[House Report 113-539]
[From the U.S. Government Publishing Office]
113th Congress Report
HOUSE OF REPRESENTATIVES
2d Session 113-539
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STATE, TRIBAL, AND LOCAL SPECIES TRANSPARENCY AND RECOVERY ACT
_______
July 17, 2014.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Hastings of Washington, from the Committee on Natural Resources,
submitted the following
R E P O R T
together with
DISSENTING VIEWS
[To accompany H.R. 4317]
[Including cost estimate of the Congressional Budget Office]
The Committee on Natural Resources, to whom was referred
the bill (H.R. 4317) to amend the Endangered Species Act of
1973 to require disclosure to States of the basis of
determinations under such Act, to ensure use of information
provided by State, tribal, and county governments in
decisionmaking under such Act, and for other purposes, having
considered the same, report favorably thereon without amendment
and recommend that the bill do pass.
Purpose of the Bill
The purpose of H.R. 4317 is to amend the Endangered Species
Act of 1973 to require disclosure to States of the basis of
determinations under such Act, and to ensure use of information
provided by State, tribal, and county governments in
decisionmaking under such Act.
Background and Need for Legislation
H.R. 4317 is intended to ensure the federal government
adheres to statutory responsibilities to: (1) cooperate with
States under the Endangered Species Act (ESA), specifically
regarding data used in listing proposals and regulations; and
(2) ensure the best available scientific and commercial data
used in ESA listing decisions includes data made available to
the federal government from affected States, local county
governments and tribal governments.
The bill addresses two basic, but important goals. First,
it would require the federal government to adhere to the clear
language of section 6(a) of the ESA, which provides that: ``in
carrying out the program authorized by the Act, the Secretary
shall cooperate to the maximum extent practicable with the
States'' (emphasis added).
In testimony before the Committee on Natural Resources,
States have expressed concerns that the federal agencies'
handling of species listing petitions has not been conducive to
State participation, that the federal agencies often duplicate
analyses and conservation plans already generated by States,
and that data provided by the States is sometimes ignored by
the federal agencies in ESA activities.
ESA listing and delisting decisions typically result in
transferring the jurisdiction for management of a species
between State and federal authority. States have argued that
full State involvement is needed, since the States either were
the species managers prior to a listing decision or will become
the managers after a delisting decision. States also have
extensive experience and expertise in science-based wildlife
management principles and the application of public policy in
managing wildlife as a public asset. States should be afforded
every opportunity to provide input to laws, regulations and
policies in implementing the ESA before they are final.
In current potential listings evolving out of the
Department of the Interior's 2011 multi-district litigation
settlements with the Center for Biological Diversity and
WildEarth Guardians, many States continue to face regulatory
uncertainty, despite significant State investment and
collaborative partnerships with private landowners and other
entities to conserve species and prevent the need for a federal
ESA listing.
For example, the Bureau of Land Management (BLM), the U.S.
Forest Service and the Fish and Wildlife Service (FWS) are in
the midst of revising federal resource management plans
affecting millions of acres of lands in western states in
anticipation of a 2015 listing determination deadline for the
Greater Sage Grouse imposed by the 2011 settlement. The
Committee has received extensive testimony during multiple
hearings about federal agencies' reliance on the National
Technical Team (NTT) Report. Issued in 2011, the NTT Report has
been criticized for imposing ``one-size-fits-all'' regulatory
prescriptions, including invalid assumptions, mischaracterizing
and misrepresenting sources, omitting existing programs
benefitting sage grouse, and injecting personal opinion over
science. The NTT Report has been used to justify four-mile
buffers around areas identified as necessary for breeding sage
grouse, known as ``leks.'' This standard could shut down access
to large swaths of economic, energy and recreational activities
in the western United States. States dispute the data and
information in the report. Further, in 2012, the FWS issued a
``Conservation Objectives Team'' Report which has also drawn
criticism for omitting independent data/analyses on the causes
of decline for the sage grouse, and for failing to use the most
current state and local maps.
In December 2010, the FWS proposed to list the Dunes
Sagebrush Lizard as endangered under the ESA. Texas officials
raised concerns that the FWS' listing proposal depended on
scant, outdated data from the 1960s to determine the lizard's
known distribution, and assumed that the lizard was ``locally
extinct'' in certain areas where the State of Texas had
verified it was present. After further research and data
surveys conducted in cooperation with States, local governments
and other affected stakeholders, the FWS reversed its earlier
determination to list the Dunes Sagebrush Lizard as endangered
in June 2012. As a result, the lizard continues to co-exist
with State economic activities in an area that produces 14% of
the nation's oil, and 47,000 jobs.
Earlier this year, despite over $50 million spent for
conservation, research and other activities, and more than 10
million acres enrolled, and the FWS' ``endorsement'' of a five-
state plan in Texas, Oklahoma, Kansas, New Mexico and Colorado,
the FWS finalized a federal listing of the Lesser Prairie
Chicken under the ESA. These States, which clearly have proven
their intent to make Lesser Prairie Chicken conservation a
priority, should have a greater opportunity to demonstrate the
success of their activities rather than be forced into a
federal listing by an arbitrary, court-settlement deadline
negotiated without their approval by the FWS.
Second, H.R. 4317 would ensure that the best scientific and
commercial data available to the Secretaries of the Interior or
Commerce and used by them in ESA listing decisions includes
data from those closest to the ground and most impacted by the
listings: the States, local governments and tribes. The Natural
Resources Committee, through State, local and tribal testimony,
has received several examples of the federal agencies not
including data or information in decisions where they are
required to utilize the ``best scientific and commercial data
available.''
For example, in 2012, the FWS issued a revised recovery
plan for the Utah Prairie Dog which required that prairie dogs
located only on federal lands would be counted for purposes of
recovery. Two Utah counties and private landowners have been
unable to control an influx of prairie dogs that have destroyed
private lands, and have requested the FWS to count prairie dogs
on State, local, and private lands for recovery, which the FWS
has refused or ignored. This FWS interpretation has created
significant costs for rural electric cooperatives to maneuver
transmission poles around federal lands that have been
designated for Utah Prairie Dogs.
In 2008, the National Oceanic and Atmospheric
Administration's National Marine Fisheries Service (NMFS)
concluded in ESA biological opinions that 28 listed salmon
populations would be ``jeopardized'' by continued use of crop
protection products long registered and labeled by the EPA.
NMFS' requirements included nearly a quarter-mile buffer around
water bodies affecting as much as 60 percent of agricultural
lands in Washington state alone, which, according to an
estimate by the U.S. Department of Agriculture, could result in
lost revenues of over $580 million. State agriculture agencies
expressed concerns that NMFS failed to utilize current state
data and information and did not allow transparency and review
to ensure use of best available scientific and commercial data.
In 2012, Garfield County, Colorado's Board of Commissioners
questioned the accuracy of a map developed by the FWS for
Greater Sage Grouse habitat in Colorado after FWS refused the
County's request to verify data used by the FWS in its NTT
report. In more than one example, a court order has been
required to enforce Freedom of Information Act requests to
obtain the data from federal officials.
Tribal governments also play a significant role in species
conservation and recovery activities, and some tribes have
testified about concerns that their own data and science are
not being factored into ESA listing decisions. In the Columbia
and Snake Rivers, where NMFS listed 13 sub-populations of
salmon as threatened or endangered under ESA, tribal hatchery
managers have successfully utilized hatchery supplementation to
enhance salmon and steelhead recovery for several years. The
Snake River fall chinook run has rebounded to record levels due
in large part to the Nez Perce and Umatilla Tribe hatchery
programs (expanding from 500 adult fish in 1975 to more than
41,000 in 2010). NMFS has refused tribal requests that the
agency factor its scientific data highlighting the positive
benefits of hatchery fish in its listing determinations for
recovering salmon in the Northwest.
H.R. 4317 does not favor one science over another or
require that multiple county or State's submission of
conflicting data be deemed ``best available'' to the exclusion
of another. The Secretaries of the Interior or Commerce would
continue to have final discretion on what constitutes ``best
available scientific and commercial data.'' However, H.R. 4317
would ensure that they incorporate and provide proper respect
for data provided to them by States, tribes and local
governments.
Committee Action
H.R. 4317 was introduced on March 27, 2014, by Congressman
Randy Neugebauer (R-TX). The bill was referred to the Committee
on Natural Resources. On April 8, 2014, the Committee held a
hearing on the bill, and on April 30, 2014, the Committee met
to consider the bill. Congressman Jared Huffman (D-CA) offered
an amendment designated .001 to the bill; the amendment was not
adopted by voice vote. No further amendments were offered, and
the bill was then adopted and ordered favorably reported to the
House of Representatives by a rollcall vote of 26 to 16, as
follows:
Committee Oversight Findings and Recommendations
Regarding clause 2(b)(1) of rule X and clause 3(c)(1) of
rule XIII of the Rules of the House of Representatives, the
Committee on Natural Resources' oversight findings and
recommendations are reflected in the body of this report.
Compliance With House Rule XIII
1. Cost of Legislation. Clause 3(d)(1) of rule XIII of the
Rules of the House of Representatives requires an estimate and
a comparison by the Committee of the costs which would be
incurred in carrying out this bill. However, clause 3(d)(2)(B)
of that rule provides that this requirement does not apply when
the Committee has included in its report a timely submitted
cost estimate of the bill prepared by the Director of the
Congressional Budget Office under section 402 of the
Congressional Budget Act of 1974. Under clause 3(c)(3) of rule
XIII of the Rules of the House of Representatives and section
403 of the Congressional Budget Act of 1974, the Committee has
received the following cost estimate for this bill from the
Director of the Congressional Budget Office:
H.R. 4317--State, Tribal, and Local Species Transparency and Recovery
Act
H.R. 4317 would require the Secretaries of the Interior and
Commerce to make data used as the basis for each listing
determination under the Endangered Species Act (ESA) available
to states. Determinations under the ESA are made on the basis
of the best scientific and commercial data available. H.R. 4317
would clarify that such data includes data provided by state,
local, and tribal governments. Based on information provided by
the affected agencies, CBO estimates that implementing the
legislation would have no significant effect on the federal
budget. Enacting the bill would not affect direct spending or
revenues; therefore, pay-as-you-go procedures do not apply.
H.R. 4317 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act and
would not affect the budgets of state, local, or tribal
governments.
The CBO staff contact for this estimate is Jeff LaFave. The
estimate was approved by Theresa Gullo, Deputy Assistant
Director for Budget Analysis.
2. Section 308(a) of Congressional Budget Act. As required
by clause 3(c)(2) of rule XIII of the Rules of the House of
Representatives and section 308(a) of the Congressional Budget
Act of 1974, this bill does not contain any new budget
authority, spending authority, credit authority, or an increase
or decrease in revenues or tax expenditures. Based on
information provided by the affected agencies, CBO estimates
that implementing the legislation would have no significant
effect on the federal budget.
3. General Performance Goals and Objectives. As required by
clause 3(c)(4) of rule XIII, the general performance goal or
objective of this bill is to amend the Endangered Species Act
of 1973 to require disclosure to States of the basis of
determinations under such Act, and to ensure use of information
provided by State, tribal, and county governments in
decisionmaking under such Act.
Earmark Statement
This bill does not contain any Congressional earmarks,
limited tax benefits, or limited tariff benefits as defined
under clause 9(e), 9(f), and 9(g) of rule XXI of the Rules of
the House of Representatives.
Compliance With Public Law 104-4
This bill contains no unfunded mandates.
Compliance With H. Res. 5
Directed Rule Making. The Chairman does not believe that
this bill directs any executive branch official to conduct any
specific rule-making proceedings.
Duplication of Existing Programs. This bill does not
establish or reauthorize a program of the federal government
known to be duplicative of another program. Such program was
not included in any report from the Government Accountability
Office to Congress pursuant to section 21 of Public Law 111-139
or identified in the most recent Catalog of Federal Domestic
Assistance published pursuant to the Federal Program
Information Act (Public Law 95-220, as amended by Public Law
98-169) as relating to other programs.
Preemption of State, Local or Tribal Law
This bill is not intended to preempt any State, local or
tribal law.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italic, existing law in which no change is
proposed is shown in roman):
ENDANGERED SPECIES ACT OF 1973
* * * * * * *
definitions
Sec. 3. For the purposes of this Act--
(1) * * *
(2) The term ``best scientific and commercial data
available'' includes all such data submitted by a State,
tribal, or county government.
[(2)] (3) The term ``commercial activity'' means all
activities of industry and trade, including, but not limited
to, the buying or selling of commodities and activities
conducted for the purpose of facilitating such buying and
selling: Provided, however, That it does not include
exhibitions of commodities by museums or similar cultural or
historical organizations.
[(3)] (4) The terms ``conserve,'' ``conserving,'' and
``conservation'' mean to use and the use of all methods and
procedures which are necessary to bring any endangered species
or threatened species to the point at which the measures
provided pursuant to this Act are no longer necessary. Such
methods and procedures include, but are not limited to, all
activities associated with scientific resources management such
as research, census, law enforcement, habitat acquisition and
maintenance, propagation, live trapping, and transplantation,
and, in the extraordinary case where population pressures
within a given ecosystem cannot be otherwise relieved, may
include regulated taking.
[(4)] (5) The term ``Convention'' means the Convention on
International Trade in Endangered Species of Wild Fauna and
Flora, signed on March 3, 1973, and the appendices thereto.
[(5)] (6)(A) * * *
* * * * * * *
[(6)] (7) The term ``endangered species'' means any species
which is in danger of extinction throughout all or a
significant portion of its range other than a species of the
Class Insecta determined by the Secretary to constitute a pest
whose protection under the provisions of this Act would present
an overwhelming and overriding risk to man.
[(7)] (8) The term ``Federal agency'' means any department,
agency, or instrumentality of the United States.
[(8)] (9) The term ``fish or wildlife'' means any member of
the animal kingdom, including without limitation any mammal,
fish, bird (including any migratory, nonmigratory, or
endangered bird for which protection is also afforded by treaty
or other international agreement), amphibian, reptile, mollusk,
crustacean, arthropod or other invertebrate, and includes any
part, product, egg, or offspring thereof, or the dead body or
parts thereof.
[(9)] (10) The term ``foreign commerce'' includes, among
other things, any transaction--
(A) * * *
* * * * * * *
[(10)] (11) The term ``import'' means to land on, bring into,
or introduce into or attempt to land on, bring into, or
introduce into, any place subject to the jurisdiction of the
United States, whether or not such landing, bringing, or
introduction constitutes an importation within the meaning of
the customs laws of the United States.
[(12)] (12) The term ``permit or license applicant'' means,
when used with respect to an action of a Federal agency for
which exemption is sought under section 7, any person whose
application to such agency for a permit or license has been
denied primarily because of the application of section 7(a) to
such agency action.
[(13)] (13) The term ``person'' means an individual,
corporation, partnership, trust, association, or any other
private entity; or any officer, employee, agent, department, or
instrumentality of the Federal Government, of any State,
municipality, or political subdivision of a State, or of any
foreign government; any State, municipality, or political
subdivision of a State; or any other entity subject to the
jurisdiction of the United States.
[(14)] (14) The term ``plant'' means any member of the plant
kingdom, including seeds, roots and other parts thereof.
[(15)] (15) The term ``Secretary'' means, except as otherwise
herein provided, the Secretary of the Interior or the Secretary
of Commerce as program responsibilities are vested pursuant to
the provisions of Reorganization Plan Numbered 4 of 1970;
except that with respect to the enforcement of the provisions
of this Act and the Convention which pertain to the importation
or exportation of terrestrial plants, the term also means the
Secretary of Agriculture.
[(16)] (16) The term ``species'' includes any subspecies of
fish or wildlife or plants, and any distinct population segment
of any species of vertebrate fish or wildlife which interbreeds
when mature.
[(17)] (17) The term ``State'' means any of the several
States, the District of Columbia, the Commonwealth of Puerto
Rico, American Samoa, the Virgin Islands, Guam, and the Trust
Territory of the Pacific Islands.
[(18)] (18) The term ``State agency'' means any State agency,
department, board, commission, or other governmental entity
which is responsible for the management and conservation of
fish, plant, or wildlife resources within a State.
[(19)] (19) The term ``take'' means to harass, harm, pursue,
hunt, shoot, wound, kill, trap, capture, or collect, or to
attempt to engage in any such conduct.
[(20)] (20) The term ``threatened species'' means any species
which is likely to become an endangered species within the
foreseeable future throughout all or a significant portion of
its range.
[(21)] (21) The term ``United States,'' when used in a
geographical context, includes all States.
* * * * * * *
cooperation with the states
Sec. 6. (a) General.--(1) In carrying out the program
authorized by this Act, the Secretary shall cooperate to the
maximum extent practicable with the States. [Such cooperation
shall include]
(2) Such cooperation shall include--
(A) before making a determination under section 4(a),
providing to States affected by such determination all
data that is the basis of the determination; and
(B) consultation with the States concerned before
acquiring any land or water, or interest therein, for
the purpose of conserving any endangered species or
threatened species.
* * * * * * *
interagency cooperation
Sec. 7. (a) * * *
* * * * * * *
(n) Judicial Review.--Any person, as defined by [section
3(13)] section 3(14) of this Act, may obtain judicial review,
under chapter 7 of title 5 of the United States Code, of any
decision of the Endangered Species Committee under subsection
(h) in the United States Court of Appeals for (1) any circuit
wherein the agency action concerned will be, or is being,
carried out, or (2) in any case in which the agency action will
be, or is being, carried out outside of any circuit, the
District of Columbia, by filing in such court within 90 days
after the date of issuance of the decision, a written petition
for review. A copy of such petition shall be transmitted by the
clerk of the court to the Committee and the Committee shall
file in the court the record in the proceeding, as provided in
section 2112, of title 28, United States Code. Attorneys
designated by the Endangered Species Committee may appear for,
and represent the Committee in any action for review under this
subsection.
* * * * * * *
DISSENTING VIEWS
H.R. 4317 decrees that all data submitted by states, tribes
or local governments be considered the ``best scientific data
available.'' The bill would also require that all data that is
the basis of a listing determination under the Endangered
Species Act be provided to any state affected by the listing
prior to the final determination being made.
These provisions are troubling on a number of levels.
Forcing Federal agencies to accept as the best available
science anything that states, localities or tribes submit is
both preposterous and impractical. The lack of quality control
would invite the submission of incomplete, shoddy, or falsified
information in support of political positions, not scientific
realities.
Further, H.R. 4317 opens up a whole new avenue for
litigation under the ESA, particularly in cases where states,
localities, or tribes submit conflicting data. There is no
scientific basis whatsoever for Congress to establish any
particular source of data as being the ``best'' when in fact it
may not be. Agency decision-makers must constantly evaluate
data from all sources to ensure they are making decisions based
on the best information available, and we should encourage them
to continue doing so.
At Committee markup, the Majority argued that the bill
would only require Federal agencies to ``consider'' this data
as the best available, not mandate it. Unfortunately, an honest
reading of H.R. 4317 in the context of the ESA does not support
such an argument. If we are to believe the Majority's stated
intent, we find it strange that they rejected our amendment to
explicitly require this data to be considered, rather than
automatically deemed to be the best, sight unseen.
By dictating what constitutes sound science based on its
source rather than its merit, this bill creates more problems
than it solves. The decision on whether or not any particular
study or data set has scientific merit with respect to an
individual species listing should be made in the context of on-
the-ground conservation work, not by politicians in Washington,
DC. For these reasons, we oppose H.R. 4317 as reported.
Peter DeFazio,
Ranking Member, Committee on
Natural Resources.
Raul M. Grijalva.
Jared Huffman.
Alan S. Lowenthal.
Katherine M. Clark.
Matt Cartwright.
Rush Holt.
Grace F. Napolitano.
Gregorio Kilili Camacho Sablan.
Eni F. H. Faleomavaega.
Pedro R. Pierluisi.