406 Dirksen EPW Hearing Room

Ms. Monita Fontaine

Board of Directors Member, National Endangered Species Act Reform Coalition

The Endangered Species Act (ESA) was enacted in 1973 with the promise that we can do better in the job of protecting and conserving our nation’s resident species and the ecosystems that support them. Today, over thirty years later, I bring that same message back to this Committee—we can, and must, do better. We have learned many lessons over the past three decades about how and what can be done to protect endangered and threatened species, and it is time to update and improve the ESA to reflect those lessons.

I am here before you today on behalf of the National Endangered Species Act Reform Coalition (NESARC), an organization of 110 national associations, businesses and individuals that are working to develop bipartisan legislation that updates and improves the ESA. Personally, my organization, the National Marine Manufacturers Association (NMMA), joined NESARC in 2003 largely due to our members’ experiences with listed marine species such as the manatee population in Florida, as well for as the opportunity to join a diverse group of interests working on this matter. I have the pleasure of sitting on the NESARC Board of Directors. On behalf of the NESARC Board of Directors and, all of the NESARC members, I want to commend the efforts being undertaken by members of this Committee, other members of the Senate and in the House of Representatives to develop a bipartisan bill that updates and improves the ESA. We look forward to working with the Committee, its able staff, and other members of the Senate to find common ground.

NESARC members come from a wide range of backgrounds. Among our ranks are farmers, ranchers, cities and counties, rural irrigators, electric utilities, forest and paper operators, mining, homebuilders and other businesses and individuals throughout the United States. What our members have in common is that they have been impacted by the operation of the ESA. Frankly speaking, the burdens and rewards of protecting listed species are borne, in a very large part, by the members of NESARC. NESARC members are actively involved in a broad range of species conservation efforts including:

- The development of State management plans for wolf populations in the Rocky Mountains and in Minnesota, Michigan and Wisconsin.


- Recovery implementation programs such as the Upper Colorado and San Juan Rivers Endangered Fish Recovery Implementation Program and Platte River Endangered Species Recovery Program;

- Numerous habitat conservation plans ranging from county-wide HCPs in Southern California to single parcel plans for covering agricultural operations; and

- Observation, research and monitoring programs for listed and candidate species.

Many environmental groups (including some of those who are testifying today) have recognized the need for on-the-ground partnerships. The reality is that, without the support and active commitment to the protection of listed species by the private landowners, businesses and communities where the species reside, the chances of success are slim. We need to learn from the experiences of those who are faced with the real-world decisions on how to make a living and still protect species if we are to make the Act work better.

If we are to do a better job protecting endangered and threatened species, we need an ESA that can fully accommodate the range of efforts that are necessary. As detailed later in my testimony, NESARC has developed a number of recommendations for ways to improve the ESA. These recommendations are the product of an extensive reassessment by NESARC members as to what improvements to the ESA would be useful for the future implementation of the Act.

At the end of 2003, NESARC decided to look inward, to reassess the state of the ESA’s implementation on the ground and to identify the success stories of its members in protecting endangered and threatened species as well as those roadblocks that had to be overcome. What we learned was that, more often than not, our members have succeeded in protecting endangered and threatened species in spite of, rather than because of, the ESA.

When we asked our members to share their success stories and positive experiences, what we received were very personal observations from the ground reporting that success is occurring--but not easily.

“Our HCP process has had some very beneficial elements, but it’s been painfully slow and costly to get there. Given the experience, [it is] hard to endorse it for others to pursue. Yet an HCP embodies concepts for species protection which are very good and could be more effective. [We] advocate moving to a system with more incentives and much greater penalties for abuses.” Carol Rische, Humboldt Bay Metropolitan Water District.


“Some of the regulators that we deal with are very results-oriented. Their practical approach has been beneficial to our operations and beneficial to species recovery. Working together with practical regulators to the benefit of the species has been a positive experience.” Tom Squeri, Granite Rock Company.

The experience of my own members within NMMA is similar—with the hope of cooperative efforts between federal and state agencies limited by the realities of working within an Act that was enacted more than thirty years ago and does not provide the necessary flexibility and tools to effectively and efficiently develop workable solutions. As many of you know, Florida has a long history of protecting its endangered manatee population— in which NMMA members have actively participated. As a result of efforts led by the State of Florida and stakeholders, the manatee population has grown from an estimated 1,465 manatees in 1991 to at least 3,142 (as documented by a 2005 aerial survey)—more than a doubling of the population in approximately 14 years. Further, the U.S. Fish & Wildlife Service has joined with the Florida Fish & Wildlife Conservation Commission to begin a “manatee forum” which is aimed at developing a consensus, science-based approach to continuing to protect and enhance manatee populations in balance with marine activities. However, such cooperative efforts remain the exception, not the norm.

As I am here today representing NESARC, I do not wish to dwell on the particular problems facing boaters, marina operators and other marine services; however, to the extent that the Committee wishes to hear more about the personal experiences of any of our individual NESARC members, including NMMA, we are happy to provide that information and brief you or your staff on particular issues of interest.

Drawing from our members’ experiences and observations, NESARC identified a series of guideposts from which to consider future improvements to the ESA, which include the following:

- Encourage Sound Decision-making
- Promote Innovation
- Promote Certainty
- Increase Funding
- Reduce Economic Impacts
- Increase Roles for State, Local Governments
- Provide Greater Public Participation
- Limit Litigation

After developing these initial guideposts, over the latter half of 2004, NESARC worked to draft a white paper which was publicly released in November 2004. This white paper is attached to my testimony and provides an outline of a new approach to ESA legislation that we hope the Members of this Committee will take into consideration.

In sum, a new approach is needed to change the focus of the debate from a clash over existing terms and programs to the development of new tools that improve the Act. We need new provisions of the Act that encourage recovery of listed species through voluntary species conservation efforts and the active involvement of States. This new approach can and should maintain the goal of species conservation. Simultaneously, we must recognize that species conservation and recovery will only be accomplished if we can find ways to provide stakeholders the tools and flexibility to take action and, most importantly, certainty that quantifiable success will be rewarded by the lifting of the ESA restrictions.

As this Committee reviews ways to improve the ESA, we would ask that you take into consideration the following proposals:

- Expand and Encourage Voluntary Conservation Efforts -- A universal concern with the Act is that it does not fully promote and accommodate voluntary conservation efforts. Many landowners want to help listed species, but the ESA doesn’t let them. A critical element of updating and improving the Act must be the development of additional voluntary conservation programs. These efforts should include: (1) creating a habitat reserve program, (2) tax incentives, (3) loan or grant programs and (4) other initiatives that encourage landowners to voluntarily participate in species conservation efforts. Further, existing programs like the Safe Harbor Agreements should be codified.

- Give the States the Option of Being On the Front Line of Species Conservation -- In 1973, the National Wildlife Federation testified before Congress that “[s]tates should continue to exercise the prime responsibility for endangered species” and “should be given the opportunity to prepare and manage recovery plans and retain jurisdiction over resident species.” Thirty-plus years later, the Western Governors’ Association, in a February 25, 2005 letter (attached) noted that “[t]he [ESA] can be effectively implemented only through a full partnership between the states and the federal government” and asked Congress to “give us the tools and authority to make state and local conservation efforts meaningful.”

NESARC agrees that States should have a wider role in facilitating landowner/operator compliance with the Act and, ultimately, the recovery of species. States have significant resources, research capabilities and coordination abilities that can allow for better planning of species management activities. Further, States know their lands and are often better situated to work with stakeholders to protect and manage the local resources and species.

- Increase Funding of Voluntary and State Programs for Species Conservation -- A significant amount of federal funding for ESA activities is presently tied up in addressing multiple lawsuits and the review of existing and new listing and critical habitat proposals. In contrast, actual funding for on-the ground projects that will recover species is limited.

Federal funding priorities need to be re-focused to active conservation measures that ultimately serve to achieve the objectives of the Act. Further, we need to financially support the voluntary, community-based programs that are critical to ensuring species recovery. - Encourage Prelisting Measures. -- Recently, a nationwide coalition of state and local governments, stakeholders and conservation organizations worked together to develop a comprehensive sage grouse conservation program that has been able to stand in the place of a listing of that species under the ESA. Those efforts were supported by many members of this committee including Senator Harry Reid of Nevada who stated that, “…I have advocated using the Farm Security and Rural Investment Act of 2002 (Farm Bill) conservation programs to help local communities like Elko, Nevada, engage in voluntary conservation efforts for species like sage grouse. In fact, the Farm Bill’s Wildlife Habitat Incentives Program (WHIP) encourages private and public agencies to develop wildlife habitat on their properties, and specifically has directed funds to enhance habitats for sage grouse. I know more can be done, and I am committed to improving local conservation efforts.” Statement of Senator Harry Reid, September 24, 2004.

Private landowners, State and local governmental agencies should be encouraged to develop and implement programs for species that are being considered for listing. The protections afforded by all such programs (including existing activities) should be considered in determining whether a listing is warranted or whether such voluntary programs, other federal agency programs and State/local conservation efforts already provide sufficient protections and enhance species populations so that application of the ESA is not necessary.

- Establish Recovery Objectives -- We need to be able to identify and establish recovery objectives. Knowing what ultimately must be achieved is a critical first step in understanding what must be done. Since the goal of the ESA is to assure recovery of endangered and threatened species, implementation of the ESA should reward progress when it is made toward recovery. There must be a determination of specific recovery goals necessary to reach the point where a species can and will be downlisted or delisted—and there must be certainty in such a goal so that the goal is not continually shifted to perpetuate a listing.

Strengthen the Critical Habitat Designation Process -- We need to strengthen the critical habitat designation process by ensuring that these designations are supported by sound decision-making procedures, do not overlap with existing habitat protection measures (such as habitat conservation plans, safe harbor agreements or candidate conservation agreements, and other state and federal land conservation or species management programs) and rely on timely field survey data.

- Improve Habitat Conservation Planning Procedures and Codify “No Surprises” -- The HCP process has the potential to be a success story, but too often private property owners are stymied by the delays and costs of getting HCP approval. HCP approval should be streamlined, and the HCP process must be adapted so that it is practical for the smaller landowner. Further, landowners involved in conservation efforts need to be certain that a "deal is a deal." The "No Surprises" policy must be codified under the Act and cover all commitments by private parties to voluntary protection and enhancement of species and habitat—not just HCPs.

- Ensure an Open and Sound Decision-Making Process -- The ESA must be open to new ideas and data. A good example of this principle is the emerging data regarding the effect of boat speeds on manatees and their avoidance mechanisms. Because the principal threat to manatees is impact from boat propellers, federal and state manatee-protection policies historically have focused on slowing boats passing through manatee habitats. However, research by Dr. Edmund Gerstein of Florida Atlantic University and Joseph E. Blue, retired director of the Naval Undersea Warfare Center and the Naval Research Laboratory’s Underwater Sound Reference Detachment challenges some of the existing protection measures. This new research shows that while manatees have good hearing abilities at high frequencies, they have relatively poor sensitivity in the low frequency ranges associated with boat noise, which means that manatees may be least able to hear the propellers of boats that have slowed down in compliance with boat speed regulations designed to reduce collisions. My point is not to suggest that there should not be speed limits in areas occupied by manatees, but rather that we need to make sure that our policy decisions (like setting boat speed limits) are informed by up-to-date research. By providing for better data collection and independent scientific review, we can ensure that the necessary and appropriate data is available.

In addition to making sure we have better information upon which to act, we need a decision-making process that allows for full public participation in the listing, critical habitat and recovery decisions. It has been my experience that providing full and open access to the decision-making processes—beyond simply the submission of letter comments—through mechanisms like stakeholder representatives and data collection programs provides a much more diverse and ultimately stronger record from which to act.

For more than a decade, Congress has struggled with the question of what, if any, changes to the ESA should be made. In the interim, stakeholders like NESARC members, have had to take the existing Act and make it work. It has been time-consuming, expensive and often frustrating--and the successes have been limited. Today, less than 1% of all listed species in the United States have been recovered.

The Congressional history on ESA legislation has had its ebbs and flows over the past thirteen years with at least two distinct sets of legislative efforts—both of which ultimately failed. NESARC is not interested in going down that same path again where stakeholders (on both sides) re-open old battles and try to right perceived wrongs from past court decisions. NESARC urges this Committee to take stock of the lessons we have learned and successes that have been achieved in order to identify the improvements that are necessary to make this Act work better in the future.