406 Dirksen EPW Hearing Room
Vice President and General Counsel, Defenders of Wildlife
Thank you, Mr. Chairman and Ranking Member of the Subcommittee on Fisheries, Wildlife and Water. On behalf of Defenders of Wildlife (Defenders), where I am vice-president and chief counsel, as well as our approximately one million members & supporters, I appreciate the opportunity to address the value of inter-agency consultation under the Endangered Species Act (“ESA” or “Act”), 16 U.S.C. Sections 1531 et seq., pursuant to Section 7 of the Act. 16 U.S.C. § 1536. I am also chairman of the board for the Endangered Species Coalition, which represents approximately 400 citizen groups, scientific entities and small businesses on behalf of a strong and vibrant Act. See generally www. stopextinction.org. My biography was circulated to this Committee earlier this year in connection with testimony on ESA critical habitat.
By definition, my written testimony can merely touch upon the many varied consultations now going on across the country. I would be happy to answer any questions regarding the policy themes I raise herein. Familiarity with Section 7 of the ESA is presumed in this testimony. For excellent background information, see, e.g., American Bar Association, Endangered Species Act: Law, Policy and Perspectives (2002); Stanford Environmental Law Society, The Endangered Species Act (2002) at 78-103; and Daniel Rohlf, Jeopardy Under the ESA: Playing a Game Protected Species Can’t Win, 41 Washburn Law Journal 114 (2001). Also relied upon was Senator Crapo’s March 22, 2002 letter to the General Accounting Office (GAO).
I wish to make three basic points this morning about the ESA consultation process:
1) Too frequently, the focus of consultation is mere short-term survival of the species, not recovery, which is (and should be) the true goal of the Act;
2) Species with critical habitat designations tend to fare much better in consultation than species without such designations; and
3) The consultation process itself is of value to wildlife and humans alike.
Survival vs. Recovery
Case Studies: Woodland caribou and grizzly bear
In our estimation, the current problem over standards in the consultation process derive from several questionable changes contained in the 1986 Section 7 regulations. One change pertains to the definition of “jeopardize”, which now means, as a result of the 1986 rules purportedly still in effect, “an action that reasonably would be expected, directly or indirectly, to reduce appreciably the likelihood of both the survival and recovery of a listed species in the wild ...” 50 C.F.R. § 402.02 (emphasis added). At least one federal court has found the Section 7 regulatory standards to be illegal because they conflate the notions of “survival” and “recovery” contrary to Congress’ intent. Sierra Club v. U.S. Fish and Wildlife Service (FWS), 245 F.3d 434 (5th Cir. 2001).
Nowhere is this legal problem more evident than in northern Idaho, eastern Washington, and western Montana, where the highly endangered woodland caribou hangs by a tether. With only 30-40 individual adults left in the U.S. wild, by all scientific accounts this species needs all the old growth forest habitat it can get for breeding, feeding and sheltering. U.S. FWS, Southern Selkirk Mountain Woodland Caribou Recovery Plan (1994). In this same area, a remnant population of grizzly bears, numbering no more than a dozen or so in the U.S., is also jeopardized by federal agency actions. U.S. FWS, Grizzly Bear Recovery Plan (draft revised, 1993).
Yet, in example after example, the Forest Service – which administers most of the woodland caribou’s remaining habitat – allows actions on federal public lands that harm the species and prevents its conservation, almost as if it is managing the species for fingernail survival. For instance, the Colville National Forest recently approved a request from the Stimson Lumber Company to build a road and secure industry access in unroaded forest recovery areas for the woodland caribou and grizzly bear; this project will definitely adversely affect both species. U.S. FWS, Biological Opinion on the Stimson ANILCA Access Easement Project at 58-68. In another instance of woodland caribou habitat degradation, the Idaho Panhandle National Forest recently announced a doubling of the Chips Ahoy timber sale. 68 Fed. Reg. 33906 (2003). Other so-called “salvage” timber sales in prime woodland caribou recovery habitat are still pending. See, e.g., 65 Fed. Reg. 34654 (2000). Expanded snowmobiling use and trails, some of it illegal, is also harming woodland caribou on Forest Service lands. See, e.g., Trevor McKinley, Snowmobile – Mountain Caribou Interactions, (May 9, 2003 draft). The grizzly bear is now threatened by a number of increased uses on federal public lands, including the exponential increase in oil and gas permits being issued by the Department of the Interior and related agencies.
The Importance of Critical Habitat
Case Studies: Pygmy Owl and Silvery Minnow
One need read no further than the plain language of the ESA Section 7(a)(2) to understand the importance of critical habitat during the consultation process: “Each federal agency shall, in consultation with and with the assistance of the Secretary, insure that any action authorized, funded, or carried out by such agency is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of (critical) habitat ...” (emphasis added). As the FWS has stated in the context of the northern spotted owl critical habitat designation, “the adverse modification standard may be reached closer to the recovery end of the survival continuum, whereas the jeopardy standard traditionally has been applied nearer the extinction end of the continuum.” 57 Fed. Reg. 1822 (1992).
Two species in the Southwest – the Rio Grande silvery minnow and the cactus ferruginous pygmy owl – both vividly demonstrate the importance of critical habitat for most species during Section 7 consultation. With regard to the pygmy owl, the Army Corps of Engineers ended consultation on several important estate development projects that would negatively impact identified pygmy owl recovery habitat immediately after a federal court vacated the pygmy owl critical habitat designation. National Association of Home Builders v. Norton, slip op. (D. Arizona Sept. 19, 2001). With just approximately 18 adult pygmy owls identified in the United States, and habitat loss and destruction being the key factors in the species’ decline, this imperilled bird (like the woodland caribou and grizzly bear) needs all the prime desert habitat it can get. See, e.g., 62 Fed. Reg. 10730 (1997)(final listing rule for pygmy owl, emphasizing the central importance of habitat protection for the species).
With regard to the silvery minnow a recent U.S. Court of Appeals decision reinforces how critical habitat helps not only individual species, but also entire ecosystems. Rio Grande Silvery Minnow et al. v. Keys, slip op. (10th Cir. June 12, 2003). It should also be noted here that, despite the rhetoric by some to the contrary, this decision is balanced and requires only that the Bureau of Reclamation consider wildlife imperilled with extinction when dealing with water shortages under federal water contracts. Id.
Thus, we are extremely concerned by the Bush Administration’s announcement last month that it will seek to delay once again its work on the critical habitat designation for over thirty threatened and endangered species. Having successfully engineered its own budget crisis, the Administration now seeks to deny affirmative habitat protection for those species that most need it, including the pygmy owl, including many species that contribute to California’s biological diversity, and including the bull trout that is negatively impacted by U.S. and Canadian forestry actions alike.
Many Benefits of the Consultation Process
Case Studies: Sonoran pronghorn, Lynx, Migratory Birds
With all due respect, we disagree that: 1) most “no jeopardy” findings under the Section 7 process are “inevitable” or that 2) “more and more of these unneeded consultations” provide “no benefit” imperilled wildlife species. Crapo Letter to GAO at 1.
First, the high incidence of “no jeopardy” opinions has as much to do with the political and economic pressure that project applicants apply upon the action agency as it does with the biological integrity of the agency actions in question. See Oliver Houck, The Endangered Species Act and Its Implementation by the U.S. Departments of the Interior and Commerce, 64 University of Colorado Law Review 277, 326 (1993)(“Taken together, Interior’s regulations present a composite picture of an agency doing everything possible within law, and beyond, to limit the effect of protection under Section 7(a)(2).”). Second, even when a no jeopardy opinion is validly written, the statutory language (and practice) of the ESA is that “reasonable and prudent alternatives,” “reasonable and prudent measures,” and “terms and conditions” by FWS or the National Marine Fisheries Service (NMFS) can all positively impact the final agency action going through consultation. See, e.g., ESA, 16 U.S.C. § 1536(b)(4). Avoidance, minimization and mitigation are important concepts in the Section 7 and 10 processes. See generally Michael Bean and Melanie Rowland, The Evolution of National Wildlife Law (1997).1
A case in point is the highly endangered Sonoran pronghorn, of which as few as twenty individual adults now inhabit the United States. Listed since 1967 when the original voluntary endangered species law was passed by Congress, this desert species has declined due to a number of individual agency actions that have degraded its habitat, most of which is on federal land (e.g., DOD, FWS, BLM, NPS, Border Patrol). A federal court has ruled, consequently, that the federal family must do a much better job cumulatively assessing and acting upon threats to the Sonoran pronghorn. Defenders of Wildlife v. Babbitt, 130 F.Supp. 2d 121 (D.D.C. 2001). If anything, the subsequent consultations pursuant to this judicial decision have usefully identified threats and actions impacting the pronghorn. The problem has been getting the action agencies to do the right thing. As one of several examples, despite recognition that hot desert cattle grazing in the Sonoran Desert is adversely impacting the Sonoran pronghorn (an earlier GAO study already has concluded that hot desert grazing is an economic disaster for the federal government), the Bureau of Land Management in its “no jeopardy” opinion has essentially allowed “business as usual.” U.S. FWS, Biological Opinion for Five Livestock Grazing Allotments in the Vicinity of Ajo, Arizona (2002).
Another example of proper consultations leading to wiser governmental decisions pertains to the lynx and northern national forest management. Under court order to designate critical habitat for this species, we believe the FWS (and the Forest Service, which tends to be the action agency with regard to this species) would help both the lynx and the national forest program by rigorously analyzing the impact of certain projects upon meso-carnivore protection. See generally Leonard Ruggiero et al., Ecology and Conservation of Lynx in the United States (1999). However, the recent proposal by the Bush Administration to allow the Forest Service to make its own consultation decisions on actions “likely to adversely affect” listed species turns the notion of independent wildlife analysis on its head, and is illegal. 68 Fed. Reg. 33806 (2003).
Similarly, it is blatantly illegal for the Services to allow the Environmental Protection Agency (EPA) to opt out of consultations altogether with regard to its pesticide approval program. 68 Fed. Reg. 3786 (2003). As Defenders has noted in detailed comments to the EPA and the Services, our federal government’s top biologists cannot be written out of the process to evaluate the safety of new chemicals that come on line almost every day. This is an issue not only for many wildlife species, and particularly the migratory birds discussed by Rachel Carson almost forty years ago, but also for human health.
We believe Section 7 of the ESA is fundamentally sound. With adequate financial resources, we believe the FWS and NMFS possess the ability to streamline consultations (and related environmental reviews) when necessary to do so. Long opposed by many industry applicants, we believe the time has come to add sunshine to the relatively closed Section 7 process in order to better understand the process and to potentially fine tune it. Self-consultation by action agencies is not the way to go. Holding action agency expenditures accountable to good fiscal and ecological oversight is where we should be heading.
Thank you for your time and attention. I would be happy to answer questions or respond to comments.
1 See also David Malin Roodman, Paying the Piper: Subsidies, Politics and the Environment (1996); Elizabeth Losos et al., Taxpayers’ Double Burden: Federal Resource Subsidies and Endangered Species (1993); Thomas Power, Not All That Glitters: An Evaluation of the Impact of Reform of the 1872 Mining Law on the Economy of the American West (1993)(all three reports highlight examples of federal agency expenditures that are economic and ecological losers).