406 Dirksen EPW Hearing Room

Mr. John Kostyack

Senior Counsel, National Wildlife Federation

Good morning, Senator Chafee and members of the subcommittee. My name is John Kostyack, and I am Senior Counsel and Director of Wildlife Conservation Campaigns with the National Wildlife Federation. I appreciate your invitation for me to testify here today on the Endangered Species Act. I have been working on Endangered Species Act law and policy, both here in Washington, D.C., and in various regions around the country, for the past 12 years. Over this time my appreciation for the value and wisdom of this law has grown continuously.


I’d like to talk today about how Congress could update the law to deal with the wildlife conservation challenges of the coming decades. The challenges are many. Consider, for example, the following threats, each of which is accelerating over time:

· Invasive Species. According to the USDA, 133 million acres of land in the U.S. are already covered by invasive plants, and each year another 1.7 million acres are invaded. Invasive species threaten the survival of nearly half of all listed species.


· Sprawling Development Patterns. The amount of land covered by urban and suburban development in the U.S. has quadrupled since 1950, with the rate of land consumption greatly outpacing population growth and increasing every decade. According to Endangered by Sprawl (2005), a study recently completed by National Wildlife Federation, Smart Growth America, and Nature Serve, over 1,200 plant and animal species will be threatened with extinction by sprawl in just the next two decades.

· Global Warming. According to the U.S. State Department’s recent Climate Action Report (2002), global warming poses serious risks to species and habitat types throughout the United States, threatening, among other things, alpine meadows across the West, prairie potholes in the Great Plains, and salmon spawning habitats in the Pacific Northwest.

If we truly want to pass on this nation’s wildlife heritage to our children and grandchildren, we are going to need a strong Endangered Species Act to address these threats.

Before moving to some suggested updates to the Endangered Species Act, I would first like to talk about what kind of law we already have. It is crucial that Congress understands the benefits the law is already providing, and the law’s many on-the-ground success stories, before it proceeds to reauthorization. The positive accomplishments of the past 32 years are the foundation that future changes to the Act must be built upon.


The Endangered Species Act represents the only effort by this nation to grapple in a comprehensive way with the problem of human-caused extinctions. For the many animal and plant species at risk of extinction, it is the only safety net that our nation provides.

Fortunately, the Endangered Species Act has been quite successful in rescuing plants and animals from extinction.

· Over 98% of species ever protected by the Act remain on the planet today.
· Of the listed species whose condition is known, 68% are stable or improving and 32% are declining.
· The longer a species enjoys the ESA’s protection, the more likely its condition will stabilize or improve.


This is the most important thing for Congress to understand about the Endangered Species Act. It has worked to keep species from disappearing forever into extinction and, over time, it has generally stabilized and improved the condition of species. As a result, we have a fighting chance of achieving recovery, and more importantly, we are passing on to future generations the practical and aesthetic benefits of wildlife diversity that we have enjoyed.


The other key benefit provided by the Endangered Species Act, besides stopping extinction, is that it protects the habitats that species depend upon for their survival. The habitats protected by the Act are not only essential for wildlife, they are oftentimes the very natural areas that people count on to filter drinking water, prevent flooding, provide healthy conditions for hunting, fishing and other outdoor recreation, and provide a quiet and peaceful respite from our noisy and frenetic everyday lives.

To this date, no one has come up with a better way to protect our wildlife and wild places for future generations. So, when our children peer into the eyes of a manatee swimming by their canoe in a clear cool Florida river, or listen to a wolf howl in Yellowstone, or watch a condor soar majestically over the Grand Canyon, our generation and the one before ours should take pride in what we have done for them in the past 32 years. As a result of the commitment Congress made in enacting the Endangered Species Act in 1973, and as a result of the efforts of many people working with the law ever since, we still have a rich and wonderful wildlife legacy to pass along.


In the past few years, opponents of the Endangered Species Act have repeatedly tried to persuade the American people that despite the law’s success in stopping extinction, the law is broken and needs a radical overhaul. Their argument boils down to a single statistic: only 13 or so species have been removed from the endangered species list due to recovery.

Recovery and delisting are certainly goals that the National Wildlife Federation shares, and I will speak in a moment about how to improve the odds of achieving them. However, I must first challenge the premise of the ESA’s opponents that recovery and delisting should be the only measure of the success of the Endangered Species Act. Because it is not the only measure of success – it is not even the best measure -- the entire case for a radical overhaul of the Act evaporates.

The story of the ivory-billed woodpecker highlights three reasons why the Endangered Species Act cannot be evaluated based upon the number of species fully recovered and delisted. Although the ESA has not yet been applied to the ivory bill, this species symbolizes the challenges facing wildlife agencies today. It shows that some of the biggest obstacles to recovery and delisting are largely beyond the influence of the Endangered Species Act.

First, restoring species and habitats requires funding.

Although the ivory-billed woodpecker has been listed as endangered under the ESA and predecessor laws since 1967, it has been presumed extinct since the 1940s. In perhaps one of the most exciting wildlife stories in our nation’s history, a single bird was recently sighted in the Cache River National Wildlife Refuge in eastern Arkansas. We hope and expect that there are more birds in that area, but in any case, the bird’s numbers are extremely low.

The ivory bill historically inhabited swampy bottomland hardwood forests. It prefers older trees, where it finds its primary food source, beetle larvae, living under the bark. In the southeastern U.S. where the bird once ranged, the vast majority of these old-growth forests are now gone, cleared for farms and pine plantations, and it will take decades to grow them back.

Restoring the habitats that the ivory bill needs to recover is going to take a lot more than the Endangered Species Act. Although safe harbor agreements under the ESA can remove disincentives, substantial public and private dollars will be needed to create positive incentives for private landowners to plant bottomland hardwood trees and protect them until they reach the stage where they are suitable habitat for the ivory bill. The fact that the ivory bill is listed as endangered under the Endangered Species Act will help concentrate everyone’s attention on this task. However, if sufficient restoration dollars are not raised, it will not be a failure of the Endangered Species Act. Congress and other key actors need to provide funding to make this large-scale restoration project happen.

Second, as a matter of biology, achieving full recovery often takes a long time.

The average period of time in which species have been listed under the ESA is 15.5 years. In that amount of time, our best-case scenario is that we will have discovered and begun protecting a few more ivory bills and developed a strategy for accommodating range expansion. As a matter of simple biology – there aren’t currently enough old trees around that could sustain a viable meta-population -- full recovery of the ivory bill will take many decades.

Although the condition of most other listed species is not as dire as the ivory bill, many have severely depleted population numbers and habitats. As with the ivory bill, bringing their population numbers back and restoring their habitats often takes a long time for reasons of biology alone. Add in economic and political obstacles – such as the fact that many areas that need to be restored as habitat have potentially competing uses -- and you can reasonably expect that recovery will not be completed for many species for a long while.

Third, delisting requires putting in place non-ESA regulatory measures.

Once a species’ numbers and habitats are restored to the point of long-term viability, delisting still may not be feasible. Under the ESA, the Fish and Wildlife Service or NOAA Fisheries must first ensure that adequate regulatory measures are in place to prevent immediate backsliding after delisting.

For the ivory bill and many other listed species, there are no protections in place to prevent immediate habitat losses after the Endangered Species Act’s protections are removed. In addition, many species require continuing management even after their population sizes and habitats have been restored to targeted levels. Conservation agreements with funding, monitoring and enforcement mechanisms must be negotiated with land managers to ensure that this management is carried out over the long run.

In summary, those who claim the ESA is broken due to the absence of a sizable number of delistings are ignoring the facts. The realities that impede quick recovery and delisting -- inadequate funding, slow biological processes, and the absence of any alternative safety net – are not the fault of the Endangered Species Act.

The Endangered Species Act is making an essential contribution to recovery by stabilizing and improving the condition of species over time. Thanks to the Act, the ivory bill has a real chance of making it into the next century. But Congress needs to look outside the four corners of the Act to fully understand and address the reasons why so few species are removed from the threatened and endangered list due to recovery each year.

In addition, members of Congress should stop relying a single statistic about delistings as the measure of the Act’s success, and instead encourage the wildlife agencies to develop new and better mechanisms for tracking progress. As authors Michael Scott and Dale Goble point out in the April 2005 issue of BioScience, the wildlife agencies currently do not maintain a database enabling policymakers and the public to track Endangered Species Act actions. A database that identifies, among other things, how much habitat is being conserved and how much is being authorized for destruction as a result of ESA consultation processes, would greatly inform the debate over the effectiveness of the law.


The Endangered Species Act has produced numerous on-the-ground successes. The small list of examples below is designed simply to highlight the variety and creativity of the conservation actions that the law has fostered. These examples show that the Endangered Species Act is empowering people to find a place for wildlife in a country that is increasingly crowded with extractive industries, real estate developments, and other human uses of natural resources. Because of the Act’s safety net features and its recovery programs, native wildlife still has a place on the American landscape.

1. Whooping Crane.

The whooping crane is a dynamic and charismatic bird that, if it were not for the Endangered Species Act and its predecessors, would probably no longer exist in the wild today. As a result of a recovery program developed under the Act, birds have been bred in captivity, released into the wild, and trained with the help of an aircraft to fly and migrate. Endangered Species Act enforcement action to protect the bird’s designated critical habitat led to the creation of the Platte River Critical Habitat Maintenance Trust, which has acquired over 10,000 acres of riparian habitat along the crane’s migratory route. Prior to the Endangered Species Act, a mere 16 birds existed in the wild. Today, nearly 200 birds thrive in the wild, attracting birdwatchers from around the world.

2. Florida Panther

The Florida panther is one of the most endangered large mammals in the world. As recently as fifteen years ago, its numbers had been reduced to somewhere between 30 and 50. Due to the Endangered Species Act, a number of innovative conservation measures have been taken to bring the animal back from the brink. The U.S. Fish and Wildlife Service successfully addressed the panther’s inbreeding problem by bringing Texas cougars (a closely related subspecies) into south Florida. Vehicle mortality, one of the leading causes of panther deaths, has been greatly reduced with the construction of highway underpasses. The underpasses created for the Florida panther now serve as a world model for facilitating movement of wildlife in an urbanizing landscape. Today, the number of cats living in the wild approaches 100. The Florida panther is still a long way from full recovery, but it has a fighting chance.

3. Gray Wolf

Although the gray wolf once ranged across much of the continental United States, several centuries of hunting and predator control programs, reduction of prey, and habitat loss greatly reduced the species’ numbers. By the mid-1960s, the only gray wolves in the lower 48 states were the 200 to 500 animals in Minnesota and roughly 20 on Isle Royale, Michigan. Today, thanks to the Endangered Species Act, there are thriving gray wolf populations in the Western Great Lakes and Northern Rockies, a small population in the Southwest, and occasional wolf sightings in the Northeast and Pacific Northwest. The dramatic recovery of the gray wolf in the Northern Rockies was jump-started by an historic reintroduction of wolves to Yellowstone National Park and the central Idaho wilderness – one of the most successful wildlife reintroductions in the nation’s history.

4. Bald Eagle

In the 1960s, the bald eagle, our Nation’s symbol, had fewer than 500 breeding pairs remaining in the continental U.S. Widespread use of the pesticide DDT in the post-World War II period had contaminated the majestic bird’s food supply, causing its populations across the country to plummet. Although the federal ban on DDT in 1972 was a major factor in turning around the bald eagle’s decline, the Endangered Species Act also played an essential role in its recovery. The Act protected the bird’s key habitat and facilitated translocations of eaglets from areas where the bird was numerous to states where it had been eliminated or severely depleted. Today, the number of bald eagles in the lower 48 states exceeds 7,600 breeding pairs.

5. Puget Sound Chinook Salmon

Chinook salmon have long been a symbol of the Pacific Northwest, providing important cultural values for Native American tribes and sustenance and recreation for all residents. The Puget Sound population of the Chinook was listed in 1999 after declining steadily due to logging, mining, dam-building and suburban development in its habitat, and interbreeding of hatchery fish. Recently, in response to the Endangered Species Act, Seattle City Light improved prospects for the fish by modifying its dam operations on the Skagit, the Puget Sound’s largest river. Prospects for the fish and habitats also have improved due to the emergence of Shared Strategy, a groundbreaking collaborative effort by a diverse array of citizens and organizations to build an ESA recovery plan for the Puget Sound chinook from the ground up, watershed by watershed. This effort will ensure broad public support for the array of recovery actions that will ultimately be needed to bring the chinook back to full recovery.

6. Robbins’ Cinquefoil

The Robbins’ cinquefoil is a species of the rose family, found at just two locations on the slopes of the White Mountains in New Hampshire. In the 1970s, its numbers were reduced to roughly 1,800 plants due to trampling by horses and hikers and harvesting by commercial plant collectors. After listing and critical habitat designation pursuant to the Endangered Species Act, the Appalachian Mountain Club and New England Wild Flower Society teamed up with federal agencies to relocate a hiking trail, educate the public and reestablish healthy populations. By 2002, the species’ numbers had rebounded to over 14,000 plants in two populations, and the species was removed from the endangered list. A cooperative agreement with the U.S. Forest Service helps ensure the continuation of the Robbins’ cinquefoil’s success story through management and monitoring.


Many lessons can be learned from the successes described above and from the numerous other positive experiences implementing the Endangered Species Act. The following are some ideas for updating and improving the Act that are drawn from these experiences.

• Implement Recovery Plans and Encourage Proactive Conservation. Any effort to update the Endangered Species Act must begin with steps to promote greater and earlier progress toward recovery. As discussed above, due to Act’s flexibility the Nation has benefited in recent years from numerous collaborative initiatives to restore species and habitats. Wildlife agencies should build recovery plans around these proactive recovery initiatives, and Congress should support them with funding so long as they are consistent with recovery plans. If such an approach were taken, ESA conflicts would be reduced because there would be greater buy-in to the Act’s implementation. Because greater amounts of habitats would be restored, wildlife agencies would have greater management flexibility.

The Endangered Species Act already provides a solid foundation for this approach. Section 4(f) calls for one of the two wildlife agencies to develop a recovery plan with objective measurable criteria for success and to implement it. However, recovery plans oftentimes are not completed for many years after listing, and thus there is no early blueprint to guide management and restoration actions. A simple solution to this problem would be to require that recovery plans be finalized within a specified time after listing (e.g., 3 years).

A related problem is that the two wildlife agencies are typically not in the position to carry out many of the actions that are needed to bring about recovery. Section 7(a)(1) of the Act requires all federal agencies to utilize their authorities in furtherance of species recovery, but it does not link this duty to the recovery plan. As a result, agencies have often chosen recovery actions in an arbitrary manner.

A solution to this problem would be for federal agencies to be required to develop and implement Recovery Implementation Plans to set forth the specific actions, timetables, and funding needed for that agency to help achieve the recovery goals set forth in the Recovery Plan. The Western Governors Association developed a variation of this idea when it adopted its ESA legislative proposal in the 1990s. “Implementation agreements” for federal and state agencies to help carry out recovery plans remains part of WGA policy to this day.

Another problem related to implementation of recovery plans is that federal agencies oftentimes carry out actions that are at odds with those plans. For example, the Corps of Engineers has issued dredge-and-fill permits for development in Florida panther habitat despite the fact that the habitat is deemed essential for the species in the recovery plan. Congress could easily fix this problem by clarifying that federal agencies must ensure that their actions do not undermine the recovery needs of listed species. The recovery needs of the species would be identified in the recovery plan, and updated by the latest scientific data. If Congress were to adopt this approach, agency decisions would more likely to contribute to the Act’s recovery goal. They would also be easier to defend in court, and less likely to attract litigation, because they would be tied to a larger strategic framework, the recovery plan.

• Provide incentives for private landowners to contribute to recovery. According to the GAO, roughly 80 percent of all listed species have at least some of their habitat on non-federal land; about 50 percent have the majority of their habitat on non-federal land. Much of this non-federal land is private land, and yet the current Endangered Species Act does not provide many incentives for private landowners to carry out the management measures that are often needed for listed species to thrive. Although ESA regulatory programs such as Safe Harbor remove disincentives, they do not provide incentives. Technical assistance programs can help, but by far the most meaningful incentive that Congress can provide is financial assistance. To ensure a reliable source of funding, this assistance should be provided through the tax code. In return for conservation agreements in which private landowners commit to actively manage habitats for the benefit of listed species, Congress should defer indefinitely federal estate taxes or provide immediate income tax credits for expenses incurred.

• Protect critical habitat. The Administration has attempted to justify its efforts to weaken the Act’s critical habitat protections by claiming that these protections are redundant with other ESA protections and therefore without value to listed species. At the same time, the Administration contradicts itself by generating cost-benefit analyses claiming that critical habitat protections are imposing enormous costs on the private sector. None of this rhetoric is supported by any meaningful analysis of data. The only quantitative studies on critical habitat have shown that critical habitat indeed provides benefits to many listed species. Species with critical habitat designations tend to do better than species without such designations.

Critical habitat is particularly important when it comes to protecting unoccupied habitat, because the other protections in the Endangered Species Act generally do not adequately protect such habitat. Most species will never recover unless they can return to some part of their historic range that is currently unoccupied.

Because of the hostility shown by the current Administration toward critical habitat, it will be essential for Congress, when it reauthorizes the ESA, to strongly reaffirm the importance of critical habitat protection. Congress should push back the deadlines to three years after listing, thereby giving the wildlife agencies the time they need to get the science right. It also should encourage the wildlife agencies to integrate recovery plan and critical habitat designation decisions. Congress also should develop a schedule, and authorize the funding, for cleaning up the backlog of species awaiting critical habitat designations. When the late Senator Chafee took these steps in S. 1100 back in 1999, they attracted broad public support.

• Provide adequate funding. Finally, there perhaps can be no more important step that Congress can take to improve implementation of the Endangered Species Act than to increase funding to reasonable levels. At a bare minimum, Congress must provide the funding that the wildlife agencies need to carry out their mandatory duties. For example, the U.S. Fish and Wildlife Service has estimated that it would take approximately $153 million over 10 years to eliminate the current backlog of listings and critical habitat designations. Congress could immediately eliminate dozens of lawsuits simply by providing these funds and other funds needed for the basic implementation steps of the Act. In addition, many of the concerns about the Act’s impact on states, local governments and private landowners could be alleviated if Congress were to expand its Section 6 and other grant funding for recovery actions.

Thank you again for the opportunity to testify today. I would be pleased to answer any questions.