406 Dirksen EPW Hearing Room

John Kostyack

Senior Counsel, National Wildlife Federation

Good morning, Senator Crapo and members of the Subcommittee. I am here to testify on behalf of the National Wildlife Federation, the nation’s largest conservation education and advocacy organization. I appreciate the opportunity to come here today to talk about the consultation process under Section 7 of the Endangered Species Act (ESA). I would like to make three observations about our 30 years of experience with this key feature of our nation’s most important wildlife law, and provide three policy recommendations for the future.



1. Section 7 is Fundamentally Sound


A key focus of today’s hearing is the Subcommittee’s March 22, 2002 request to the General Accounting Office (GAO) for a study of the Section 7 consultation process. Although the request letter is fifteen months old and the Subcommittee’s views on Section 7 may since have evolved, it is nonetheless important that its assertions not be left unrebutted.


The Subcommittee’s effort to gather statistical information about how Section 7 operates makes sense. However, the request letter to the GAO is harshly and unfairly critical of the consultation process. Contrary to the arguments in the letter, Section 7 consultations have not consumed inordinate time and money. In fact, this key provision of the ESA has accomplished a great deal of conservation with a relatively small investment of federal resources. As with any statutory provision, improvements could be made with implementation of Section 7; but the basic structure of the consultation process is a good one and should be left undisturbed.


Section 7 contains several crucial tools for conserving the nation’s threatened and endangered species and the ecosystems on which they depend. Particularly important is Section 7(a)(2), which requires all federal agencies that carry out, fund or permit actions affecting listed species to consult with the U.S. Fish and Wildlife Service (FWS) or the National Oceanic and Atmospheric Administration (NOAA) on avoiding jeopardy and critical habitat modification in connection with those actions. This consultation provides a crucial opportunity for the federal government to “look before it leaps” into potentially harmful activities. As a result of the thousands of Section 7(a)(2) consultations that take place every year, federal agencies now routinely adjust their actions to protect imperiled species while carrying out or facilitating economic activities.


Another key tool, although given far less attention than Section 7(a)(2), is the Section 7(a)(1) conservation provision. Section 7(a)(1) requires all federal agencies to develop and implement a program to conserve listed species, and to do so in consultation with FWS or NOAA. In enacting Section 7(a)(1), Congress wisely put the burden on all federal agencies engaged in activities affecting listed species to help promote the ESA’s goal of species recovery, and to consult with the expert wildlife agencies in devising their strategies for fulfilling this conservation duty.





2. Section 7 Consultations Provide Important Benefits to Listed Species Even in Cases When Neither Jeopardy Nor Adverse Modification of Critical Habitat is Found


At the heart of the Subcommittee’s March 2002 letter is the concern that only 0.3 percent of projects reviewed under Section 7 between 1996 and 2002 were found to jeopardize a protected species or to adversely modify critical habitat. The Subcommittee infers from this statistic that “only one out of every 300 consultations involved a project with a potential to violate the ESA,” and that resources are therefore being wasted on “elaborate consultations on projects that pose no significant threat to species.”


This is simply not an accurate depiction of reality on the ground. The fact that no jeopardy and no-adverse-modification conclusions have been the outcomes of most consultations is not evidence that the projects under review had no potential to violate the ESA, or that they posed no significant threat to the species. In fact, the thousands of consultations with no jeopardy and no-adverse-modification outcomes mostly represent species conservation success stories. Rather than responding to evidence of potential ESA violations with enforcement actions, federal wildlife agencies have worked collaboratively with action agencies and others to negotiate “win-win” solutions – solutions where projects move forward after adjustments are made to avoid unnecessary damage to fish, wildlife and plant species and their habitats.


Examples of these “win-win” outcomes can be found across the country. For example, in Florida, when you drive across the portion of Interstate 75 known as Alligator Alley, you can see the results of a consultation between FWS and the Federal Highway Administration concerning the impact of I-75 improvements on the endangered Florida panther. Tucked under the highway are several wildlife crossings that allow the panther to roam across its range while avoiding vehicle collisions. These crossing now serve as models for other wildlife passages planned elsewhere in the country.


In Nebraska, the Whooping Crane Critical Habitat Maintenance Trust is using income from a $7.5 million endowment, created as the result of a Section 7 consultation, to finance habitat protection, land acquisition, and other programs to conserve the critically-endangered whooping crane and other species threatened by dam-building along the Platte River. On the Upper Colorado River basin, as a result of a cooperative program stimulated in part by Section 7, the Bureau of Reclamation is altering the timing and magnitude of releases from a series of dams to help address habitat requirements of the endangered fishes downstream.


Progress has been slower on the Klamath, Missouri, Rio Grande and other river ecosystems where fish, wildlife and plant species hover on the brink of extinction, but thanks to Section 7, these species are finally receiving some attention. In the absence of Section 7, there would be little hope for the coho salmon of the Klamath Basin, the pallid sturgeon and piping plover on the Missouri, the silvery minnow on the Rio Grande, or the natural systems for which these species serve as indicators. Section 7 represents our best hope for achieve a balance among development and conservation goals in our river basins and other ecosystems, so that both people and wildlife can thrive.

3. The Vast Majority of ESA Consultations are Streamlined


The Subcommittee’s letter asserts that “each of these [ESA Section 7] consultations requires extensive studies and reports by the federal action agency and one or both of the Services, and extends for months or years before ending with the inevitable no-jeopardy finding that is so often obvious from the start.” In fact, the vast majority of consultations are informal ones involving minimal time or paperwork. FWS statistics show that roughly 97 percent of its consultations from 1996 through 2002 were resolved informally. NOAA Fisheries’ statistics for 2001 also show that the vast majority of its consultations are resolved this way.


Informal consultations are, by definition, those that are resolved with “no adverse effect” findings by FWS or NOAA Fisheries. Under Section 7 regulations, such a finding does not have any paperwork requirements, and there is no need for a formal consultation or a biological opinion. Often, ESA compliance issues are resolved in a single phone call, memorialized with a one paragraph letter.


Despite the streamlined nature of the informal consultation process, significant conservation benefits are realized. In an informal consultation, FWS or NOAA will often recommend modifications to project proposals that, if adopted, will lead to a no-adverse-effect conclusion. Harm to the species is avoided, and the project goes forward without significant disruption.




Set forth below are NWF’s policy recommendations for the procedural aspects of the Section 7 program. NWF’s recommendations regarding Section 7’s critical habitat protection were provided in my testimony before the Subcommittee three months ago. If requested, I would be pleased to provide additional recommendations on how to make the remaining substantive protections of Section 7 work more effectively.


1. Greater Transparency into Consultation Outcomes Is Needed to Systematically Evaluate the Performance of the Section 7 Program


In its March 2002 letter, the Subcommittee requests that the GAO investigate the disposition of consultations by obtaining statistics on the following outcomes: withdrawal by requesting agency; modification of proposed agency action; issuance of biological opinion; issuance of letter of concurrence that formal consultation is not required due to “not likely to adversely affect” finding. Unfortunately, nowhere in the March 2002 letter is there a request for information concerning what conservation measures were put in place, and what actions harmful to listed species were avoided, as a result of Section 7 consultation. In the absence of such information, it is extremely difficult to evaluate the relative costs and benefits of the Section 7 process.


To ensure that Section 7 works as effectively as possible, Congress should fund a comprehensive program for tracking the results of consultations and monitoring the performance of resulting conservation measures and programs. The data should be made available on the Internet for public inspection. If such steps were taken, Congress, the Administration and the public would be in the position to discuss and debate species conservation strategies based on a comprehensive look at past implementation of Section 7 on the ground.


Interestingly, the habitat conservation planning (HCP) program under Section 10 of the ESA, which governs non-federal activities, has already achieved far greater transparency than the Section 7 program governing federal activities. All permits and corresponding HCPs are currently listed on the FWS website, and the various documents reflecting the terms of each of the permits and HCPs are available for public review in a centralized library. Moreover, as a condition of receiving a permit under Section 10, applicants must agree to submit annual reports with data concerning permit implementation.


At a minimum, the level of transparency in the Section 7 program should be brought up to the level of the Section 10 program. Considering that Section 7 is applied in so many more circumstances than Section 10 (roughly 77,000 Section 7 consultations were completed in FY 2002 versus less than fifty Section 10 permits issued), the need for a systematic evaluation of the Section 7 program is arguably greater than with the Section 10 program.


2. Provide Funding to Enable the Wildlife Agencies to Respond to their Ever Increasing Workload


In its March 2002 letter to GAO, the Subcommittee requests that GAO investigate several possible inefficiencies, such as duplication of work by FWS and NOAA, that might be causing delays in the consultation process. Eliminating inefficiencies is a worthwhile objective, one that the wildlife agencies themselves have been working to achieve for several years now with, for example, the increased use of programmatic consultations and multi-stakeholder consultations. However, eliminating inefficiencies alone will not solve the delay problem. Inadequate funding of the wildlife agencies is the single biggest obstacle to the timely completion of consultations.


So long as species continue to be placed at risk of extinction by human activity, more species listings are inevitable. Each increase in the number of listings inexorably leads to more Section 7 consultations, as federal agencies proposing projects encounter greater numbers of listed species on the landscape. Continued growth in human populations and in the size of the economy means that there are ever-increasing numbers of federal projects being proposed that require Section 7 review. Also, the expansion of the HCP program begun in the 1990s means that there are also increasing numbers of non-federal projects requiring review by FWS and NOAA biologists.


Congress should acknowledge these trends and provide the funding needed by wildlife agencies to implement Section 7 successfully. Although ESA funding has increased in recent years, funding levels remain ridiculously low considering the enormity and complexity of the challenges facing the agencies. Moreover, the rate of funding increases has not kept up with the rate of increase in the workload. For example, in the past seven years, the number of formal consultations handled annually by FWS has grown five-fold while the consultation budget has only grown three-fold.


To ensure that Section 7 continues to protect listed species without inordinate project delays, the budgets of FWS and NOAA Fisheries must be increased to reflect the added responsibilities.


3. Reject “Self-Consultation” Initiatives Currently Being Proposed by the Administration


Finally, it is essential that Congress reject the Administration’s current proposals to expedite project approvals by rolling back Section 7 safeguards. Rather than provide the obviously needed funding increases to enable federal wildlife agencies to fulfill their mandate to conserve listed species, the Administration would remove crucial regulatory tools that the wildlife agencies need to be effective.


For example, on January 24, 2003, the Administration issued an Advanced Notice of Proposed Rulemaking calling for the EPA, not FWS or NOAA, to make no-adverse-effect determinations concerning proposed pesticide registrations. By eliminating EPA’s duty to engage in informal consultations and to obtain FWS’s and NOAA’s concurrence in no-adverse-effect findings, the Administration would remove the wildlife experts from the picture, leaving listed species and their habitats increasingly vulnerable to pesticide contamination. EPA, which has long simply refused to uphold its ESA consultation obligations with respect to pesticides, would be rewarded for its obstinacy. EPA alone would decide which chemicals would be subject to FWS and NOAA’s scrutiny and which would be shielded from ESA review.


Similarly, the Administration has issued a series of proposals that would greatly reduce the ability of FWS and NOAA to protect listed species from the impact of logging operations. On June 5, 2003, for example, the Administration proposed to allow the Forest Service, the Bureau of Land Management (BLM) and other land management agencies to make their own no-adverse-effect determinations with respect to logging activities under the National Fire Plan. As with pesticides, FWS’s and NOAA’s ability to protect listed species from threats posed by logging would be severely curtailed.


In its June 5, 2003, proposal, the Administration attempts to justify the rollback of protection of species on federal lands by arguing that the land management agencies have sufficient expertise to make their own judgments about ESA compliance. However, the Forest Service, BLM and other agencies have frequently demonstrated a bias toward resource extraction and resource extraction industries. In many ESA consultations, wildlife conservation measures were put in place only after federal wildlife agencies negotiated extensively with the land management to secure them.


For thirty years, the federal wildlife agencies have played a crucial role in protecting threatened and endangered species from harmful federal projects. Unlike the land management agencies, which have a narrow focus on their particular landholdings, the wildlife agencies continually monitor what is happening across the species’ range and maintain familiarity with the latest science on species conservation. Unlike many action agencies, which are charged with carrying out or approving economic development projects, federal wildlife agencies have no conflict of interest. Their sole mission is to conserve fish, wildlife and plants and the ecosystems on which they depend.


Congress should reject any and all efforts to weaken the ability of FWS and NOAA to utilize the Endangered Species Act to conserve our nation’s imperiled wildlife.




Thank you again for the opportunity to testify. I welcome the opportunity to answer any questions that the Subcommittee may have.