406 Dirksen EPW Hearing Room

Alan Foutz

President, Colorado Farm Bureau

My name is Alan Foutz. I am a farmer from Akron, Colorado. I serve as President of the Colorado Farm Bureau and serve on the Board of Directors of the American Farm Bureau Federation. I am here today to testify on behalf of both organizations.

Farmers and ranchers have been adversely impacted by the Endangered Species Act (ESA) for a number of years. We have 33 listed species in Colorado, ranging from two distinct population segments of gray wolves and the Canadian lynx to the boneytail chub. I won’t dwell on the problems, however, but will focus instead on a process that has worked for us and that we consider a possible solution to Endangered Species Act issues.

The mountain plover is a small shorebird found in the western Great Plains. It was proposed for listing under the ESA in 1999. As with many such species, little was known scientifically about the bird. It was believed that conversion to agricultural lands destroyed plover habitat, and it was feared that a listing would have severe impacts on agriculture. Scientists really didn’t know much about the bird, however, because it was believed that many lived on private lands and private landowners were reluctant to let state or federal officers onto their land.

But private landowners also did not want to see the plover listed without scientific justification for listing. The Colorado Farm Bureau Board of Directors determined that it was important to find out the status of the bird, and that meant identifying and studying plovers on private lands.

Convincing our members to open their lands to researchers to study plovers was a tough sell. Not because our members did not want to protect and enjoy plovers on their lands, but because of the restrictions that would be placed on their lands if the species were listed and their land identified as habitat. To our members’ credit, they recognized the need for good scientific information. Colorado Farm Bureau entered into an agreement with the Colorado Division of Wildlife, the Fish & Wildlife Service, the Rocky Mountain Bird Observatory and the Nature Conservancy to open their lands to the inventory and study of mountain plovers.

The result was a three-year study of movements, locations and nesting behavior of mountain plovers on agricultural lands. Colorado Farm Bureau members provided access to over 300,000 acres of their private lands for the study. Participation was strictly voluntary. Farm Bureau members donated access to their land as well as their time as field volunteers to the research effort.

Some of the results were surprising. Researchers found that rather than agricultural lands destroying habitat, they actually provided important nesting habitat for the species, and that many of the agricultural practices that would have been restricted under a listing were actually beneficial for the plovers. One aspect of the study found higher nesting success on cultivated agricultural lands than on native rangelands.

Mountain plovers were still at risk from farm machinery plowing inhabited fields. Farmers are more than willing to avoid nests, but they often cannot see nests while operating large machinery. To remedy that situation, the Farm Bureau and the Rocky Mountain Bird Observatory developed a unique program to allow farmers to call a toll-free number 72 hours before plowing. The Observatory would send someone to survey the field and flag plover nests, allowing farmers to avoid flagged nests.

As a result of these and other conservation efforts, the Fish & Wildlife Service determined that listing the mountain plover was not warranted, and they withdrew the proposal. Farmers benefit because they can continue their operations. The mountain plover benefits because its nesting habitat is enhanced by certain agricultural practices.

Colorado farmers and the Colorado Farm Bureau learned some valuable lessons from this positive experience. First, we demonstrated that farmers and ranchers will work to protect species and are willing to meet halfway if government officials are also willing to meet halfway. Second, flexible cooperation between landowners and the services is the best way to make the ESA work for landowners and promote species recovery. Third, we all learned that practical solutions to potential conflicts do not need to cost a fortune, but might be as simple as a toll-free phone call. Lastly, we all learned the value of obtaining good scientific data to combat real problems, not hypothetical ones.

Based on our experience with the mountain plover, Colorado farmers who were once reluctant to open their lands are now enthusiastically participating in local working groups to help conserve the greater sage grouse.

This solution would not have been available to us if the mountain plover had already been listed. Under the ESA, once a species is listed, Section 9 – taking prohibitions – and Section 7 – consultation requirements – impose restrictions that stifle the kind of creative solutions that we employed to assist the mountain plover. Furthermore, had the mountain plover already been listed, we would not have been able to develop the scientific knowledge about the plover that could guide in its recovery. The same stereotype about agricultural lands encroaching on plover habitat would have been perpetuated upon listing, to the detriment of farmers and plovers alike.

The ESA needs to be amended to provide flexibility to farmers, ranchers and the government to enter into voluntary agreements to protect and enhance already listed species on private lands in return for some incentive for the landowner. That incentive might be direct payments, tax credits, or simply the removal of disincentives and restrictions under the ESA. Our experience in Colorado has shown that farmers and ranchers want to protect species.

Almost 80 percent of all listed species occur to some extent on privately-owned lands. Nearly 35 percent of listed species occur exclusively on privately-owned lands. This indicates that farmers and ranchers are doing a good job in protecting species on their lands. They need the tools to be able to do it better.

Farm Bureau has long supported the use of cooperative conservation as a way to implement the Endangered Species Act. We are convinced that cooperative conservation is the way to make ESA work for both landowners and for species, producing a “win-win” situation for both. It has certainly worked for us in Colorado with the mountain plover and, we hope, with the greater sage grouse.

In general, any ESA cooperative program should:

· Be voluntary with the landowner.
· Focus on providing active species management. Projects should emphasize innovative active improvements or active management activities, instead of just passive management through restrictions on land use.
· Not focus on sales of lands or purchases of easements.
· Incorporate removal of existing regulatory disincentives, such as land use restrictions. Many landowners would more readily accept removal of ESA restrictions instead of incentive payments. “Safe Harbor” and “No Surprises” agreements and incidental take agreements should be explored whenever appropriate.
· Recognize plans that are locally developed. People at the local level have better knowledge of the landscape, needs of species that inhabit the landscape and needs of landowners. They are also more focused on developing practical solutions to ESA problems.
· Be flexible with the landowner and the agency. Landowners can develop creative solutions for ESA situations that should be recognized. In addition, different landowners have different needs that could be addressed through different types of incentives. The landowner should have a wide array of incentives from which to choose.
· Be exempt from critical habitat designation. Critical habitat is designed to encompass lands “that may need special management” protections, such as provided by cooperative conservation agreements. To include land covered under cooperative conservation agreements in critical habitat would be redundant and counterproductive.
· Provide certainty to the landowner that once an agreement is in place, no further management obligations or restrictions will be imposed. The same “No Surprises” policy that applies to habitat conservation plans should be applied as well to all cooperative conservation agreements.

We have some specific ideas for possible legislation that we would be happy to discuss further with the committee. Thank you for inviting me to testify before the subcommittee on this important topic.