Endangered Species Act: How is it Working and What Improvements Need to be Made TESTIMONY OF CRAIG MANSON, ASSISTANT SECRETARY FOR FISH AND WILDLIFE AND PARKS, DEPARTMENT OF THE INTERIOR, BEFORE THE SENATE ENVIRONMENT AND PUBLIC WORKS SUBCOMMITTEE ON FISHERIES, WILDLIFE AND WATER MAY 19, 2005 Mr. Chairman and Members of the Subcommittee, I appreciate the opportunity to testify today regarding the Endangered Species Act (ESA). The ESA was passed in 1973 to conserve plant and animal species that, despite other conservation laws, were in danger of extinction. The ESA provides significant policy direction and tools to encourage and accomplish species conservation and protection. The Act states that the policy of the Congress is that the federal government will seek to conserve threatened and endangered species. It further states that the purposes of the Act are to provide a means to conserve the ecosystems upon which listed species depend, to develop a program for the conservation of listed species, and to achieve the purposes of treaties and conventions such as the Convention on International Trade in Endangered Species (CITES). A key purpose of the ESA is to provide a program for the conservation of endangered and threatened species to bring them to the point at which measures under the Act are no longer necessary. At the Department of the Interior, the ESA is administered by the U.S. Fish and Wildlife Service (Service). Under the law, species may be listed as “endangered” or “threatened.” All species of plants and animals, except pest insects, are eligible for listing as endangered or threatened if they meet the criteria specified in the ESA. Once listed, the species is afforded a range of protections available under the ESA. These protections include prohibitions on killing, harming or otherwise taking listed species of animals. In addition, federal agencies are to utilize their authorities to carry out programs for the conservation of endangered or threatened species, and must insure that any action authorized, funded, or carried out by the federal agencies is not likely to jeopardize the continued existence or any listed species or result in the destruction or adverse modification of a listed species’ critical habitat. Currently, there are 1,264 listed domestic species (988 endangered and 276 threatened) and 386 species under consideration by the Service for possible inclusion on the list. Of the 386 species, 286 are candidate species being reviewed on an annual basis. The Service has determined that these candidate species warrant listing, but listing proposals are precluded by higher priorities. In addition, the Service currently has published proposed rules to list 24 species as either endangered or threatened, 21 domestically and 3 internationally. Further, the Service has 56 pending petitions to list a total of 76 species as either endangered or threatened. Of these petitions, the Service has published 8 findings that the petitioned action to list the subject species may be warranted, and has initiated a status review for the involved species. Unfortunately, the Service’s work related to endangered species is in large part driven by lawsuits. As of March 18, 2005, the Service is involved in 35 active lawsuits on listing issues with respect to 57 species; including 8 lawsuits on 90-day petition findings for 11 species, 9 lawsuits on 12-month petition findings for 13 species, 13 lawsuits regarding final determinations for 23 species, 13 lawsuits regarding critical habitat for 21 species, and 18 lawsuits regarding merits challenges on 17 species. The Service is also complying with court orders for 42 lawsuits involving 87 species. COOPERATIVE APPROACHES TO CONSERVATION UNDER THE ESA The Administration believes that conservation of habitat is vitally important to successful recovery and delisting of species. We are committed to implementing a cooperative approach through the development of partnerships with states, tribes, landowners, and others. The Department is focused on identifying new and better means of encouraging voluntary conservation initiatives. Indeed, the Service currently has many conservation tools available, including Candidate Conservation Agreements, Candidate Conservation Agreements with Assurances, Safe Harbor Agreements, Habitat Conservation Plans and Conservation Banking, which provide for close cooperation with private landowners, state, tribal, and local governments, and other non-federal partners that are particularly important in our implementation of the ESA. Through the Candidate Conservation program, the Service can work with federal agencies, states, landowners, and other non-federal partners to voluntarily conserve candidate or other declining species. Under this program, the Service works to identify species that face threats that make listing under the ESA a possibility and provides information, planning assistance, and resources to encourage voluntary partnerships and agreements. These resulting conservation agreements or plans may contribute to removing the threats that might otherwise necessitate listing under the ESA. In 1999, the Service published regulations that provided for Candidate Conservation Agreements with Assurances (CCAA). Conservation of fish and wildlife resources on private lands is critical to maintaining our Nation’s biodiversity. However, landowners are often concerned over the potential impact of the listing of a species on their property. CCAAs provide regulatory certainty to landowners who voluntarily promote candidate conservation on their lands. For example, in 2002, Georgia Power, the Georgia Department of Natural Resources, and the Service signed the Candidate Conservation Agreement with Assurances for the robust redhorse. A key objective is to establish a population of this fish in the Ocmulgee River. In return for conservation activities in the river, the agreement specifies that the hydropower production company will not be required to take additional measures beyond those in the agreement if it is necessary to list the species under the ESA in the future. Initially, Georgia Power implemented a new flow regime for the Sinclair Dam to emulate natural seasonal discharges in the Oconee River and is now funding research to learn the life-history and preferred habitat of the robust redhorse, estimate its population numbers, and determine the best conditions for reintroducing the fish. Similar to Candidate Conservation Agreements with Assurances, Safe Harbor Agreements also help garner non-federal property owners’ support for species conservation on their lands. Under Safe Harbor Agreements, non-federal property owners who commit to implement voluntary conservation measures that will result in a net conservation benefit for listed species receive assurances that at the end of the agreement period, the landowner can return the enrolled property to the baseline conditions that existed at the beginning of the agreement. For example, under the North Carolina Sandhills Safe Harbor Agreement, 44 non-federal landowners are enrolled through certificates of inclusion covering 48,000 acres and protecting 50 groups of red-cockaded woodpeckers. In addition, more than 325 private landowners have signed up under 30 additional Safe Harbor Agreements to conserve and protect 35 endangered and threatened species including 13 birds, 7 fish, 4 amphibians, 3 mussels, 3 mammals, 3 butterflies and 2 plants. Over 3.6 million acres of private land and 16 linear miles of stream have been enrolled in the Safe Harbor program. As successful as the Safe Harbor program is, we are committed to updating and improving the program based on the lessons learned from the private landowners and partners participating in the program. The Service is using more “umbrella" Safe Harbor Agreements to cover species across all or a relatively large segment of its range by partnering with state wildlife agencies and non-governmental organizations (NGO). The state or NGO holds the Safe Harbor permit and individual landowners enroll, and thus receive assurances, by signing up through certificates of inclusion. The Habitat Conservation Planning Program provides a flexible process for permitting the incidental take of threatened and endangered species during the course of implementing otherwise-lawful activities. The program encourages applicants to explore different methods to achieve compliance with the ESA and to choose the approach that best meets their needs. Perhaps the program’s greatest strength is that it encourages locally developed solutions to listed species conservation, while providing certainty to permit holders. Through this process of consultation and cooperation with our partners, the program helps provide for the conservation of listed species on non-federal land throughout the country. In April the Service approved an incidental take permit based on a Habitat Conservation Plan for the lower Colorado River. In all, the plan covers six listed species, two candidate species, and 18 unlisted species that may become listed in the future. The permit covers the present and future activities of non-federal entities within the states of Arizona, California, and Nevada that involve the consumption of water and power resources. The plan includes the development of 8,132 acres of native riparian, marsh and aquatic habitats, extensive stocking and monitoring of native fishes, a monitoring and research effort on the species, their habitats and how best to restore native habitats, and an adaptive management program to take the results of research and monitoring and adjust the conservation actions to best meet the needs of the covered species for the next 50 years. On May 8, 2003, the Service announced new conservation banking guidance to help reduce piecemeal approaches to conservation by establishing larger reserves and enhancing habitat connectivity, while saving time and money for landowners. This guidance details how, when, and where the Service will use this collaborative, incentive-based approach to species conservation. Conservation banks are lands acquired by third parties, managed for specific threatened or endangered species and protected permanently by conservation easements. They may also help avoid the need to designate critical habitat. Banks may sell a fixed number of mitigation credits to developers to offset adverse effects on a species elsewhere. In December 2003 Dove Ridge Conservation Bank, a privately-owned, 2,400-acre site located in Butte County, California, was approved to sell vernal pool preservation credits for the vernal pool fairy shrimp, tadpole shrimp, and Butte County meadowfoam. It is currently the single largest conservation bank for vernal pool species in the State of California. Other resources on the bank site include a stream with wetland banking potential. Establishment of the Dove Ridge Conservation Bank has spurred more interest in preserving habitat within the county and it is likely more habitat within this watershed will be acquired for similar conservation purposes. As Members are aware, we recently announced the rediscovery of the Ivory-billed woodpecker at the Cache River National Wildlife Refuge in Arkansas. The Ivory-billed woodpecker, the largest woodpecker in the United States, is the second largest in the world and was thought to be extinct in the United States for more than 60 years. On April 28, 2005, Secretary Norton and USDA’s Secretary Johanns announced a multi-year, multi-million-dollar partnership effort to aid the rare bird’s survival. The Department and USDA have proposed more than $10 million in federal funds for research and monitoring, recovery planning and public education. In addition, the funds will be used to enhance law enforcement and conserve habitat through conservation easements, safe-harbor agreements and conservation reserves. After consulting with Governor Mike Huckabee and other officials at the federal, state and local levels, the Interior Department will appoint members to a Corridor of Hope Cooperative Conservation team. The conservation efforts to be established for the benefit of the Ivory-billed woodpecker will emphasize working with local citizens and private landowners. Local involvement is critical to ensuring successful, effective and long lasting conservation results. This approach, not imposition of the regulatory critical habitat scheme now in the Act, is how the species will be recovered. PROCEDURAL AND RESOURCE CHALLENGES RELATED TO CRITICAL HABITAT While the Department has made great strides in improving administration of the ESA without legislative changes, we do need Congressional action in order to update and improve implementation in certain areas. I would like to take the opportunity to discuss one area of implementation that continues to be both a challenge and a source of controversy – the designation of critical habitat. The Service has been embroiled in a relentless cycle of litigation over its implementation of the listing and critical habitat provisions of the ESA for over a decade. This has resulted in a Section 4 program with serious problems due not to agency inertia or neglect, but to a lack of scientific or management discretion to focus available resources on the listing actions that provide the greatest benefit to those species in utmost need of protection. In FY 2004, the Service proposed critical habitat for 12 species and completed critical habitat designations for 25 species. Currently, the Service is working on 31 critical habitat proposals for 51 species. All of the FY 2004 and FY 2005 proposed and final designations were the result of court orders or settlement agreements. As I noted initially, protection of habitat is the key to sustaining and recovering endangered species. However, the critical habitat process as currently established is not an effective means of conserving habitat. The Service has characterized the designation of critical habitat as required by the ESA as the most costly and least effective class of regulatory actions undertaken by the Service. It is often of little additional value or counterproductive and can result in negative public sentiment. This negative public sentiment is fueled by inaccuracies in the initial area designated when we must act with inadequate information to meet deadlines and also because there is often a misconception among the public that, if an area is outside of the designated critical habitat, it is of no value to the species. At the same time, the designation of critical habitat imposes burdensome requirements on federal agencies and landowners and can create significant economic and social turmoil. As a result, for many years the Service often found designation of critical habitat to be “not prudent,” and did not designate it for most listed species; an approach which was formalized by the previous Administration. In the late 1990s, some critics began successfully challenging these “not prudent” findings in court; those successes led to a flood of additional suits which continue to this day. These lawsuits have subjected the Service to an ever-increasing series of court orders and court-approved settlement agreements, compliance with which now consumes nearly the entire listing program budget. Consequently, the Service has little ability to prioritize its activities to direct resources to listing program actions that would provide the greatest conservation benefit to those species in need of attention. The previous Administration recognized this when it said that lawsuits that force the Service to designate critical habitat necessitate the diversion of scarce federal resources from imperiled but unlisted species that do not yet benefit from the protections of the ESA. The accelerated schedules of court-ordered designations initially left the Service with limited ability to take additional time for review of comments and information to ensure the rule addresses all the pertinent issues before making decisions on listing and critical habitat proposals. This in turn fostered a second round of litigation in which those who will suffer adverse impacts from these decisions challenged them. This cycle of litigation appears endless, is very expensive, and in the final analysis provides relatively little protection to listed species. Extensive litigation has shown that the courts cannot be expected to provide either relief or an answer, because they are equally constrained by the strict language of the ESA. The Department of Justice has defended these lawsuits and sought to secure relief from the courts to allow the Service to regain the ability to prioritize the listing program according to biological need. Almost universally, the courts have declined to grant that relief. In 2001, a federal district judge, in Center for Biological Diversity v. Norton, No. CIV 01-0258 PK/RLP (ACE), observed that “the Secretary is caught in a quandary” in trying to “fulfill the myriad of mandatory [ESA] duties.” The judge opined that “[m]ore lawsuits will inevitably follow” unless, among other things, the Service regains its discretion to prioritize its workload. The judge suggested that a legislative solution is necessary; otherwise “tax dollars will be spent not on protecting species, but on fighting losing battle after losing battle in court.” Other courts have agreed with this assessment. In short, litigation over critical habitat has hijacked the program. Simply put, the listing and critical habitat program is now operated in a “first to the courthouse” mode, with each new court order or settlement taking its place at the end of an ever-lengthening line. The Service is no longer operating under a rational system that allows them to prioritize resources to address the most significant biological needs. As a direct result of this litigation, the Service has had to request a critical habitat listing subcap in its appropriations request the last several fiscal years in order to protect the funding for other ESA programs. At this point, compliance with existing court orders and court-approved settlement agreements will likely require funding into fiscal year 2008. Congress added the strict deadlines to the Act to ensure that listing actions are completed in a timely manner. However, absent some measure to allow for a rational prioritization of the workload based on a consideration of the resources available, those strict deadlines will only worsen the current untenable situation. It cannot be overstated that managing the endangered species program through litigation is ineffective in accomplishing the purposes of the ESA. Former Secretary Bruce Babbitt wrote in a New York Times op-ed piece in April 2001 (attached) that, in its struggle to keep up with court orders, the Service has diverted its best scientists and much of its budget for the ESA away from more important tasks like evaluating candidates for listing and providing other protections for species on the brink of extinction. We also believe that available resources should be spent focusing on actions that directly benefit species such as improving the consultation process, development and implementation of recovery plans, and voluntary partnerships with states, tribes, and private landowners. DOI FY 2006 FUNDING FOR THE ENDANGERED SPECIES PROGRAM The Administration’s budget request for FY 2006 provides funding to meet resource protection goals and address the growing litigation-driven workload. The requested funding includes $18.1 million for listing activities, an increase of $2.2 million over the FY 2005 funding level. Of this, $12.9 million is directed to critical habitat designation. This funding will allow the Service to meet its current and anticipated court orders for the designation of critical habitat for listed species. In this regard, I would note that as of May 2, 2005, there were 64 lawsuits pending or expressly threatened related to critical habitat or other section 4 actions. We are also requesting $64.2 million for recovery, $8.3 million for Candidate Conservation and $49.5 million for Consultation and Habitat Conservation Planning. In addition, our budget requests significant increases for grants that we provide to states, tribes, and private landowners to conserve and recover endangered species on non-federal property. We are requesting $40 million for these State and Tribal Landowner Incentive Program, an increase of $18.3 million from FY 2005; $10 million for the Private Stewardship Grants Program, an increase of $3.1 million; $80 million for the Cooperative Endangered Species Conservation Fund; and $74 million for the State and Tribal Wildlife Grants – all grant programs that can aid in endangered species conservation and recovery efforts. These programs are central to helping the agency pivot toward cooperative conservation and voluntary approaches to species conservation and protection. CONCLUSION In closing, we appreciate the Subcommittee’s interest in the ESA process. I would like to reiterate this Department’s interest in working with Congress to improve the Endangered Species Act. We must work together on a bipartisan basis to determine how to get the most value for species conservation out of the federal resources devoted to the endangered species program. I would be happy to answer any questions that Members may have.