. No special amendments for specific refuges or specific activities -- such as utility right- of-ways -- are appropriate. Any such amendments would cause us to reassess our support of the legislation. The Wilderness looks forward to working with the Committee to enact the National Wildlife Refuge System Improvement Act.
Technical Amendments to Improve S. 1059
S. 1059 could be improved with the following technical amendments. However we urge the Senate to pass this bill promptly and to refrain from any unnecessary amendments that would slow the bill's passage. In particular, no amendments for specific refuges or specific uses are appropriate at this time.
-- S. 1059 contains a definition for the word "compatible" that we believe is overly vague ("a use that will not materially interfere with or detract from" refuges purposes). We understand that the definition has been in the Fish and Wildlife Service's policy manual for a number of years but believe that at times it has not been workable. The House Resources Committee clarified in its Committee Report on the bill H.R. 1420 that a compatible use is one that will not have a "tangible adverse impact" on refuge purposes. We suggest that this language is more workable that that provided in the bill and that it may make sense to simply insert this "operational standard" into the bill.
-- We have had some concerns that the bill's provision establishing the compatibility process could be construed by some to actually increase administration discretion in allowing uses and decrease public accountability for those reviews of agency decisions. Specifically, the bill states that compatibility decisions are to be based on the "sound professional judgment" of the Director. The bill subsumes the role of science within the judgment of government officials (definition "3"). The parenthetical phrase ("sound professional judgment") has raised the concern that a court, in evaluating whether an allowed use meets the compatibility standard, would conclude that the decision is "committed to agency discretion by law" within the meaning of the Administrative Procedures Act, and is therefore not reviewable.
To address this concern, the Committee could modify the draft's definition of compatibility so that these decisions are "based on the best available science and reflect the best professional judgment of the refuge official." This is the approach that all active parties agreed to in a negotiated redraft of Senator Bob Graham's bill in the 103rd Congress
This concern was at least partially addressed in the House Committee Report with language ensuring that compatibility reviews will continue to be reviewable, although we'd still prefer the underlined bill text to ensure that too much discretion is not granted to the agency and that science is more clearly the determining factor.
-- Section 6 of the bill authorizes the Interior Department to enter agreements that exempt activities "authorized, funded, or conducted" by other federal agencies from the compatibility standard on the several dozen so-called "overlay" refuges. Overlay refuges are those that are managed by the Fish and Wildlife Service as a refuge but are held in title by another agency. For example, the Corps of Engineers was required to set aside land as a national wildlife refuge to mitigate the impacts of a number of its projects but continues to hold title to a number of these refuges.
We believe that it makes no sense to exempt from the compatibility standard activities of such agencies on lands that were set up to mitigate activities of those same agencies. At the very least, this provision should be limited to only those activities that are directly related to the purpose that the agency is there in the first place. In other words, the Corps could do things that it needed to do to in accordance with its projects but couldn't authorize incompatible county road construction, ball fields, or other unrelated activities.
In addition, oversight by the Committee on the status of these "overlay" refuges at some point in the future would be helpful.